The Gujarat government released 11 convicts in the Bilkis Bano case of the 2002 Gujarat riots, relying on a 1992 policy following the direction of the Supreme Court, while the State government’s revised policy of 2014 would have made them ineligible for remission. The 2014 policy bars out-of-turn release of prisoners convicted for rape and murder. A State government official said the decision to release the prisoners was taken as per the 1992 policy based on the Supreme Court’s order on May 13.
The SC said, “The respondents (State of Gujarat) are directed to consider the application of the petitioner for premature release in terms of its policy dated 9th July 1992 which is applicable on the date of conviction and may be decided within a period of two months.”
One of the convicts, Radhesyam Bhagwandas Shah, had moved the apex court this year “seeking direction in the nature of Mandamus (judicial writ) to the State of Gujarat” to consider his application for premature release under the Gujarat Government’s July 9, 1992 policy, which existed at the time of his conviction. His previous such plea with the Gujarat High Court was declined as the trial concluded in Maharashtra.
Shah, along with 10 others, was awarded life imprisonment by a special Central Bureau of Investigation (CBI) court in Mumbai in January 2008 on charges of gang-rape and murder of seven members of Bilkis Bano’s family during the post-Godhra communal riots in Gujarat. At the time of his conviction, the 1992 policy was in effect.
The 1992 circular was quoted in a 2012 Gujarat High Court order. It said that the circular “pertains to the early release of the life convicts who on and after 18.12.1978 have served out 14 clear years imprisonment”. Shah’s petition in the apex court said that as on April 1, 2022, he had undergone the sentence of more than 15 years 4 months without remission.
The Gujarat Government informed the Supreme Court that, in this case, the appropriate government is State of Maharashtra as the trial was concluded there.
The SC said that the crime was indisputably committed in Gujarat, which is the appropriate government competent to examine the application filed for premature release. It said, “And that is the reason for which the High Court of Bombay in Criminal Writ Petition No. 305 of 2013 filed at the instance of co accused Ramesh Rupabhai under its Order dated 5 August, 2013 declined his request to consider the application for pre mature release and left the application to be examined according to the policy applicable in the State of Gujarat by the concerned authorities.”
The order added, “It has been settled by this Court in State of Haryana Vs. Jagdish that the application for grant of pre mature release will have to be considered on the basis of the policy which stood on the date of conviction.”
According to Shwetank Sailakwal, advocate on record, it is the prerogative of the State to grant remission but it should have “applied its mind” and followed the latest policy.
Top officials of the State government have said that the remission has been granted after following the “laid down procedure” and as per the direction of the apex court.
“The SC had directed to decide within three months and we have followed the laid down procedure while deciding on their remission,” Gujarat’s Additional Chief Secretary (Home) Raj Kumar told The Hindu.
When asked whether the decision was taken in concurrence with the Centre, he said the “The Supreme Court directive was for the State government.”
A revised policy of the State government collated in 2014, and the latest guidelines issued by the Ministry of Home Affairs (MHA) on early release of prisoners, both mention that rape, murder convicts cannot be released out of turn by the prison administration.
On June 22, the MHA wrote to States that as part of the ‘Azadi Ka Amrit Mahotsav’ celebration to commemorate 75 years of Independence, it is proposed to give special remission to certain categories of prisoners and release them in three phases — August 15; January 26, 2023; and August 15, 2023.
The guidelines stated that special remission is not to be granted to 12 categories of convicts, which included “prisoners convicted for the offence of rape”.
According to retired IAS officer Sanjeev Gupta, the exclusion clause in the 2014 policy mentions cases investigated under the Delhi Special Police Establishment Act, in this case the CBI. “Did apex court give any omnibus directive in Bilkis Bano case?” Mr. Gupta asked.