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Supreme Court Unveils Deceptive Tactics in Obtaining Judgment Mandating Gujarat Government to Consider Remission, Deeming It in Violation of Legal Standards.

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Case Title: Bilkis Yakub Rasool v. Union of India & Ors.

Case No: Writ Petition (Criminal) No. 491 of 2022

Decided on:  8th January, 2024

CORAM: THE HON’BLE MR. JUSTICE B.V. NAGARATHNA AND HON’BLE MR.  JUSTICE UJJAL BHUYAN

Facts of the Case

In 2002, Bano, aged 21 and five months pregnant, experienced a brutal gang rape in the Dahod district of Gujarat amid the post-Godhra communal riots. Rioters also killed seven of her family members, including her three-year-old daughter. In 2008, the trial was moved to Maharashtra, where a Mumbai Sessions Court convicted the accused under relevant sections of the Indian Penal Code, sentencing them to life imprisonment. The Bombay High Court, in 2017, affirmed the convictions and life sentences for the 11 individuals involved.

After spending 15 years behind bars, Radheshyam Shah, one of the convicts, sought remission of his sentence from the Gujarat High Court. However, the High Court rejected the plea, citing lack of jurisdiction. The matter then reached the Apex Court, which ruled that the Gujarat Government should decide on the remission application since the crime occurred within the state. In accordance with the remission policy, the State Government released the convicts in 2022.

Disheartened by this decision, Bilkis Bano approached the Supreme Court to contest the premature release of the 11 convicts.

Issue

Whether the premature release of the 11 convicts was justifiable?

Court’s analysis and decision

The Supreme Court overturned the premature release of eleven life convicts in the Bilkis Bano case, declaring its May 2022 judgment instructing the Gujarat Government to review the remission applications as null and void. The decision was based on the finding that the petitioner, Radheshyam Shah, one of the convicts, had engaged in fraudulent conduct by withholding crucial information and providing deceptive statements.

Justices BV Nagarathna and Ujjal Bhuyan, comprising the bench, highlighted that the May 2022 directive stemmed from a writ petition filed by Shah, who had suppressed significant facts, including a prior ruling by the Gujarat High Court and the presiding judge’s opinion. The bench, after months of hearings, was informed that Shah initially sought direction from the Gujarat High Court for the State of Gujarat to consider his remission plea. However, the high court dismissed his petition, advising him to approach the appropriate government, namely the State of Maharashtra. Despite a second application also being rejected by the Gujarat High Court, Shah’s subsequent actions were deemed fraudulent by the Supreme Court.

The court emphasized that the purpose of punishment is not vengeance but rather prevention and reformation. Drawing inspiration from Plato’s treatise, the court likened the role of a lawgiver to that of a doctor, administering punishment like medicine to benefit the individual being disciplined. According to this curative theory of punishment, if a criminal is deemed curable, the focus should be on education and other appropriate measures to transform them into a better citizen, reducing the burden on the State. This principle forms the core of the remission policy.

The court further emphasized the inherent respect owed to women, regardless of their social standing, faith, or creed. It questioned whether heinous crimes against women should allow for remission, raising crucial ethical considerations. The Supreme Court nullified the remission of 11 convicts, asserting that the State of Gujarat lacked authority to decide on remission since the trial occurred in the State of Maharashtra. Consequently, the court directed the released convicts to surrender in prison within two weeks, overturning their premature release granted in August 2022.

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Written by- Afshan Ahmad

Click here to read the judgement

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Rape, Murder and Remission: Supreme Court on Bilkis Bano Case

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“A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?”

 Introduction

The Supreme Court of India passed a judgement in the infamous case of Bilkis Bano favouring the victim and her late family. The judgement is considerably known as a historic landmark judgement shaping the criminology and victimology aspect of law.

The battle of Bilkis Bano in the legal fraternity proves that crime and punishment are two sides of the same coin. While the victim is granted relief as justice prevails, the liberty of the convicts has been taken away and they have been ordered to return to prison.

Factual Matrix

The case starts its roots in the year 2002 in Gujarat during the communal riots. 11 members of the protestors who later came to be known as the convicts of the case broke into Bilkis Bano’s house. They then proceeded to gang rape her along with her family members who were as young as 2- days old. The family members were killed, gang raped and severely abused. In total 22 members of her family were brutally murdered.

The case moved to the Supreme Court to Gujarat and then finally to Maharashtra. The accused members were convicted and sentenced accordingly.  In an appeal to the Gujarat Sessions court by one of the convicts, remission was granted in the year 2022 upon which all the convicts were free and granted liberty.

In August 2023, Bilkis moved to the Apex Court and pleaded to quash the remission orders along with other PILs which supported her case.

The Issue

The core contemplation of the case was whether the State of Gujarat had jurisdiction in granting remission. While going through the proceedings of the case of conviction, it is evident that the transfer of court occurred from Gujarat to Maharashtra. The special court of Maharashtra convicted the criminals on charges of gang rape and murder. Subsequently, the government of Maharashtra was legally responsible for considering a grant of remission.

When the Government of Gujarat granted remission, it was through the central government which approved it through the way of the Home Ministry in Delhi.

The mischief :

One of the convicts had filed an application in front of the CBI and the State of Maharashtra that he had important information withheld which would grant him remission. Both the agency and the government of Maharashtra rejected his case and held that remission would not be granted.

He then fraudulently received permission to approach the Gujarat Government for remission. Upon that, it was revealed in the judgement that the State of Gujarat had used the rules of remission which has not been amended as per the central government. The rules used were the 1992 remission policy instead of the 2014 remssion policy. In the new rules, no government is allowed to grant remission to rapists. Furthermore, as per Section 433A of CrPC, a person would not be granted remission if he has been punished under life imprisonment and 14 years have not been elapsed. It has been stated that the Gujarat Government took advantage of the legal system by not appropriating the laws. It was stated that the central law would prevail over the laws of the state regarding remission.

The Judgement

The two bench judgment of the Supreme Court will prevail for years to come. The court held that the State Government of  Gujarat had no power whatsoever to grant remission for the 11 criminals. The crime committed against the victim and her family was considered to be a social crime as it resulted in a community frenzy. The court drew proportionated the crime committed with that of the social impact it has. The more socially perverse, the less chance of being granted remission was implied by the court of justice.

The court then interpreted the term “appropriate government” to grant remission and held that the state of Gujarat had no powers to shorten the sentence of the criminals and subsequently usurped its powers. In the current matter, the appropriate government was the state of Maharashtra as the case was transferred by the Supreme Court in the year 2002 as it feared the State of Gujarat may have partiality towards the accused. As per Section 432(7)(a) of the CrPC, the appropriate government would be the government which gave the order of conviction and not any other jurisdiction.

The Supreme Court in vesting its powers also held that the 11 convicts shall not hold the power to remission as the gravity of the crimes committed is severe in nature. The court found it appropriate that the 11 convicts be sent back to prison as they have committed grave crimes against humanity the pain of which is irrevocable.

The court agreed that personal liberty is a most important constitutional value enshrined in Article 21 of the Constitution. But in the current case, the liberty of the 11 men was a result of the mistake of the Gujarat government, an incompetent authority, is set aside. Therefore as per the court, it is only reasonable to send the 11 men back to prison.

Conclusion

The rule of punishment includes the mere chance of reducing the punishment. The court analysed the principles of punishment and vehemently acknowledged that in matters of grave, heinous and diabolical crimes, the predators should not be left scott-free. It is believed that the Gujarat Government made a grave error which should have been interfered with by the Supreme Court in its early stages, further stopping the misuse of power.

The two bench judgement upheld the rule of law which is no one is above the law along with the principle of equality which is everyone is equal in the eyes of the law.

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Written by- Sanjana Ravichandran