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.<\/em><\/p>\n 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.<\/em><\/p>\n \u2014\u2013<\/p>\n IN<\/strong>\u00a0the midst of the\u00a0Gujarat pogrom in 2002<\/a>, 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 \u2013 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.<\/p>\n Recovering from the physical and emotional trauma of this incident, Bano started\u00a0criminal proceedings<\/a>\u00a0against 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.<\/p>\n Of the\u00a0men accused<\/a>\u00a0in 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\u00a0convicts were known to Bilkis Bano<\/a>, and had purchased milk from her family.<\/p>\n 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.<\/em><\/strong><\/p>\n<\/blockquote>\n It took the justice system\u00a0six years<\/a>\u00a0to 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\u00a0awarded<\/a>\u00a0Bano compensation, the first of its kind awarded to a victim of the 2002 riots.<\/p>\n 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\u00a01992 Gujarat Remission Policy<\/a>. The state government\u00a0formed<\/a>\u00a0a committee and took a\u00a0\u201cunanimous decision in favour of remission of all the 11 convicts in the case.\u201d<\/em>\u00a0All 11 men, who were convicted in 2008, were released on August 15, when India celebrated its 75th\u00a0year of independence.<\/p>\n Also read:<\/strong>\u00a0The trials of Indian Muslim women: A never-ending quest for justice<\/strong><\/a><\/p>\n Bano and her husband Yakub Rasool understandably wished to be left alone, feeling numb after the news reached them. Rasool told the\u00a0Indian Express<\/em><\/a>,\u00a0\u201cWe had never even heard of the word \u2018remission\u2019. We didn\u2019t even know that such a process exists\u201d<\/em>.<\/p>\n What exactly is the process to avail remission?<\/p>\n Remission<\/a>, in criminal law, is a cancellation of a part of a prison sentence. There are two ways in which remission can be granted \u2013 they are either constitutional or statutory. Under constitutional powers of remission, either the President of India (under\u00a0Article 72<\/a>\u00a0of the Constitution) or the Governor of a state (under\u00a0Article 161<\/a>) can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence of any person.<\/p>\n Under statutory provisions, the Code of Criminal Procedure (\u2018CrPC\u2019) comes into play.\u00a0Sections 432-435<\/a>\u00a0deal with the power to suspend, remit or commute a sentence.\u00a0Section 433A<\/a>\u00a0states that\u00a0\u201cwhere 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.\u201d<\/em>\u00a0It was this provision which allowed for the convicts to apply for remission in the current case.<\/p>\n 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<\/a>) can approve remission. It is unclear, however, if the state government consulted the Union Government in this matter of remission.<\/p>\n In the Bilkis Bano case, a Supreme Court division bench of Justices Ajay Rastogi and Vikram Nath\u00a0ordered<\/a>\u00a0the state of Gujarat to decide upon this matter upon Shah\u2019s plea. The state of Gujarat had formulated a policy of remission in 1992. This policy was invalidated in 2014 in light of the\u00a0Nirbhaya rape case<\/a>. A new\u00a02014 policy<\/a>\u00a0replaced 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.<\/p>\n The Supreme Court relied on its judgment in\u00a0State of Haryana & Ors. versus Jagdish\u00a0<\/em>(2010)<\/a>, 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.<\/p>\n If cases of rape are treated with such seriousness and the accused convicted, then Bilkis Bano\u2019s case \u2013 that of gang-rape combined with murder \u2013 should be treated with even more severity.<\/em><\/strong><\/p>\n<\/blockquote>\n 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\u00a0released, feted and garlanded outside the Godhra sub-jail<\/a>.<\/p>\n Also read:<\/strong>\u00a0Outrage over the premature release of Bilkis Bano convicts<\/strong><\/a><\/p>\n The order of remission in the Bilkis Bano case is mired in doubt for multiple reasons.<\/p>\n Firstly<\/em>, remission proceedings can only be initiated based on an application of the persons convicted, as provided under\u00a0Section 432(2)<\/a>\u00a0of the CrPC, as held by a Constitution bench of the Supreme Court in\u00a0Union of India versus V. Sriharan @ Murugan & Ors.\u00a0<\/em>(2016)<\/a>. Additionally, the Supreme Court, in\u00a0Sangeet & Anr. versus State of Haryana\u00a0<\/em>(2012)<\/a>\u00a0had held that the remission power couldn\u2019t be exercised by the government\u00a0suo motu\u00a0<\/em>for it would\u00a0\u201c[eliminate] \u201cdiscretionary\u201d or en masse release of convicts on \u201cfestive\u201d occasions since each release requires a case-by-case basis scrutiny\u201d<\/em>.<\/p>\n 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\u2019s Independence Day.<\/p>\n Secondly<\/em>, 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 \u2013 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.<\/p>\n India does not have the cleanest track record when it comes to sexual crimes against women. National Crime Records Bureau data for 2019\u00a0showed<\/a>\u00a0that 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\u00a02020<\/a>, 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\u2019s case \u2013 that of gang-rape combined with murder \u2013 should be treated with even more severity.<\/p>\n Instead of cogent reasoning for their release, the offenders\u2019 caste and\u00a0<\/em><\/strong>sanskaar<\/strong>\u00a0seem 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.<\/em><\/strong><\/p>\n<\/blockquote>\n Thirdly<\/em>, remission is a power to be exercised with\u00a0discretion and wisdom<\/a>. It should also be considered as a\u00a0question of reformation<\/a>. In the context of a\u00a0reformative criminal justice system<\/a>\u00a0in 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\u00a0Laxman Naskar versus Union of India\u00a0<\/em>(2000)<\/a>, came up with several questions to help in this inquiry:<\/p>\n 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\u00a0claim<\/a>\u00a0that they were \u201cvictims of politics\u201d, and asserted their \u201cinnocence\u201d. Despite such claims by the convicts, no clear reasoning to override this was provided.<\/p>\n Fourthly<\/em>, as held in\u00a0V. Sriharan @ Murugan<\/em>, 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 \u201cnegative opinion<\/a>\u201d on the remission plea. The Supreme Court has, in\u00a0Ram Chander versus State of Chattisgarh\u00a0<\/em>(2022)<\/a>,\u00a0reiterated 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.\u00a0<\/p>\n Also read:<\/strong>\u00a0Gujarat government\u2019s decision to remit sentences of convicts in Bilkis Bano case flies in the face of\u00a0 legal precedents<\/strong><\/a><\/p>\n It is reasonable to expect cogent reasoning by the Jail Advisory Committee (\u2018JAC\u2019) before remitting the 11 convicts. This includes reasons on why\u00a0suo motu<\/em>\u00a0and 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.<\/p>\n Bharatiya Janta Party (\u2018BJP\u2019) legislator C.K. Raulji, who was part of the panel that recommended the release,\u00a0stated<\/a>,\u00a0\u201cI don\u2019t know whether they committed the crime or not\u2026Their conduct in jail was good, they were Brahmins\u2026men with good sanskaar [values].\u201d<\/em>\u00a0This shows the inherent discrimination at play in the criminal justice system.<\/p>\n In 2021,\u00a065.9 per cent<\/a>\u00a0of the prison inmates in India belonged to Scheduled Castes, Scheduled Tribes and Other Backward Classes.\u00a0Religion and caste-wise analysis<\/a>\u00a0shows 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.<\/p>\n 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. Raulji\u2019s comments (<\/em><\/strong>I don\u2019t know whether they committed the crime or not\u2026<\/strong>) cast doubts over two decades of judicial inquiry and decision-making.<\/em><\/strong><\/p>\n<\/blockquote>\n The Gujarat government had\u00a0rejected the remission plea<\/a>\u00a0of convicts in the Radhika Gymkhana killing case, and in former Indian National Congress Parliamentarian Raoof Valiullah\u2019s 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.<\/p>\n 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 \u201csocial workers\u201d: Pavan Soni (BJP state executive member), Sardarsinh Baria Patel (BJP Godhra taluka unit member) and Vinitaben Lele (vice-president of the BJP women\u2019s 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.<\/p>\n A recent\u00a0Op-Ed in\u00a0Times of India<\/em><\/a>\u00a0stated,\u00a0\u201cRemission 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.\u201d<\/em>\u00a0Here, 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\u2019 caste and\u00a0sanskaar<\/em>\u00a0seem 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.<\/p>\n\u201cHow can justice for any woman end like this?\u201d<\/strong><\/h4>\n
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\u201cThe battle we fought for so many years has been wrapped up in one moment.\u201d<\/strong><\/h4>\n
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\u201cRemission should always be about the offender, not the offence.\u201d<\/strong><\/h4>\n
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Arbitrary decision-making<\/strong><\/h4>\n
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