Explained: Gujarat's 1992 Remission Policy And Why Bilkis Bano Case Convicts Wouldn't Be Freed Under 2014 Policy

All of the 11 convicts in the Bilkis Bano case were released on Monday. 

They were convicted in 2008 by the Special Central Bureau of Investigation Court (CBI) Court for Bano's gang rape and the murder of seven of her family members during the 2002 Gujarat Riots. 

The convicts were released under the remission policy of the Gujarat government made in 1992. These convicts would not have been released if the Gujarat government would have gone by the remission policy currently in effect in the state, formulated in 2014. 

Here we explain what are these two remission policies, why Gujarat government followed the 1992 policy and not the one in effect since 2014, how the convicts secured their release, and why it's being questioned. 

What's Bilkis Bano case, how convicts secured release?

Bilkis Bano and her family were attacked on March 3 2002 during the Gujarat Riots. She was gangraped and seven of her family members were murderd.  

The Supreme Court ordered a CBI probe into the incident and arrests were made in 2004. In 2008, the Special CBI Court in Mumbai sentenced the 11 accused to life imprisonment on the charges of conspiring to rape a pregnant woman, murder and unlawful assembly under the Indian Penal Code. 

One of the convicts had approached the Supreme Court for the remission of his sentence. This plea led to the remission of the sentences of the 11 convicts. The apex court directed the Gujarat government to look into the issue of remission, following which the government formed a committee. Following the recommendation of the committee, the government decided to release the convicts.

Gujarat's 1992 and 2014 remission policies

The Gujarat government relased the 11 convicts on the basis of the 1992 remission policy, and not the policy adopted in 2014 which is effective today. 

The reasoning behind using the 1992 policy is that the Supreme Court had directed the Gujarat government to rely on the policy that was in effect at the time of their conviction in 2008, according to Gujarat's Additional Chief Secretary (Home) Raj Kumar.

He told PTI, "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."

Kumar also clarified that the convicts were not released under the Centre's remission guidelines as part of the Azadi Ka Amrit Mahotsav amnesty.

The 2014 policy mentions that rape-and-murder convicts cannot be released by the state government.

India Today cited Rishi Malhotra, who represented the convicts in the Supreme Court, as saying that the apex court, "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".

In this case, the 1992 policy is liberal towards the convicts.

Malhotra also said that the Supreme Court was faced with the question of using the remission policy in place at the time of the conviction (1992) or the policy in place at the time of the consideration of remission (the 2014 policy). Eventually, the apex court decided the state to use the policy at the time of the conviction. 

Further questions on the remission

It has also been reported whether the Gujarat government consulted the Union government before remitting the sentence of the convicts.

The Deccan Herald reported, "Questions have also been raised whether the Gujarat government consulted the Centre on remission as per Section 435 of the CrPC as the case was investigated by the CBI."

Section 435 of CrPC states that the "state government [has] to act after consultation with Central government in certain cases" pertaining to CrPC Section 433 (state's remission powers). These cases requiring Centre's consultations are those investigated by the CBI. Notably, it was a Special CBI court that sentenced these 11 convicts. 

Questions had also been raised that the release is in violation of the norms of the Azadi Ka Amrit Mahotsav amnesty. But those questions are invalid as the remission was not made under Azadi Mahotsav amnesty but under the 1992 Gujarat remission policy. 

The 1992 policy didn't clearly state eligibility criteria

The main difference between the 1992 and 2014 policies is that the former is not detailed whereas the latter is detailed in terms of who is eligible for the remission. Convicts in the Bilkis Bano case were not eligible under the 2014 policy for remission.

"That policy did not have any specific clarity as to who can be given remission and who can not. That policy was not that detailed in comparison to the 2014 policy," said Gujarat's Additional Chief Secretary (Home) Raj Kumar to PTI.

The 1992 policy did not distinctly categorise convicts eligible or not eligible for early release from prison, according to The New Indian Express.

The 2014 policy clearly states that the following classes of prisoners, among several others listed in the Annexure 1 of the 2014 notification stating the remission policy, are not eligible for remission:

1. Prisoners "investigated by the Delhi Special Police Establishment constituted under the Delhi Police Establishment Act, 1946" are not eligible. The Bilkis Bano case was probed by the CBI, constituted under the Delhi Police Establishment Act.
2. "Prisoner convicted for murder with rape or gang rape" are not eligible. The Bilkis Bano convicts were sentenced on murder and gang rape charges.