Bilkis Bano Case | Convicts Argue That Remission Can Be Challenged Only Before High Courts; Supreme Court Expresses Doubts

“An order granting remission can only be challenged under Article 226, and not under Article 32. We have come across orders declining remission being challenged under Article 32 because there is an infringement of a fundamental right guaranteed under Part III of the Constitution. A remission order is open to judicial review only under Article 226, and not under Article 32.”

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.

In response to Chitambaresh’s argument that the Supreme Court had no jurisdiction to entertain the current batch of petitions over the remission of the convicts, Justice Nagarathna pointed out that one of the convicts had filed a petition under Article 32 seeking remission. The Supreme Court’s decision designating the State of Gujarat as the ‘appropriate government’ eventually led to the state government approving the remission applications of all 11 convicts. “One of the convicts filed an Article 32 petition. Do not be ignorant of that,” Justice Nagarathna told the senior counsel.

“That was before the remission was granted. Once there is an order of remission, judicial review is permissible only under Article 226, and not under Article 32,” Chitambaresh replied.

Justice Nagarathna expressed her reservations over this . “We do not know if that is the law.”

The senior counsel continued, “Only if remission is declined, a convict, who is under incarceration, may approach the Supreme Court arguing that their fundamental rights have been infringed. But, in a case where remission has been granted, judicial review is permissible only under Article 226, and no other provision.”

On the scope of Article 226 in contrast with Article 32, Justice Nagarathna admitted, “The power under Article 226 is wider than under Article 32. It covers not only violations of fundamental rights, but violations of any other legal rights.”

“Yes exactly,” Chitambaresh exclaimed, “Under Article 226, the limit is sky-high.”

Alluding to the Supreme Court invoking its writ jurisdiction last year to grant relief to one of the convicts who sought to be prematurely released, Justice Bhuyan asked at this juncture, “Is the right to seek remission a fundamental right? Would a petition under Article 32 petition lie?”

“No.” Chitambaresh accepted that the right to seek remission was not a fundamental right.

Another counsel also challenged the Supreme Court’s competence to set aside the remission order, saying that “a fundamental right cannot be invoked against another fundamental right”. He said -

“Once remission was granted by the competent authority in terms of the relevant policy, a right to life and liberty has accrued in my favour. Just as the rights of the victim, the rights of the convicts should also be safeguarded. They have been out of jail for a long time and have the right to be reintegrated into society. Balance of convenience, in fact, tilts more towards the convicts since they have already undergone 15 years of their sentence. If granted under the relevant rules, and after following the procedure, the remission order should not be disturbed.”

“Who is to say that the remission has been granted after following the rules,” Justice Nagarathna asked the counsel.

If at all, only the high court can sit in judicial review over the remission orders, the counsel responded.

The respondents wrapped up their oral arguments on Wednesday, prompting the bench to adjourn the proceedings until October 4. On that day, the petitioners are anticipated to present their counterarguments.

What has happened so far?

Bano’s lawyer, Advocate Shobha Gupta 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 had 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 include 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, 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?”

Notably, the Supreme Court also questioned whether a convict should be granted the license to practice law, highlighting the profession’s nobility. This was in response to Senior Advocate Rishi Malhotra informing the bench of his client’s rehabilitation efforts in jail, and post-conviction legal practice in an effort to drive home the point that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. In a similar vein, Advocate Sonia Mathur argued last month that remission was earned, and not granted as a matter of ‘charity’. Additional Solicitor General SV Raju, representing the Union of India this time, made a limited submission relating to the absence of any negative opinion from the Central Bureau of Investigation, which had taken over the probe from the state police.

Importantly, the bench also rejected the ‘judicial propriety’ argument of the respondents asking it to ‘not sit in judgment over a coordinate bench’s ruling’, categorically stating that its 2022 judgment holding Gujarat government as the competent government to deal with the convicts’ application for premature release would not bar a judicial review of the remission orders now.

Senior Advocate Sidharth Luthra, representing one of the convicts, emphasised that neither the trial court, nor the Bombay High Court had sentenced Bilkis’ rapists to death or given them fixed-term sentences. The life sentence simpliciter meant that the convicting and confirming courts had not judicially excluded the possibility of remission, which in turn meant that the possibility of reformation could not be precluded, especially since it was the primary objective of the criminal justice administration.

Luthra also insisted that no legal consequences would flow from the non-payment of the fines, since any consequent default sentence would be subsumed within the life terms handed down to the convicts. The Supreme Court, in response, asked if the non-payment of fines by the convicts would be an important consideration when examining their conduct in jail. On another occasion, Justice Bhuyan had asked the petitioners if the convicts have displayed any remorse, to which Bilkis’ lawyer had said: None of the convicts had bothered to pay the fines that were imposed on them, which the Bombay High Court categorically said would go towards compensating the gang rape survivor. This wilful and deliberate non-payment of fine, the petitioners argued, demonstrated the convicts’ lack of remorse.

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