Bilkis Bano verdict: What Supreme Court said while quashing remission of convicts?

The Supreme Court on Monday set aside the remission of 11 convicts sentenced to life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat.

The court held that the State of Gujarat was not the 'appropriate government' to decide the issue of remission as the trial was held in the State of Maharashtra. Since the Gujarat government was found to be incompetent, the remission orders were held to be invalid. Accordingly, the court directed the convicts, who were given premature release in August 2022, to surrender in prison within two weeks.

After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan reserved its judgment on October 12. 

Justice Nagarathna, who authored the judgment, prefaced it with Plato's reformative theory of punishment and the competing interests involved, of the rights of the victims and the victims' families to justice, and the right of convicts to a second chance by remission or reduction of their sentence. She added a woman deserves respect irrespective of her social, religious position. “Can heinous crimes against women permit remission?" Nagarathna asked.

Five main issues
In its judgment, the court answered five main issues.

1. Bano's petition maintainable
Answering the question of whether the petition filed by Bano, one of the victims, under Article 32 of the Constitution was maintainable, the bench said, "It is clearly maintainable. The arguments of senior advocates Guru Krishna Kumar and V Chitambaresh are not accepted."

The court refused to answer the question of whether the petitions filed as public interest litigation (PIL) petitions were maintainable. Justice Nagarathna said, "We do not think it is necessary to answer this question since one of the victims herself has approached the court. The question of the maintainability of the PILs do not call for an answer, being rendered academic and is left open in an appropriate case."

2. Competence of Gujarat govt
The judge proceeded to read out the portion of the ruling dealing with the competence of the State of Gujarat to pass these remission orders. She began with an interpretation of Section 432 of the Code of Criminal Procedure, which mandates the appropriate government to seek the opinion of the convicting judge while considering applications for premature release.

"On that short ground alone, the orders of remission has to be quashed. The competency of the State of Gujarat goes to the heart of the matter," Justice Nagarathna said, but quickly added that the matter did not end there. The judge acknowledged that Gujarat government had to decide the applications and pass the order under challenge in terms of the May 2022 decision of the Supreme Court.

However, Justice Nagarathna reasoned that this direction was issued in a writ petition filed by one of the convicts, Radheshyam Shah, by suppressing material facts like an earlier decision of the Bombay High Court and the opinion of the presiding judge and making misleading statements. The court also held that the said judgment (which held that Gujarat Government was competent to decide remission) was per incuriam as it was contrary to the plain letter of the statute as well as binding judgments of the Supreme Court.

3. Rule of law
While answering the question of whether the impugned remission orders were in accordance with law, Justice Nagarathna revealed, "We need not have gone into the other issues. But for sake of completion, we have." Rule of law is breached because the Gujarat government usurped power not vested in it and abused its power. "The exercise of power by the State of Gujarat is an instance of usurpation of power and abuse of power. This is a classic case where the order of this court was used to violate the rule of law by granting remission. On that ground also, the remission orders deserve to be quashed," the judge said.

4. What follows?
While dealing with the issue of what would follow when the remission orders have been set aside, the court revealed that it was a 'delicate issue' that was given an 'anxious consideration' by the judges. In answering this question, the bench weighed the paramountcy of the rule of law against the personal liberty of the convicts. When Article 21 did not permit a deprivation of an individual's right to liberty in a manner not supported by the rule of law, could liberty be upheld in the face of a breach of the rule of law, Justice Nagarathna asked. The judge also spoke about the role of constitutional courts in being a 'beacon' in upholding the rule of law, which she insisted, must be preserved "unmindful of the ripples of the consequences".

5. Back to jail
Finally, directing the convicts to be sent back to jail, Justice Nagarathna said -

"If the convicts can circumvent the consequences of their conviction, the peace and tranquillity in the society will be reduced to a chimaera. The courts have to be mindful not just to the spelling of justice but also the content of it. It is the duty of this court to correct arbitrary orders at the earliest and to retain the foundation of trust of the public. Plea of protection of liberties of these convicts cannot be accepted by us. The rule of law must prevail. When the impugned orders are set aside, the consequences must follow."

Advocate Shobha Gupta appeared for Bilkis, the rape survivor, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.

What Bilkis Bano, other petitioners said about premature release of 11 convicts?
Bano's lawyer, Advocate Shobha Gupta argued that the punishment imposed on Bilkis' rapists ought to be proportional to the nature and seriousness of the crime they were had committed – which included 14 murders and three gang-rapes. Highlighting the brutality of the crimes and the religious hatred motivating it, Gupta asked the Supreme Court bench if the convicts deserved the leniency they have been accorded:

“…Bilkis saw her first child's head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or her family no mercy…Are these people – the perpetrators who have been found guilty of committing these crimes – deserving of the leniency shown to them?”

Besides this, Gupta contended that the government did not consider the societal impact of prematurely releasing Bilkis Bano's rapists, nor did it consider a host of other relevant factors that they were required to under the law. Flagging the 'leniency' the Gujarat government demonstrated towards the convicts, yesterday while delivering a rejoinder, Gupta said, "This barbaric crime has left an indelible mark on Bilkis. Therefore, this is not a case where the convicts deserve mercy. The convicts should be sent back. I'm beseeching this court with folded hands to send them back where they have come from."

Before Bilkis Bano herself approached the top court, a number of petitions had been filed in public interest, challenging the Gujarat government's decision. The list of petitioners include Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. However, the government, as well as the convicts challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. The respondents argued that the grant of remission fell within the domain of criminal law, which did not countenance 'unnecessary interference' by third-party 'interlopers'.

What Union, Gujarat governments and convicts said?
Leading the charge for the respondents, ASG Raju, while representing the State of Gujarat, argued that the state government was bound by the specific mandamus issued by the Supreme Court asking it to consider the remission applications of the convicts under the policy that was in force at the time of the conviction. Accordingly, it has considered the applications with respect to the guidelines prescribed by the Gujarat remission policy in force in 1992, which was only superseded in 2014, and allowed the convicts' requests for premature release after taking into account all relevant factors as prescribed under this policy.

Not only did the Gujarat government argue that the remission was legal and was granted after taking into consideration all factors required to be examined under the law, but it also cited the reformative theory of punishment to argue that even those convicted of heinous crimes deserved an opportunity to reform themselves and be reintegrated into society, on showing contrition and after serving their time.

In response to this, Justice Nagarathna posed an important query about remissions being selectively applied across the country. She asked, “How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?”

On behalf of the union government, the additional solicitor general made a limited submission relating to the absence of any negative opinion from the Central Bureau of Investigation, which had taken over the probe from the state police.

Luthra, representing one of the convicts, emphasised that neither the trial court, nor the Bombay High Court had sentenced Bilkis' rapists to death or given them fixed-term sentences. The life sentence simpliciter meant that the convicting and confirming courts had not judicially excluded the possibility of remission, which in turn meant that the possibility of reformation could not be precluded, especially since it was the primary objective of the criminal justice administration. The senior counsel also insisted that no legal consequences would flow from the non-payment of the fines, since any consequent default sentence would be subsumed within the life terms handed down to the convicts.

The Supreme Court, in response, asked if the non-payment of fines by the convicts would be an important consideration when examining their conduct in jail. On another occasion, Justice Bhuyan had asked the petitioners if the convicts have displayed any remorse, to which Bilkis' lawyer had said: None of the convicts had bothered to pay the fines that were imposed on them, which the Bombay High Court categorically said would go towards compensating the gang rape survivor. This wilful and deliberate non-payment of fine, the petitioners argued, demonstrated the convicts' lack of remorse.

Other than this, the Supreme Court questioned whether a convict should be granted the license to practice law, after Malhotra apprised the bench of his client's rehabilitation efforts in jail, and post-conviction legal practice in an effort to drive home the point that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. The bench also rejected the 'judicial propriety' argument of the respondents asking it to 'not sit in judgment over a coordinate bench's ruling', categorically stating that its 2022 judgment holding Gujarat government as the competent government to deal with the convicts' application for premature release would not bar a judicial review of the remission orders now.

Emphasing the tenet of reformation underpinning our criminal justice system, Mathur argued that remission was earned, and not granted as a matter of 'charity'. Chitambaresh, representing another convict, argued that remission orders can only be challenged in high courts, not the Supreme Court, contrasting the scope of Article 226 with that of Article 32. Another lawyer challenged the Supreme Court's authority to overturn the remission order on the grounds that “a fundamental right cannot be invoked against another fundamental right”. He emphasized that once remission is granted by the competent authority following relevant policies, the right to life and liberty accrued in favour of the convicts. He stressed the importance of safeguarding the rights of both victims and convicts, especially in view of the convicts completing 15 years of their sentences. Accordingly, he strongly insisted that once remission is granted in accordance with the applicable rules and procedures, the order should not be disrupted.

Background

On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.

In a notable development, after almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on the ground of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to 'exceptional circumstances', only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts' applications for remission.

Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government in 2022, provoking widespread outrage and protest. It also led to a batch of petitions being filed before the top court, challenging the decision of the Gujarat government to grant the convicts premature release. Among the petitioners are Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. The top court issued notice in the first set of pleas on August 25 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9.

Bilkis Bano approached the Supreme Court in a writ petition challenging the premature release of the 11 convicts. She also sought a review petition against the top court's judgment allowing the Gujarat Government to make a decision on the remission of the convicts, which was dismissed by the bench of Justices Ajay Rastogi and Vikram Nath.
(This is an edited version of an article which appeared in LiveLaw.)