SC questions Gujarat on’selective’ use of policy for early release of Bilkis Bano prisoners

The Supreme Court ruled on Thursday that all prisoners, not just a select few, must be given the chance to change their ways. It also questioned Gujarat about whether its policy of pardons was applied selectively and why the Mumbai court that found 11 people guilty in the 2002 gang rape of Bilkis Bano was not consulted before the men were released from prison last year.

The 11 prisoners were released in August of last year despite being found guilty of gang rapes and killings committed during the Gujarat riots in 2002, according to a petition filed by the victim Bano and a number of public interest litigations (PILs) that were being heard in court. Because the most recent regulations were not in effect when the men were found guilty in January 2008, they were not eligible for remission under a 2014 policy and instead were taken into consideration under a more lenient 1992 policy.

Gujarat’s attorney, Additional Solicitor General (ASG) SV Raju, claimed that the men should be given the opportunity to change their ways since receiving a harsh sentence shouldn’t prevent someone from requesting remission. However, the court didn’t seem impressed.

The panel, which was made up of justices BV Nagarathna and Ujjal Bhuyan, questioned “why, then, is the policy of remission applied selectively?”

“Why are our prisons so full?… Every prisoner, not just a select few, must be given the chance to change and reintegrate. But how far along is the remission program after the 14-year sentence has been served? Is it used in every situation? The bench was an addition.

Raju argued before the supreme court that the state was required to abide by a ruling made on May 13 in a case brought by one of the inmates, Radheshyam Bhagwandas Shah, which ordered the state to rule on the prisoners’ requests for remission under the 1992 policy within two months.

He explained to the jury that, in accordance with Section 432 of the Code of Criminal Procedure, the state formed a jail advisory committee on June 3 to consider the views of the local police, the jail superintendent, and the trial court judge before recommending the release of the inmates on August 10 of the previous year.

But the bench said that the Godhra court was not the one that found the defendant guilty.

“The case had already been transferred to Maharashtra when this court issued the decision on May 13. Why was it necessary to get a second opinion from the Godhra sessions court? a bench questioned. The top court was referring to an earlier remission request submitted by Shah in August 2019 that was later sent from Gujarat to Maharashtra by the Mumbai court that found all 11 defendants guilty in 2019. Mumbai rejected Shah’s remission request.

Defending the Gujarat court was Raju. “Whether X or Y is the judge, it barely matters. The judge who found them guilty had stepped down. The fact that the crime occurred in Gujarat yet the trial was moved by the highest court to Mumbai is a unique circumstance that has emerged. The Maharashtra sessions judge will not have an opinion on how someone is doing in Gujarat. The most knowledgeable individual regarding all of these people needed to be in Gujarat.

Following the riots in 2002, the supreme court moved the Bilkis Bano case trial to Maharashtra in 2003.

It will never happen that the judge who sentenced someone to death will be accessible. A judge is moved every three years. It will be the judge’s retirement in this case after 14 years. The court’s sitting judge must provide the statutory opinion required by Section 432(2) CrPC, not the case, the bench said.

In its comments on state remission policies, the bench said that the issue was whether or not the policy of early release was being applied consistently in all instances with regard to all of the inmates who had served a total of 14 years in prison and were qualified for it.

However, there are situations like Rudul Shah. He was cleared of all charges, yet he remained behind bars. Extreme situations, on both sides, the bench said.

Despite being cleared by a sessions court on June 3, 1968, Rudul Shah remained imprisoned for a long time after being charged with the death of his wife in 1953. In 1982, he was ultimately freed.

In case the May 13 ruling wasn’t followed, the court requested the state to specify which remission policy will be used to the 11 prisoners. Raju said that the 1992 policy — in this instance, the policy in effect at the time of the conviction — would be relevant.

Raju said that as of today, the May 13 ruling had not been overturned and that none of the petitioners have criticized the 1992 policy.

The bench reminded the state that it was important to remember the case’s history. Because of a flawed investigation, this judge transferred the matter to a separate court and requested that the CBI look into it.

Gujarat maintained that the CBI was not the appropriate body to be considered when it came to remission. “If the CBI conducts an investigation into a crime in Godhra while based in Navi Mumbai, it would be completely unaware of the actual situation about any threats made against witnesses. The local superintendent of police would be the best person to provide this view given the unusual circumstances of this case, Raju added.

Remission, according to the ASG, is intended to help a prisoner change, as opposed to sentence, which aims to punish. Furthermore, he said, the courts did not impose the death sentence on these defendants, indicating that they did not see the crime as the “rarest of rare”. According to Raju, the inmates were not prohibited from asking for forgiveness after serving a certain amount of time.

In response, the court said, “Here the highest sentence has been awarded after the death penalty, that of life sentence.”

Raju answered by inquiring as to whether the sentence for a horrible conduct prevented a person from requesting forgiveness. Should the past hang over your head all the time? The legislation does not specify that a person must serve their sentence indefinitely. He needs a chance to change, the man added.

The bench responded by questioning if the remission policy was being implemented selectively in light of the overcrowding in prisons and the prolonged incarceration of lifers and those awaiting trial for more than 14 years. According to the ASG, state-level data on remission are necessary to respond to the court’s inquiry, and other circumstances also contributed to congestion.

The case was postponed until August 24 by the supreme court.

When Bano, then 21 and five months pregnant, was gangraped while trying to escape the carnage during the riots in 2002, seven people were murdered, including her three-year-old daughter.

The 11 men found guilty of the crimes were freed on August 15, 2022, when Radheshyam Bhagwandas Shah petitioned the Supreme Court for remission in April 2022, claiming that he had already served more than 15 years in jail. By ruling issued in May 2022, a bench presided over by the now-retired judge Ajay Rastogi instructed the Gujarat government to take into account the inmates’ request for early release in line with the 1992 policy.

In August 2022, a number of petitions were submitted to the Supreme Court by individuals including former CPI member MP Subhashini Ali and Trinamool Congress MP Mahua Moitra as a result of the public outcry their release caused. Later, in November 2022, Bano filed a petition with the Supreme Court protesting the Gujarat government’s decision to let the 11 inmates leave prison free.