advertisement
While setting aside the Gujarat government's decision to allow premature release of 11 convicts in the 2002 Bilkis Bano case, the Supreme Court made a key observation – the "appropriate" government to take call on the remission of convicts was Maharashtra, and not Gujarat.
The convicts, who had been granted early release on 15 August 2022 after serving 14 years in the Godhra sub-jail, were also directed to surrender within two weeks.
On Wednesday, 10 January, a senior police official in Gujarat's Dahod told news agency PTI that they have 'not yet received any information about the surrender of 11 convicts as yet.'
Although a slew of lawyers The Quint spoke to said it was "unlikely" that the convicts won't surrender, what happens otherwise? What legal options do the convicts have? Does the SC judgment leave it open to the Maharashtra government to reconsider the remission plea by the convicts?
Having quashed the remission order, should they (convicts) be sent back to prison or be given the benefit of liberty?
"This has been a delicate question for consideration before us," the apex court order read.
In its order, the court has indicated that the convicts can seek remission, but they need to be in prison for this.
Speaking to The Quint, Shobha Gupta, Bilkis Bano's lawyer, said that there was "no possibility" of the convicts not surrendering to jail authorities.
Rashmi Singh, a Delhi-based lawyer, said that if the convicts do not surrender, "contempt proceedings can be initiated and non-bailable warrants can be issued."
Contempt proceedings can be initiated by courts suo motu (by the court itself), or can be moved by the petitioners in case of a violation.
According to Abhir Datt, a lawyer in Delhi, while the convicts had the option of applying for a review petition against the SC verdict, it would be "far-fetched."
Here, it is important to note that a review petition has to be filed within 30 days of the judgment.
On 3 March 2002, Bilkis Bano, who was five months pregnant at the time, was gang-raped during the post-Godhra riots. 14 members of her family, including her three-year-old daughter, were killed.
After the incident, a Central Bureau of Investigation (CBI) probe was called into the matter, and the trial of the case was transferred from Gujarat to Maharashtra.
Six years later, on 21 January 2008, a CBI Special Judge in Greater Mumbai had convicted the 11 men and sentenced them to life imprisonment.
In the judgment, the court focusing on Section 432 of the Code of Criminal Procedure (CrPc) said an application for remission can only be before the government within whose "territorial jurisdiction" the applicant was convicted (in this case, Maharashtra) and not where the offence took place (Gujarat).
One thing that the top court order makes clear is that the Maharashtra government's remission policy would be applicable to the convicted, if they filed a plea.
While Maharashtra's first policy on remission was formulated in 1978, it was updated in 1992, 2008. In 2010, the policy was updated to include offences including under anti-terror laws.
However, as per an earlier SC judgment, the policy at the time of the conviction will be used while considering remission.
As per the SC judgment, the special judge had then noted that the case of the convicts would fall under categories 2(c) and 4(d) of the 2008 resolution.
But in one category (2(c)) in the policy where "the crime is committed with exceptional violence and or with brutality or death of victim due to burn and or murder with rape," the convicts would be eligible for remission only after serving a sentence of 28 years.
Category 4(d) provides for a minimum period of imprisonment of 26 years for murders committed with premeditation and with exceptional violence and brutality.
Shobha Gupta told The Quint that the convicts can only apply for remission under Maharashtra's policy after completing 28 years.
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)
Published: undefined