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  • OF BILKIS BANO, REMISSION, AND THE SUPREME COURT

    Posted On September 4, 2022

    By Karan Thapar

    Perhaps because so many believe that in due course the Supreme Court will rescind the remission granted to eleven men guilty of raping Bilkis Bano and murdering seven members of her family, I have decided to raise a few questions and create a little doubt. It’s not that I don’t have faith in the Court but more because it’s worth seeing the other side of the picture. Otherwise we could end up deluding ourselves.

     

    To start with let’s not forget it’s the same Supreme Court that set in motion the process of remission with, arguably, some very questionable decisions to whom we are appealing. Two of those decisions are that the case for remission should be heard under the 1992 policy and this should be done by the government of Gujarat. The latter is the more disturbing. Not only does it appear to breach Section 432(7)(b) of the Criminal Procedure Code, which explicitly states the appropriate government is that of the state where the offender was sentenced, but there’s an even bigger concern.

     

    In 2004 Bilkis Bano’s case was transferred by the Supreme Court to the CBI and moved from Gujarat to Maharashtra because of apprehensions of bias in Gujarat. Isn’t it odd that when it came to remission those apprehensions were not considered?

     

    However, I have two further concerns. The first arises out of the way Gujarat handled the remission. The opinion of the judge who conducted the trial wasn’t sought. It seems unlikely the opinion of the central government was invited even though it’s explicitly required under Section 435 of the Criminal Procedure Code for matters investigated by the CBI. I’m pretty sure of this because if the central government had been consulted its recently issued guidelines would have required a refusal of remission. And, then, five members of the committee that recommended remission are BJP functionaries and two are sitting BJP MLAs.

     

    Given all this shouldn’t the Supreme Court have taken suo moto cognizance of the matter? It has the power to do so. But in this case there’s, perhaps, also a moral obligation. After all, it set in motion the process of remission. If that ended up with the ‘wrong’ outcome shouldn’t the Court have stepped-in to rectify matters?

     

    The second concern is a possible hint of the Court’s attitude. On 25th August Justice Ajay Rastogi, who’s hearing this matter, asked: “Merely because the act was horrific is that sufficient to say remission is wrong? … Day in and day out remission is granted to convicts of life sentence, what is the exception?” Now these are just questions. It’s very possible they’re rhetorical. But can you be certain they don’t convey a lot more?

     

    These doubts suggest the outcome may neither be as clear nor as welcome as we would like. I don’t intend to second guess what the Court will do but only ask can we really be confident it will send the eleven convicts back to jail? What if it doesn’t? After all, the process that led to their remission was in accord with what the Supreme Court required. In which case, if the eleven remain free how should we interpret that denouement?

     

    The Bilkis Bano case has become a litmus test at many levels. That’s clearly the case for Indian women and, perhaps, more forcefully, for the Supreme Court. But isn’t that also true for our country? I would say it is. Because on the outcome depends the sanctity of justice in India.

     

    Judging by the international media you could go one step further. A report on the BBC asks if the felicitation of the convicts suggests rape is being normalized in India. You may not accept that as a legitimate question but the fact it’s been raised means the world’s eyes are on us.

     

    An awful lot depends on how the Supreme Court handles this matter and what conclusion it comes to. That’s something I’m confident the judges are aware of. Which is why their decision will be so critical.


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