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Mainstream, VOL LX No 36 New Delhi, August 27, 2022

Can we expect the apex court to revise its remission decree of May? | Faraz Ahmad

Friday 26 August 2022, by Faraz Ahmad

As new skeletons tumble out of the cupboard of the ruling Bharatiya Janata Party (BJP) every day, it is becoming evident that the 14 years of incarceration the 11 convicts of the Bilkis Bano gangrape along with her mother and two sisters, and barbaric murder of her three-year-old daughter before her eyes in Gujarat’s Dahod district on March 2/3, 2002 and 14 others members of her family, was an eyewash with prime accused enjoying frequent furloughs and paroles during this supposed imprisonment, soon after they were shifted back from Maharashtra to a Gujarat jail.

Insofar as that, the complicity of the state of Gujarat did not end with protecting the accused from a fair trial and thus stonewalling every brave effort of Bilkis to seek justice, but even after the Supreme Court shifted the trial to neighbouring state of Maharashtra at the intervention of the Human Rights Commission (HRC), and thus ensured conviction of 11 of the 14 accused, these life convicts were treated with indulgence and empathy by the state of Gujarat. Something Bilkis, the victim of that heinous crime desperately needed was reserved for the life convicts, because as Gujarat minister Raulji explained some of these convicts happened to be Brahmins.

The attempt of the Gujarat government then led by Narendra Modi as the chief minister of the state from 2002, to put obstacles in the path of Bilkis quest for justice, when the crime was committed, to 2008, when the Supreme Court expressing lack of confidence in the Gujarat police investigations and trial, and ordered fresh investigations by the CBI and a fresh trial in a special court in Maharashtra which then awarded life imprisonment to all the accused, is recorded in juridical history and need not be repeated here. The Supreme Court also awarded Bilkis the highest compensation of Rs 50 lakh in such cases, acknowledging her extraordinary trauma. It was meant to be an exemplary punishment to the perpetrators of such a barbaric act, not some run of the mill crime of passion where the courts note the circumstances in which the crime is committed and the state too realising full well the circumstances, may treat the accused with requisite mercy.

No this was a premeditated crime. The accused were neighbours of Bilkis who used to buy milk every day from her home. Witnessing the frenzied mobs, led by Bajrang Dal, Vishwa Hindu Parishad (VHP) and such other affiliates of BJP/RSS baying for Muslim blood a day after the February 27, 2002 burning of coach S-6 of Sabarmati Express in which 59 presumed Kar Sevaks returning from Ayodhya were burnt alive, the Bilkis family of 15 fled their home in Randhikpur hiding in a truck but the mob, including those convicted, followed them in their vehicles and caught up with them quite a long distance away in Dahod district, forced them down the truck, surrounded and stripped the women naked, gang-raped not just Bilkis but her mother and sister as well and killed all of them. But worse they banged the head of Bilkis’ three-year-old little baby Saleha against a stone and killed her most barbarically. They left Bilkis too for dead.

Past precedents show the courts awarding the death penalty for such heinous collective crimes. Awarding the accused only life imprisonment, in this case, was itself sufficient for them to feel thankful and indebted. But apparently for those who enjoyed state and ruling party patronage and protection from 2002 to 2008 this wasn’t enough. So, soon after the sentence commenced they started seeking release on parole for events like house warming, son’s wedding, mother’s knee replacement and such other issues and in most instances, not all, their wishes were happily granted by the Gujarat administration which included the jail authorities and even the magistracy.

In February 2021 Abdul Razzak Mansuri, a resident of Randhikpur, and a prosecution witness to the said crime, wrote a five-page letter to the Gujarat Minister of State (Mos) for Home Pradeepsinh Jadeja complaining that many of the accused in the Bilkis Bano case were spending their time out of jail for attending political events (read BJP meetings), continue their businesses, build their bungalows and also threaten witnesses. Mansuri, who along with many Muslims of Randhikpur, had shifted to a relief colony in Devgadh Baria taluka, after the 2002 pogrom fearing for their lives, cited in his letter that accused number four Shailesh Bhatt, “had attended an event of the Bhartiya Janata Party and shared the dais with elected representative of the BJP from Dahod.”

Another witness Phiroz Ghanchi alias Pintu wrote to the IG, Range, Panchmahal alleging that the accused had been securing parole on false and made up excuses whereby they spend more time in their village than in the jail where they threaten witnesses who testified against them. A newspaper report mentioned that Phiroz also filed a RTI to Godhra sub-jail seeking details of how much time the 11 accused spent since their conviction in jail and how much time outside on furlough or parole In reply this information was denied to Phiroz.

In 2017 Adam Ghanchi and Imtiyaz Ghanchi, two other witnesses in the case, submitted an application to the SP, Dahod alleging that the family members of convicts Radheyshyam Shah and Keshar Vohania were threatening to kill them and that the convicts were “vengeful and repeatedly (issued) death threats stating that it would not matter if they killed us because they have already been convicted in the (Bilkis Bano) case…They have been out on parole often and threatening everyone.

On June 23, 2018 16 persons from Randhikpur, including eight prosecution witnesses, submitted a memorandum to the Dahod Collector stating that the police officials of Randhikpur police station have been pressurising them to record statements in favour of the accused. The letter also pointed out that the security police cover provided to their camp under directions of the Supreme Court has also been removed leaving them vulnerable.

Despite this background to their conduct a Jail Advisory Committee (JAC) ignored the repeated pleas of the victims and the terrified witnesses and released the accused. But why not, after all the committee comprised of Godhra MLA from BJP C.K. Raulji, and Kalol BJP MLA Suman Chauhan. Besides them the committee consisted of the District Magistrate, who normally chairs such a meeting, the Jail Superintendent as member secretary, the District Sessions Judge, Superintendent of Police of the District or City Commissioner, as the case may be and the District Social Welfare Officer. Raulji later justified their “unanimous” decision on this saying some of the convicts were Brahmins with good “sanskar”, meaning that being Brahmins they were men of high moral fibre.

But why blame the BJP government alone? Noted lawyer Vrinda Grover pointed out in her reaction that there were two major flaws in the recent Supreme Court judgement, now under review of the apex court, which the Gujarat government cited to justify its decision to release such dangerous convicts. One that the court referred the matter to the Gujarat government under Section 432(7) of the Criminal Procedure Code (CrPC) on the ground that since the offence was committed in Gujarat and the first FIR registered in Gujarat, it lies with the Gujarat government to decide on Radheyshyam Shah’s remission plea that since he and his associates have served 14 years in prison, they are entitled to remission. Grover pointed out that this case was finally investigated by the CBI again at the instance of the Supreme Court and on a plea of the Human Rights Commission, Section 435 of the CrPC states that in such instances the consent of the Central Government which is the authority over the CBI, its consent is mandatory which the first judgement had apparently overlooked.

Second since the Centre had in 2014 specifically prohibited the remission of life sentences in heinous crime cases, citing previous Supreme Court judgements, the 1992 policy of Gujarat government which the earlier apex court had mentioned in its judgment does not hold good.

Be that as it may, can we expect some relief for Bilkis Bano and the witnesses who testified against the accused and are today terrorised by the prospect of all 11 accused with evident links to the ruling BJP in Gujarat roaming around freely, specially after the rousing reception they received from their supporters, soon as they walked out of the jail together---hugs and sweets as if they were incarcerated for upholding some just cause. Evidently their supporters consider the barbaric atrocities these convicts committed as justified and an act of valour.

Besides if the May, 2022 judgement of two judge bench of Justice Ajay Rastogi and Justice Vikram Nath decree were unsound in law and justice, what possibly would be the fate of a revision petition\, if the same judges were on the revison bench too.. While hearing the plea for revision of their May decree, Justice Rastogi asked the petitioner’s counsel Kapil Sibal, “Why an exception must be made in granting remission in the case? Day in and day out remission is granted to convicts serving life sentences. What is the exception in this case?” he asked Sibal, “adding “Merely because the act was horrific is that sufficient to say remission must not be granted?”

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