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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