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Bilkis Bano and Her Continuing Fight for Justice

Its barely been a week since our 75th Independence day, a day we all beamed with pride as our flag flew high and beyond, and the chorus sung our national anthem, we with our heads high remembered our leaders who sacrificed their lives for our freedom, but all those nationalistic feeling were given away by this one event that prompted us to ask this million dollar and most disfavoured question- Are we actually free?

On 15th of August, as the nation was busy celebrating Azadi Ka Amrit Mahotsav, 11 convicts, sentenced to life imprisonment over murder and gang rape charges of Bilkis Bano and her family member were acquitted by the Gujrat High Court following the remission policy of 1992 and not its refined form that came into power in 2014, based on their good conduct or as the BJP MLA CK Raulji, a member of the panel set up by the court to look upon their remission plea, would consider, they are ‘brahmins with good sanskars’ thus might be pushed into the corner because of someone’s ill intention.

(Image Source: dnaindia)

Bilkis Bano was just 21-year-old and 5 months pregnant when she was gang raped, while eight members of her family were killed by the eleven convicts. When she reported her case, the head constable had refused to lodge her complaint, and framed false record, her case was later dismissed based on false record. It was only after she appealed to NHRC and petitioned in Supreme Court that a CBI probe was ordered. However, the case was later ordered to shift from Gujarat HC to Maharashtra HC citing death threats and possibility of evidence tampering. Based on all the evidence found by the CBI, all the 13 accused were convicted for criminal conspiracy, rape and murder, out of which 11 convicts were given life imprisonment in 2008 by a the sessional court in Maharashtra. In 2011, CBI seek death penalty for the three convicts citing the ‘rarest of rare doctrine’, however, in 2016 it was dismissed by the Bombay High Court. This remission resulted only when one of the convicts approached the Gujrat High court under CrPC 432 and 433 with its appeal seeking remission which was dismissed by the Gujrat HC, however he filed again in SC, which directed the Gujrat govt to investigate the issue following which a committee was formed, which unanimously decided upon the remission.

When they were released, they were welcomed with sweet with people touching their feet as a form of respect, while Vishwa Hindu Parishad greeted them with garlands. Not just for Bilkis and her husband, but it shook the conscience of every woman living in the nation, every person who believes in any form of justice, or any person who trusts the legal process, as the whole process of remission brought out many fallacies, the question of appropriate government, remission policy, and the role of the centre.

(Image Source: livelaw)

The question of remission arises out of the section 432 of CrPc which gives the “appropriate government” the power to suspend a part or remit the whole sentence, however, as defined by the section 432(7). The same position of appropriate government jurisdiction was upheld in UOI vs Sriharan. In Bilkis Bano case, it was the sessional courts at Mumbai, Maharashtra government where the judgement was given and the 13 accused were convicted. It was this same section of CrPc that made Gujarat High Court reject the remission application at the first place. However, Supreme Court in its consideration of the remission plea, in Radheshyam Bhagwandas vs State of Gujrat, considered that the case was shifted due tp “exceptional circumstances” for the “limited purpose of the trial”, and the jurisdiction to consider the case lies in Gujrat, where the crime was considered in the first place. This position of SC has raised eyebrows, Criminal Law Expert Rebecca M John, senior advocate opined that Supreme court has erred in its judgement of giving State of Gujrat the jurisdiction. It wasn’t the only thing that fell out of the line, but also the policy of remission on the basis of which they were released also came to be questioned, as in the same breath the SC directed the Gujrat Government to consider the remission under the policy of 1992 which had no laid down criteria’s for the convicts which could be released, and not under the policy of 2014, the amended remission policy of Gujrat which clearly laid down that no remission must be granted to rape convicts, largely because it was 1992 policy which was in place when they were convicted. What is baffling is the consideration of CrPc 435 that demands nod from the central government for the cases investigated by the CBI.

The role of the BJP led central government is still unclear, but what can be pondered upon is the benefit BJP cadre could have with such a move in the upcoming Gujrat state elections and how the justice system is hampered by the Hindutva idealogue, and how the minorities are in the cross section facing the brunt of it. So, are we free? Living in a system which imposes its will on us, based on what they believe in, depriving people of their right to live with dign