The article "Right Or Wrong? Setting free the convicts of 'Bilkis Bano' Case" by Anushkaa Arora is a comprehensive analysis of Bilkis Bano's case. The author discusses that law and emotions are totally different and law always favours what is just.

The article "Right Or Wrong? Setting free the convicts of 'Bilkis Bano' Case" by Anushkaa Arora (Senior Panel Counsel, UOI, Delhi High Court, Jail Visiting Counsel, Senior Counsel, Northern Railways, Principal & Founder: ABA Law Office) is a comprehensive analysis of Bilkis Bano's case. The author was assisted by Twinkle Rani, Research Associate, ABA Law Office. The author discusses that law and emotions are totally different and law always favours what is just. The author highlights the premature release of the victims and justifies it with the help of legislative provisions. The remarkable observations of Justice DY Chandrachud and Justice Hima Kohli have been highlighted. The author concludes the case with the help of legal jurisprudence involved in the decision.

"मैं उम्र भर का सफर इस लंबी कैद में कर आया,एक पल में सदिया जी आया
कि दस्तक देगा एक दिन नया सवेरा मेरे चौखट पर, और चैहकेगा फिर से सूरज अपनी पहली लालिमा, संग पक्षियों की मीठी वाणीया।
आंखों में स्वप्न लिए मैं बैठा हूँ आजादी के लिए,
आजादी अपनों से मिलने की,आजादी उन्मुक्त गगन में फिर से उड़ने की।"

The promise of equality in our Constitution would stand still if the implementation of the policy of pre-mature release of prisoners is not carried out transparently, impinging the constitutional guarantee under Articles 14 and 21 of the Constitution of India.

Scaling law and emotions under the same heading is in itself a question of the justice delivery system, and the hue and cry over the release of the 11 convicts in the BILKIS BANO'S case is in itself a result of emotions.

Amidst the 2002 communal riots in Gujarat, a lady named Bilkis Bano, who was around 5 months pregnant, was gang-raped, and 14 of her family members, including her three-year-old daughter, were murdered. The Supreme Court significantly took charge of the case and handed over the investigation to the CBI. The trial from Gujarat to Maharashtra was shifted, and subsequently, in 2008, a Sessions Court in Mumbai convicted the convicts.

While on August 15, 2022, the 11 convicts were released from jail according to a decision taken by the Gujarat Government to grant them remission after the completion of 14 years of a sentence when a writ petition was filed by a prisoner, Radheshyam Bhagwandas Shah @ Lala Vakil seeking direction to the State of Gujarat to consider his application for pre¬mature release under the policy existing at the time of his conviction.

However, the remission granted to the 11 convicts has been put under challenge before Supreme Court and the Petitioners therein have been directed to implead the persons who are released on 15/8/2022 by virtue of an Order passed by the State of Gujarat and reply to the query posted by the Supreme Court is being awaited through State.

This is an ironic situation involving the victim and the 11 convicts. Specifically, it refers to their premature release pursuant to remissions and consent from the state Government. Much hue and cry have been focused on the release of the said convicts, especially in social media, further to which there have been debates all over the nation pertaining to the said release.

Understanding the Legal Framework w.r.t. Premature Release of Life Convicts

Under the criminal law of India, there is no set definition of 'life sentence' meaning thereby, when do we term 'life sentence', whether it is the remainder of natural life or does it have some defined number of years? To add to this debacle, Section 57 of the IPC, 1860 ("IPC") defines life imprisonment as imprisonment of up to 20 years.

Thereafter, the Code of Criminal Procedure ("Cr.P.C.") as per Section 432 states that

"a State government can remit the sentence awarded to a convict and release him after remission of the sentence".

Further, Section 433(b) of the Cr. P.C holds that

"an appropriate government may, without the consent of the person sentenced, commute a sentence of imprisonment for life, for imprisonment for a term not exceeding 14 years or for fine".

Section 433-A of Cr.P.C. further holds that "anyone awarded life imprisonment can be released only after completion of at least 14 years in confinement". Keeping in view the abovementioned gist, we do have an understanding of the aspect of determining a 'life sentence' however, we are yet stuck in a debacle as to what is the actual determination of the same. However, keeping in mind the topic at hand today, our confusion does not get restricted to the number of years after which a life convict can be released, however, it is the question of whether the state government releases a life convict based on set parameters after the defined number of years. To the later, the answer is affirmative, as there is no confusion concerning the same under the criminal code of India.

Keeping in mind the above, the release of the 11 convicts of the Bilkis Bano case, there is nothing unlawful considering the premature release of the same. The law provides for premature release after completion of 14 years and based on criterions mentioned, the state government has the authority to pre-mature release life convicts.

However, considering the present scenario where the masses, including social media and news, are only deliberating victim rights & concerns at length, we must not forget that law and emotions cannot be mixed.

Deliberation

Keeping in mind the uncertainty attached to the term life convicts and, thereafter, the hue and cry which occurs at the time of the premature release of life convicts, there is an alarming need to re-defining Life Imprisonment. There can be a division of category of offences which may fall under life imprisonment of up to 20 years in accordance with Section 57 of the IPC and Life imprisonment until death or until the convict's natural death, as held in several cases by the Hon'ble Trial and Appellate Courts. The Hon'ble Courts shall be sensitized to this effect and while awarding life imprisonment to an accused, be specific and clear in relation to the number of years being awarded under life sentence and some benefits to which the convicts are entitled under the Cr.P.C. (such as Section 432, 433 & 433A of the said code).

Recently, a bench of the Supreme Court comprising Justice DY Chandrachud and Justice Hima Kohli made significant observations while deciding a batch of Writ petitions filed by prisoners in Uttar Pradesh seeking remission. The Hon'ble bench observed:

"The implementation of the policy for premature release has to be carried out in an objective and transparent manner as otherwise it would impinge on the constitutional guarantees under Articles 14 and 21. Many of these life convicts who have suffered long years of incarceration have few or no resources. Lack of literacy, education and social support structures impede their right to access legal remedies. Once the state has formulated its policy defining the terms for premature release, due consideration in terms of the policy must be given to all eligible convicts. The constitutional guarantees against arbitrary treatment and of the right to secure life and personal liberty must not be foreclosed by an unfair process of considering applications for premature release in terms of the policy"

Conclusion

The Bilkis Bano's case draws attention to the proposition that "Considering an act was horrific, is that sufficient to signify remission granted/pre-mature release of convicts is wrong?"

There is a larger picture attached when we talk about criminal practice. Criminal practice differentiates itself from other arenas of practice under law, where the said practice is just not confined to either winning or losing a case rather, human lives are at stake. The litigants involved in a criminal case can be the victim, the accused, and their respective family members.

The jurisprudence involved under the principles of natural justice is crystal clear that "he who does wrong must be penalized". Keeping in mind the Bilkis Bano case, it is a sorry state of affairs considering the plight of the victim along with the accused persons that an incident which occurred in 2002 was in itself a horrific incident along with the present state of affairs, whereas after duly serving prison period (as per law) the said prisoners were ordered to be pre-maturely released, which became the talk of the nation recently. With due respect, there is no ambiguity in the law regarding the pre-mature release of convicts; hence, the said pre-mature release is justified under legal jurisprudence.

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Updated On 2022-10-12T13:54:56+05:30
Anushkaa Arora

Anushkaa Arora

Senior Panel Counsel, UOI, Delhi High Court, Jail Visiting Counsel, Senior Counsel, Northern Railways, Principal & Founder: ABA Law Office

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