15, Jan 2024 | CJP legal research team
On a crisp January day in 2024, the gavel fell on a momentous decision. With poetic authority, Justice B.V. Nagarathna penned a compelling 251-page judgment that echoed through the hallowed halls of justice. In a dramatic turn of events, eleven convicts in the Bilkis Bano gang rape case were called to return to their prison confines within two weeks, as remission orders granting their premature release were swiftly set aside by a resolute two-judge Bench of the Supreme Court. Justice Ujwal Bhuyan was the second judge. This was after 11 convicts has been precipitatiously released on August 15, 2022, an act that generated nationwide outrage and protest.
The January 8 order came on a batch of petitions challenging the release. Along with the writ petition filed by Bilkis Yakub Rasool (Bilkis Bano) in November 2022, several other petitions were also previously filed. These were by senior women politicians’ activists and journalists.
Citing the public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights, these petitions held their ground. The Supreme Court, primarily addressing Bilkis Bano’s petition, chose not to rule specifically on maintainability calling it an “academic” point.
The brutality of communal violence experienced in February 2002 in Gujarat –a widespread and shocking impact for thousands –seminally changed the life of Bilkis Bano. Carrying her three year old daughter, Saleha, as she was fleeing for her life from the small town of Randhikpur where she had been born, a mob –many of whom she recognised – fell upon her and several others from her family including her mother and sister—smashed her child’s head and raped her and others. She was left only because she was unconscious, believed to be dead. Of the total lives lost which were 14, seven were Bilkis’ family alone; three other women were also raped before being killed.
Bilkis was one of the sole survivors and courageously fought—for 22 long years to obtain substantive justice. When the local police closed down her complaint, replete with details and filed an ‘A’ summary report (closure report) and this was shockingly accepted by the local magistrate, she, assisted by a band of activists and lawyers, approached the National Human Rights Commission (NHRC). In 2002, it was former Chief Justice JS Verma, who had led an intrepid investigation into the Gujarat 20002 carnage recommending an investigation by the Central Bureau of Investigation. By 2004, when the Supreme Court finally ordered a transfer of the trial to Mumbai, another for chief justice, Justice AS Anand was chairperson, NHRC.
Finally in 2008, a special CBI Court Judge, Judge UD Salvi convicted 11 persons for the mass targeted crimes, and their conviction was upheld by the Bombay High Court in 2017. Finally in 2019, the Supreme Court of India not only upheld this conviction but directed payment of Rs 50 lakhs in compensation, a suitable home/land to be provided by the state of Gujarat as reparation. She was also directed to be provided employment; however when she requested that her husband be employed instead since she was unlettered this direction remains unfulfilled.
Drama hit this case again in 2022. As the country was being made to “celebrate” Amrit Mahotsav –75 years of Independence from Brtish rule –on August 14, 2022, 11 of these convicts were released in celebratory fanfare by the Gujarat government, still ruled by the supremacist Bharatiya Janata Party (BJP). Ministers in the state government and officials of the ruling party garland and welcome these mass murderers and rapists in their midst.
Outrage all over India follows with thousands participating in signature campaigns demanding a withdrawal/cancellation of the remission. By September 2022, that is within a month three prominent women file writ petitions challenging the remission. By November 2022, Bilkis Bando herself, represented by Advocate Shobha Gupta also approaches the Supreme Court. The matter is heard at length, the Solicitor General Tushar Mehta predictably represents the Gujarat government and on January 8, 2024, the Supreme Court delivers this verdict.
How did the remission orders come to be passed?
Having spent 14 year behind the bars, convict Radheshyam Shah, appeals for consideration of remission first with the State of Gujarat where it is ruled that the appropriate government would be the government of Maharashtra. At the time, the Maharashtra government is ruled by the Maharashtra Vikas Aghadi (MVA). Not approaching Maharashtra then, he challenges this finding of jurisdiction and approaches the Supreme Court on the question. During the hearings in April-May 2022, both he as convict and the Gujarat government as respondent conceal material facts from the Supreme Court – for instance the fact that the Judge who had tried the case and convicted these men, Judge UD Salvi had vehemently opposed the remission when duly consulted; the fact that the prosecuting agency, the CBI, too, when approached by on the issue as is due, also had strongly commented against remission. This concealment of facts led to the Supreme Court in May 2022 to deem the Gujarat government/administration as being the jurisdiction to deliver a response on remission. It is this sinister concealment by the Gujarat government before the Supreme Court has led to the present order of January 8, 2024 to state that “a fraud was committed on the Supreme Court” by the Gujarat government.
In a well -orchestrated move, around the same time, 10 other convicts also furnish remission pleas before the State of Gujarat, ostensibly, in compliance of Section 432 of the Code of Criminal Procedure (CrPC). And then, on August 15, 2022, during Independence Day celebrations, the Gujarat government duly delivers on this after accepting the remission applications for all 11 convicts who were sentenced to life imprisonment. The Gujarat government stated that they were granted early release in accordance with the 1992 policy, citing the ‘good conduct’ of the convicts while imprisoned. The convicts are all granted remission in reliance of the order dated August 10, 2022.
[Later media investigations reveal –following the nationwide outrage that follows their release that these convicts –serving terms in Gujarat—had been granted obscene number of days of parole by the prison authorities rendering their incarceration a joke. Advocates Shobha Gupta and Vrinda Grover had argued that they had, in fact not served their sentence. Also, that in the “Committee” appointed by the Gujarat government to consider the remission applications, three dominant members were office bearers of the ruling BJP! One of the convicts was even booked in 2020 for a gender violence case while on parole! ]
Aptly aggrieved by this, Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, filed the writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated August 10, 2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai were released prematurely.
The issues under discussion
The heart of the matter revolved around the sustainability of petitions, the power vested in the Gujarat government to provide remission, and the fundamental freedom of the convicts. The verdict ruled in favour of the petitioners on all these fronts.
The following points outline the issues in detail:
- Whether the writ petition filed by the petitioner is maintainable?
- Grant of remission is an administrative function that involves the reduction or cancellation of a punishment. Administrative Orders, which pertain to decisions made by government agencies and officials, are subject to judicial review, allowing courts to assess their legality and fairness. Thus, the petition by Bilkis Bano should have concrete standing.
- The remission order flows from a writ of mandamus by the Supreme Court. This writ cannot be challenged by filing a review petition and would require a curative petition.
- One of the learned counsel also highlighted that Bilkis Bano should have first approached the Gujarat High Court availing her right under Article 226 of the Constitution and approaching the Supreme Court should have been a last resort.
- Discarding these objections, the Apex Court upheld the maintainability of the petition.
- The petition filed by the cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before the Supreme Court.
- One more compelling justification for supporting the viability of the petition was that Radheshyam Shah, one of the offenders, had filed an Article 32 plea with the Supreme Court asking the Gujarat government to review his remission. On May 13, 2022, the Supreme Court instructed the Gujarat government to evaluate remission under the 1992 Gujarat Policy. However, the Gujarat government was incompetent to address the petition given that it falls out of its jurisdiction. Crucial facts were also concealed from the Supreme Court at the time. The maintainability of Bano’s petition also clarifies this.
- Whether the writ petition filed as a PIL challenging the order of a remission is maintainable?
- Pained by the order of remission, following petitioners
o In Petition (Crl.) No.352 of 2022, Dr. Meeran Chadha Borwankar, a former woman police officer, an ex-Indian Foreign Service bureaucrat, and an academic seek to set aside the remission Orders.
o Subhashini Ali, a former parliamentarian, Revati Laul, an independent journalist, and Roop Rekha Verma, former Vice-Chancellor of Lucknow University, collectively file Writ Petition (Crl.) No.319 of 2022 challenging the same Orders.
o Mahua Moitra, Member of Parliament from Krishnanagar constituency, West Bengal, files Writ Petition (Crl.) No.326 of 2022.
o Writ Petition (Crl.) No.403 of 2022 is filed by the National Federation of Indian Women (NFIW), a women-centric organization, seeking a mandamus to revoke remission granted to respondent Nos.3 to 13
o Asma Shafique Shaikh, a lawyer and social activist, files Writ Petition (Crl.) No.422 of 2022 seeking to quash the Orders dated 10.08.2022.
- The claim largely relied on public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights.
- It was also contended that the petitioners who have filed the public interest litigation are interlopers and busybodies and are not persons who are aggrieved.
- Remission is an affair between the state and the convict, hence, there should be no third-party influence and they retain no locus standi.
- Such interferences would unsettle the position of law and open floodgates of litigation involving “un-aggrieved party”
- The judgement held that the merits of the remission orders were considered under the petition by Bano. It stated that the maintainability of PILs was an “academic” discussion which need not be answered in the present case.
- Whether the Gujarat Government was competent to pass the order of remission?
- Definition of the expression ‘appropriate government’ finds meaning in sub-section 7 of section 432 of CrPC
- The state in which the offender has been sentenced is competent to consider an application of remission. This means that the place of the occurrence of the incident or the place of the imprisonment is irrelevant and similarly they have been excluded from the definition in Section.
- In the present case where there was a transfer of the trial form Gujarat to Maharashtra, the transfer becomes relevant in deciding the State competent to review remission.
- Additionally, the viewpoint of the presiding judge in the convicting court is pivotal when a convict seeks remission. In this case, both the convicting court and its presiding judge were in Maharashtra.
- Reference was made to the precedent set in the case of State of Madhya Pradesh v Ratan Singh (1976), wherein the Supreme Court established that the convicting state of Madhya Pradesh would be deemed the “appropriate government,” irrespective of the fact that the convict was serving the sentence in Punjab. Additionally, reliance was placed on the decision in Union of India v V. Sriharan (2016), where a Constitution Bench reaffirmed the definition of the “appropriate government.”
- Vehemently argued that the place appropriate for the consideration of the remission is to be the place where the offence has occurred and which is also the place where the convicts are incarcerated.
- State of Maharashtra to have the jurisdiction to consider the application of the remission vis-à-vis R No. 3 to 13 (the convicts) as they were sentenced by the Special Court, Mumbai.
- Given that the order of the remission (of R No. 4 to 13) were passed by the State of Gujarat which had no jurisdiction, the order thus passed has no leg to stand. There seems to be an error of jurisdiction.
- When an authority, which is the Government of State of Gujarat in the instant case, was lacking jurisdiction to consider the applications for remission. Just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed, or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of law.
- Therefore, the Order of remission passed holds no ground simply on this reasoning
- Additionally, the court establishes that the May 2022 of the Supreme Court which grants the State of Gujarat to decide the request of remission is per incuriam which is to say that it is not based on law or fact and goes against V Sriharan (Union of India vs V. Sriharan @ Murugan & Ors. (Writ Petition (Crl.) No.185/2014).
- Radheshyam, the petitioner in the May 2022 case, intentionally left out crucial details when approaching the Supreme Court. Following the dismissal of his plea by the Gujarat High Court, he sought remission from the Maharashtra government. However, his application faced adverse recommendations from both the Central Bureau of Investigation and the Special Judge, Mumbai – who was also presiding over his case. The Superintendent of Police and District Magistrate of Dahod were also against his release.
- Radheshyam’s claim about a conflicting stance between the Gujarat High Court and Bombay High Court on his remission petition was disproved; as it turns out, this related to a different matter altogether – specifically involving transfer of convicts from Maharashtra to Gujarat.
- The judgment clarified that the remission proceedings initiated solely through Radheshyam did not extend to considering the remission of other convicts. With the nullification of the May 2022 Order, all subsequent actions were annulled, rendering the Gujarat government’s remission order, a direct consequence of the May 2022 order, null and void.
- Whether the order of remission was in accordance with law?
- All orders dated August 10, 2022 are a stereotyped and cyclostyled orders.
- The Gujarat Government did not factor in key considerations under its 1992 Policy which was replaced by a stringent 2014 Remission Policy.
- Moreover, the consent of the presiding judge was neglected while accumulation the views on the remission of the convicts.
- Firmly believing that the remission is within the jurisdiction of State of Gujarat, the learned counsels impose reliance on the 1992 policy stating that it should considered given that at the time of the conviction, the 1992 policy was enforceable and not the more stringent 2014 one.
- Additionally, the counsels argue that the section uses the word “may” while asking for the opinion of the “presiding officer of the court”. The opinion therefore is not a mandate but a mere suggestion.
- The judgement underscores and usurpation of power and an instance of abuse of discretion on the part of Gujarat’s government.
- “The State of Gujarat has acted in tandem and was complicit.” In Radheshyam’s petition, the Gujarat government had taken a different stance and argued that the Maharashtra government was the “appropriate government” to consider remission. However, it did not file a review petition to correct the May 2022 order of the Supreme Court.
- This judgement claims that “ensuing litigation would not have arisen at all” if the Gujarat government had informed the Supreme Court of this error. Further, as no such review petition was filed, the Gujarat government usurped the power of the Maharashtra government. Subsequently, other convicts who were not involved in the petitions also filed remission applications relying on the May 2022 Order.
- This duplicity of the Gujarat government led to an arbitrary and mechanical delivery of remission order without a proper consideration of the material facts and lacking complete reliance on the law.
- Lastly, it was also established that the “appropriate government seeking the opinion of the Presiding Officer” is not a suggestive part of the section rather a mandatory action to have a bona fide remission.
- What follows?
The central question following the quashing of the remission order that arose before the Division Bench came to be, “whether the personal liberty of the convicts under Article 21 should be protected i.e. should they be allowed to continue their freedom?”
- The convicts have enjoyed several parole and furloughs during their incarceration despite the gravity of the crime and the concern of public interest.
- The learned counsel states that the attainment of justice would only be accomplished when the convicts are returned to prison. If any remission were to follow, it must only be accepted when done in accordance to law.
- The learned counsels for the convicts claim that having experienced freedom after a long imprisonment, the liberty of the convicts must be protected.
- The Court must exercise jurisdiction under Article 142 of the Constitution.
- Article 21 of the Constitution establishes that no person should comprise their liberty except in accordance with law. In the present case the crutch of liberty availed has been granted in violation of law
- The Bench clarifies that the rule of law prevails, which is to say that “no one, howsoever high or low, is above the law.” In a case of failure of the State to perform, the Court must step in to realign with the rule of law.
- Judiciary being the guardian of the rule of law and centre pillar of a democratic state must at all costs emphasize on the supremacy of rule of law.
- The judgement underscores the importance of justice, the cardinal principle of respecting the law, the accountability of the faith instilled by the people, and the highest responsibility of the Court to rectify arbitrary orders.
- The reasoning arising from the above leads to the conclusion that the invocation Art 142 would lead to an ignorance of rule of law. The ‘depravation of liberty’ with regards to the convicts is thus justified given the abuse of law exercised in attainting the remission.
- The outcomes of other petitions were rendered redundant in regards to the present petition.
- The order of May 2022 with regards to the appropriate government was declared null and non est on grounds of concealment of material facts and misrepresentation of facts. It was also declared per incuriam and not to be a binding precedent.
- The impugned orders of remission dated August 10, 2022 were quashed
- The convicts were ordered to report to the concerned jailed authority
Though victory has come Bilkis’ way again, in 2024, given that remission and the right to grant sentence is an available remedy in criminal law, there is little to prevent these convicts from now approaching the Maharashtra government. Where a more friendly government currently rules.
(The judgement primer has been researched by CJP’s legal intern’s team including Karishma Jain)
 Citizens for Justice and Peace, in all its legal actions concerning survivors of 2002 Gujarat, Dhule, Maharashtra, Muzaffarnagar, Uttar Pradesh has always approached the court on behalf of and with survivors and not in isolation.