Tag: remission policy

What Does International Law Say About Remission Granted to Bilkis Bano’s Rapists?

In the International Criminal Court’s Statute, victims are placed at the heart of justice. In India, there appears to be no uniform legal compulsion to hear the victims’ views before granting remission to a convict.

The criminal offences committed against Bilkis Bano and her family members were no ordinary crimes. They were multiple crimes of rape and murder, including the murder of children. They were mass crimes committed in a context of an anti-Muslim pogrom – in a planned, organised and concerted manner through a systematic attack across many parts of Gujarat. Much has been written and spoken about the legality of the remission order issued to the eleven convicts in Bilkis Bano’s case last month, by critiquing the Indian law and procedure. This article attempts to add to the public discourse through an international law perspective.

The definition of ‘crimes against humanity’ has undergone various modifications since 1945, when it was first codified under the Charter of the International Military Tribunal at Nuremberg. Notably, its nexus to war was removed, hence making it a criminal offence committed in wartime or peacetime. Decades later, the Statute of the International Criminal Tribunal for former Yugoslavia (ICTY) and the Statute of the International Criminal Tribunal for Rwanda (ICTR), defined ‘crimes against humanity’ and explicitly included ‘rape’ as a crime against humanity. 

In 1998, the global community adopted the Rome Statute establishing the International Criminal Court (ICC), which spelt out ‘crimes against humanity’ as one of the four most heinous crimes under international law (along with genocide, war crimes and aggression), for which individuals are prosecuted in a permanent court. The Statute defined crimes against humanity in Article 7 as any of the acts listed in the provision, when committed as part of a “widespread or systematic attack, against a civilian population with knowledge of the attack”. The list includes murder, rape and other forms of sexual and gender-based violence. The communal pogrom in Gujarat – and the multiple rapes and murders committed on Bilkis’ family – falls within the purview of ‘crimes against humanity.’

Reformation in heinous crimes

In international criminal law, there is no provision for remission as an executive discretion. Once the ICC has convicted and sentenced the person, against the sentence, there is a provision for review (including for reduction of sentence). Rule 223 of the Rules of Procedure and Evidence gives power to three judges of the Appeals Chamber to review if the sentence should be reduced, based on a defined set of criteria including:

(a) The conduct of the sentenced person while in detention, which shows a genuine dissociation from his or her crime; 
(b) The prospect of the resocialization and successful resettlement of the sentenced person;
(c) Whether the early release of the sentenced person would give rise to significant social instability;
(d) Any significant action taken by the sentenced person for the benefit of the victims as well as any impact on the victims and their families as a result of the early release;
(e) Individual circumstances of the sentenced person, including a worsening state of physical or mental health or advanced age. [Emphasis added]

The clear criteria prevent an arbitrary exercise of power in reducing the sentence awarded. In the ICC Statute, the reduction of a sentence remains a judicial mandate and not executive discretion.

One may ask – can convicts of heinous crimes undergo reform? India has firmly embedded itself in the retention of the death penalty – it has the highest number of death row prisoners (488) in the past 17 years in 2021 as per a report. The international community, meanwhile, has determinedly moved towards the abolition of the death penalty, even for the most serious offences, in support of the reformatory theory of punishment.

For instance, Article 77 of the ICC Statute provides for a maximum of thirty years imprisonment or “a term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.” The drafters of the ICC Statute did not leave it open to the judges of the ICC to impose the death penalty (irrespective of how heinous the crime committed was). In the negotiations for the ICC Statute, a Working Group on Penalties had contentious discussions, with some delegations insisting on the inclusion of the death penalty due to the heinous nature of the crimes, while other delegations advocated for humane treatment of the convicts, and the possibility of their reformation and rehabilitation.

Article 77 was formulated as a compromise between the polarising viewpoints. Thus, the ICC Statute contemplates the possibility of reformation by an individual, even when convicted for the most serious crimes under international law. However, it is on the basis of the clear, intelligible and transparent criteria set out in Rule 223 (discussed above) that the reduction in the sentence will be determined by the judges of the Appeals Chamber.

Headquarters of the International Criminal Court in The Hague. Photo: Hypergio/CC BY-SA 4.0

Victims’ right to participation 

In international law, ‘victims’ have a very specific definition and a comprehensive set of rights. In the ICC Statute, victims are placed at the heart of international criminal justice, and their rights fall within three main categories: right to protection (from threat, intimidation, coercion and duress), participation (in the proceedings for justice) and reparations (to repair the harm caused). Victims’ rights in the ICC are discussed in detail elsewhere.  

Victims’ participation in the proceedings has been given utmost importance by the ICC Statute, by way of recognising victims as important stakeholders in the dispensation of criminal justice. By observing the practice at the ICC, one can deduce that victim participation is evident in stages including the following: when the prosecutor requests the pre-trial chamber to authorise the commencement of investigation; when the court deals with challenges to ICC’s jurisdiction and the admissibility of a case; when hearing is held for confirming the charges of a suspect; when a suspect is arrested and produced before the ICC for trial; during trial; during sentencing and in hearings for reparations.

In India, there appears to be no uniform legal compulsion to hear the victims’ views stated in the rules related to remission. The relevant law (Sections 432, 433 and 433A of the Code of Criminal Procedure) spells out that the Jail Advisory Board must mandatorily hear the trial court’s opinion. While the trial court’s opinion is imperative, this might not suffice as the trial court may not be in a position to put itself in the shoes of the victims and imagine their concerns several years after the conviction and sentencing are concluded.

Hence, hearing the victims’ or their representatives’ views in addition, prior to issuing the remission order, is an important aspect of the victims’ right to participation. If the victims’ views appear unsubstantiated, exaggerated, false, vengeful, frivolous or emotional, the Board may ignore their viewpoint with reasons given in writing. However, to deny them the opportunity of presenting their views while determining the issuance of remission undermines victims’ right to participation.

Also Read: Bilkis Has Struggled Long Enough. The Fight for Justice Is Now India’s Burden to Discharge.

Reparative justice 

There is often a misconception that reparations and compensation are synonymous. In international law, reparations involve much more than compensation, and consist of five key elements that would help ‘repair’ the harm done to the victim. These include restitution (restoring the victim to the situation prior to the crime), compensation (for economically assessable damage), rehabilitation (including medical and psychological care, legal aid and social support services), satisfaction (often entailing disclosure of the truth) and guarantees of non-repetition.

These elements have been defined in the Basic Principles and Guidelines on a Right to a Remedy and Reparations for Victims, adopted by the UN General Assembly in 2006. In the case of Bilkis Bano, except for compensation paid by the state government, other elements have hardly been met. The guarantee of non-repetition is intangible but has symbolic importance for victims. Where the convicts show no remorse for the horrific crimes they committed, and are instead, given a heroic welcome as celebrities, there can be no possible guarantee of non-repetition of the crimes, either to the victims or to other members of their community.

State obligations and due diligence

The UN Convention on Elimination of Discrimination Against Women (CEDAW), ratified by the Indian government in July 1993, is one of the core human rights treaties that mandates member states to discharge legal obligations for human rights. In relation to women’s human rights, CEDAW mandates that such legal obligations of the state include the duty to respect (to refrain from discrimination through its own actions); the duty to protect (including prevention, prosecution, punishment, provision of reparations and establishing legal and other mechanisms for redress) and the duty to fulfil (by creating an enabling environment for human rights, including by providing for budgetary allocations and infrastructural facilities). 

The UN Declaration on Elimination of Violence Against Women and CEDAW Committee’s General Recommendation 35 further mandate that states are responsible for acts of commission and omission by both state and non-state actors, and that states have a due diligence obligation – that is, to be duly diligent in regulating and protecting women from systemic forms of violence. The state’s due diligence obligation does not end with punishment to the guilty, but extends to providing reparations to victims and to taking “all appropriate measures to prevent acts of gender-based violence against women.” Any acts that provide tacit permission or encouragement to acts of gender-based violence against women would fall short of the due diligence obligation.  

Bilkis Bano, who was gangraped during the 2002 Gujarat riots, addresses a press conference in New Delhi on April 24. Photo: PTI

Through the lens of international law

A holistic perspective of the remission order through the lens of international law leads us to several conclusions. A premature release of the eleven persons convicted of multiple rapes and murders, without any clear indication of their reformatory potential, while disregarding the opinion of the trial judge, without giving an opportunity to Bilkis to have her concerns on the remission heard, and through an opaque and arbitrary exercise of executive power, woefully falls short of international legal standards.

In a country such as India, which believes in democracy and rule of law, an intelligible set of criteria that spells out the reformatory potential of a convict and other aspects such as ramifications on the victims, the community they belong to and on the law and order situation are imperative. These would act as guidelines for the Jail Advisory Board that considers pleas of remission from convicts, as well as for the public at large in understanding why an order of remission was issued in favour of some convicts and not others who had committed similarly heinous offences. 

Even if India is not a state party to the ICC, the law and rules related to the ICC form part of the body of international law that one must be mindful of. The state’s remission order has, on one hand, led to a chilling effect among victims and potential victims of sexual and gender-based violence, more so in contexts of mass crimes; on the other hand, it has emboldened the convicts and potential perpetrators by providing them tacit encouragement for such offences. These ramifications illustrate that the state has failed to discharge its due diligence obligation to respect, protect and fulfil women’s human rights in international law. As a result, Bilkis Bano has received nothing more than an iota of reparative justice.

Saumya Uma is a professor of law and Director of the Centre for Women’s Rights at Jindal Global Law School, O.P. Jindal Global University. She teaches, writes and speaks at the intersections of gender, human rights and the law. The opinions expressed in this article are her own.

Watch | Bilkis Convicts’ Release, Felicitation Weaponises Gang Rape, Murder: Mahua Moitra

In an interview with Karan Thapar, the Trinamool Congress MP said she strongly believes that her petition challenging the remission in the Supreme Court will be successful.

Trinamool Congress (TMC) Mahua Moitra believes that her writ in the Supreme Court against the remission granted to 11 people guilty of raping Bilkis Bano and murdering 14 members of Bano’s family will be successful. Moitra has forcefully said that she has full faith in the court and that when all the facts of the way the remission was handled in Gujarat are brought before the Supreme Court it will strike down and rescind the order. She also says that the ease with which remission was granted by the Gujarat government and the way the convicts were felicitated suggests that gang rape and murder have been normalised and weaponised in India.

In a 30-minute interview with Karan Thapar for The Wire, Moitra was first asked about the Supreme Court’s own earlier handling of this matter. She was questioned about the court’s decision that remission should be heard by the Gujarat government. Newspapers and several lawyers have said this is a breach of Section 432(7)(b) of the Criminal Procedure Code which explicitly states that the appropriate government is the state where the offender is sentenced. She was also asked why, given the many things that have gone wrong in the way Gujarat handled the remission, the Supreme Court did not take suo moto cognizance of the matter. After setting in motion the remission process did it not have a moral duty to rectify a ‘wrong’ outcome? Third, she was questioned about oral observations made on August 25 by Justice Ajay Rastogi, who is hearing the case, and said: “Merely because the act was horrific is that sufficient to say remission is wrong?”

In her answers to many of these questions, Moitra made clear that as a petitioner before the Supreme Court it would be inappropriate and wrong of her to comment on the court. Although an animated discussion took place, she very carefully avoided making any comments which, as a petitioner, would be deemed wrong.

The interview also discusses the response of the Narendra Modi government to the remission and how this remission impacts on and contradicts the prime minister’s Independence Day speech where he spoke at length about nari shakti (women’s power) and honouring women. Moitra makes clear that it’s almost impossible to believe that the Gujarat government would have granted remission without consulting the Union government, something it was also required to do under Section 435 of the Criminal Procedure Code for all matters investigated by the CBI.

Moitra says the Union government needs to decide whether Bilkis Bano is a woman or a Muslim. She suggests that the silence of the Modi government over the remission as well as its failure to appeal against the remission suggests that everything the prime minister and the government say about empowering women does not seem to apply in this case.

The TMC MP agrees this is a litmus test moment for Indian women, for the sanctity of justice and also for the sort of country we want India to be.

Note: An earlier version incorrectly stated that seven members of Bilkis’s family were murdered. The actual number is 14.

Thank You, Modiji, We Now Know What Is the Biggest Danger to Our Democracy

Gujarat’s elections are due in months and nothing is more important to the BJP than winning them; thus appeasement of the majority has been an imperative they could not have resisted.

This August 15 of the Amrit Mahotsav time will go down as truly incomparable in India’s post-colonial history.

The nation owes a debt of gratitude to the prime minister for telling us in his customary ringing tones what constitutes the biggest danger to our democracy.

And, it is none of the things you and I, in our insufficient nationalism, might have thought:

It is not a party system that has now succumbed to profitable chicaneries;

It is not the ruthless drive of the ruling BJP to cannibalise other parties in order to turn India into a one-party state like China;

It is not an electoral bond system that funnels moneys from corporates, ostensibly to parties, but actually to the powerful ruling party in the main, wherein the prudent donors remain properly anonymous;

It is not a PM CARES Fund which is either a private trust or a public body as and when it suits it, and which remains outside the ambit of the Right to Information law;

It is not the investigative and prosecutorial agencies of the state that 90% of the time pursue not their “own course” but rather a “known course’;

It is not the unauthorised and clandestine use of software like Pegasus to pulverise citizens by robbing all their private data, even conversations, or to plant incriminating data into their instruments so that their journey to jail could be hastened;

It is not 90% of the print and electronic media that has heroically woken up to loyalty and compliance;

It is not a parliament in which the opposition is reduced to howling most of the time because none of their notices or motions are admitted for discussion;

And it is emphatically not a famous organisation which claims to be apolitical but manages to have its satraps placed in influential slots in the education system, the bureaucracy, the security services, as ombudsmen in media organisations, and which patronises energetic “voluntary” youth brigades who fix social and community “problems” with a pat on the back from the said organisation (parivar) and the governments filial to it.

Even more emphatically, it is not a numero uno who never holds a press briefing, lest the even advance of democracy from his office suffer embarrassing disequilibriums.

And it certainly is not the ever-increasing numbers of citizens hard put to manage a meal a day, numbering some 90% of the population, since those who earn 25,000 rupees a month fall within the top 10% of Indian earners!

So what is the biggest danger to democracy? Now we know at last: it is dynastic politicians!

But, wait a minute: if you thought this profound formulation included the dynast of all political parties, you are again behind times.

The biggest danger to Indian democracy is the memory of Nehru, now thankfully ejected from an ambitious poster that lists all the worthies who made the freedom of India from British rule possible, and it is Sonia Gandhi, Rahul Gandhi, and Priyanka Vadra Gandhi who now conspire to hold back the march of Indian democracy.

Question Easily Done, as only we and the world of which we are Guru trust only the serendipitous Modiji to do, where others – scholars, historians, critics of social ideas, political pundits – fail to do because of their debilitating allegiance to complexity, fairness, and facts.

Prime Minister Narendra Modi gestures as he addresses the nation from the ramparts of the Red Fort on the occasion of the 76th Independence Day, in New Delhi, Aug 15, 2022. Photo: PTI

Remission

This here Independence Day is also notable for another exemplary achievement.

The 11 men in Gujarat who had been so unfairly jailed for the service they had rendered in 2002 to consolidate the nationalist cause by venturing to murder 14 of the five-month pregnant Bilkis Banu’s family, including a three-year-old baby whom they pulped by tossing her to the ground, and by, at great cost to their own sense of piety and morality, gang-raping Bilkis Bano, their neighbour of old, have finally been let out by an enlightened turn of remissive law.

Less deserving convicts in other jails who have also spent over 14 years behind bars, however, not having the same sort of denominational and ideological credentials, remain duly incarcerated.

But the release of the 11 aforesaid alone is the least part of this expansively laudatory story.

At a time when hate has been so rampant among all sorts of people, the residents of Dahod where the heroic nationalists were let off have demonstrated how truly tolerant and loving and grateful Indians can be.

The 11 warriors-come-home were duly felicitated; their holy feet were touched, flowers were sprinkled over their incomparable heads, vermillion was dabbed on their foreheads, and sweets were offered to them one by one for what they has accomplished at a time when vicious conspiracies were underway against the then chief minister of Gujarat.

This moral side to our democracy, again unsurprisingly sourced in Gujarat, has understandably received due exposure on electronic channels, although there are the bleeding-heart liberals, at bottom horribly dangerous communists, who have begun muttering that the courts must be approached to cancel the remission granted to these republic-saving scions of Hindutva.

We have little doubt that their customary babble will be suitably dealt with by the sentinels of the media and patriotic opinion-makers and sundry vigilante brave-hearts.

Let us, therefore, on both counts remember the momentous standing of this particular Independence Day, and vow to take that selfie with the tiranga and upload it as well so that others may be enthused and so that the IT companies, really the hero among them Jio, make a needed killing from the flow of messages among loyal citizens back and forth.

Gujarat’s elections are due in months and nothing is more important to the BJP than winning them; thus appeasement of the majority has been an imperative they could not have resisted.

Vande Bharat.

Release of Bilkis Bano Case Convicts: Conflicting Remission Policies Raise Difficult Questions

While the Gujarat government says the convicts were released as per its 1992 policy, experts say many other factors should have convinced the authorities to reject the applications.

Mumbai: On Monday, August 15, the Gujarat government released 11 convicts who had been sentenced to life imprisonment in the Bilkis Bano gangrape and murder case during the 2002 Gujarat communal riots. The convicts walked out of the Godhra sub-jail after the Gujarat government approved their application for remission.

Following their conviction on January 21, 2008 by a special Central Bureau of Investigation (CBI) court in Mumbai, the 11 men were sentenced to life imprisonment on charges of gang rape and the murder of 14 members of Bilkis Bano’s family – including a three-year-old. The Bombay high court upheld the conviction, and the convicts had served over 15 years in jail when one of them, Radheshyam Shah, approached the Supreme Court seeking premature release.

In May 2022, the top court directed the government of Gujarat to look into the question of remission since the crime was committed in the state and post-trial proceedings such as remission should be considered in terms of the relevant state’s policy. According to The Hindu, this 1992 remission policy was quoted in a 2012 order of the Gujarat high court, and “pertains to the early release of the life convicts who, on and after 18.12.1978, have served out 14 clear years imprisonment”.

The convict, Shah, had at the time of his petition undergone imprisonment for 15 years and 4 months as of April 1, 2022. Although the Gujarat government told the apex court that in this case, the appropriate authorities would be the state of Maharashtra since the trial was concluded there, the top court said that since the crime was committed in Gujarat, its remission policy would be valid.

Also Read: What Bilkis Bano Survived That Day in Gujarat, 2002

A bench headed by Justice Ajay Rastogi allowed the accused’s application for the state government to consider his release as per the Gujarat remission policy as on July 9, 1992. Holding that this was the policy in effect at the time of Shah’s and the other accused’s conviction, the court observed, “It has been settled by this court in State of Haryana vs Jagdish that the application for grant of premature release will have to be considered on the basis of the policy which stood on the date of conviction.”

Following this order, a committee headed by the Panchmahals collector, Sujal Mayatra, was formed. The committee thereafter took a unanimous decision to release all 11 convicts. The state government approved this decision.

Since law and order, police and prisons are state subjects as per the Seventh Schedule of the Indian constitution, the Code of Criminal Procedure (CrPC) under section 432 grants state governments the power to remit sentences. However, under section 435 of the CrPC, consent of the Union government is a necessary prerequisite for the premature release of the prisoners, particularly in cases where the offence was investigated by a central agency such as the CBI. This was also upheld by the Delhi high court in a 2021 judgment which said that the Union government’s consent was mandatory before proceeding with remission under section 435 of the CrPC.

Earlier in June this year, the Union home ministry had issued guidelines to states pertaining to the release of convicted prisoners under a special policy formulated as part of ‘Azadi Ka Amrit Mahotsav’ or the celebration of 75 years of independence. As per the said guidelines, special remission was to be granted to prisoners on August 15, 2022, January 26, 2023 (Republic Day) and August 15, 2023. Notably, persons sentenced to life imprisonment and rape convicts are not entitled to be prematurely released as per these guidelines.

Legal experts have pointed out how the conflicting remission policies pose several difficult questions.

A view of Supreme Court of India in New Delhi. Credit: PTI

Supreme Court of India in New Delhi. Photo: PTI

Shobha Gupta, the lawyer for Bilkis Bano, referred to a 2005 judgement by a five-judge bench of the Supreme Court, which said that life imprisonment means “until the last breath”. “Further, there are two categories of remissions. With regard to heinous crimes, remission is not a matter of right and secondly, there are factors to be looked into such as the crime, the nature of crime and so on,” she said. Gupta also informed this reporter that she was not able to get a copy of the 1992 notice.

Pointing to the guidelines laid down in the 2008 judgment of the Swami Shraddananda vs State of Karnataka, Bano’s lawyer also said that the Supreme Court had then clearly said that the nature of crime is a factor to be looked into. Stressing the need for remission to focus on the impact on victims, she added, “The concerns and safety of the victim is one of the factors to be looked into. Remission is a favour to be earned by the accused, the question is, is the victim not a person to be called upon and notice served to her? If the top court itself in its order awarding Bilkis compensation has noted that she and her husband have been running from pillar to post seeking safety, then this shows how vulnerable they are.”

Also Read: ‘I Fear For Our Future’: Bilkis Bano’s Husband on Release of 11 Convicts

Senior advocate Mihir Desai also emphasised the conflict between the Gujarat government’s and Union government’s remission policies, saying that under section 435 of the CrPC, “they would have to consult the Union government. We don’t know whether this was done. It should have been.” He added that if consulted, the Union government should not have given consent “as their policy does not allow rapists to be given remission. In any event, it is crucial in all matters of remission to take views of families of victims.”

Speaking on the need for the state policy to consider a change, Justice Anjana Prakash said that though she found from the Gujarat policy that it does bar remissions in several offences of serious nature, it did not do so in cases of rape. She said she considers rape “a very serious offence”.

“Now that this omission has come to light, maybe the Gujarat government can petition to include it as well,” she said.

Senior lawyer Nitya Ramakrishnan further said that the power of premature release given to the executive was “meant to ensure an element of human or social justice, that may evade the letter of the law or the judicial process”.

She added that despite this, “We see that state governments routinely refuse a premature release, even in a crime done without premeditation, or where there is only a single act or a single victim. The release of the Bilkis convicts with such promptness in a case of gangrape and 7 murders – that is, multiple premeditated crimes and that too during communal riots – therefore shocks the people’s conscience.”

Ramakrishnan noted that in setting all 11 convicts free, the question was, “What was the social justice or human justice in this case to merit the same? One does want to see humanising trends in penology. But the stark truth is that people have been in jail or even on death row for decades without their pleas even being considered by courts or by the executive. Which is why this recent release shocks and evokes condemnation.”

Speaking to The Wire, Anand Yagnik, a senior lawyer practising in the Gujarat high court, said that the remission is inconsistent with the new criminal jurisprudence that has emerged in the post-Nirbhaya era.

“Both the state and Union government’s policies should have been amended in the post-Nirbhaya era, given the recommendations of the Justice Verma Committee, especially when it comes to such heinous crimes against women,” Yagnik pointed out.

Note: An earlier version incorrectly stated that seven members of Bilkis’s family were murdered. The actual number is 14.