New Delhi: The Supreme Court Monday quashed the Gujarat government’s decision to allow remission of life imprisonment of 11 convicts in Bilkis Bano gangrape and murder case, dating back to the 2002 Gujarat riots which broke out in the state in the aftermath of the Godhra train burning incident.
A bench led by Justice B.V. Nagarathna said the Gujarat government lacked jurisdiction to grant premature release to the convicts. According to the bench the term “appropriate government” mentioned in section 432 of the Criminal Procedure Code (CrPc) would mean the state where the trial has taken place and not where the crime is reported. Section 432 of the CrPc deals with premature release of convicts.
In the said case, the court noted, the trial was transferred from Gujarat to Maharashtra, hence the latter was the appropriate government to decide on the remission applications of the convicts.
“It is only the government of the state within which the offender was sentenced is competent,” the bench noted. It added the emphasis in the law is on the place of trial rather than the place where the crime was committed and concluded that the remission policy of Gujarat was not applicable to the case at hand.
According to the court the “non-speaking” remission orders suffered from “non-application of mind”. They were stereotyped and cyclostyled order and amounted to “abuse of discretion” by the state and an instance of “usurpation of power”.
The apex court fixed a two-week deadline for the convicts to surrender before the jail concerned.
The SC bench pulled up one of the 11 convicts — Radhey Shyam Bhagwandas — for suppressing facts and misleading the top court to give a direction in May 2022 to the Gujarat government to consider their remission pleas under the 1992 policy, which allowed the state to grant early release to convicts in rape cases.
The bench declared the 13 May, 2022, order was “hit by fraud” and cannot be given effect to. Hence, it ordered that all proceedings pursuant to the said order are vitiated.
It also noted that Bano was not made a party in the case and the Gujarat government during the said proceedings had itself submitted that Maharashtra was the appropriate government to decide the remission plea. The bench said it was surprised as to why Gujarat did not file a review petition seeking correction of the May 2022 order.
The court upheld Bano’s petition challenging the remission granted to the 11 convicts as maintainable, while delving into the concept of remission.
The bench, also comprising Justice Ujjal Bhuyan, had reserved its verdict on 12 October, after holding a hearing for 11 days on several petitions, including the one filed by Bano, challenging the remission. The others who moved the court through public interest litigations (PIL) against the remission order, included CPI(M) leader Subhasini Ali, independent journalist Revati Laul, former vice-chancellor of Lucknow University Roop Rekha Verma and Trinamool Congress leader Mahua Moitra, who all questioned the premature release of the convicts.
While Bano’s petition was held as maintainable, the court did not render a finding on the maintainability of the PILs, saying it is not required to answer the question in view of the fact that the victim herself approached the court. The question whether a third-party can file PIL in criminal proceedings was left open to be considered in any other appropriate case.
Opposing the petitions, Gujarat government had argued that remission merely reduces a sentence and that a PIL cannot be filed against it. Remission, the state had added, does not change the character of the sentence and it involves the accused, the court and the prosecution.
The accused objected to “third-party elements” moving the top court, which, they contended, is not within the norms of criminal proceedings or related actions arising from them.
Also read: In age of amnesia, it is easy to forget Bilkis Bano’s fight and the failure of chowkidars
‘Vitiated by fraud’
Bano was gang-raped and according to the prosecution, fourteen members of her family — including her three-year-old daughter Saleha — killed, by a mob in Gujarat’s Randhikpur village, when they were fleeing during the Godhra riots in March 2002. Bano was 19 years old and five months pregnant.
The trial in the case was moved out of Gujarat to Mumbai, with the Central Bureau of Investigation (CBI) taking over its probe. In 2008, a special court in Mumbai sentenced the 11 to life imprisonment, which the Bombay High Court upheld nine years later.
On 15 August, 2011 the convicts were granted remission by the Gujarat government. At that time they had undergone 15 years of imprisonment, which also included the time period for which they were on parole. Documents submitted to the top court in the case also showed that the convicts were given furlough on many occasions. While parole is contingent and subject to conditions, furlough is a reward given to a convict for undergoing their sentence.
The convicts’ plea for remission was taken up by the Gujarat government following a judgment of the Supreme Court in May 2022 that allowed it to consider the premature release application of the convicts on the basis of the 1992 remission rules that gave discretion to the state to take a lenient view in rape cases. The latest remission policy of the state, according to a modification in 2014, does not include rape cases. The SC order came on a petition filed by one of the convicts.
In Monday’s judgment, the court declared this directive was vitiated by fraud and “attains nullity” on account of the petitioner not disclosing pertinent information and facts before the court.
The court rejected the convicts’ emotional appeal to protect their personal liberty, saying their “arguments with emotional appeal become hollow when placed in juxtaposition with the facts of the case”. “Deprivation of liberty is justified,” the bench said, as it elaborated on the concept of “rule of law” and the need for the courts to be aware of its contents and not just the words. Rule of law, it added, can be preserved only when all are treated equally before the law.
Following the remission order by the Gujarat government, Bano filed two separate petitions — one challenging the remission and the other, a review seeking reconsideration of the May 2022 SC judgment. Her lawyer Shobha Gupta argued that the convicts did not deserve remission for the heinous nature of their crimes and also claimed that the competent authority to decide the issue of remission was Maharashtra government and not Gujarat.
It was pointed to the court that earlier both the trial judge in Mumbai — which heard the case — and the prosecuting agency CBI had disagreed with the proposal to release the convicts. However, later, when asked by the Gujarat government, the Centre had endorsed their early release.
Another point highlighted was that the convicts, according to the trial court judgment, were bound to pay a fine of Rs 34,000 or face 34 years in prison. But the convicts had done neither, the petitioners had argued.
Meanwhile, in December 2022, the top court dismissed Bano’s review plea against the May 2022 judgment.
The hearing on Bano’s petition against the remission order began in March 2023, before a bench of justices K.M. Joseph and B.V. Nagarathna. This bench made several verbal comments regarding the crime and termed it as horrendous.
Since the hearing could not conclude before Justice Joseph’s retirement in June last year, the matter was marked to a new bench headed by Justice Nagarathna.
(Edited by Poulomi Banerjee)
Also read: Bilkis Bano case convicts controversy: Why the 11 were released under ‘old’ 1992 policy