Months before sanctioning the release of convicted rapists and killers in the Bilkis Bano case of the 2002 Gujarat riots, the Union Home Ministry framed guidelines that 12 categories of convicts, including “prisoners convicted for the offence of rape” are not eligible to be released prematurely under a special remission scheme to commemorate 75 years of Independence.
On June 10, to celebrate the Azadi ka Amrit Mahotsav programme, the Ministry wrote to all the States where it proposed to give special remission to certain categories of prisoners in three phases – August 15, 2022, January 26, 2023 and August 15, 2023 – where the concurrence of the Union government is required. Since prison is a State subject, the Union government’s opinion is required in cases where a Central agency such as the Central Bureau of Investigation (CBI) or the National Investigation Agency (NIA) investigated the case. During the first phase, 37 prisoners from across the country were released.
A letter containing the guidelines on the categories of prisoners not to benefit from the amnesty scheme was sent after a similar missive was sent by Union Home Minister Amit Shah on April 21 to the Chief Ministers of all States. Union Home Secretary Ajay Kumar Bhalla had also sent a reminder to the States regarding the omissions.
As per the October 17 affidavit filed by the Gujarat government in the Supreme Court, on June 28, the Home Ministry was asked by the State government for its opinion to release the 11 convicts in the Bilkis Bano case who were lodged in the Godhra sub-jail.
On July 11, the Ministry replied to the Gujarat government conveying the “concurrence/approval” of the Union government under Section 435 Code of Criminal Procedure (CrPC) for “premature release” of the 11 prisoners.
The State government informed the court that it considered the plea for early release of the 11 prisoners as per the policy of 1992 and remission was granted on August 10. “It is pertinent to note that the remission was not granted under the circular governing grant of remission to prisoners as part of celebration of Azadi Ka Amrit Mahotsav,” the affidavit said.
Though the CBI and the CBI court opined that the convicts cannot be released as the crime is “heinous, grave and serious” and the “crime was committed only on the ground that the victims belongs to a particular religion”, the Gujarat government released the convicts on account of “good behaviour”.
Retired IAS officer Sanjeev Gupta pointed out, “Even if one goes by this ‘good behaviour’ theory, can decision of the Central government in a specific case submitted to it for its approval under Section 435 be different from its own general guidelines to States on remission?”
Section 435 of the Code of Criminal Procedure states that a State government should act after consultation with the Central Government in certain cases of remission.
The Ministry did not respond to why the release of the convicts was sanctioned despite the CBI opposing the move.
