India: Justice - the Bilkis Bano case: Can sexual assault survivors trust the system anymore?

Source: https://sabrangindia.in/article/very-bad-precedent-has-been-set-judge-who-convicted-11-men-bilkis-bano-case

A very bad precedent has been set: Judge who convicted 11 men in Bilkis Bano case

Rights groups and legal luminaries raise important questions about provisions of remission policy

Sabrangindia

20 Aug 2022

Bilkis bano case

Voices of support for Bilkis Bano are growing as more and more people, including legal luminaries, intellectuals, civil society members, and human rights groups are pointing out how the decision to release the eleven men convicted for serious charges such as her gang rape and the murder of 14 members of her family, is setting a dangerous precedent.

Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.”

Readers would recall that on August 15, the eleven convicts were freed from Godhra sub jail after a state government panel approved their application for remission of sentence. The convicts who have been freed are: Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.

Initially stunned by the release, Bano herself broke her silence and in a statement released through her lawyer Advocate Shobha, said, “When I heard that the 11 convicted men, who devastated my family and my life, and took from me my three-year-old daughter, had walked free. I was bereft of words. I am still numb.” Her shock and trauma evident, Bano had asked, “Today, I can only say this — how can justice for any woman end like this?”

Concerns had been raised about how people convicted for serious charges such as rape and murder could be granted remission of sentence. “The guidelines issued by the Centre to states on a prisoner release policy to coincide with Azadi ka Amrit Mahotsav, clearly states that among the categories of prisoners NOT to be granted special remission are ‘those convicted of rape’. And the remission of these sentences is not only immoral and unconscionable, it violates Gujarat’s existing remission policy,” pointed out a statement signed by over 6,000 citizens, including grassroot workers and women and human rights activists. They have urged the Supreme Court to revoke the remission of sentences for the eleven convicts.

The statement was put forth by activists such as Syeda Hameed, Zafarul-Islam Khan, Roop Rekha Verma, Devaki Jain, Uma Chakravarti, Subhashini Ali, Kavita Krishnan, Maimoona Mollah, Hasina Khan, Rachana Mudraboyina, Shabnam Hashmi, as well as civil rights groups including Saheli Women’s Resource Centre, Gamana Mahila Samuha, Bebaak Collective, All India Progressive Women’s Association, Uttarakhand Mahila Manch, Forum Against Oppression of Women, Pragatisheel Mahila Manch, Parcham Collective, Jagrit Adivasi Dalit Sangathan, Amoomat Society, WomComMatters, Centre for Struggling Women and Sahiyar.

They said, “We demand that women’s faith in justice be restored. We demand the remission of sentences for these 11 convicts be immediately revoked and they be sent back to prison to serve the remainder of their life terms.”

Difference in release provisions as per remission policies of 1992 and later

The main question surrounds the difference between the Gujarat Government’s remission policy of 1992 and 2014. The 1992 policy did not have restrictions on the premature release of those convicted of rape or sentenced to life imprisonment, unlike the later policies in both the state and at the Centre, reported NDTV. When the channel spoke to Panchmahal District Magistrate, Sujal Mayatra, he reiterated their recommendation was based on the Gujarat government’s 1992 remission policy and they had submitted their recommendation to the state at the end of May.

Justice Salvi too has weighed in on this and told Bar and Bench, “There is no clarity if the State has made amendments to Section 376(2)g of the Indian Penal Code (IPC) and its definition. Has the State changed the definition of gravity of this offence of gangrape? If there is a modification in its definition, then the 1992 policy would be applicable. But if the definition and gravity of gangrape continues to be the same without amendment, then the policy of 2014 would be applicable, which would mean they shouldn’t be given remission.”

Advisory Committee members linked to BJP?

NDTV has also pointed out how five of the ten people in the Committee that recommended the remission of sentence have links with the Bharatiya Janata Party (BJP). Citing an official document that lists the members of the advisory committee, the channel said it included two BJP MLAs, a member of the BJP state executive committee and two others, who are also linked to the party.

BJP MLA from Godhra CK Raulji, and BJP MLA from Kalol Sumaben Chauhan, were both members of the Committee, as were “social workers” Vinita Lele, Pawanbhai Soni and Sardarsingh Patel. According to NDTV, Lele’s social media profile claims she is a BJP member. Meanwhile, BJP’s website reportedly lists Soni as member of the state executive committee of the party. The channel claims Patel is also a member of the party and that they got his contact information from the BJP office in Godhra.

Raulji infact went on to say that he wasn’t sure if the convicts were actually involved in the crime. He told the Indian Express, “It is possible that they (the convicts) might have been fixed in the case due to their past family activities. When such riots take place, it happens that those who are not involved are named. But I don’t know if they committed the crime, we decided (on remission) based on their behaviour.” He further said, “We asked the jailer and learnt that their behaviour was good in the prison…also (some of the convicts) are Brahmins. They have good ‘sanskaar’ (values).”

International condemnation

The United States Commission of International Religious Freedom (USCIRF) has condemned the “early and unjustified release” of the eleven convicts, reported Hindustan Times. “USCIRF strongly condemns the early and unjustified release of 11 men sentenced to life in prison for raping a pregnant Muslim woman and committing murder against Muslim victims during the 2002 Gujarat Riots,” USCIRF Vice Chair Abraham Cooper said in a statement.

USCIRF Commissioner Stephen Schneck called the early release of the convicts a “travesty of justice”, and said, “The failure to hold accountable perpetrators of the 2002 Gujarat Riots who committed physical & sexual violence is a travesty of justice. It’s part of a pattern of impunity in India for those engaged in violence against religious minorities.”

Voices of support for Bilkis Bano

In wake of the shocking release of the convicts, several individuals and rights groups have come forward to demand justice for Bano. Peoples Union for Civil Liberties (PUCL) has condemned the decision and said, “The release of the 11 convicts, even as many others accused of less serious offences remain in jail is an arbitrary exercise of power, having dangerous political overtones. It mocks the idea of a democracy based on rule of law when those accused of serious offences including rape and murder are arbitrarily released even as those who are falsely accused of crimes, continue to languish in jail.”

It further says, “The release of the accused sends out the chilling message that the most heinous crimes including rape and murder, when committed against the minority community, are not crimes. This has fatal repercussions for the future of Indian democracy.”

Previously, Bebaak Collective, a women’s rights group had also issued a statement condemning “the application of the remission policy of the Gujarat government”. The Collective said, “Bilkis Bano, a fearless and brave survivor of the attempted genocide of Muslims in Gujarat in 2002 has had a tough 20-year journey trying to ensure justice is served against the men who wronged her,” and hailed her for carrying on “despite systemic adversities” and now giving into pressure. They asked, “Can sexual assault survivors trust the system anymore?”

Similarly, the All India Working Women Forum (AIWWF), a part of the All India Trade Union Congress (AITUC) also released a statement saying, “The release that was recommended by the committee under the Gujarat remission policy is in violation of the Union Government’s guidelines for remission. These guidelines exclude those who are convicted for rape and murder for the benefit of remission. They, in any yardstick, do not deserve consideration for early release. AIWWF – AITUC, while condemning the release, very strongly urges upon the Union government to intervene to withdraw the release of these convicts - rapists and murderers.”

Related:

Over 6,000 Citizens Urge SC to Revoke Remission of Convicts in Bilkis Bano Case

Bereft of words, still numb: Bilkis Bano

Bilkis Bano case: Eleven people convicted of gang rape and murder freed

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Source: https://sabrangindia.in/article/bilkis-bano-case-remission-convicts-sentences-challenged-sc

Rule of Law
Bilkis Bano case: Remission of convicts’ sentences challenged before SC

Advocate Aparna Bhat has sought an urgent listing for tomorrow

Sabrangindia

23 Aug 2022

Bilkis bano case

The decision to grant remission of sentence to eleven men convicted in the Bilkis Bano case is now being challenged before the Supreme Court. LiveLaw reports that on Tuesday morning Advocate Aparna Bhat mentioned the matter before Chief Justice NV Ramana and sought an urgent listing for tomorrow.

CJI Ramana then reportedly enquired if the remission was granted by virtue of a Supreme Court order, to which senior advocate Kapil Sibal clarified, “The Supreme Court gave a discretion to the government to consider it. The bench was of Justice Ajay Rastogi. We are challenging the remission, not the order of the SC.”

Readers would recall that on August 15, eleven people convicted in the Bilkis Bano case were freed from Godhra sub jail after a state government panel approved their application for remission of sentence. The men had been convicted for gang raping Bano and murdering 14 people including Bano’s two and a half-year-old daughter Saleha.

The convicts who have been freed are: Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana. All these men were known to Bano and her family, some were her neighbours, some did business with her family.

Later in the day Trinamool Congress Member of Parliament Mahua Moitra also moved SC through advocate Shadan Farast. LiveLaw quoted an excerpt from her petition: “The release completely fails to bolster either social or human justice and does not constitute a valid exercise of the guided discretionary power of the State under Sections 432-435 Cr.P.C.”

The petition argues that the Gujarat government was not the right authority to issue the order for remission of sentence as the case was investigated by the Central Bureau of Investigation (CBI). Moreover, the convicts were granted reliefs in a “wholesale” manner instead of individually deliberating on the merits of each case.

Brief background of the case

Bilkis Bano and her family had been attacked in Randhikpur village near Ahmedabad on March 3, 2002. In the particularly brutal attack, 14 members of her family were killed including Bano’s two-and-a-half-year-old daughter whose head was smashed on a rock! Bano, who was over five months pregnant, was gang raped.

After Bano approached the National Human Rights Commission (NHRC), the Supreme Court ordered a probe by the Central Bureau of Investigation (CBI). The accused were arrested in 2004 and the trial originally began in Ahmedabad. However, Bano expressed concerns about witness intimidation and evidence tampering, and the case was transferred to Mumbai in August 2004.

In January 2008, a special CBI court convicted 11 people in the case and sentenced them to life imprisonment. But seven people including policemen and doctors were acquitted. In 2017, the High Court upheld the conviction of the 11 people. The court also raised important questions about the role of five policemen and two doctors accused of not performing their duty and tampering with evidence, and set aside their acquittal.

Reason for release

One of the convicts Radheshyam Shah had approached the Gujarat High Court seeking remission of sentence, but the court dismissed his plea stating the appropriate government to consider his plea under sections 432 and 433 of the Code of Criminal Procedure, was Maharashtra and not Gujarat.

Readers would recall that though the trail had originally started in Ahmedabad, it had been moved to Mumbai after Bano expressed concerns about witness intimidation and evidence tampering.

After the Gujarat HC dismissed his remission application, Shah moved SC, and the apex court ruled in May that Gujarat was the appropriate state to examine his plea.

A news agency reported that a few months ago, a committee had been formed to look into the possibility of setting the men free. Panchmahals collector Sujal Mayatra was quoted as saying, “A committee formed a few months back took a unanimous decision in favour of remission of all the 11 convicts in the case. The recommendation was sent to the state government, and yesterday we received the orders for their release.”

Gujarat Additional Chief Secretary (Home) Raj Kumar had at that time explained, “Among the parameters considered are age, nature of the crime, behaviour in prison and so on…The convicts in this particular case were also considered eligible after considering all the factors since they had competed for 14 years of their life term.”

Reactions to the release

Initially stunned by the release, Bano herself broke her silence and in a statement released through her lawyer Advocate Shobha, said, “When I heard that the 11 convicted men, who devastated my family and my life, and took from me my three-year-old daughter, had walked free. I was bereft of words. I am still numb.” Her shock and trauma evident, Bano had asked, “Today, I can only say this — how can justice for any woman end like this?”

Legal luminaries and civil society have pointed out how under provisions of remission policies, rape and murder convicts were ineligible. Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.” He further explained, “There is no clarity if the State has made amendments to Section 376(2)g of the Indian Penal Code (IPC) and its definition. Has the State changed the definition of gravity of this offence of gangrape? If there is a modification in its definition, then the 1992 policy would be applicable. But if the definition and gravity of gangrape continues to be the same without amendment, then the policy of 2014 would be applicable, which would mean they shouldn’t be given remission.”

A statement signed by over 6,000 citizens, including grassroot workers and women and human rights activists says, “The guidelines issued by the Centre to states on a prisoner release policy to coincide with Azadi ka Amrit Mahotsav, clearly states that among the categories of prisoners NOT to be granted special remission are ‘those convicted of rape’. And the remission of these sentences is not only immoral and unconscionable, it violates Gujarat’s existing remission policy.” Signatories include Syeda Hameed, Zafarul-Islam Khan, Roop Rekha Verma, Devaki Jain, Uma Chakravarti, Subhashini Ali, Kavita Krishnan, Maimoona Mollah, Hasina Khan, Rachana Mudraboyina, Shabnam Hashmi, as well as civil rights groups including Saheli Women’s Resource Centre, Gamana Mahila Samuha, Bebaak Collective, All India Progressive Women’s Association, Uttarakhand Mahila Manch, Forum Against Oppression of Women, Pragatisheel Mahila Manch, Parcham Collective, Jagrit Adivasi Dalit Sangathan, Amoomat Society, WomComMatters, Centre for Struggling Women and Sahiyar. They have urged the Supreme Court to revoke the remission of sentences for the eleven convicts.

The decision has also attracted international condemnation. United States Commission of International Religious Freedom (USCIRF) Commissioner Stephen Schneck called the early release of the convicts a “travesty of justice”, and said, “The failure to hold accountable perpetrators of the 2002 Gujarat Riots who committed physical & sexual violence is a travesty of justice. It’s part of a pattern of impunity in India for those engaged in violence against religious minorities.”

Peoples Union for Civil Liberties (PUCL) said, “The release of the 11 convicts, even as many others accused of less serious offences remain in jail is an arbitrary exercise of power, having dangerous political overtones. It mocks the idea of a democracy based on rule of law when those accused of serious offences including rape and murder are arbitrarily released even as those who are falsely accused of crimes, continue to languish in jail.”

It further said, “The release of the accused sends out the chilling message that the most heinous crimes including rape and murder, when committed against the minority community, are not crimes. This has fatal repercussions for the future of Indian democracy.”

Previously, Bebaak Collective, a women’s rights group had also issued a statement condemning “the application of the remission policy of the Gujarat government”. The Collective said, “Bilkis Bano, a fearless and brave survivor of the attempted genocide of Muslims in Gujarat in 2002 has had a tough 20-year journey trying to ensure justice is served against the men who wronged her,” and hailed her for carrying on “despite systemic adversities” and now giving into pressure. They asked, “Can sexual assault survivors trust the system anymore?”

Related:

Bilkis Bano case: NHRC to discuss release of convicts?

A very bad precedent has been set: Judge who convicted 11 men in Bilkis Bano case

Over 6,000 Citizens Urge SC to Revoke Remission of Convicts in Bilkis Bano Case

Bereft of words, still numb: Bilkis Bano

Bilkis Bano case: Eleven people convicted of gang rape and murder freed