Bilkis Bano Case : Supreme Court Asks How Convict's Earlier Writ Petition Could Have Been Admitted By Court

When the convicts' lawyer Senior Advocate Rishi Malhotra interjected, saying that the bench could not, in a writ petition, sit in appeal over a judgment of a coordinate bench, Justice Nagarathna told him:

“How was that writ petition maintainable against the order of the Gujarat High Court? How was it admitted and entertained by this court? Without a challenge to this order of the high court, how did the Supreme Court set it aside? You first tell us that. And not now. Please sit down. Answer these questions when it is your turn.”

It may be noted that the Supreme Court, in May 2022, had not only allowed the writ petition filed by Radheshyam Shah but also set aside the Gujarat High Court's order even while exercising the jurisdiction under Article 32 of the Constitution. Bilkis Bano later filed a review petition against the judgment. One among the several grounds urged in the review petition was that Article 32 remedy was not available against a judicial order. In December 2022, the bench comprising Justices Ajay Rastogi and Vikram Nath dismissed the review petition.

Social impact not considered, Bilkis's lawyer

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 law, Advocate Shobha Gupta told the Supreme Court on Tuesday.

“The Supreme Court has held in a number of cases that imposition of appropriate punishment is in the interest of justice,” Gupta told the bench today.

Justice Nagarathna interjected. “This is the doctrine of jus deserts. But we are no longer in the stage of sentencing.”

Gupta explained:

“Even for the purposes of remission, all the factors that were considered while convicting the accused cannot be given a go-bye. The crime test, the criminal test, the impact on society, society’s cry, abhorrence…The principles of penology must be kept in mind…Immediately after the remission, there were agitations across the country. I have placed documents on record.”

Justice Bhuyan stopped her. “Those will not affect our judicial decision-making,” he said.

The counsel explained, “This is important because the court says that before granting remission, public outcry must be considered.” She added, the Supreme Court in a catena of judgments like Epuru and Laxman Naskar held that the impact on the public at large would have to be considered for the purposes of remission.

“We will consider only legal submissions,” Justice Nagarathna said firmly, when Gupta tried to bring to the court’s attention the specific details of the outrage that was triggered by the remission of the 11 convicts. The judge also explained the rationale for not putting a premium on public outrage. “Suppose there was no public outcry. Are we just supposed to uphold the remission order? As a corollary, just because there is a public outcry, does it mean it is a wrong order?”

Although the bench expressed its disinclination to examine the factual aspects relating to the protests and agitations prompted by the premature release of Bilkis’ rapists, it did not object to Gupta’s submission regarding the factors that ought to be considered while granting remission. She brought to the court’s attention that there was ‘not a whisper’ about the gravity of offences in the nominal sheet or checklist prepared by the jail superintendent. She argued:

“It was said yesterday that the jail superintendent may only be familiar with the conduct of prisoners while in jail. But a jail superintendent is supposed to give reasoned recommendation after going through the judgment of the court. But there’s not a whisper in the nominal sheet about the gravity of offences. This is either a negligent exercise done very mechanically, or a deliberately careless, if not callous, approach.”

Good behaviour in jail and the completion of 14 years are not only factors to be considered while considering a remission application, Gupta told the bench. The counsel pointed out that the word ‘may’ in Sub-section (2) of Section 432 of the Code of Criminal Procedure, 1973 – dealing with the power to suspend or remit sentences – had been interpreted as ‘must’ by the Supreme Court in Sangeet v. State of Haryana. Therefore, the government must obtain the opinion, along with reasons for such opinion, of the presiding judge of the convicting court or the court that confirmed the sentence. The counsel said:

“Before the release of the 11 convicts, the opinion of the presiding judge of the convicting court was sought with respect to each convict. He gave a negative opinion with respect to each of the convicts. Not only this, the opinion of the concerned investigating agency, i.e., the Central Bureau of Investigation was also sought, and it gave a negative opinion as well, for all the convicts.”

“Despite these opinions,” Gupta continued, “There is no explanation as to why the government did not concur with their assessment.”

“Or why they were differing,” Justice Nagarathna added.

“Either way.” The counsel then referred to V Sriharan to insist that the opinion of the presiding judge was not only a relevant factor without any determinative effect on the application for remission. “The purpose of the procedural safeguard under Sub-Section (2) of Section 432 of the Code would stand defeated,” she quoted from a 2022 judgment of the Supreme Court that explained the ratio of Sriharan, “If the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission.”

The 1992 remission policy that formed the basis for the release of the 11 convicts, Gupta further told the bench, was not even in existence as on the date of the consideration of the applications. It was scrapped in May 2013 by the Gujarat government after the central government sent all states and union territories a circular mandating the implementation of the Sangeet judgment. “This was to prevent the grant of remission in a wholesale manner and ensure that each application was on a case-by-case basis,” the counsel explained.

Although Gupta acknowledged that the remission policy that would apply was the one in force on the date of conviction, she argued that such policy could not be applied while being completely blind to subsequent developments in the law as well as later policies adopted by the state.

“Assuming that the 1992 policy applies, there is a gap of 30 years. My submission is that while granting remission, the government cannot be oblivious to its own approach while formulating subsequent policy nor the principles laid down by the Supreme Court.”

Justice Nagarathna cautioned Gupta to not ‘mix up’ policies. “You can say judgment of this court, but cannot pinpoint a subsequent policy.”

Gupta’s main contention, however, was that the appropriate government for the purposes of granting remission was the Maharashtra government – and not the Government of Gujarat, which ultimately decided the issue pursuant to a ruling of the Supreme Court. Though the crime was committed in the State of Gujarat, the trial was transferred to the State of Maharashtra. Gupta contented that owing to the definition of ‘appropriate government’ given in Clause (b) of Sub-Section (7) of Section 432 of the Code of Criminal Procedure, only the Maharashtra government could be the appropriate government and its 2008 remission policy would be applicable. Under this policy, a convict handed a life term would have to serve a minimum sentence of 14 years, but for people convicted of crimes committed with ‘exceptional violence and brutality’, the minimum sentence would be of 26 or 28 years.

“If the test is the date of conviction, would this 2008 remission policy apply?” asked Justice Nagarathna. Gupta explained that the policy was made applicable to all pre-2010 convictions by a circular, which was referred to by the special court in Mumbai.

Yesterday, 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. Do these men who brutally violated Bilkis Bano and killed her entire family in front of her eyes deserve the leniency they have been accorded, the counsel asked the bench. After she concluded her argument today, the hearing in the batch of pleas was adjourned till 3 PM on Wednesday. The Supreme Court will hear tomorrow the submissions of the respondent on the preliminary objection raised by them with respect to the locus standi of the petitioners who have filed public interest litigation (PIL) petitions. The bench pronounced:

“...Other writ petitions are in nature of public interest litigations. A preliminary objection has been raised with respect to the maintainability of these petitions. To hear the preliminary objection, list tomorrow at 3 PM.”

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 last year, 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.

Case Title

Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022