Abstract
The Gujarat government’s decision on 15 August 2022, to release all 11 prisoners sentenced to life imprisonment in the Bilkis Bano case has serious implications, both for the rights of Bilkis Bano herself and the policy landscape around reformative prison measures like remission and premature release. Here I attempt to locate the release within a larger national context wherein carceral notions of justice, typified by longer and harsher prison sentences, are gaining currency both within the government and judiciary. I examine the deeply flawed process by which the prisoners came to be released, highlighting the arbitrariness and legal infirmities that render the government’s decision illegal.
The Background
Randhikpur, a village in Dahod, Gujarat, saw one of the most heinous cases of mob sexual violence and murder during the anti-Muslim pogrom in Gujarat in 2002. On 3 March 2002, a mob of Hindu men gangraped Bilkis Bano and killed 14 members of her family, including her three-year-old daughter. The Gujarat police initially investigated the matter and filed a report closing the investigation. At the instance of the Supreme Court, the investigation was transferred to the Central Bureau of Investigation in 2004. To ensure a fair trial and witness protection, the Supreme Court also transferred the trial to Mumbai.
In 2008, 11 persons 1 were eventually convicted of gangrape and murder and sentenced to life imprisonment by the Trial Court in Mumbai and confirmed by the Bombay High Court in 2018. How then, did these 11 persons, sentenced to spend their lives in prison, come to be released after 15 years of imprisonment? To understand that, it is necessary to first understand how life imprisonment as a punishment operates in the Indian context. In the next section, I will examine the evolving legal landscape of life imprisonment in India.
What is Life Imprisonment?
Life imprisonment is one of several punishments prescribed in the Indian Penal Code. 2 The Supreme Court, in several decisions, 3 has defined life imprisonment to mean imprisonment for the entire life of the convict and not a fixed term. The sentence is subject, first, to statutory powers of remission and premature release granted by the Code of Criminal Procedure to the ‘appropriate government’, usually the government of the state where the trial took place, and second, to constitutional powers of clemency, granted to the President and the Governor. 4 Processes of remission 5 and premature release are not privileges extended to a prisoner. They are essential components of the carceral process, as they encourage and incentivize good behaviour and reform in prison.
The Shifting Contours of Life Imprisonment
Since India’s independence, the concept of life imprisonment has seen several changes, through legislation as well as judicial interpretation. In 1978, the Parliament introduced Section 433A of the Code of Criminal Procedure, which mandates a minimum incarceration of 14 years before life-sentenced convicts are eligible for release. In 2008, the Supreme Court created a new punishment—life imprisonment without remission, which entails incarceration until death with no prospect of release. 6 In the wake of the 2012 Delhi gangrape, the Parliament introduced the punishment of life until natural death for offences of homicidal rape and gangrape. 7 Research has shown that from 2015 to 2019, the Supreme Court and various high courts have converted death sentences to life imprisonment without remission in 29 cases (Dhanuka & Bedi, 2022).
National Crime Records Bureau data show that the percentage of life sentenced prisoners of the total population of convicts in Indian prisons has grown from 52.6% in 2017 to 59.8% in 2021 (National Crime Records Bureau [NCRB], 2017, 2021). This indicates an institutional reluctance to release prisoners sentenced to life imprisonment. It also reflects a growing emphasis on harsher and longer sentences in state policy, with several state governments introducing new remission policies that render certain categories of life sentenced convicts ineligible for release. 8
It has been argued that the shifting contours of life imprisonment highlight, on the one hand, a consolidation of the state’s punitive powers in the context of sexual violence (Dash, 2021), and, on the other, a gradual abdication of its investment in penological processes of reform and rehabilitation (Kanjilal, 2018).
Implications of the Release
The Supreme Court, by an order dated 13 May 2022, 9 directed the Gujarat government to decide the convict’s application for premature release within 2 months. This led to the government releasing all 11 convicts on 15 August 2022. The release has triggered political responses targeting the basis of releasing certain categories of life convicts. The Madhya Pradesh government has proposed changing its prison policy to exclude prisoners sentenced to life for terror offences, gangrape and hooch-related offences from being considered for release (Newsclick, 2022). In the Lok Sabha, a Member of Parliament, K. Danish Ali, demanded that the law be amended to exclude rape convicts from being considered for release (Times of India, 2022). The Chairperson of the Delhi Commission for Women, Swati Maliwal, sent a letter to the Prime Minister seeking stricter remission and parole laws for rape convicts (Business Standard, 2022).
These responses to the release of the convicts reinforce an increasingly carceral and retributive understanding of justice, especially in the context of sexual violence. In this context, it becomes important to situate the illegality of the release in its proper perspective. In the following section, I will discuss, under five broad headings, the various fissures within the process of releasing the prisoners.
Situating the Illegality of the Release
Maharashtra was the Appropriate Government to Decide on the Release
In 2004, the Supreme Court had transferred the trial from Ahmedabad to Mumbai, which is where the 11 accused were convicted and sentenced. Several Supreme Court decisions, including a 2014 constitution bench judgement, 10 have now settled the legal position that the appropriate government for prematurely releasing a convict is the government of the state where the accused is sentenced, even if the offence took place in another state. In its order dated 13 May 2022, the Supreme Court, in breach of settled and binding precedent, concluded that the government of Gujarat was the appropriate authority. The Supreme Court justified its conclusion by arguing that the trial had been transferred to Maharashtra in ‘exceptional circumstances.’ The Court has been criticized for manufacturing exceptionality as an artificial reason without a legal basis to bypass binding precedent and procedural safeguards (Sebastian, 2022). The Supreme Court also did not make Bilkis Bano a party to the hearing before it (Mahapatra, 2022). Given how, as discussed later here, her rights and safety were directly affected by the release order, it is arguable that she should have been heard by the court before pronouncing its verdict. 11
The Decision to Release was Politically Motivated and Biased
The decision to release the convicts was clearly a partisan decision, politically expedient for the state government. The communal polarization in Gujarat in the wake of the pogrom reaped rich electoral dividends for the Bharatiya Janata Party, as they handsomely won the state assembly elections held in December 2002 (Narula, 2003). Twenty years later, the convicts were released months before the assembly elections held in December 2022, which the BJP won by a record margin. Five of the ten members of the Jail Advisory Committee that recommended the release are officer bearers of the BJP, including two sitting MLAs. This raises serious questions about the impartiality of the committee and the integrity of the process followed by it. The Supreme Court, in a constitution bench judgement, 12 had warned against ‘political vendetta and party favouritism’, declaring them to be extraneous or mala fide factors that would vitiate the exercise of executive powers of pardon and release. Arguably, the state government’s decision to release the convicts has been guided by such extraneous and mala fide factors and therefore is bad in law.
The Recommendations of the Trial Court Judge and CBI were Disregarded
Another issue that vitiates the process of releasing the convicts is that the state government chose to ignore the recommendation of the Trial Court judge as well as the CBI to not grant premature release. This is in breach of a Supreme Court judgement 13 that declares the opinion of the Trial Court judge to be ‘determinative’ and not just a relevant guiding factor for the government. In case it disagrees with such opinion or if the opinion is not legally tenable, the Court suggested that the government may request the Trial judge to consider the matter afresh.
Exceptionalism as Injustice
It has been argued that the injustice caused by the release lies in the exceptionalism with which the case of the convicts has been treated, while similarly placed offenders are denied any prospect of release (Viswanath, 2022). In 2014, Gujarat formulated a new remission policy that makes rape and murder convicts ineligible for remission and release. Releasing the 11 prisoners convicted for heinous acts of gangrape and murder reveals an institutional double standard at the heart of state policy, when it comes to granting premature release to life convicts. In other high-profile cases, convicts are not shown similar largesse by the state. For instance, the central government under the BJP fought tooth and nail against the release of Perarivalan, one of the Rajiv Gandhi assassination convicts, in the Supreme Court. The Tamil Nadu government had proposed to release him after close to 30 years of incarceration. In another illustrative incident in 2011, the Madhya Pradesh government, also under the BJP, after granting remission and release to five convicts from the Students Islamic Movement of India, promptly reincarcerated them illegally under pressure from right-wing organizations (Ghatwai, 2022).
The Release Jeopardizes the Safety of Bilkis Bano and Other Witnesses
Releasing the 11 convicts has had a direct impact on the safety and well-being of Bilkis Bano herself and other witnesses in the trial. One of the convicts reportedly threatened a witness after his release. Bilkis Bano and her husband are also reportedly fearful about their safety after the release (Pal, 2002). Media reports also show that there has been an exodus of several Muslim residents from Randhikpur after the release of the convicts (Dahiya, 2022). Not only does the release negatively affect the lives of a vulnerable minority population in a region affected by communal strife, but it is also a breach of the state’s continuing duty of care and protection towards survivors of sexual violence.
Conclusion
The release of the 11 convicts in the Bilkis Bano case comes at a time when retributive notions of justice dominate both policy-making and judicial discourse. In this context, I have attempted to situate the illegality of the release within the particularities of the process by which it took place. Issues of political bias, consideration of extraneous factors and disregarding relevant factors plague the process adopted by the state. These are all issues that will have to be considered by the Supreme Court when it decides Bilkis Bano’s petition challenging the release. 14 The Supreme Court’s final say in this case may have significant implications not just for Bilkis Bano and her quest for justice but also for the policy landscape that governs life imprisonment as a punishment in India. It is hoped that the decision, when it comes, paves the path towards making this landscape more transparent, fair and independent.
Footnotes
Acknowledgements
The views expressed here are personal. I would like to thank Preeti Pratishruti Dash for her helpful feedback on this article.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.
Funding
The author received no financial support for the research, authorship and/or publication of this article.