EPW Editorial

Eleven persons convicted for gang rape and murder who were sentenced to life imprisonment were prematurely released on 15 August 2022. The garlands and sweets offered to these convicted prisoners after their release by right-wing activists only bring back the memory of the crimes committed in the Gujarat riots of 2002.

The remission of the convicted prisoners is also a grim reminder that the trauma and tormenting memory of the heinous crimes are bound to stay, particularly with those who were able to secure some degree of justice from the law enforcement and judicial agencies that were processing the cases for justice. As a part of procedural justice, the case of Bilkis Bano—which she fought with moral tenacity—brought to her and her family some sense of relief as after several years of investigation and judicial proceedings, her tormentors were convicted by the sessions court in Mumbai in 2008. However, whatever little sense of justice that the victim was able to secure stands completely shattered by the recent remission.

The prisoners under reference were released as part of a special remission programme on the occasion of Azadi ka Amrut Mahotsav. The philosophy behind such a scheme is informed by the restorative or rehabilitative vision of justice where it is believed that criminals are a product of socio-economic circumstances and deserve to be given a second chance for improving their life prospects. The module prepared by the Ministry of Home Affairs (MHA) regarding the special remission scheme has socially sensitive and reformist provisions such as giving priority to women and transgender individuals above 50 years of age for early release, terminally ill and physically challenged people, poor people who have finished their sentence but are still in jail due to the non-payment of fines, and young persons who committed a crime between 18 and 21 years of age and have completed 50% of their awarded sentence. Moreover, the module also clearly mentions that special remission is not to be granted to the following individuals—persons convicted with the sentence of life imprisonment, those convicted for the offence of rape, dowry death, human trafficking, molestation of children, and offences for which death penalty has been specified as one of the punishments, among others.

Following the provisions of the module released by the MHA, it appears highly questionable how the convicts in the Bilkis Bano case were even considered eligible for this special remission scheme since they were convicted with the crimes of rape and murder. It has been alleged that since the constitution of the panel that recommended the remission of the 11 convicts was skewed in favour of politically partisan interests rather than justice, the decision of the panel does not steer clear of the public apprehension regarding the remission. It is argued that the magnitude and intensity of the crime against Bano was so enormous that the remission looked unwarranted. At the same time, the remission of these prisoners will only add to the scepticism about policies of restorative or rehabilitative justice that are essential for building a compassionate criminal justice system in India.

One of the tenets of restorative justice is that genuine repentance is possible for even crimes that are violent and brutal in character. However, the garlanding of these prisoners in Gujarat and the silence of most members of the ruling government regarding the injustice shown towards Bano merely exhibit that, far from repentance and reconciliation, there is an element of complicit pride that is invoked by the release of these prisoners for the adherents of the current sociopolitical dispensation. It is a profound irony that in a country where death penalty has not yet been abolished and where the majority of prison population consists of undertrials, palpable demands are being raised that convicted rapists and murderers involved in high-profile cases of communal and sexual violence should instead be treated with leniency and amnesty. What is also morally disturbing is the fact that only certain sections of civil society expressed their concerns over the remission, which does not have any convincing ground. It underscores how the popular response to acts of injustice remains socially differentiated and conditioned. The warped justifications for remission extended by certain elected representatives of the ruling party are not only devoid of any moral ground but in fact betray an understanding of morality and law that is deeply discriminatory/parochial. Any decent country would expect the members of the civil society to question as to how far their act of extended support to the rapists is justified. Playing a song of praise for the convicts constitutes a passive injustice that is socially as well as morally grave.

Pleas seeking a review of this case of remission have reached the Supreme Court. It remains to be seen as to what the Central Bureau of Investigation will argue before the apex court, which will decide the hard and soft cases for discretion in remission. Nevertheless, it is hoped that if not for minimal human decency, then at least based on the guidelines of the MHA’s own module, the concerned investigative agencies would oppose the remission granted to the convicted prisoners in the Bilkis Bano case.
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