 Hello and welcome to the Leaflet and NewsClick. The Supreme Court has been hearing please related to the remission granted to 11 convicted in the brutal gang rape and murder of several members of the family of Bilkis Banu during the 2002 Gujarat pogrom. The hearings in the court two days ago included an observation by a judge of the Supreme Court that delaying tactics are at play on behalf of the convict's granted remission. It is only a few years ago that these sentences were confirmed against these criminals and yet they were released last year on 15th August. So the question arises how long does Bilkis Banu have to wait for justice. We have with us Indra Jay Singh, senior advocate at the Supreme Court and a strong advocate of women's rights in the studio with us. Indra Jay Singh Ji, very welcome, very warm welcome to you from NewsClick. You know ma'am let's begin with the question that a lot of people would be thinking about today which is that why oppose this remission. Remission in itself seems to be a policy aimed at providing people a chance to reform themselves. Why does that not apply in the Bilkis Banu case? Yeah, it's of course a very important question that we need to answer. So but before I do that let's discuss what exactly is remission and what was the sentence awarded to these 11 people. It was life imprisonment. Now what do we understand by life imprisonment? By life imprisonment we understand imprisonment till your natural life is over. So it could be from anywhere to anywhere depending on what age you were, when you were convicted, nobody knows when anybody is going to die. So there is an uncertainty about the number of years that a person spends in prison when it's life imprisonment. But there is a provision in the law which permits what is legally called remission after the conclusion of 14 years of having served the sentence. So let's understand the concept of remission first. The concept of remission is that you are guilty. A sentence has been imposed on you for that guilt and that is a sentence for life imprisonment. Now if you look at the facts of this case, what were they accused of? They were accused of mass murders and of gang rape. Women and children were killed apart from other family members of the Peshbado. So this is the reason why a life sentence was imposed. Normally obviously you know that when it's a question of 302 that is murder, there is normally a life sentence imposed or it could be a death sentence. Now you take this case, there could have been a death sentence in this case. But the trial court imposed a sentence for life in relation to all these murders and in relation to the gang rape of Bilkish Manu. In fact you know Bilkish Manu was given up as being dead and that's the only reason she survived. You also know she was pregnant at that time. So in fact the CBI had appealed the life imprisonment and had asked for death penalty enhancement but the high court had declined to enhance the sentence. Ultimately the matter came to the Supreme Court and finally the sentence was imprisonment for life which means till natural life is done. Now as we discussed there is a provision for remission in the law. Now this provision for remission is something of a humanitarian provision. I would argue that it's not so much about reform because reform is something that can happen inside prison, outside prison and we really don't know if there are known criteria for judging whether a person has reformed. But in that case some of these people were out on parole. In fact some of them have been out for prolonged periods of 2 to 3 years on parole and so they didn't even do those mandatory 14 years of imprisonment. So leave aside the question of reform for a moment because your question was is it reform? You can leave aside that question just let's just look at it as a human issue like whether someone who has been given life imprisonment 14 years is considered even by the law as an adequate period of imprisonment, of punishment. Other things being equal. Now to answer your question why not in this case? The only answer to that is you have to look at the context in which the crime was committed. That is no other answer to that question except that. Every crime doesn't have the same context in which it is committed. Every crime doesn't have the same motive for the commission of the crime. In this case the crimes occurred in the program of 2002 in Gujarat and the very very clear motive for these crimes was targeting people based on their religion Right. So it falls in a different category of crime. It doesn't fall, it's not like you and I have enmity with each other so I decided I'm going to kill you or whatever. It's not a dispute over property, it's not a dispute over money, it's not a dispute over theft. It is not even a dispute. It is quite simply an act of mass murder committed. It is in a program which is overtly religious in nature. So when you, God forbid crimes like that are ever committed but when you see crimes like that we've seen them internationally. We've seen crimes like this being committed in the context of genocide and these cases have gone to court and there is adequate international law on the subject of punishment also. In a situation like that it certainly makes no sense to say that a person should be released after 14 years. I would say it becomes a question of proportionality rather than a question of reform and 14 years for a person who has committed a crime in the context of mass murder based on religion and it's called genocide is most disproportionate to the crime for which they're held guilty. So you're saying that the horrific, the absolutely horrific nature of the crime and the circumstances in which it was committed should have been taken into account by the Gujarat state government and perhaps also the central government which allowed this remission to, which cleared this remission. But we don't really know what the facts were which were discussed in that committee which allowed this remission. Can you just tell us what the status is? It seems that the Gujarat government has shared some information but not all of it and Bilki Svanu doesn't have all the information that would allow her to know why after all these years of struggle these men are roaming free again. You're right in a sense but not entirely because in the affidavit and reply they shared some of this information. Now there are jail committee reports, jail committees are supposed to have social activists, they're supposed to have community members, they're supposed to have officials and they've views are taken into consideration. And now the surprising thing of course is all of them have a standard reply in which they say that conduct in jail was fine. Okay. And they offer that as a reason why they should be released on remission. However the facts are to the contrary because as we were just discussing that while they were out on parole they have committed other crimes which have been brought on the record by FIRs and Bilki Svanu herself has complained that she was threatened when they were out on parole. So it's transparently false the reason which has been offered by some of these authorities. But as you know the law also requires that the trial judge should give his or her opinion before any remission can be considered by the appropriate government. And in this case the trial court judge has given an amazing negative opinion against remission in which he says in no uncertain terms that the motive for this crime was based on religion. I have not seen any such opinion in all the years that have been working on criminal law. It's extraordinary. But I think the trial court judge hit the nail on the head. He focused on the motive. He focused on the content. And so how would we draw a distinction, how would you draw a distinction between say the release of you know a convict like Mr. Anand Mohan Singh in Bihar by the Bihar government. They too amended or tweaked the law a bit to make that happen. So before I go to that question I need to also add that the trial court judge actually said this is a crime against humanity. And the minute you say it's a crime against humanity you are in the realm of international customary law because crimes against humanity are crimes which are recognized by the Rome Statute as being deserving of very of punishment obviously. Now of course India is not a member of the Rome Statute but certain norms are considered norms of customary international law what we call Jusquit Jensen binding on the world at large whether we join the statute or don't join it. And there is indication in that statute that crimes against humanity the minimum sentence that a person must do is 30 years. It's a benchmark. And so this shows you how arbitrary the decision was. So the question that you are asking is or raising is that can we compare this with. Or is there a distinction between the two. Is there a distinction or a comparison. I can first of all the matter is subjudice and I do not wish to hurt the sentiments of any of the family members. I am aware that his wife has the wife of the person who was killed has approached the court and questioned this remission and we have to leave it to the court to see what they do. But as I said I don't wish to hurt anyone sentiments or emotions. I think victims are certainly justified in feeling that the person should not be released that the person who has been punished should not be released. But I think what you have to understand is that the guilt is accepted. The conviction remains that's what happens in a remission and the question then becomes one of proportionality of time done in prison. And I can only speak to you as a person who is a liberal as a person who I would like to see a world without prisons. And so I personally believe that 14 years is a reasonable benchmark for considering remission for anybody. Other things being equal. Now I don't know the facts of this case. I don't know what induced them to give the remission in the public domain the arguments are that this was a political decision. It may be it may not be but for me the question is how long did the person spend in prison and there is I think a record to indicate that 14 years was spent in prison. So definitely there's no comparison but whether this person should get remission or not given remission is not something I can answer to. But there is no doubt about the fact that they do not stand on the same footing. Right. You know the political allegation is also leveled against the BJP government in Gujarat and against the central government that the you know despite advice to the contrary reasoned or not they did allow this remission extending the quest for justice for a woman who might have believed that at last she has got some justice. Yes. Is that you know sort of attributing what might not be there? What do you think? The government at the center is the same political party is in power at the center as it is in the state of Gujarat. Yes. Okay. So I would say it's very reasonable to say that this has been done for political reasons but apart from that their post release statements of people belonging to that party are so horrific that I would say it makes other case to cancel the remission and what have they been saying? They've been saying there's been actually a denial of guilt by these people after they've been released after a conviction by a court of law. They've been actually denying no we didn't even commit these crimes and secondly others on their behalf have been saying oh after all they are Brahmins. Yes. So where is the question of you know incarcerating them? Now all these factors lead to the undoubted conclusion that political factors have operated in the making of this decision. What are people to do in this situation? Are women supposed to give up on finding justice? Okay. So it's not just any woman, it's Spilkesh. Okay. Is she supposed to give up on it? Now the other relevant factor of course is that she and I really don't know where she got the courage from to even come to court and go through this whole litigation up to the Supreme Court. After that she's tried hard to rebuild her life and with some hopefully with some success and now to be faced with having to confront her rapists and the murderers of her family and her children is I don't think I can comprehend what she must be going through. It's not possible for me to come. She's not just any woman and so this factor of all the factors would have been a relevant factor to take into consideration. So when a convict has not lost that very impulse which made him commit the crime, where is the question of release? So if you see their post release conduct, you will realize that that's my sense, you know, words like reformation are not really relevant in the context of a remission. When you see their post release conduct, you can understand the impact this is going to have on Spilkesh Panu herself. Yes. And that should have been one of the primary factors for not giving the remission. So it's tragic. Ma'am, finally, what is it that Spilkesh and other petitioners in the Supreme Court, what is the relief that they seek? Okay, it is the quashing of the order of release and it's fortunate that the citizens of this country are watching what's going on in the Supreme Court, what's going on in this country and that is why you had people like Pawar Moitra who rushed to court and after that you had Subash Niali and her group of people who went to court questioning this release and incidentally they did go to court even before Spilkesh Panu went to court to question the release but I think this is one of the welcome and one of the heartening factors of what's happening in this country. We do have a vigilant citizenry which is watching the court, which is watching the court which actually enabled this to happen because there was a judgment of the Supreme Court which referred the matter back to the Gujarat High Court for decision and which is watching what the central government is doing, which is watching what the Gujarat government is doing and most of all people who have looked after Spilkesh Panu over the years from 2002 till today, she needed a lot of support and the good news is of course she got that support from civil society, she didn't get it from anywhere else so what can she expect, she has the right to expect justice. And by anywhere else she did not get support that anywhere else being the CBI could have opposed this, you know the Gujarat government could have sort of taken action, no one did, it's civil society. Well as we said earlier the CBI did put one sentence in that they do not agree with the release but the government, there is no explanation given by them and by the way one of the most important, as you said the documents are not available, one of the most important factors is we still don't have the actual order of the government releasing them. Spilkesh Panu and all the other petitioners are still today struggling in court for a copy of that order, only on the last occasion when the matter was on board, the Solicitor General Mr. Tushar Mehta said alright we are not claiming privilege for these documents but did not agree to share a copy with us. Effectively that means delaying the entire process. Well the delay was because of the bullying tactics adopted by the lawyers for the accused in the court of law to a point where Justice Joseph had to express his own frustration and very unusually he had to say that you can see what's going on in this court meaning that everybody knew that he's retiring in June and 19th May is the last court working day, it's very unusual for a judge to express his frustration but then judges are also human. So filibustering, delaying tactics and of course on the previous occasion the Union, the Government of India and State of Gujarat represented by the Solicitor General did not make the documents available so really it's anybody's guess when this issue will be decided, certainly not before the court reopens in July, tragically. Energy is saying thank you very much for joining us and that's all we have today for you from Leaflet and NewsClick. Do keep watching our stories and follow us on our regular social media for more stories like these.