The major arguments for the convicts have been that the petitioners are outsiders, ‘third party strangers’ and so on. Now, as Bilkis Bano herself is the petitioner in the case, the defence must think of new strategy to dodge the challenge.
Bilkis Bano’s latest move to the Supreme Court challenging the remission order of 11 convicts comes at a time when Gujarat is all set to go to the polls. Though Bilkis who was brutally gangraped when she was five months’ pregnant during the post-Godhra pogrom is not an electoral issue for any of the contesting parties; for the civil rights organisations in Gujarat the decision to remit the 11 convicts on 75th Independence Day was nothing less than ‘miscarriage of justice’.
A statement signed by 6000 concerned citizens among which academics, activists and civil society organisations were major constituents, came out immediately after their release. However, the consecutive protests and appeals couldn’t press materialise any change.
Rather, on October 17, in its affidavit to the Supreme Court, the Gujarat government said that the Centre had approved their decision of remitting the murderer rapists who not only gangraped Bilkis, rather murdered 7 people of her family along with her 3 years old child. On receiving the request from the state government, the centre fast tracked the process within two weeks, reports NDTV.
In this context, there are two reasons why this review petition filed by Bilkis Bano becomes significant. Firstly, besides challenging the remission order of the 11 convicts, it also urges for a review of the May order of the SC that subsequently led to their release.
And secondly, this challenges the very statements of the convicts who have been crying foul in the court questioning the locus standi of the petitioners in this case.
Chief Justice of India D Y Chandrachud, as per the reports said that by evening, he will take a decision on whether both the cases can be heard together in front of the same bench.
So, what was the SC order that Bano has asked sought to review? Let us look into how the remission actually came up and how this petition can potentially pull down the defence of the convicts.
Radheysham Shah, one of the accused in the case moved to the Supreme Court seeking remission on the ground that he had completed 15 years 4 months in jail. He was sent to life imprisonment by a CBI court in Mumbai in 2008. As per the convention after 14 years of life imprisonment, convict can apply for remission.
Hearing Shah’s plea the apex court asked the Gujarat government to look into the matter and decide within two months whether Shah’s sentence could be remitted. The SC considered the Gujarat state government as the ‘appropriate’ authority to decide on the case. Emphasising on the role of the site where the crime had been committed, the SC said, “the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court.”
The power of remission or commute of a sentence of the convict is vested with the President and the Governors under Article 72 and 161. As the prison is state subject, under the provisions of Section 432 of CrPC the state can also take the decision of remission. However, the power is restricted under Section 433A.
As per the reports, the state government started the procedure and took the approval of the centre and used 1992 remission policy instead of the fresh policy of 2014. According to the 1992 remission policy any convict was allowed to apply for remission. However, in 2012 the SC scrapped it and in 2014, the state government came up with new remission policy that didn’t allow remission applications to the convicts of gruesome murder and rape or gangrape. It also doesn’t allow the remission pleas of those who were convicted by CBI.
However, as the CBI court convicted the Bilkis Bano rapists in 2008 far before the fresh remission policy came up, the state government used the 1992 policy and let them go free.
The recent petition of Bilkis Bano that sought the SC to review this May order consequently questions the very understanding of the court that Gujarat was the appropriate government to decide on the remission. As the very fundamental presumption is challenged, a review can bring out new lights on the matter.
This is not the first petition filed by any party after the release of the 11 convicts. CPI(M) leader Subhashini Ali, journalist Revathy Laul and activist Roop Rekha Rani while filed joint petition, TMC MP Mohua Moitra filed a separate one.
However during the hearing of this petition, the most common jibe from the convict Radheshyam Shah was that all of them were outsiders. Terming the petitioners ‘third party stranger’ or political activists, Shah in his defence said that they are setting wrong precedence that would let anybody or everybody “jump in any criminal matter before any court of law”.
His response also added, “That at the very outset the answering respondent seriously questions the locus as well as maintainability of the instant writ petition which has been filed by a political activist or in other words, a complete stranger to the instant case.”
He submitted to the SC, “That with great respect and humility, the answering respondent submits that if such types of third-party petitions are entertained by this court, it would not only unsettle the settled position of law but would also open flood gates and would be an open invitation for any member of the public to jump in any criminal matter before any court of law.”
So, the very question brought out by the convicts are related to the locus standi of the petitioner. And now, the petitioner is Bilkis Bano herself. In this context, this petition becomes enormously significant for the fate of the case.
There is no outsider anymore, Bilkis herself confronts the convicts whose brutality even failed to let her down.