Portrait of a modern Indian Muslim woman: Bilkis Bano and the criminal justice system

This is the first of a four-part series on the interaction between Indian Muslim women and the law in India in the recent past. Collectively, they seek to examine issues of criminal law, employment, labour practices, and educational opportunities, and ask if Muslim women have an equal status under the law.

This part tries to capture the inequalities in the criminal justice system, particularly from the lens of the release of the convicts in the Bilkis Bano case.

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"How can justice for any woman end like this?"

IN the midst of the Gujarat pogrom in 2002, several incidents of violence occurred. One of the most violent instances of the time was the gang-rape of Bilkis Bano and the murder of her family. On March 3, 2002, five-month pregnant Bano, on the run along with her family, was stopped by a mob of men. The communal violence ended with heinous crimes – Bano was gang-raped and left for dead, her three-and-a-half-year-old daughter was murdered by bashing her head open on a rock, and seven of her family members were murdered.

Recovering from the physical and emotional trauma of this incident, Bano started criminal proceedings against her rapists. It was only two years later, in 2004 that the accused were arrested. Due to the risk of witnesses being harmed and evidence being tampered, the Supreme Court transferred the case to Mumbai in August 2004.

Of the men accused in the Bilkis Bano case, 11 were sentenced to life imprisonment by a special court on charges of conspiring to rape a pregnant woman, murder and unlawful assembly under the Indian Penal Code. The convicts are Jaswantbhai Nai, Govindbhai Nai, Shailesh Bhatt, Radhesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana. Most of the convicts were known to Bilkis Bano, and had purchased milk from her family.

It took the justice system six years to convict the accused in 2008. In 2017, after almost a decade, the Bombay High Court, not only upheld the convictions of the 11 accused, but also convicted some of the people in power such as policemen and doctors for not performing their duties and tampering with evidence. In 2019, the Supreme Court also awarded Bano compensation, the first of its kind awarded to a victim of the 2002 riots.

This conviction, which took over a decade to come to fruition, was short-lived. In April this year, Shah, one of the convicts, filed a plea in the Supreme Court that he was in jail for 15 years and four months without remission. The Supreme Court directed the Gujarat government to consider the issue of remission for his sentence under the 1992 Gujarat Remission Policy. The state government formed a committee and took a "unanimous decision in favour of remission of all the 11 convicts in the case." All 11 men, who were convicted in 2008, were released on August 15, when India celebrated its 75th year of independence.

Also read: The trials of Indian Muslim women: A never-ending quest for justice

"The battle we fought for so many years has been wrapped up in one moment."

Bano and her husband Yakub Rasool understandably wished to be left alone, feeling numb after the news reached them. Rasool told the Indian Express, "We had never even heard of the word 'remission'. We didn't even know that such a process exists".

What exactly is the process to avail remission?

Remission, in criminal law, is a cancellation of a part of a prison sentence. There are two ways in which remission can be granted – they are either constitutional or statutory. Under constitutional powers of remission, either the President of India (under Article 72 of the Constitution) or the Governor of a state (under Article 161) can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence of any person.

Under statutory provisions, the Code of Criminal Procedure ('CrPC') comes into play. Sections 432-435 deal with the power to suspend, remit or commute a sentence. Section 433A states that "where a sentence of imprisonment for life is imposed on conviction of a person for an offence for which death is one of the punishments provided by law, or where a sentence of death imposed on a person has been commuted under section 433 into one of imprisonment for life, such person shall not be released from prison unless he had served at least fourteen years of imprisonment." It was this provision which allowed for the convicts to apply for remission in the current case.

Under the CrPC, the decision of remission is carried out by the executive, and not the judiciary. Thus, the state government, in some instances in consultation with the Union Government (Section 435) can approve remission. It is unclear, however, if the state government consulted the Union Government in this matter of remission.

In the Bilkis Bano case, a Supreme Court division bench of Justices Ajay Rastogi and Vikram Nath ordered the state of Gujarat to decide upon this matter upon Shah's plea. The state of Gujarat had formulated a policy of remission in 1992. This policy was invalidated in 2014 in light of the Nirbhaya rape case. A new 2014 policy replaced the 1992 policy. It contained clear provisions that remission could not be granted, in cases where the prisoners were convicted for a crime investigated by the Central Bureau of Investigation, and where prisoners were convicted for murder with rape or gang rape. The 1992 policy contained vague terms regarding eligibility criteria. Under the 2014 policy, the convicts in Bilkis Bano case would not be eligible for remission.

The Supreme Court relied on its judgment in State of Haryana & Ors. versus Jagdish (2010), in which it held that an application for grant of premature release will have to be considered on the basis of the policy which stood on the date of conviction, which in this case was the 1992 policy.

Accordingly, the earlier policy was applied, not just to Shah (who was the sole person mentioned in the writ petition), but to all the convicts. On August 15, all of them were released, feted and garlanded outside the Godhra sub-jail.

Also read: Outrage over the premature release of Bilkis Bano convicts

"Remission should always be about the offender, not the offence."

The order of remission in the Bilkis Bano case is mired in doubt for multiple reasons.

Firstly, remission proceedings can only be initiated based on an application of the persons convicted, as provided under Section 432(2) of the CrPC, as held by a Constitution bench of the Supreme Court in Union of India versus V. Sriharan @ Murugan & Ors. (2016). Additionally, the Supreme Court, in Sangeet & Anr. versus State of Haryana (2012) had held that the remission power couldn't be exercised by the government suo motu for it would "[eliminate] "discretionary" or en masse release of convicts on "festive" occasions since each release requires a case-by-case basis scrutiny".

In the present matter, the convict Shah applied for remission and the Supreme Court bench referred his matter to the Gujarat state government. However, the remission decision was taken for all 11 convicts, and everybody was set free, on India's Independence Day.

Secondly, any remission policy should not be applied in a mindless manner. It should be in accordance with the vision and objective of remission policies. The offence committed here is a heinous crime – the convicts were sentenced for the offences of gang-rape of a 5-month pregnant woman, the murder of her three-year-old daughter, and rape and murder of her mother and sister.

India does not have the cleanest track record when it comes to sexual crimes against women. National Crime Records Bureau data for 2019 showed that 88 rapes take place every day in India. Despite the high rate of occurrence of these crimes, the conviction was low at 27.8 per cent. In 2020, the Union Home Ministry showed that the conviction rate in rape cases had increased to 39.3 per cent. This was due to the attention and importance given to the grave and continuous occurrences of crimes against women in India. Fast-track special courts were set up to prosecute rape cases. This action shows the knowledge of the Union and state governments with regard to the gravity in cases concerning sexual offences. If cases of rape are treated with such seriousness and the accused convicted, then Bilkis Bano's case – that of gang-rape combined with murder – should be treated with even more severity.

Thirdly, remission is a power to be exercised with discretion and wisdom. It should also be considered as a question of reformation. In the context of a reformative criminal justice system in India, remission is seen as a necessary step to reform criminals. Thus, before granting remission, one should deliberate upon whether the person has reformed in prison and is ready to be reintegrated into society. The Supreme Court, in Laxman Naskar versus Union of India (2000), came up with several questions to help in this inquiry:

1.   "Whether the offence is an individual act of crime without affecting the society at large;
2.  Whether there is any chance of future recurrence of committing crime;
3. Whether the convict has lost his potentiality in committing crime;
4. Whether there is any fruitful purpose of confining this convict anymore;
5. Socio-economic condition of the convicts family."

There is no remission order in the public domain that answers any of these questions. In addition, the reason for remission should contain the assessment of the person, the remorse they have, and the acknowledgment that what they did was wrong. This is necessary to answer questions (ii) and (iii). In this case, the offenders claim that they were "victims of politics", and asserted their "innocence". Despite such claims by the convicts, no clear reasoning to override this was provided.

Fourthly, as held in V. Sriharan @ Murugan, the ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Officer of the concerned court. The trial court in Mumbai, which initially sentenced the 11 convicts, gave a "negative opinion" on the remission plea. The Supreme Court has, in Ram Chander versus State of Chattisgarh (2022), reiterated that this is a procedural safeguard to check arbitrary remissions. Despite this procedural safeguard in place, the discretionary power for remission has allowed subjective application of this power. 

Also read: Gujarat government's decision to remit sentences of convicts in Bilkis Bano case flies in the face of  legal precedents

Arbitrary decision-making

It is reasonable to expect cogent reasoning by the Jail Advisory Committee ('JAC') before remitting the 11 convicts. This includes reasons on why suo motu and en masse remissions were made, and what the considerations in making this decision were. No clear reasoning or statement was given by the committee as a whole.

Bharatiya Janta Party ('BJP') legislator C.K. Raulji, who was part of the panel that recommended the release, stated, "I don't know whether they committed the crime or not…Their conduct in jail was good, they were Brahmins…men with good sanskaar [values]." This shows the inherent discrimination at play in the criminal justice system.

In 2021, 65.9 per cent of the prison inmates in India belonged to Scheduled Castes, Scheduled Tribes and Other Backward Classes. Religion and caste-wise analysis shows the disproportionate representation of Muslims, Sikhs as well as Dalits and Adivasis in prison in relation to their share in the population. There are caste and religion-based biases that play a big role in criminal cases.

The Gujarat government had rejected the remission plea of convicts in the Radhika Gymkhana killing case, and in former Indian National Congress Parliamentarian Raoof Valiullah's murder case. In both the cases, the Gujarat High Court directed the state to reconsider their cases. However, both convicts continue to be in jail. While such strict measures are seen in cases of murder on one hand, the sentence in a heinous crime of gang rape and murder is remitted on the other, without proper justification given. Moreover, the caste factor (all convicts were Brahmins) and value systems were given weightage over criminal justice considerations.

The identity of the victims and the persons creating the systems in power, both matter in analysing if all the stakeholders are on an equal footing. The JAC was headed by Indian Administrative Service officer Sujal Mayatra, the district magistrate of Panchmahal, and consisted of nine other members. The other members include two BJP legislators representing the neighbouring Kalol constituency; and three "social workers": Pavan Soni (BJP state executive member), Sardarsinh Baria Patel (BJP Godhra taluka unit member) and Vinitaben Lele (vice-president of the BJP women's unit in Godhra). The remaining four members were the police superintendent of Panchmahal district, the jail superintendent of Godhra jail, the district social welfare officer, and the sessions judge of Godhra court.

A recent Op-Ed in Times of India stated, "Remission should always be about the offender, not the offence. A convict, no matter how heinous the crime, should have a prospect of release without which the whole idea of reformative justice becomes illusory. We cannot argue for the abolition of death penalty and yet be fine with prisoners dying in prison with no prospect of release." Here, we see unequal considerations in differing magnitudes. The reason for this act of remission has unequivocally been about the offender. However, instead of cogent reasoning for their release, the offenders' caste and sanskaar seem to have been considered, rather than any reformative behaviour. On the other hand, convicts in lesser crimes have their remission plea rejected, and prisoners with identities other than dominant caste and religion still languish in jail and are refused release on a daily basis.

Also read: The outrage over denial of bail to Teesta Setalvad and grant of remission to Bilkis Bano convicts shows it is not easy to erase recent history

Procedural safeguard defeated

In the current case, the convicts were sentenced by a special court in 2008. This sentence was upheld by the Bombay High Court in 2017. In 2019, the Supreme Court awarded compensation to the victim. This shows at least three instances where the judiciary of the land has considered the case and decided the conviction. Additionally, the Mumbai trial court that sentenced them to life imprisonment for rape and murder gave a "negative opinion" on the remission plea. Despite this, the JAC freed all 11 convicts.

Raulji's comments (I don't know whether they committed the crime or not…) casts doubt over two decades of judicial inquiry and decision-making.

Although courts have limited power with regard to remission, the Supreme Court does allow reviewing the decision of the government to determine whether it was arbitrary. In Ram Chander, the court reiterated that the power of remission cannot be exercised arbitrarily. Where the exercise of power by the executive is found to be arbitrary, the authorities may be directed to consider the case of the convict afresh.

A last hope can be placed on the Supreme Court to review the order of remission and ensure that a correct decision is taken with regard to the convicts of an enormous crime, one where women were raped and multiple victims, including small children, were killed.