The Supreme Court quashed remission granted to the 11 convicts in Bilkis Bano’s plea challenging their pre mature release in the rape-murder case by the Gujarat Government.

The court said that the State of Maharashtra had the competence to pass the remission order and not the State of Gujarat as it had no jurisdiction to entertain the remission plea under Section 432(7) of CrPC (power to suspend or remit sentences).

The Court observed that its order dated May 13, 2022 was obtained by fraud (suppressing material facts). The said order had held that appropriate government to consider remission (Radheshyam's plea) would be the Gujarat government. The bench also took note of the fact that only Radheshyam (respondent no. 3 and one of the convicts) had sought remission in the matter.

Along with Bilkis Bano, several women activists and social organizations have filed similar pleas before the Apex Court challenging the order of remission, which were challenged by the respondents on the ground of alleged lack of locus standi.

A bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan while pronouncing the judgment observed that the order was thus nullity and non-est in the eyes of law with the abuse of discretion and usurpation of power by the Gujarat goverment.

Justice Nagarathna pronounced the judgment that began with a treatise of the Greek Philospher Plato, which says, "The laws underscores that the punishment is to be inflicted not for the sake of vengeance for what is done cannot be undone but for the sake of prevention and reformation". While noting more on the curative theory, Justice Nagarathna observed "if a criminal is curable he ought to be improved by education and other suitable arts and then set free as a better citizen and less of a burden to the State".

The bench then further underlined the competing interests involved of the victim and the family and the right of remission of the convict keeping in view whether for heinous crimes against women a remission could be permitted against it.

As per the judgment, to consider the writ petitions both on maintainability and on merits, the questions that arose for consideration were:

1. Whether the petition by the victim under Article 32 of the Constitution of India was maintainable;

2. Whether PILs assailing the impugned orders of remission were maintainable;

3. Whether government of the State of Gujarat was competent to pass the remission order;

4. Whether the remission granted to the respondent no. 3-13 are in accordance with law.

While holding that Bilkis Bano's plea was clearly maintainable, the bench was of the opinion that the "PILs would not call for an answer from us. As they have been rendered only academic and is thus kept open to be considered in an appropriate case".

However, the bench noted that for the interpretation of Section 432 of the CrPC the opinion of the convicting judge is a mandate for granting remission, which meant that the place of occurrence or the place of imprisonment were not relevant considerations. On Section 432(1) the bench said that it was apparent, the order dated May 13, 2022 is obtained pursuant to suppression and misleading of this court. The bench also lamented on the manner the respondent Radheshyam's plea was hit by fraud and therefore cannot be given effect.

Pertinently, in the arguments earlier Solicitor General Tushar Mehta appearing for the Gujarat State and the Centre Government vehemently opposing the locus standi of the other petitioners, had submitted, "I would flag at the outset, Your Lordships are not dealing with only one remission case. Entertaining a petition by x, y or z would lay down a law, not only applicable to this case but for application throughout the country. Someone can challenge someone else’s remission in any High Court etc. Please decide accordingly. So far as Bilkis Bano is concerned she is a victim... I could not object to her locus. But I would like your lordships to decide other petition on the ground of locus and please dismiss them. Otherwise, it would set a very wrong..”. Senior Advocate Sidharth Luthra appearing for a convict also sought the petitions other than that of Bilkis to be dismissed on the same ground.

Background

Previously, on April 18, 2023, the bench had listed the matter on Tuesday at 2 pm for final disposal.

“…we had directed that the first respondent-Union of India as well as the second respondent-State of Gujarat will be ready with the relevant files regarding the grant of remission to the party-respondents on the next date of hearing. Learned Additional Solicitor General who appears for the Government of Gujarat and the Union of India would submit that while he has the files ready with him, both the State of Gujarat and the Union of India wish to file application seeking review of the order directing the State and the Union to be ready with the files…”, the bench had noted.

Earlier, a bench led by CJI DY Chandrachud and comprising Justice PS Narasimha and Justice JB Pardiwala had agreed to constitute a special bench to hear the writ petition.

“I will have a bench constituted. Will look at it this evening," the Bench had said when Gupta had mentioned the matter for urgent listing before the Court.

On December 13, 2022, Justice Bela M Trivedi recused from hearing the writ plea filed by Bilkis Bano. The Court said that the writ petition may be listed before a Bench of which Justice Bela M Trivedi is not a member.

In her plea against the grant of remission which had led to the release of the convicts on August 15, Bilkis Bano has said the state government passed a mechanical order completely ignoring the requirement of law as laid down by the Supreme Court.

Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed.

The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court. A special CBI court in Mumbai had on January 21, 2008 sentenced the 11 to life imprisonment. Their conviction was later upheld by the Bombay High Court and the Supreme Court. The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.

Cause Title: Bilkis Yakub Bano v. Union of India & Ors.

Justice BV NagarathnaJustice Ujjal BhuyanBilkis Bano Rape Case

Agatha Shukla