9 January 2024
Does the Supreme Court judgment quashing the Gujarat government decision to grant remission to eleven convicts who had gangraped Bilkis Bano, leave it open to the Maharashtra government to reconsider the plea by the convicts for remission?,Bar & Bench raises this question and presents arguments.
While setting aside Gujarat government’s decision to allow premature release of the convicts, the apex court had observed that the appropriate government to take a call on remission was Maharashtra, since the trial in the case had happened in Maharashtra.
Hence, it quashed the Gujarat government’s decision to grant remission to the convicts.
Pertinently, the top court also emphasised the State where the trial took place is required to take permission of the trial court which had convicted the men.
With the 11 men convicted for the offence set to return to prison in two weeks, the top court order makes it clear that the Maharashtra government and its remission policy would be applicable to the plea for remission filed by the convicted men.
The judgment in paragraph 52.6 states,
“Had the State of Maharashtra considered the applications of respondent Nos.3 to 13 for remission, this vital opinion of the Presiding Judge of the Court which had convicted them would have carried weight in the mind of the Government of the State of Maharashtra as well as the terms of the Government’s Resolution dated 11.04.2008 which was the applicable policy for remission”.
But what does the 2008 government resolution of Maharashtra say? Will it come to the aid of the convicts in the case?
The 11 men were convicted for rape and murder (of Bano’s family). The Special Judge in Greater Mumbai on January 21, 2008 gave them life sentences.
The minimum sentence prior to any remission is at least 18 years as per the 2008 resolution.
This would mean all the eleven convicts would be eligible for remission only in 2026.
Pertinently, the resolution separately identifies cases of brutal crimes against women that involve exceptional violence, under which the convicts would be eligible for remission only after serving a sentence of 28 years.
It is this clause which is likely to apply to the eleven convicts in this case.
This would mean the men have to be behind bars for at least another 12 years, that is, till 2036.
Prior to the 2008 policy, a 1992 policy for remission was in place.
There is some lack of clarity regarding which policy would apply. The special judge who tried the case, applied the 2008 policy to arrive at his opinion against the release convicts.
However, even if the 1992 policy were to apply, remission in cases of those serving life term for murders relating to sexual matters would be possible only after serving a minimum of 22 years and the same can go up to 28 years if the case involves exceptional violence or perversity.
Hence, if 1992 policy is applied, the eleven men would be eligible for release only after 2030 or 2036.