Gravity of the offence is the yardstick with which the remission granted to the persons who gang raped Bilkis Bano and killed her relatives, including her three-year-old daughter, must be judged.
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Rape is considered an impact crime. An impact crime is one which is committed not just against the person for who she is but also because of her community identity; in this case a community of women, a community of minorities. The crime impacts the community as a whole.
Impact crimes have always stood on a different footing compared to crimes motivated by disputes such as property disputes, commercial disputes or even straightforward murder. In assessing the gravity of the crime, these factors are taken into consideration while sentencing, and surely must be taken into consideration at the stage of remission.
On what yardstick is the remission granted to the persons who gang raped Bilkis Bano and killed her relatives, including her three-year-old daughter, to be judged? What is the context in which the crime occurred? Without an answer to this question, it will be difficult to arrive at any conclusion whether the grant of remission was justified or not.
Infirmities in Supreme Court’s judgment in May
On May 13 this year, a two-judge bench of the Supreme Court delivered a judgment that ignored the binding precedent by a five-judge Constitution bench of the Supreme Court in Union of India versus V. Sriharan @ Murugan & Ors. (2015), according to which the test to find the appropriate government permitted to grand remission under Sections 432 and 433 of the Criminal Procedure Code is to locate the state in which the accused was convicted and sentenced, and the government of that state would be the appropriate government. The division bench relied upon an irrelevant order of the Bombay High Court from 2013 dealing with the transfer of one of the convicts in the Bilkis Bano case from a jail in Maharashtra to a jail in Gujarat. Hence, the May 13 judgment holding that the Gujarat government was the appropriate government to consider the remission, is liable to be declared per incuriam.
Bilkis Bano‘s gang rape cannot be seen as an isolated crime by a group of individual criminals, but one committed as part of a coordinated strategy of an attack with intent to eliminate a minority community.
It is sad that today, the apologists of the remission are relying on the judgment of the Supreme Court passed on May 13 this year rather than the statutory law. The Supreme Court merely sent the matter to the government to decide on the application of remission. “To decide” implies a decision in accordance with the law. Before one gets lost in the legalese and the notorious loopholes which threaten to swallow the very law they proclaim, let us remember that this is above all a moral issue. An immoral decision cannot get the support of the law.
What is even more surprising is the fact that the petitioner in the Supreme Court matter had earlier approached the High Court of Gujarat, and the high court had correctly held that the appropriate government to grant remission was the Maharashtra government. When his petition was filed in the Supreme Court, the Gujarat High Court order, passed in 2019, remained unchallenged, yet it has been set aside by the Supreme Court through its judgment dated May 13.
Once again, to say the least, this is in complete violation of the principle laid down by a nine-judge Constitution bench of the Supreme Court in Naresh Shridhar Mirajkar & Ors. versus State Of Maharashtra & Anr. (1966), to the effect that a judicial order cannot be challenged under Article 32 of the Constitution.
What was the basis for allowing remission?
However, I wish to come back to my original question: what yardstick is the remission to be judged on? There is hardly any doubt about the fact that the gravity of the offence is a factor to be taken into consideration. But when one talks about the gravity of the offence, one is immediately reminded of the context in which the offence occurred, namely the context of crimes against humanity that occurred in 2002 in Gujarat.
An entire community was targeted with communal violence. No less than nine clusters of murders in nine different districts of Gujarat were investigated by a special investigative team set up by the Supreme Court, and many have been convicted of having committed mass murders. The rape of Bilkis Bano and the murders of her family members formed part of this coordinated response in the post-Godhra carnage in Gujarat. Hence, Bilkis Bano‘s gang rape cannot be seen as an isolated crime by a group of individual criminals, but one committed as part of a coordinated strategy of an attack with intent to eliminate a minority community.
Under any dispensation of law, remission is not an indefeasible right, but a matter for the State or the executive to decide from case to case. When the jail committee recommends the remission of the accused person in this case, who is stated to have undergone a sentence of 15 years and four months, what it is in effect doing is condoning a crime against humanity.
It is worth mentioning that sexual violence, when it occurs in this context, has been categorised as a crime against humanity by the Rome Statute of the International Criminal Court. Although India is not a party to the Rome statute, the statute draws on customary international law and humanitarian law to formulate crime and punishment. The remission, therefore, must be considered as the remission of mass murderers, who set out to eradicate a minority community. The gang rape of Bilkis Bano and the murder of her family members must be looked at from this perspective as to whether there is a case for remission, and the answer must be a loud and resounding No.
There is no common right to remission
Some have argued that all persons have a right to remission. This is, strictly speaking, not true. Under any dispensation of law, remission is not an indefeasible right, but a matter for the State or the executive to decide from case to case. When the jail committee recommends the remission of the accused person in this case, who is stated to have undergone a sentence of 15 years and four months, what it is in effect doing is condoning a crime against humanity. Whispers have been heard that after all they were Brahmins and well-behaved prisoners, and hence remission is required to be given since they were doing their duty by their religion. Such blatant defiance of the Indian Constitution, which guarantees the right to non-discrimination, based on religion, caste, and sex has not been seen in our country before and must be condemned.
On the question of length of incarceration, once again, the Rome statute provides guidance. It states in its Article 77 that a person convicted of crimes against humanity can be made to undergo a sentence of up to 30 years. Even considering that remission is possible, the question is why was it felt necessary to release them in 15 years and four months, rather than allowing them to complete at least 30 years.
After all, the crimes for which they were convicted were punishable with death, but they were given life imprisonment. The Supreme Court has held that life imprisonment means imprisonment for the remainder of one’s natural life. If an exception to this rule is made out, we must surely know the reasons for the same, especially when it is in relation to crimes against humanity, by the very State in which the crimes have occurred.
Not only does the release send out a signal – a dog whistle – that it is okay to kill and rape people of the minority community, it also has a devastating impact on Bilkis Bano herself, who has expressed the fear that her life and her family members’ lives are in danger.
The sooner the remission is challenged, the better for our commitment to the morality of democracy, which is the constitutional morality courts too are expected to follow.
Indira Jaising is a noted human rights lawyer and a senior advocate at the Supreme Court of India. She is also a co-founder of The Leaflet.