Throw light on an exceptional decision

Sunlight, as in nature so in jurisprudence, is an effective fumigating agent. It is especially so in democracy. In dealing with the Supreme Court‘s order asking GoI and the Gujarat government to produce relevant documents leading to the August 2022 remission of the sentence of 11 convicts in the heinous case of the gangrape of Bilkis Bano and murder of seven of her family members during the 2002 Gujarat riots, GoI has reportedly claimed privilege. It has also sought time to come to a final decision by next week whether to file a review petition against the court order to produce the documents. It would serve everyone well, including itself, if the government shares the relevant files with the court.

Sections 123 and 124 of the Indian Evidence Act, 1872, provide a government ‘privilege’ to not disclose communications made in official confidence when ‘public interests’ are thought to suffer by their disclosure, outweighing the perceived ‘harm’ their concealment may cause. The court, however, is right to provide important context when it stated that this case can’t be compared with ‘standard’ rape and murder cases for which remissions usually apply. It also was careful to underline the fact that the government may very well have a valid reason – and, therefore, a case – to have prematurely released those found guilty. But its reasoning for coming to such an exceptional decision should be shared with the court. Opaqueness doesn’t help its case of coming across as being objective.

Legally, as it has politically, the ‘pardon’ of those found guilty of rape and murder in the case may hold water. But a moral hurdle – something that still matters in a democracy – will be cleared only once the reasoning for such an action is brought to light.