Supreme Court nullifying remission orders for convicts in Bilkis Bano case is a course correction

The apex court order includes a scathing rebuke to the Gujarat government and underscores subversion of judicial process.

A protest against the release of the men convicted in the Bilkis Bano case, in Mumbai on August 23, 2022. | Photo Credit: INDRANIL MUKHERJEE/AFP

It took seven women, a women’s organisation, and six petitions to highlight the travesty of justice in the remission given to the convicted rapists and murderers of Bilkis Bano’s family. This was done on the basis of an erroneous understanding of the material facts of the case. In a landmark judgment on January 8, 2024, the Supreme Court nullified the remission orders.

Bilkis Bano lost 14 members of her family, including young children, on February 28, 2002, in the post-Godhra riots; the women were killed after they were gang-raped. A long and arduous legal struggle led to the conviction, on January 21, 2008, of 11 men by the trial court in Maharashtra, which the Bombay High Court and the Supreme Court upheld. The men were sentenced to life imprisonment. However, a Supreme Court verdict on May 13, 2022, paved the way for their release under a 1992 remission policy of the Gujarat government. On August 10, 2022, the convicted men were granted remission, hailed as heroes, and garlanded. The Gujarat government’s decision came as a huge setback to Bilkis Bano and to women in general.

Bilkis challenged the Supreme Court’s order through her lawyer Shobha Gupta. Six others, too, filed writ petitions challenging the court’s decision. The maintainability of some of the petitions was in doubt on the grounds of locus standi.

On January 8 this year, in a 251-page judgment, a two-judge bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the remission orders issued by the Gujarat government and held that the 11 men had to report to the jail authorities within two weeks. It essentially meant that they had to serve the remainder of their sentence.

The court also maintained that any application for remission must be done from within prison and not while on bail. Further, the court said, it had to be made to the appropriate government as laid down by law.

The court also observed that the Gujarat government had acted in tandem and was complicit with what one of the convicts had sought and secured remission for the 11 men through orders that were illegal. The Supreme Court, the judgment noted, had intervened on three occasions earlier in the case fearing subversion of justice. It referred the case to the CBI, transferred the trial to a Special Court in Mumbai, and directed the Gujarat government to pay Rs.50 lakh as compensation to Bilkis.

‘Usurpation of jurisdiction’

The bench noted that the Supreme Court order of May 13, 2022, had been obtained by fraud and therefore stood nullified. It also held that the Gujarat government did not have the jurisdiction to entertain the application for remission. Under constitutional law and the Code of Criminal Procedure, the powers of remission lay with the court that had convicted the people and where the trial had been held, in this case Maharashtra, and not in the jurisdiction of the State where the offence was committed. The bench described the “exercise of discretion” by the Gujarat government as an instance of “usurpation of jurisdiction”.

The ultimate order of remission had to be guided by the opinion of the special (CBI) court in Mumbai. Instead, the Gujarat government sought the opinion of the Sessions Court at Dahod, Gujarat. Both the Superintendent of Police and the District Magistrate of Dahod had earlier given negative recommendations.

The timeline of events is as follows. In 2019, Radheyshyam Bhagwandas Shah, one of the convicts, moved a remission petition in the Gujarat High Court on the grounds that he had completed 15 years and four months of his life term awarded in 2008 by a CBI court in Mumbai. The High Court directed him to take it up with the appropriate government, that is, the Maharashtra government. The Maharashtra government sought opinions from all quarters concerned. The presiding judge of the special (CBI) court, the Director CBI, the DGP, and the Inspector General of Police said they were not in favour of premature release.

Suppressing all these facts, Radheyshyam moved the Supreme Court, which directed the Gujarat government to consider the application. Instead of filing a review petition before the Supreme Court to say that it was not the appropriate government, the Gujarat government considered the application under its 1992 remission policy, which was cancelled in 2014. The State government’s latest guidelines state that prisoners convicted of gang rape or gang rape with murder will not be considered for remission or premature release. Both the petitioner and the Gujarat government suppressed this fact from the Supreme Court.

Radheyshyam also suppressed the fact that the Gujarat High Court had earlier rejected his plea for remission. On the basis of the May 2022 order, the rest of the 10 convicts, too, appealed to the Gujarat government for consideration of their cases even though there was no direction from the Supreme Court on their cases.

The May 2022 order was per incuriam (characterised by lack of due regard to law and facts) also because it had failed to follow earlier binding judgments, including that of a Constitution Bench on “appropriate government” to consider an application for remission and of a nine-judge bench that held that a High Court order cannot be set aside in a proceeding under Article 32 of the Constitution (Right to Constitutional Remedies).

The January 8, 2024, order said that the Gujarat government should have filed a review petition seeking correction of the Supreme Court order. The Gujarat government had, after all, in the first instance submitted that the appropriate court was Maharashtra and not Gujarat. Second, even though there was no direction for remission of the other convicts, they too sought the consideration of their case by the Gujarat government, an appeal that the government complied with.

The convicted men in the case being welcomed as they step out out of the Godhra subjail on August 15, 2022. | Photo Credit: PTI

The judgment made some scathing remarks about the way law courts tended to function. Without directly referring to its own bench whose orders it had struck down as null and void, it said that “indulgence and laxity on the part of law courts would be an unauthorised exercise of jurisdiction and thereby put a premium on illegal acts”. Courts, it held, had to be mindful not only of the spelling of the word justice but also the content of the concept.

The judgment revealed a lot about the discretionary manner in which the Gujarat authorities dealt with the entire application of remission. The convicts were supposed to pay a special fine as decreed by the special court (Mumbai) and upheld by the Bombay High Court, but they did not do so. The opinion of the presiding judge of the special court that had passed the sentence was rendered ineffective once the Gujarat government entertained the remission plea despite having no jurisdiction to do so. The opinion of the Sessions Judge at Dahod was again “wholly without jurisdiction”.

Experts speak

The women’s rights lawyer Kirti Singh told Frontline that the judgment “exposes the illegal and unconstitutional manner in which various institutions and the state can be manipulated in our society to subvert democracy and the rule of law”.

The court, she said, had come down heavily on Radheyshyam’s manipulations and the State machinery’s connivance. “Radheyshyam went to the [Gujarat] High Court, which did not entertain his plea. He was directed to go to Maharashtra. He did not appeal against the order of the High Court but went to the Supreme Court without disclosing the fact that he had acted upon the order of the High Court and that he had appealed for remission in Maharashtra and he had been refused. When anyone comes to a court of law in a writ jurisdiction, they should come with ‘clean hands’,” she said.

Kirti Singh further said that he did not reveal that the 1992 remission policy was no longer operational. “He also misquoted a judgment of the Bombay High Court. A fraud had been played and that is why the earlier order of the Supreme Court was non est. It was also per incuriam or bad in law for not following precedents of the Supreme Court itself which had clearly laid down the ‘place’ where remissions were to be decided. The May 2022 order could not be followed as a precedent and was not binding,” she told Frontline.

Highlights

• On January 8, 2024, the Supreme Court nullified the remission orders issued by the Gujarat government to the convicted in the Bilkis Bano case.
• The judgment revealed the discretionary manner in which the Gujarat authorities dealt with the entire application of remission.
• The court noted that the Supreme Court order of May 13, 2022, which paved the way for the release, had been obtained by fraud.

According to her, the Supreme Court had rightly held that the remission policy could not be arbitrary or unreasonable. Whoever was examining an appeal for remission had to look into whether there was a chance of recurrence of the crime, whether the convict had lost his potentiality of committing a future crime, the socio-economic conditions of the convict’s family, and whether the remission could take place without affecting society at large. The State was bound to take the opinion of the judge who had decided the case. The court also made it clear that a life sentence meant the whole of life and not 14 years.

Roop Rekha Verma, former Vice Chancellor of Lucknow University and one of the petitioners, told Frontline that the judgment was a bold and independent one. “They were hardly in jail. When they were released, the kind of respect shown to them paralysed our minds. But then we got together and decided to do something. It was more to seek peace within ourselves. The legal recourse was the only option even though courts had disappointed us. When the three of us, Subhashini Ali, Revati Laul, and I, filed our joint petition, we didn’t know there were others as well. It was a good feeling,” she said.

Subhashini Ali, vice president of the All India Democratic Women’s Association, said that the maintainability of petitioners who were not directly related to the case was also discussed in the order. “This is significant. Our petition was among the earliest and admitted in August 2022. Then some others also did. Bilkis Bano then herself petitioned the court. During the course of the arguments, we did raise the issue of suppression of facts. The indictment in the judgment is very stringent. The crime was described by the court as a diabolical one. It is a significant judgment that an order of the same court, of a similarly sized bench, was set aside,” she said.

The former Indian Police Service officer Meeran Chadha Borwankar, another petitioner, said: “It is a bold judgment as it has negated the order of another two-judge bench of the Supreme Court. It has also castigated the earlier petitioners for hiding facts and the Gujarat government for its arbitrariness,” she said.

Asked whether the law was adequate to address the various dimensions of remission, she said: “Many States have already changed remission policies, but their retrospective application is not possible. I am hopeful that others who have not altered remission policies will do so now. That has been a major contribution of this judgment besides insisting on proper appreciation of facts and application of mind by state actors,” she said.

Abuse of power

Shobha Gupta, Bilkis’ lawyer who has been associated with the case since 2002, said the arbitrary abuse of power was so visible and brazen. “The judgment raises all the points we raised. Every single issue raised by Bilkis has been upheld by the court. The crux of her review petition was that the court order of May 13, 2022, was obtained by fraud, by not disclosing the material, vital, and relevant information to the court. Had such information been disclosed, there was no occasion for the order to be passed.  This was one foundational argument. The second argument was that the order was per incuriam to the settled position of law and the provision of law. The provision of law on its own was absolutely clear as to who could be the appropriate government. This has been interpreted in various circumstances, by the Supreme Court in at least five judgments, including by a Constitution Bench.”

She further said: “The remission order mentions no reasons except good behaviour. But there are five- and seven-judge bench judgments that say there has to be informed application of mind. The impact of the crime on the victim, witnesses, on society; impact of premature release on the victim and society at large; the message it leaves, or whether this is a crime against society or affects society if convicts committing certain crimes are prematurely released. Once the court has said all this, it means that the court has taken cognisance of the heinousness of the crime. It has taken cognisance that the convicts hardly completed 14 years of imprisonment; that there was very lenient furlough and parole. If a few good judgments have to be placed on a pedestal, this is a lead case. It sets the law straight on remission and the rule of law.”

As Gupta says, the judgment indeed “sets law on a high pedestal”.