Background of the case
The Bilkis Bano case is rooted in the communal violence that unfolded in the Indian state of Gujarat in 2002. Amid this violence, Bilkis Bano, a pregnant Muslim woman, became a victim of a horrific crime. On March 3, 2002, Bilkis and her family on their way to flee were attacked by a mob in the Randhikpur village of Dahod district in Gujarat. Bilkis was gang-raped, several members of her family, including her three-year-old daughter, were killed, and she was left for dead.
The case gained prominence due to the brutality of the crime and the failure of the local authorities to protect the victims during the riots. Initially, there were concerns about the handling of the case within Gujarat, and there were allegations that the state machinery was not effectively pursuing justice for the survivors.
In response to these concerns, the Supreme Court of India, in 2004, ordered the transfer of the case to Mumbai to ensure a fair trial. The Central Bureau of Investigation (CBI) took over the investigation. In 2008, a special court in Mumbai convicted and sentenced 11 individuals to life imprisonment for their involvement in the crime, which included charges of rape and murder.
Radheshyam Bhagwandas one of the convicts initially approached Gujarat High Court for a plea on remission. The court held that it lacked jurisdiction and directed him to Maharashtra as it would be the “appropriate government” to decide on his plea. Later he approached the Supreme Court, and deliberately chose not to disclose the Gujrat High Court’s order. On 13 May 2022, the Supreme Court, misled, held that the Gujarat High Court was the competent court to grant remissions in the present case.
This judgment violated section 432 and previous precedents set by high courts and the apex court. The question then arises as to why the Gujarat HC failed to file a review petition on the May order passed by the court and opted to go through with the remission. The Gujrat High Court subsequently released 11 convicts on August 2022. Thus, the state was clearly complicit in the suppression of facts and acted in tandem with the convicts in usurping the jurisdiction of Maharashtra.
What is the law on Remission?
Under Articles 72 and 161 of the Constitution, the President and Governors have the power to pardon, and to suspend, remit, or commute a sentence passed by the courts. Since prisons are a state subject, state governments also have powers under Section 432 of the CrPC to remit sentences.
For this purpose, each state has a Sentence Review Board to exercise the powers under Section 432, they cannot exercise the power arbitrarily and must follow due process of law. In Supreme Court ‘Laxman Naskar v. Union of India’ (2000) five grounds for granting remission were laid down:
- If the offence committed is an ‘individual’ act that does not affect the society.
- Whether the same crime can be committed again in the future.
- If imprisonment of the convict serves any purpose.
- If the convict has lost the potential to commit crime.
- As with convicts serving life sentences are entitled to seek remission only after serving a minimum of 14 years.
As such the re 1992 Remission Policy of Gujrat, in effect during the 2002 crime and subsequent 2008 conviction, allowed prisoners to seek remission by arguing that life imprisonment was a notional term of twenty years. However, this policy was invalidated in 2012.
What was held in the Recent Supreme Court Judgement.
As of January 8, 2024, the Supreme Court of India has delivered its verdict in the petitions challenging the early release of individuals convicted for the gang rape of Bilkis Bano during the 2002 Gujarat riots. The bench of Justices BV Nagarathna and Ujjal Bhuyan has ruled on a batch of petitions challenging the remission granted to the 11 convicts.
The judgement held that the Gujarat High Court wholly lacked the jurisdiction to grant the order of remission and called for all the convicts to be returned to prison within a period of 2 weeks. Section 432 of the Code of Criminal Procedure mandates the appropriate government to seek the opinion of the convicting judge while considering applications for premature release. The court held that the ‘appropriate government’ would be the court wherein the case was tried and sentenced which in this case is the Maharashtra High Court. The court found that the petitioner had committed a fraud on the court in obtaining the May 2022 order, which in turn nullified the orders for remission granted for all of the convicts. The court held that the rule of law was breached and the Gujarat HC usurped the powers of the Maharashtra High Court.
The question before the court in this case was whether the rule of law could prevail over the personal liberty of individuals. The court answered in the positive and held that the rule of law must prevail in order for justice to be rightfully granted. Thus, the court issued a directive to all convicts involved in the case, instructing Respondents No. 3 to 13 to report to jail authorities within two weeks. The judgment emphasized that seeking remission in accordance with the law would require the convicts to do so from within the confines of the jail.
What is the Way Forward?
In the recent judgment, Justice Nagarathna underscores the evolving focus of the justice system, emphasizing rehabilitation and reformation over vengeance. The ruling adeptly strikes a balance between these perspectives by recognizing that convicts of heinous crimes, with far-reaching societal implications, warrant deterrent punishments over rehabilitative measures, leading to the denial of remission. The call for India to adopt a retributive approach, emphasizing deterrence through stricter penalties and stringent legislation for such grave offenses, echoes in the judgment. Notably, the judgment advocates for accountability not only for those directly involved but also for those complicit in any cover-up. Acknowledging rape as a complex issue, the judgment suggests addressing contributing factors like education and cultural norms. It advocates for educating the public and challenging cultural norms that perpetuate gender-based violence as crucial steps toward ensuring the safety of women nationwide. This multifaceted approach aligns with the broader goal of creating a society free from such pervasive and deeply rooted issues.
