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Are rapists, murderers of Gujarat riots less criminal? Ex-civil servants ask Chief Justice

Counterview Desk 
As many as 134 former civil servants, belonging to the Constitutional Conduct Group (CCG), in an open letter, have sought the intervention of the Chief Justice of India for rescinding the order for freeing 11 convicts in the Bilkis Bano rape and murder case, stating, they are particularly puzzled by the manner in which the Apex Court asked the Gujarat government to urgently take a decision on a plea by one of the convicts for remission as per Gujarat’s 1992 policy, and not its current one.
The letter said: “Surely the Supreme Court could not be unaware of the major changes in the punishment for rape and murder and the policy for remission which were made much more severe in 2014 after the Nirbhaya case.”, wondering, “Can persons who committed rape and murder in 2002 be less liable than persons who rape and murder at the present time?”

Text:

We, a group of former members of the All India and Central Services who have come together as the Constitutional Conduct Group, have worked in different capacities with the State and Central governments. We have no affiliation with any political party and are, instead, committed to the values enshrined in the Constitution and the judicial process that is protected by it.
Like the overwhelming majority of people in our country, we are aghast at what happened in Gujarat a few days ago, on the 75th anniversary of India’s Independence. The premature release, by the Government of Gujarat, of 11 men convicted and jailed in the ghastly case of gang rape of the young and pregnant Bilkis Bano and two others and the murder of her family members in the riots that took place in Gujarat in 2002 has outraged the nation.
We write to you because we are deeply distressed by this decision of the Government of Gujarat and because we believe that it is only the Supreme Court which has the prime jurisdiction, and hence the responsibility, to rectify this horrendously wrong decision.
The story of Bilkis Bano is, as you know, a story of immense courage and persistence. A five-month pregnant, then 19-year-old Bilkis, fled, along with her family and others, their village in Dahod district on 28 February 2002, when around 60 Muslim homes were torched; they hid in the fields outside Chhapparwad village where armed men attacked them. 
Bilkis, her mother and three other women were raped and her three-year old daughter’s head was smashed. Later eight persons were found dead and six were missing. Bilkis, naked and unconscious, an old man, and a three-year-old survived; her own daughter did not. It is a remarkable story of courage that this battered and bruised young woman, hiding from her tormentors, managed to seek justice from the courts.
So influential were the persons accused of this ghastly crime and so politically fraught was the issue that not only had the case to be investigated by the Central Bureau of Investigation (CBI) instead of by the Gujarat police, but it also had to be transferred from Gujarat to a special CBI court in Mumbai, to ensure a fair trial, because of the death threats received by Bilkis Bano. In January 2008, the special CBI court in Mumbai sentenced 11 accused to life imprisonment on the charge of gang rape and murder of seven members of Bilkis Bano's family.
The case was a rare one because not only were the rapists and murderers punished, but so, too, were the policemen and doctors who tried to tamper with and erase the evidence to protect the accused and cover up the crime.
After serving 15 years in jail, one of the accused, Radheshyam Shah, approached the Supreme Court with a plea for his premature release. The Gujarat High Court which had earlier been approached for this purpose had dismissed his plea while observing that the "appropriate government" to decide the case was that of Maharashtra and not Gujarat. Shah then filed a plea in the Supreme Court.
On 13 May 2022, the Supreme Court passed an order in Radheshyam Bhagwandas Shah @ Lala Vakil vs State of Gujarat that, since the crime was committed in Gujarat, the state of Gujarat was the appropriate government to examine Shah's application.
Surely, going by the past history of the case and the collusion of the state officials with the perpetrators of the crime that was apparent, this case should have been dealt with differently! We have learnt that there is a judicial precedent in the Constitution Bench judgement of 2 December 2015 (Union of India vs V Sriharan alias Murugan), which holds that the appropriate government to decide the issue shall be the state government where the conviction took place, which in this case would be the state of Maharashtra.
We consider it unfortunate that the Constitution Bench precedent laid down in V Sriharan’s case was not followed in the Radheshyam Shah judgement of 13 May 2022.
The Supreme Court, on Radheshyam Shah’s plea, also directed that the application for premature release be considered by the Gujarat government within two months, and in terms of its policy dated 9 July 1992. We are puzzled about why the Supreme Court saw the matter as so urgent that a decision had to be taken within two months, as also by the Supreme Court ordering that the case should be examined as per Gujarat’s 1992 remission policy and not its current one.
While it may be the practice, as held by the Supreme Court in its judgment of 22 March 2010 in State of Haryana & Ors vs Jagdish, to examine a remission proposal on the basis of the policy existing at the time of conviction, surely the Supreme Court could not be unaware of the major changes in the punishment for rape and murder and the policy for remission which were made much more severe in 2014 after the Nirbhaya case? Can persons who committed rape and murder in 2002 be less liable than persons who rape and murder at the present time?
The Gujarat government duly considered the application for remission on the basis of their remission policy of 1992 and not only cut short the sentence of Radheshyam Shah who had filed the petition, and set him free, but also 10 other persons who had been convicted of the same crime and sentenced with Radheshyam Shah.
It is our view that in doing so the Gujarat government committed several errors:
  1. According to Section 435 of the Code of Criminal Procedure (CrPC), where a case has been investigated by the CBI, clearance of the Union Government has to be taken before giving remission in sentence. We are unaware whether such permission was taken, but it does not seem that it was;
  2. According to Section 432(2) of the CrPC , the opinion of the presiding Judge of the court that passed the order of conviction has to be taken before granting such remission. The Government of India, while writing to the State governments in February 2013, quoted the Supreme Court order which inter alia stated “Before actually exercising the power of remission under Section 432 of the CrPC the appropriate Government must obtain the opinion (with reasons) of the presiding judge of the convicting or confirming Court. Remission can, therefore, be given only on a case-by-case basis and not in a wholesale manner” It appears that the view of the presiding judge of the CBI court was not taken;
  3. In a case like this where the victim, her family and witnesses braved death threats and threats of physical harm in fighting the case and shifted residence repeatedly for safety, it was obligatory for the Gujarat government to ascertain how such a release would impact their lives. This was not done even though the victim and her supporters have often stated that they were threatened with violence by the convicts (who were liberally granted parole while in jail) as well as by the families and friends of the convicts. Bilkis has reportedly changed homes some 20 times over these years, because of threats to her life. With the celebrated release of the convicts from jail, the trauma, suffering and vulnerability to harm for Bilkis will be significantly heightened;
  4. It is also shocking that five out of ten members of the Advisory Committee, which sanctioned the early release, belong to the Bharatiya Janata Party, while the remaining are ex-officio members. This raises the important question of the impartiality and independence of the decision, and vitiates both the process and its outcome.
In view of these glaring deviations from established law, departure from government policy and propriety, and the chilling impact that this release will have, not just on Bilkis Bano and her family and supporters, but also on the safety of all women in India, especially those who belong to minority and vulnerable communities, we urge you to rescind the order of remission passed by the Gujarat government and send the 11 persons convicted of gang rape and murder back to jail to serve out their life sentence.
Satyameva Jayate
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