Supreme Court quashes the remission of 11 convicts in Bilkis Bano case

A Division Bench unanimously ordered the 11 convicts in the Bilkis Bano gangrape case to return to prison within two weeks


Hello everyone! I am Advay Vora and this is SCO Explains. 

This week, or rather 2024, started with a significant judgement from the Supreme Court, where the court ordered the 11 men convicted in Bilkis Bano’s gangrape case back to prison, quashing Gujarat government’s remission order from 2022. The Supreme Court came down heavily on the Gujarat government for abusing its discretion and acting “in tandem” with the convicts.

Three months ago, as 11 days of hearings came to an end, we saw a silent Bilkis Bano in Court, joining online as a spectator. Monday night, in a statement published as a response to the judgement Bano said that this is what Justice looks like, recalling and thanking the tens of thousands of people who have stood by her as she fought for justice. 

First a quick recap of the main facts of the case.

The story of the remission begins with an application from one of the 11 convicts, Radheshyam who first approached the Gujarat High Court in 2019. Following the Court’s order, directing Radhe Shyam that the appropriate government would be Maharashtra, Radhe Shyam approached the Maharashtra Government. With this application pending at various stages, afraid that the Maharashtra government was veering towards his rejection, Radheshyam went straight to the Supreme Court in March 2022. His Ask? To direct the Gujarat government to consider his remission application. 

On 13 May 2022, the Supreme Court obliged and the case was put before the Gujarat Government. Just three months later, in an order dated 10th August 2022 the Gujarat government released all the convicts, who at that point had served at least 15 years of the life sentence. The Government had relied on the Gujarat Remission Policy from 1992. Immediately after their release, Bilkis Bano and several other petitioners approached the Supreme Court to challenge their premature release on the grounds that the Gujarat government was not the competent authority to consider remission. The Gujarat government and several convicts dedicated a huge part of their arguments to the maintainability question alone. They were also against many PILs filed by third-party petitioners, namely, Subhashini Ali, Mahua Moitra, Journalist and Activist Revati Laul, and more. 

Now, for the decision of the Supreme Court on 8th Jan

In its decision, the Bench held that the petition filed by Bano was indeed maintainable. The Bench found it unnecessary to consider the maintainability of the other petitions including  PILs at all as Bano,  the victim’s petition, was held maintainable. 

The Bench then set aside the remission order for all 11 convicts with two main reasons backing their decision 

First, the meaning of “appropriate government” under the Criminal Procedure Code would be the place where the trial and conviction of the accused occurred. Bano and other petitioners had argued that as a Special Court in Maharashtra convicted the 11 men, the appropriate government to consider remission would be Maharashtra itself. 

The Gujarat government took a more territorial argument. As the convicts resided in a prison in Gujarat, they said that the prison authorities in Gujarat had a better idea of their behaviour. The Bench simply did not accept this argument. It reiterated Section 432(7) of the CrPC which defines “appropriate government: as the government of the “State within which the offender is sentenced.” 

Secondly, the Bench held that the Supreme Court’s order on 13 May 2022 was based on misguided facts. The Bench held that Radhe Shyam withheld critical information when he approached the Supreme Court. He misled the Court when he claimed that there was a difference of opinion between the Bombay High Court and the Gujarat High Court over his remission. And so, Justice Nagarathna wrote that the May 2022 judgement was obtained through suppression of facts. 

The Bench found another reason why the Supreme Court’s order in May 2022 was incorrect. Justice Nagarathna held that the Supreme Court had itself erred by not considering a 2016 Constitution Bench judgement in V Sriharan which had held that the state where the trial took place would be the appropriate government.

Interestingly enough, in 2022, the Gujarat government itself had argued that Maharashtra is the appropriate government to take a call on the remission of the 11 convicts. However, after the 13 May 2022 order, the Gujarat government took it upon itself to consider the remission. Justice Nagarathna’s bench reprimanded Gujarat and said that a lot of litigation could have been prevented if the state government had filed a review petition against the May 2022 decision. The Bench found that Gujarat usurped the Maharashtra government’s jurisdiction and abused its discretion. 

With this, we come to the last part of the judgement. Should the convicts, who had now been released for over a year be kept outside of prison or sent back to jail? Should personal liberty of the prisoners prevail over the rule of law? The bench found that the rule of law is above everything else and that the Supreme Court cannot grant any liberty to these 11 convicts. Justice Nagarathna pointed out that the “emotional appeal” for liberty looks hollow especially after the convicts abused the process set in law to get remission. 

The judgement read, “If ultimately rule of law is to prevail and the impugned orders of remission are set-aside…then the natural consequences must follow.” The convicts were directed to report to jail authorities within two weeks of the judgement.

For Bilkis Bano, this provided a hard-won relief to an arduous journey through the Indian Judicial system to get the justice she demanded. In her statement, she thanked the Supreme Court of India for giving her, her children and “women everywhere, this vindication and hope in the promise of equal justice for all. 

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