Bilkis Bano Case | Gujarat Govt Says Convicts Deserve Chance of Reformation; Supreme Court Asks, ‘Why Is Remission Policy Being Selectively Applied?’

“Why is the policy of remission being applied selectively and 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?”, Justice BV Nagarthna asked.

A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the state government.

Today, 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 invoked the reformative theory of punishment.

“What is the purpose of remission?” Additional Solicitor-General SV Raju, appearing on behalf of the state government, asked.  He further submitted –

“Is the purpose of remission punishment? Does committing a heinous crime debar a convict from getting its benefit, even if the convict has reformed themselves, has displayed remorse and wants to start a new life again? Should the past always be dangling above your head? Should these convicts be condemned for all times to come? These are the questions.”

In this connection, the law officer argued that the policy of remission is different from that of sentencing. The deterrent theory, he insisted in particular, does not apply with all its vigour to the question of remission since the convict has already undergone 14 or more years of rigorous imprisonment. Completing this sentence was ‘sufficient deterrence’, ASG Raju argued.

The contents of the order of conviction, and that confirming the conviction indicated the intent of the courts. “Where the crime is punishable with the death penalty, and the court has handed out a life sentence, it is indicative of the fact that it was not such a heinous crime. It is not the rarest of rare case.”

Justice Nagarathna clarified, “It was held to be heinous, but not the rarest of rare.”

ASG Raju conceded. Where the ‘rarest of rare’ doctrine has not been applied by the court to sentence a convict to die, there existed a scope for reformation, the law officer argued –

“Where it is not the rarest of rare case, surely a convict should be given the chance to reform themselves. They may have committed an offence in the moment, but may have later realised their consequences later. Whether the convict has realised the consequences can be determined on the basis of their conduct in jail, or when they are released on parole or furlough. All these factors show that the convict has now realised what they did was wrong.

“The law does not say that every convict should be hanged, or even punished perpetually,” Raju asserted, “The law speaks about giving a chance to even the most hardened criminal to reform themselves.”

Justice BV Nagarathna interjected. “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?”

ASG Raju admitted that it would be difficult for him to provide a general answer to this question. “On the basis of the facts of a case, I may be able to answer.”

“You will have to have the statistics. The state-wise statistics. The opportunity to reform should be given to every prisoner. Not only to a few prisoners.”

The law officer pointed out that this question was currently being considered by a bench headed by Justice Sanjay Kishan Kaul. “I am told that this case is going on in the second court. Some guidelines are being framed. All states are going to answer.”

Senior Advocate Siddharth Luthra chimed in, “The moment a convict completes 14 years, they have to prove their case for premature release. They have a module in each and every district of each and every state in place.”

Justice Nagarathna asked again,“But how far is the remission policy being implemented in cases where convicts have completed 14 years? Is remission policy being implemented in all such cases, subject of course to their eligibility?”

The judge illustrated her point with reference to the famous Rudul Shah case, in which a writ petition seeking compensation was filed by a prisoner who was illegally detained in jail for over 14 years despite being acquitted by a trial court in the murder of his wife. “On the other hand, you have cases like Rudul Shah. Even though there was an acquittal, he continued to remain in prison. Extreme cases, both this side and that side.”

Convicts’ plea for remission supported by non-imposition of more strenuous sentence by the court: State of Gujarat tells Supreme Court

At the stage of remission, factors like the conduct of a convict in jail, or while out on parole or furlough need to be considered. “There are trappings of reformation in remission. If what they are saying is true, considerations regarding jail conduct and other things would not be relevant. Remission would be allowed or disallowed on the basis of the heinousness of the crime.”

The law officer also argued that the court could have handed out a life sentence without any possibility of remission, as has been done in some cases. Other fetters on their liberty, even after the completion of 14 years, may have been imposed. The court that convicted the accused and the one that confirmed their conviction and sentence, the law officer contended, were aware of the remission policy in force which would allow the premature release of convicts, subject to their fulfilment of other criteria. On the basis of their sentence of life imprisonment simpliciter, ASG Raju drew the conclusion –

“The consideration of the courts should also be understood by referring to the contents of the judgment and the sentence imposed. The fact that the courts did not award more strenuous imprisonment leads to the inference that the court was possible, and in my submission, definitely of the view that the convicts would get the benefit of the 1992 policy. This shows the mind of the courts.”

Not only this, but Raju also attempted to convince the bench that the concurrent sentence handed to the convicts was telling of the court’s view on them getting the benefit of a remission policy. “The ordinary rule is a concurrent sentence, but courts have been known to award consecutive sentences as well. Therefore, the court was not so carried away by the fact that these offences were so heinous, they required consecutive sentences.”

However, this argument did not appear to find favour with the bench. Justice Nagarathna interjected, saying, “Here, the highest punishment is awarded after the death penalty. When life imprisonment is awarded, it has to be concurrent. It cannot be consecutive. There is only one life…hopefully.”

ASG Raju explained, “My submission is that the court could have said that the second sentence would continue after remission in the first. This was not done in this case.”

Justice Nagarathna asked, “So you are saying that since no period was specified and their sentences were of life imprisonment simpliciter without any qualification, virtually they have the right to come out after 14 years?”

“Because of the policy,” the law officer explained, “They have the right to be considered. And if the opinion is favourable, they would be released at the State’s discretion. The issue is whether the State has exercised its discretion correctly.”

Gujarat govt has complied with all requirements under law when granting remission: ASG Raju

The State, Raju told the bench, was ‘duty bound’ to follow the remission policy applicable in 1992 across the State of Gujarat, due to the operation of the specific mandamus issued by the Supreme Court in Radheshyam Shah (2022), in which a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government in terms of that policy. He argued that even if the bench headed by Justice Nagarathna disagreed with this conclusion, it would not result in the reversal of the order. The judgment inter se parties was binding on them and the situation cannot change, ASG Raju pointed out –

“It cannot be reversed in a collateral proceeding. Right or wrong, such an order can only be reversed in an appeal, review, or recall. Disagreement would not have the effect of reversal. The effect will be for future use, it may be termed as per incuriam. Or, it may be overruled by a larger bench. Even an overruling, he clarified, would not lead to a reversal. A judgment which is overruled but not reversed is still binding on the parties.”

Having said this, he argued that it was too late for the petitioners to contend that the remission policy notified by the Gujarat government in 2014 should apply instead of the 1992 policy that the apex court held to be applicable, or call into question any other aspect of the Radheshyam ruling. “It is too late. They have missed the bus.”

He also relied on a recent ruling of the Supreme Court declaring the extensions given to the term of Enforcement Directorate chief SK Mishra by the Centre to be ‘illegal’ for non-compliance with a mandamus issued by the court in its 2021 Common Cause judgment. “If a specific mandamus cannot be overturned by legislation, surely it cannot be overturned by a judgment of this court.”

The crux of his contention was that the State of Gujarat had complied with all the requirements under law, after they were specifically directed by the Supreme Court to deal with the remission applications of the convicts. The state government, he told the bench, had also complied with the requirement to seek a judicial opinion as mandated under Sub-section (2) of Section 432 of the Code of Criminal Procedure. He argued that the positive opinion of the district judge at Godhra – a member of the jail advisory committee that green-signalled the premature release of the 11 convicts – was ‘sufficient compliance’.

He added, “In this case, the sessions judge who passed the conviction order retired. Even two judges of the high court that confirmed the convictions retired.”

Justice Nagarathna interjected to point out that the opinion of the presiding judge of the court, and not the specific case was sought under the section –

“The institution remains. This section says that the opinion of the presiding judge of the court, and not the case, has to be considered. Every three years judges are transferred.”

On the dual function that the state government claimed the Godhra district judge to have discharged – both in terms of the statutory requirement under the Code, and as a member of the jail advisory committee, Justice Nagarathna said, “The requirement under Section 432(2) was different.”

ASG Raju argued that the word ‘may’ in the section ought to be read in a manner that allowed judges with knowledge of ‘ground reality’ to deliver their opinion, insisting that it was the Gujarat judge, and not the one at Maharashtra who had delivered a negative opinion, was more competent in making a correct assessment. Therefore, the requirement of seeking judicial opinion is also complied with, he asserted. He said –

“There is sufficient compliance. This is a peculiar case. Ordinarily, the judge would be from the same place where the offence takes place. But here trial was transferred. The Maharashtra judge will not have any information on what is happening locally. Someone in Godhra, or Dahod would be best person to oversee this, rather than someone in Maharashtra who is not aware of ground reality.”

He also argued that owing to the nature of the case, it was not required to consult the Central Bureau of Investigation, which had taken over the probe into this case. While doing so, he sought to juxtapose the nature of the crimes here against the kind of cases that the central agency ordinarily investigated.

Justice Nagarathna cautioned, “All said and done, it was investigated by the CBI. There's no dispute. You are on thin ice. To discuss whether CBI needed to be consulted is also academic. There was consultation…What opinion did the agency give?”

The Central Bureau of Investigation gave a negative opinion, ASG Raju told the bench.

“In all cases?” Justice Nagarathna asked.

Yes, the law officer replied. He, however, contended that the opinions of the central agency revealed no ‘application of mind’ –

“There is no application of mind. They just narrate facts. Except for stating offence was heinous, nothing is mentioned. That is why, my first submission about which Your Ladyship said I was on thin ice, is relevant. An officer sitting in Mumbai has no knowledge of ground reality.”

“How will you come to know about ground reality?” Justice Bhuyan asked him.

Raju argued that a police officer or a judge would be most competent with respect to cases within their jurisdiction.

Justice Nagarathna, however, pointed out that it was this consideration of jurisdiction was not given precedence when the proceedings were transferred out of the State of Gujarat to ensure a free and fair trial. “Keep the background of the case in mind. The trial was sent to another state, outside the jurisdiction,” the judge reminded the law officer.

After hearing the objections advanced by the additional solicitor-general to the batch of petitions, the bench adjourned the hearing until Thursday, August 24. The respondents’ counsel are expected to continue their oral submissions from 2 PM.

What has happened so far?

Bano’s lawyer, Advocate Shobha Gupta has already concluded her oral arguments. She argued that the punishment imposed on Bilkis’ rapists ought to be proportional to the nature and seriousness of the crime they 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?”

Among other things, Gupta also 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.

Before Bilkis Bano herself approached the top court, a number of petitions had been filed in the public interest, challenging the Gujarat government’s decision. The list of petitioners includes 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 have challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. The respondents’ counsel, including senior advocates Rishi Malhotra, and Sidharth Luthra, and Additional Solicitor-General SV Raju argued that the grant of remission fell within the domain of criminal law, which did not countenance ‘unnecessary interference’ by third-party ‘interlopers’.

Senior Advocate Indira Jaising, and advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, have resisted the challenge to the maintainability of the PIL petitions. Besides defending the petitioners’ right to bring an action in the case, the counsel have also mounted an attack on the legality of the Gujarat government’s decision.

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.

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.

Case Title

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