Introduction

On Monday 8th January 2024, the Supreme Court struck down the relief granted by the Gujarat government in August 2022 to 11 men who were awarded life imprisonment for the gangrape of Bilkis Bano and the murder of her family members during the riots in Gujarat in 2002. The Court also ordered them to surrender to jail authorities.

The History of the Case

Bilkis Bano was gang-raped and her three-year-old daughter was among the 14 people killed by a frenzied mob including 11 men, on March 3, 2002, during the riots in Limkheda taluka of Dahod district of Gujarat. She was pregnant then. In December 2003, the Supreme Court ordered a CBI inquiry into Bilkis Bano's case and transferred the trial from Gujarat to Maharashtra in 2004. These 11 men were convicted by the CBI court in Mumbai on Jan 21, 2008, after trial, and sentenced to life imprisonment which was upheld later by the Bombay High Court. On the petition seeking remission of the sentence, of one of the convicts, Radheshyam Shah who had completed 15 years and 4 months in jail, the Supreme Court on 13 May 2022, ordered that the Gujarat government was the appropriate government to decide his remission plea in accordance with the State's remission and premature release policy. In pursuance of this order, the Gujarat government on 15th August 2023, released the 11 convicts under its 1992 remission policy. This order of the Gujarat government cited a “unanimous” recommendation of the Jail Advisory Committee (JAC) to grant the convicts remission on grounds of “good behaviour.” This remission order of the Gujarat government was quashed by the Supreme Court holding that Gujarat usurped the power of Maharashtra where the original trial of the convicts happened, to grant remission, and nullified a 2022 judgment by another Bench of the Apex Court. The Court said that it was obtained by “playing fraud” on Court.

Bilkis Bano Case: Key Milestones (2002-2024)

A. The Crime, 2002

• Feb 28: Bilkis and family ran away from their home in Randhikpur, Dahod district, after riots broke out in the aftermath of the Godhra train burning the previous day.
• Mar 3: Bilkis was then 5-months pregnant when she was raped. 14 of her family members were killed by a mob.
• Mar 4: Bilkis was taken to Limkheda police station. FIR did not mention her rape, did not name accused even though she identified 12 of them.
• Mar 5: Bilkis was taken to Godhra Relief Camp; her statement was recorded by an Executive Magistrate.

B. Police Response

• Nov 6, 2002: In Summary Report ‘A’, police requested closure, but the court asked for continuation of the investigation.
• Feb 2003: Limkheda police again requested closure of the case; this time the court accepted.

C. SC Calls in CBI

• APR 2003: Bilkis approached Supreme Court asking that Magistrate‘s order accepting the ‘A’ summary be set aside.
• Dec 6, 2003: SC transferred the investigation to the CBI.
• Feb 1-2, 2004: Bodies exhumed; no skulls found. Bombay HC latter observed, “It appears that at some point heads were cut off.”
• APR 19, 2004: CBI filed a charge sheet before CJM Ahmedabad against 20 accused, including 6 police officers and 2 doctors who performed autopsies on Mar 5, 2002.

D. Verdict and Appeal

• AUG 2004: SC moved the trial from Gujarat to Mumbai after Bilkis faced death threats; directed the central government to appoint a special public prosecutor.
• JAN 21, 2008: Special judge in Mumbai convicted 11 and sentenced them to life imprisonment for murder, rape.
• 2009-2011: Both the convicts and the CBI went in appeal; the CBI sought enhancement of the sentence for three convicts to death and appealed against the acquittal of other accused.
• May 2017: Bombay HC upheld conviction of the 11 by trial court, refused to enhance punishment from life imprisonment; set aside trial court's acquittal of 5 police officers and 2 doctors.

E. In Supreme Court

• JULY 2017: SC dismissed appeals by 2 doctors and 4 policemen.
• APR 23, 2019: SC ordered payments of Rs. 50 lakhs as compensation and directed the state government to provide Bilkis with employment and accommodation.
• MAY 2022: Convict Radheshyam Shah appealed in SC against a July 17, 2019, order of the Gujarat HC, which had ruled that Maharashtra is the “appropriate government” to decide on his plea for remission after he had completed 15 years and 4 months of his life term awarded in 2008.
• MAY 13, 2022: An SC Bench of Justices Ajay Rastogi and Vikram Nath asked the Gujarat government to consider Shah’s application for premature release “within a period of two months “, as per the policy that was applicable in the State on which he was convicted.

F. Convicts Released

• AUG 15, 2022: 11 convicts, including Radheshyam Shah, released from Godhra sub-jail on remission by Gujarat government.
• SEPT 2022: Bilkis Bano approaches SC challenging the premature release of the 11 convicts.
• JAN 8, 2024: SC quashed Gujarat government’s decision to grant remission to 11 convicts.

The Three Broad Grounds of the SC's Judgment

1. The Supreme Court held that under the provisions of Criminal Procedure Code, only the appropriate government was competent to grant remission, and the appropriate government is that where the convicts had been tried and sentenced. In the instant case, the trial had been shifted out from Gujarat, due to concerns of fairness of trial, to Maharashtra. Hence, it was the government of Maharashtra that was the “appropriate government “. Consequently, the Gujarat government had no jurisdiction to pass the remission order.
2. The Court took cognizance of the fact that the government of Gujarat had purported to act in pursuance of a SC order of 2022, which had held that Gujarat state was the “appropriate government “. However, the Court observed that this order had been obtained on the basis of fraud and suppressed evidence, apart from the fact that the remission policy of 1992 that was sought to be applied had itself been cancelled. Not only this but also, the Gujarat government had itself argued in the proceedings that it was not the appropriate government. Despite that, following the 2022 order, the Gujarat government didn't move any review petition challenging the correctness of the order, and moved immediately to grant remission. The Court accordingly held that this amounted to the Gujarat government “usurping” a power that never belonged to it and that it's remission order was entirely vitiated.
3. One of the essential safeguards for remission is the requirement of an opinion by the presiding judge of the court responsible for convicting and sentencing the guilty individuals. The government may refer the matter back to the presiding judge if their original opinion is cryptic or unreasoned. In any case, it cannot substitute its own determination for that of the judge. This safeguard is vital. In this case, the presiding judge in Maharashtra, had issued an opinion rejecting remission. However, the the Gujarat government, subsequently, assumed to itself the power to grant remission, and proceeded to ignore that opinion. In the eyes of the Court, it was another reason that the remission order was illegal.

Some Crucial Legal Points in the Bilkis Verdict

• Right of victim to directly move the Apex Court against the remission: Bilkis Bano's writ petition was filed in the Supreme Court under Article 32 of the Constitution which was challenged by the opponents on the ground that allowing a writ petition to challenge remission order would open the floodgates of litigation. The convicts argued that she should first approach the High Court. But the SC Bench countered all these contentions. Justice Nagarathna, writing the judgment, specifically highlighted that the right to file a petition under Article 32 of the Constitution is also a fundamental right and that Bano has f8led her writ petition under Article 32 to enforce her fundamental rights under AR 21 of the Constitution, which speaks of right to life and liberty, and Article 14, which deals with right to equality and equal protection of the laws. It also noted that the expanded notion of access to justice also includes speedy remedy. Bilkis Bano's petition cannot be dismissed on the grounds of availability of an alternative remedy before the High Court under Article 226 or on the ground of its maintainability under Article 32.
• Remission Does Not Wipe Out the Crime: In its 251-page judgment, the Bench of two judges stressed upon the concept of remission and the principles governing the statutory provision (Section 432) under the Code of Criminal Procedure (Cr.P.C.), 1973. This Section empowers a State government to release life term convicts after they complete at least 14 years in jail. The Bench remained emphatic that in case of remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence but is relieved from serving out a part of it. The Court further said about the order of remission as such: “It does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence….An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is.”
• Gujarat as the “appropriate government” to Grant Remission: The Criminal Procedure Code empowers the “appropriate government” to suspend the execution of a sentence or remit the whole or any part of the punishment to which a person has been sentenced. The Court declared that even in a case where the trial has been transferred by this Supreme Court from a court of competent jurisdiction of a state, it is still the government of the state within which the offender was sentenced which is “appropriate government“, having the jurisdiction as well as competency to pass an order of remission under Section 432 of the Cr.P.C.
• The SC declared May 2022 order “per incuriam” for ignoring precedents: The two-judge Bench of the Supreme Court not only declared the May 2022 order of a coordinate Bench to be a “nullity” because it was obtained by concealment of relevant facts by one of the convicts in the case but also held the previous order to be “per incuriam” because it was contrary to previous judgments of the Apex Court on meaning of “appropriate government” for granting remission.
• Gujarat Government was ‘Complicit’, Aided Convicts: The Bench reproached the Gujarat government for trying to defend its action by arguing that it had no option but to decide the remission pleas in the wake of the May 2022 order of the Apex Court. It was held, that “The State of Gujarat has acted on the basis of the direction issued by this court but contrary to the letter and spirit of law.”

Conclusion

The Supreme Court judgment of January 8, 2024, not only Bilkis Bano has got justice from the court but also the rule of law is upheld. The judgment has also highlighted that due diligence was compromised by the government and the previous Bench of the Supreme Court itself. Further, remissions are not unusual in the case of convicts, but they are rarely, if ever, extended to people convicted of heinous crimes such as murder and rape. The convicts will return to jail within the stipulated time. This judgment of the Apex Court raises hopes of a future where the rule of law will prevail at all costs. The courts will have to be more careful and impose strict punishment to those government functionaries responsible for filing false affidavits in such crucial cases. Maximum sensitivity and sincerity should be the guiding factor in dealing with crimes against women and children. 

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References: 

• Ananthakrishnan G, The Indian Express, Jan 9, 2024.
• Bilkis Yakub Rasul vs. Union of India, 2024 SCC Online SC 25.
• Abraham Thomas, Hindustan Times, Jan 9, 2024
• Sadaf Modak, Jan 9, 2024.
• Gautam Bhatia, In Bilkis Bano order, rule of law is upheld, Hindustan Times, Jan 10, 2024.)
• Utkarsh Anand, Why Bilkis remission verdict makes crucial legal points, Hindustan Times. Jan 9, 2024.)
• Ibid.
• Ibid.
• Ibid.