By Dr. Gyan Pathak
The Supreme Court decision declaring remission of 11 rape convicts of Gujarat riots of 2002 by the BJP government of the state with concurrence of the Centre has completely unmasked PM Narendra Modi led BJP, just on the eve of Lok Sabha Election 2024, which would compel them to clean their blackened face before the electorate, and merely their slogan of ‘Nari Shakti Vandan’ may not work.
The facts that the rapes were committed during the Gujarat riots when Narendra Modi was chief minister of the state, rapists were subsequently convicted for life by competent court in Maharashtra because the case was transferred on account of suspicion against the Gujarat government’s complicity in the riots, and finally BJP led Gujarat government with the concurrence of the Centre led by PM Narendra Modi passed remission orders after which convicts were released from jail.
After the remission order there were widespread outrage and protests in the country, and the order was challenged in the Supreme Court of India by several citizens, including one who is now an expelled opposition Lok Sabah MP in another case, on August 25, 2022, ten days after, the convicts were allowed to walk free. The freed convicts were even welcomed by some RSS-BJP activists as heroes, who had been serving jail term for rape of a Muslim victim who had survived their assault but had lost seven of her members who were killed during the riots.
Apart from the ethical issue involved in freeing the convicts of rape by the BJP led governments, it had clearly betrayed the worst level of communal mindset in operation among the RSS-BJP leaders, who were supporting Hindu rioters while refusing justice to a minority rape victim. The other issues include usurpation of rights of others by the BJP governments, which is a general allegation of the opposition in other matters too – such as democracy, constitutionalism, federalism and so on.
In this particular case of remission of rape convicts, the division bench of the Supreme Court of India led by Justice BV Nagarathna and Justice Ujjal Bhuyan has held that the State of Gujarat was not the “appropriate government” to decide the issue of remission as the trial was held in the State of Maharashtra. The court has directed the convicts to surrender in prison within two weeks and asked the Gujarat and Central government to submit all records.
The judgement authored by Justice Nagarathna pointed the rights of the victims and the victims’ families to justice, while adding, “A woman deserves respect howsoever high or low she may otherwise be considered in society or to whatever faith she may follow or whatever creed she may belong to. Can heinous crimes against women permit remission?”
While deciding on competence of the Gujarat government to pass remission orders for freeing the convicts, Justice Nagarathna wrote in her judgement that section 432 of CrPC mandates appropriate government to seek the opinion of the convicting judge while considering application for premature release. She added “this clearly means that the place of occurrence of the incidence or place of imprisonment are not relevant considerations, and they have been excluded from the definition of Section 432 of Code of Criminal Procedure. The intent of the legislature is that the appropriate government is of the state within which a convict was tried and sentenced. The emphasis is on the place of trial and sentence, rather than the place of commission of offence or sentencing. This also takes within its ambit a situation where a trial is transferred from a competent court within the territorial jurisdiction of one state, to one in another state.”
She also mentioned how fraud was played on court by one of the convicts adding, “The convict played fraud on this court. The Gujarat High Court’s order could not have been challenged in a writ petition, nor could it have been set aside in writ proceedings. Hence the said order is a nullity and non-est in law. Consequently, the May 2022 order is hit by fraud and is a nullity. It cannot be given effect to. All proceedings pursuant to the said order are vitiated. This judgement is also “per incuriam” as it refused to follow binding precedents, including the Constitution Bench judgement in Sriharan, regarding the appropriate government for remission.”
The Supreme Court not only pointed out fraud by convict but also bypassing the laws by the Gujarat government to free the convicts. The judgement read, “The exercise of power by the State of Gujarat is an instance of usurpation of power and abuse of power. This is a classic case where the order of this court was used to violate the rule of law by granting remission.”
The observations by the Supreme Court of India in this case, has been made several times by the opposition parties when they said that PM Modi led BJP government does whatever it wants, irrespective of the legal provisions and court orders, through one or the other stratagem.
“It will remain a bloodstained blot on the Gujarat government that it illegally released these convicts and that a BJP leader justified it,” said Congress leader Shashi Tharoor. Congress has said that Supreme Court ruling against the convicts bares BJP’s “real attitude, character and face”, that has exposed the mala fide intent of the Gujarat government, and the Centre could not escape responsibility, either, because it had approved the remissions. BJP had resorted to fraudulent means to secure release of rapists and murderers.
Congress president Mallikarjun Kharge said: “Beti Bachao has become doshi bachao. The Supreme Court order has restored justice in the Bilkis case. This has exposed the evil deeds of the home ministry. This shows that the BJP has abandoned justice for women to win elections. The women of the country have understood how perverse and reprehensible the BJP’s anti-women attitude is.”
Congress leader Rahul Gandhi has linked the issue to his Bharat Jodo Nyay Yatra to be launched from January 14 and said, “The tendency to kill justice for electoral benefits is dangerous for democracy. The Supreme Court verdict today yet again showed who is the protector of criminals,” adding that the tireless struggle of the victim is the symbol of victory of justice against the arrogant BJP Government.
AIMIM president Asaduddin Owaisi has called for apologies from the BJP governments in Gujarat and at the Centre, asserting that they played a role in releasing the rapists and killers of victim’s family members. It proves that Gujarat state had acted in complicity with the rioters.
CPI(M) said that the decision was a “hard slap” on the face of the state government. Apart from several political parties in opposition INDIA alliance, many eminent persons have criticised the BJP government in Gujarat and the PM Narendra Modi led central government for complicity in freeing the convicts.
In the meantime, released victims are absconding from their villages, and it is to be seen what the BJP government does to send them again into prison after the Supreme Court order. The entire episode will certainly impact the Lok Sabha election campaigns in the coming months. (IPA Service)
