SC quashes Gujarat Govt’s remission order in Bilkis Bano case; directs convicts to report to jail in two weeksEarly Release of Bilkis Bano Gangrape Convicts
Today, a Division Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan unanimously quashed the Gujarat Government’s remission orders granting early release to 11 convicts in the Bilkis Bano case. The Bench ordered the convicts to be returned to prison within two weeks. The decision comes three months after the Bench reserved judgement on 12 October 2023.
Justice Nagarathna, reading out the judgement with hardly any pause, stated, “This court must be a beacon in upholding the rule of law failing which it would give rise to an impression that this court is not serious about the rule of law and therefore all courts in the country could apply it selectively.”
During the Gujarat riots in March 2002, Ms. Bano and her family were fleeing from their home in Radhikpur village to Chapparwad village. However, before reaching they were ambushed by a group of men who gangraped Ms. Bano and murdered 14 of her family members including her infant daughter.
Ms. Bano approached the Supreme Court and in December 2003 the Court order the Central Bureau of Investigation (CBI) to investigate her allegations. The case was transferred to a special CBI Court in Bombay and in 2008 the Court imposed life sentences on 11 of the accused.
In May 2022, the SC Ordered the Gujarat State government to consider a request for remission made by one of the 11 convicts, under the 1992 remission policy. In August 2022, the Gujarat government granted the early release of all 11 convicts under the 1992 policy and publicly stated that they were released on ‘good behaviour’. However, this claim has been widely contested. Many allegations have been made claiming that many of the convicts violated their parole, made death sentences against Ms. Bano and her family, and had pending criminal cases against them for crimes committed while they were out on parole.
Ms. Bano and a host of other petitioners challenged the early release of the 11 convicts. They claimed that the Gujarat government should never have released them under the 1992 policy. The gravity of the offence should preclude any early release and further, none of the convicts had served the minimum sentence required to be considered under the 1992 policy.
Petition by Bano is maintainable
The Bench held that the present petitions are maintainable. They reasoned that since Bilkis Bano herself approached the Court against the release of the convicts, the question of maintainability did not arise.
During the arguments, the Gujarat government had strongly contended that Bano and other petitioners could not approach the Court as there was a writ of mandamus (by the Supreme Court) directing the Gujarat government to consider remission from 13 May 2022.
Maharashtra is the appropriate government, not Gujarat
On a close reading of Section 432(7) of the Criminal Procedure Code, 1973, the Bench held that Maharashtra would be the appropriate government for considering remission. This is because, even though the crime occurred in Gujarat during the 2002 Godhra riots, the trial of the convicts was transferred to a special Maharashtra Court on Bano’s request. The accused were convicted and sentenced to life imprisonment in Maharashtra, not Gujarat. Further, the Bench reasoned that in the Constitution in V. Sriharan v Union of India (2015), a Constitution Bench of the Supreme Court reiterated that “appropriate government” under the CrPC meant “the Government of the State within which the offender is sentenced or the said order is passed.”
In addition, Justice Nagarathna also noted that the parliament intentionally maintained this definition in the statute to cover cases where the trials were transferred to another jurisdiction.
Gujarat government abused discretionary powers
On the question of the validity of the remission orders, the Bench came down on the appellants for withholding information and misleading the Court. The Court held that Radhe Shyam—the first convict to apply for remission—intentionally withheld facts and suppressed details of two Gujarat High Court orders that rejected his remission application. Further, he also misled the Supreme Court into believing that there was a difference of opinion between judges from Gujarat and Maharashtra over his remission.
Justice Nagarathna also pointed out that the 13 May 2022 order of the Supreme Court directing the Gujarat Government to consider remission under the 1992 Gujarat Remission Policy was a result of suppression of these critical facts and is therefore per incuriam. I.e. without due regard to the law and facts.
In addition, she reprimanded the Gujarat Government for its inaction to bring the Supreme Court’s attention to this apparent fraud by Shyam.
Initially, the Gujarat Government had themselves made the argument that the appropriate government would be Maharashtra during Shyam’s petition. “If the State of Gujarat had in mind provisions of law, it should have filed a review petition before this Court to clarify its jurisdiction and contending that it was not the appropriate government. By failing to do so it has violated the rule of law”, she heldforth. Therefore, even though the Gujarat government acted in accordance with the May 2022 Order of the Court, its actions were illegal as it acted against the “letter and spirit of the law” and “in tandem” with the convicts and was “complicit” in misleading the Supreme Court.
This inaction of the Gujarat Government, the Bench held, was an usurpation of the jurisdiction of the Maharashtra government and an abuse of its discretion to grant remission.
Rule of Law prevails over Personal Liberty
After setting aside the remission order, Justice Nagarathna pointed out that the convicts were enjoying their liberty and freedom after they were released in August 2022. The Bench faced a tough question—what prevails in the tussle between personal liberty and the rule of law? Whether the convicts should be allowed to continue their freedom or go back to prison.
The Bench did not hesitate to favour the rule of law. Personal liberty, they said, could prevail only when the rule of law is upheld. “There can be no rule of law if there is no equality before the law. And rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny,” the Bench held.
Justice Nagarathna stated that the rule of law should always prevail over personal liberty.
Given the facts of the case and the gravity of the crimes, the bench opined that sending the 11 convicts back to prison did not violate personal liberty and ordered their return to prison in two weeks. The Order stands in stark contrast to the arguments advanced by the Gujarat government on all points of law and fact.
With a hard to miss smile, Advocate Shobha Gupta (appearing online), who represented Bano, in the case thanked the Bench for the Order.
Reactions to the judgement
Revati Laul, journalist-activist, who was also a petitioner in the PIL, along with politicians Subhashini Ali and academician Roop Rekha Verma, spoke to SCO calling it “a victory of justice”. Recalling questions that were raised on why they took this petition to the Supreme Court, she recalled the arguments from naysayers, who insisted “It will make no difference. Justice is dead. Justice is blind”.
“Today we petitioners want to tell people in this country, please do not lose faith.” Referring to “adverse forces at work” both from the government as well as dominant castes, she added, “We want to say in no uncertain terms that this does not mean that we will ever give up or that justice is dead.” This response comes against the backdrop of comments made in the past regarding the upper caste status of the convicts.
Speaking to the media, Senior Advocate Vrinda Grover, who appeared for Laul and other petitioners praised the judgement for upholding the rule of law and the faith of people, particularly women “in the legal system and the courts.”
(This report was last updated at 4:00 p.m. on 8 January 2023)