"Horrendous Wrong Decision":134 Former Civil Servants Write To CJI Seeking Revocation Of Gujarat Govt. Order Releasing Bilkis Bano's Case Convicts

The ex-members of the All Indian and Central Services who have formed themselves into a group, namely, the Constitutional Conduct Group have expressed that much like the other citizens of the country, they are outraged at the decision of the Gujarat Government to grant early release to these 11 men who had committed such a ghastly crime.

The letter states that the group reposes hope in the Supreme Court, to rectify 'this horrendous wrong decision'. It notes that the premature release has a chilling impact not only on Bilkis Bano and her family but also on the 'safety of all women in India, especially those who belong to the minority and vulnerable communities.

The crime took place amidst the 2002 communal riots in Gujarat. A five-month pregnant Bilkis Bano, who was around 19 years old then, was fleeing their village in Dahod district along with his family members. When they reached the outskirts of the Chhapparwad village Bilkis, her mother and three other women were raped and 14 of her family members, including her three-year-old daughter, were murdered. Owing to the political influence of the accused persons and given the sensitivity of the issue, the investigation was handed over to the CBI as per the directions of the Supreme Court. The Supreme Court also shifted the trial to Maharashtra. In 2008, a sessions court in Mumbai sentenced the accused to life imprisonment.

After serving 15 years in jail, one of the accused approached the Supreme Court with a plea of his premature release, which was earlier rejected by the Gujarat High Court on the ground that the appropriate government would be that of Maharashtra and not Gujarat.

On 13.05.2022, the Supreme Court decided that the appropriate government to grant remission would be the Gujarat Government and directed it to consider the plea within a period of two months in terms of its 1992 remission policy. The letter cites the precedent laid down in Union of India v. Sriharan, and argues that therein the Constitution Bench of the Apex Court had held that the appropriate Government to decide the issue shall be the State Government where the conviction took place. In this context, the letter reads as under -

"We consider it unfortunate that the Constitution Bench precedent laid down in V. Shriharan's case was not followed…"

The urgency indicated in the Supreme Court order directing the State Government to consider the remission plea within a period of two months has puzzled the former civil servants. Moreover, referring to the judgment in State of Haryana And Ors. v. Jagdish, it submits that remission proposals are required to be examined on the basis of the policy existing at the time of conviction. In this regard the letter further states -

"...Surely the Supreme Court could not have been unaware of the major changes in the punishment for rape and murder and the policy for remission which were made much more severe in 2014 after the Nirbhaya case? Can a person who committed rape and murder be less liable than persons who rape and murder at the present time?"

On August 15, the 11 convicts were released from jail pursuant to a decision taken by the Gujarat Government to grant them remission after completion of 14 years of sentence.

The challenge to the grant of early release is manifold and indicated below -

1. As the investigation was conducted by CBI, under Section 435 CrPC, the Union Government ought to have been consulted before granting remission. Whether this process was followed is not known.
2. As per Section 432(2) CrPC, the opinion of the presiding judge of the court that passed the order of conviction ought to be taken before granting remission. It appears that the opinion of the judge of the respective CBI court was not taken.
3. In such a case where there is an imminent threat to the victim and her family members, before granting remission, the Government ought to have ascertained how the release would impact their lives.
4. 5 out of 10 members of the Advisory Committee who have sanctioned the premature release belong to the Bharatiya Janata Party, while the others are ex-officio members. As per the letter, the constitution of the committee raised questions of impartiality and independence of the decision.

At present, the Supreme Court is already in seisin of the matter. On Thursday, a Bench comprising Justices Chief Justice of India NV Ramana, Justice Ajay Rastogi and Justice Vikram Nath have issued notice in the plea filed by CPI (M) MP Subhasini Ali, journalist Revati Laul & Prof Roop Rekha Verma, in essence, seeking revocation of the early release order. The Bench had asked the petitioners to implead the accused persons in the proceedings, as the outcome of the same would have a direct bearing on them.