Bilkis Bano Case |Earlier SC Judgment Won’t Bar Review Of Remission Order : Supreme Court

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 Gujarat government.

On behalf of the convicts, and earlier by Additional Solicitor-General SV Raju appearing for the state government, it has been argued that the remission of Bilkis Bano’s rapists followed an earlier decision of the Supreme Court asking the State of Gujarat to dispose of their applications for premature release, thus, disentitling the court from now reconsidering any issues relating to the jurisdiction of the state government - 

“This issue was resolved by this court. Your Lordships cannot and should not sit in judgment over a coordinate bench’s decision,” Senior Advocate Rishi Malhotra told the bench today, opposing the pleas against the convicts’ premature release. His argument was that the remission orders were beyond question in a proceeding before a coordinate bench inasmuch as they had already attained finality.

However, this contention did not find favour with the judges. Justice Nagarathna explained that the petitioners were not prevented from challenging the orders only because they only had as their ‘starting point’ an earlier judgment of the Supreme Court –

“The decision of this court was the starting point to that(remission). A review was filed and dismissed, but that is different from a challenge against remission orders. The two causes of action are different. One is the convicts’ cause of action to seek a mandamus for consideration of remission applications. The other cause of action is theirs to challenge these remission orders. You cannot say that these remission orders cannot be questioned by anybody because of last year’s decision. That was the starting point. But this is the end point.”

Citing the Supreme Court’s judgment on the doctrine of stare decisis in Rupa Ashok Hurra (202), the senior counsel repeated, “But you cannot sit in judgment over coordinate bench’s ruling. This is what was held in Rupa Ashok Hurra.”

Justice Bhuyan chimed in at this point. Our examination is confined to remission order, the judge clarified.

“We are not sitting in judgment over a coordinate bench’s ruling. This is on remission order. The cause of action is different. This is very clear to us,” Justice Nagarathna added.

Malhotra persisted in his efforts to convince the bench, by pointing to the similarities between the grounds on which Bano relied in her petition seeking a review of the May 2022 judgment – which was subsequently dismissed by the Supreme Court – and the recent petition challenging the 11 convicts’ remission. He argued, “Look at the grounds in the two petitions. They are all the same. This is unacceptable.”

Maybe, Justice Nagarathna said about the similarities in the grounds cited, “But what ultimately matters is what they argue. You may have a hundred different grounds, but press only two or three in court.”

Apart from this, Malhotra also supported the Gujarat government’s decision, arguing that it had complied with the top court’s order and granted remission in accordance with the remission policy in force at the time of the convictions. Relying on a 2010 ruling in State of Haryana v. Jagdish, the senior counsel contended –

“Two things are very clear: one, the date of conviction would be relevant to decide which policy of remission is applied, and second, if there is a liberal provision in the subsequent policy, its benefit would be given to the convict, but not the other way round. The legal scheme is based on the reformative theory. Besides, Jagdish was followed by a series of orders of this court which asked the State to consider remission requests in terms of the policy in force on the conviction date. This cannot be in dispute now.”

Convicts have earned this remission through good behaviour; only State would be answerable for any flaws in process: Advocate Sonia Mathur

Advocate Sonia Mathur, appearing for another convict Vipin Joshi questioned whether Bano could bring the current action, given the settled principle against appeals by survivors to enhance the sentence imposed. Not just Bano, but none of the litigants had the standing to approach the court against the remission orders, the counsel argued.

Justice Nagarathna, however, reiterated that remission was granted through a judicial order and not an administrative one, stressing the ‘vital difference’ between the two. She said –

“Remission is cutting short of the sentence, but the sentence remains. These remissions are through administrative orders. There is a vital difference. Now, if anyone asks what his sentence was, you will not say 15 years. You will say life sentence…This cannot be ground to say they cannot challenge the remission orders.”

Notably, Mathur argued that just as the survivor’s rights were upheld, the rights of the convicts ought to be protected. She argued that only the State would be answerable if any flaws were found in the process of remission, since the convicts have ‘earned’ the reward of being prematurely released by serving their sentence and demonstrating good behaviour –

“If there is a flaw in the process that is for the State to answer. In Bilkis Bano, the compensation awarded is the highest ever awarded in a gang rape case. I am not at all being insensitive to what has happened. No one deserves that. I am not saying what has happened can be brought back by paying compensation. Insofar as her rights are concerned, she has been awarded compensation, she has been given a job, accommodation…This is what was given to her, as opposed to [the convict’s] rights. The convict’s role ends with him having applied for remission. He has served his sentence for 14 years. What he did at the time, that's what is assessed by authorities.”

The counsel further added that their remission was not a matter of charity, but of right –

“This is not given to convict as a bounty, as charity. He has earned [the remission]. Today, even if there are flaws noticed in the process, that’s for the State to answer. So far as my rights are concerned, I have been out for a significant time and that may not be undone.”

Additional Solicitor-General SV Raju appeared for the Union of India today and made a brief submission about the Central Bureau of Investigation not actually submitting any negative opinion as insisted by the petitioners. After hearing the objections raised against the batch of petitions by ASG Raju, Malhotra, and Mathur, the bench adjourned the hearing until Thursday, August 31. The respondents’ counsel are expected to continue their oral submissions from 3 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 them, Gupta asked the Supreme Court bench if the convicts deserved the leniency they were 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.

Leading the charge for the respondents, Additional Solicitor-General SV Raju, appearing for the State of Gujarat, has 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?”

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 grounds 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