Clearing the clouds over the confusions on whether the Centre had approved the premature release of the 11 convicts in Bilkis Bano case, the Gujarat Government yesterday told the Supreme Court that they had the prior approval from the Union Home Ministry. The convicts accused of brutal gangrape of Bilkis Bano and killing of her family members during the 2002 post-Godhra pogroms walked free on this independence day inviting severe criticism from different quarters.
The releases though were made as per Gujarat’s 1992 remission policy, the state didn’t make it clear whether he had received prior approval from the Union Home Ministry. Notably, the present laws in both the state and the centre bar the releases of those who are convicted of rape or have been given life imprisonment.
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As per the reports of NDTV, the Gujrat Government in its affidavit to the top court said that the Union Home Ministry had approved the premature release through a letter dated 11th July, 2022. The letter accessed by NDTV says that it gives “concurrence/approval of the Central government under section 435 of CrPc for the premature release...”
Earlier one of the petitioners maintained that as the case was investigated by CBI, to release them without consulting the centre would amount to the violation of section 435 of Code of Criminal Procedure, 1973.
The Case Against Remission
Immediately after the release of the 11 convicts, several petitions were filed in the top court challenging the order. The SC is currently hearing the petitions filed by CPI (M) Polit Bureau member Subhashini Ali, TMC MP Mahua Mitra and one other person.
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On August 25, the SC sought responses from the Gujarat government regarding the challenge to the remission. It also asked the petitioners to implead the 11 convicts who have been granted remission, as parties in the matter.
However, following the petition, one of the now-released convicts Radhey Sham questioned the locus standi of the petitioner and noted that these petitioner were ‘complete strangers’ to the proceedings of the case.
The convict termed the petitioners as ‘political activists’ or ‘third party stranger’ and said “if such petitions are entertained by the court, it would be an open invitation for any member of the public to jump in any criminal matter before any court of law”.
Why did the Gujarat Government follow 1992 remission policy?
The 11 convicts in the Bilkis Bano case were convicted by a Special CBI court in 2008. So, when the convicts knocked the doors of the SC seeking remission, the top court asked the state government to consider it on the basis of remission policy that was prevalent during their conviction.
Had the new remission policy of 2014 been used, the convicts would have not been considered for release. While speaking to PTI, Gujarat's Additional Chief Secretary (Home) Raj Kumar said, “These 11 persons were convicted by a special court in Mumbai in 2008. At the time of conviction, Gujarat was following a remission policy which came into effect in 1992. When the matter reached the Supreme Court, it directed us to decide about the release under the 1992 policy, because that was prevalent when conviction came in 2008.”
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Notably, Rishi Malhotra who represented the convicts in the court when contacted by India Today said that the SC, “in some cases, has also taken the view that if there are two policies which can be applicable, it is the policy which adopts a liberal stance towards the accused that should be implemented.” The 1992 remission policy was technically much liberal to the convicts.
However, as it has become clear that the Union Home Ministry gave prior approval to the release, the political analysts said that the BJP has to reshuffle the cards, as a few voices from within have already criticised the move by the Gujarat government absolving the centre from any responsibilities.
