Bilkis Bano Case Hearing | Remission Is Administrative Order; Precedents Against Third Party Action In Criminal Matters May Not Apply : 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 state government.

Before Bano herself approached the top court, a number of petitions had been filed in 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.

Senior Advocate Rishi Malhotra, appearing for convict Radheshyam Shah, tried to convince the bench to dismiss the PILs right at the outset by arguing that allowing third parties to challenge remission orders would be a ‘dangerous precedent’ leading to the opening of a ‘floodgate of litigations’:

“They want the remission order to be quashed and the convicts to be sent back to jail. If this is permitted, then it will open a floodgate of litigation. I understand the victim herself approaching the court. I am not disputing her right. But, politicians, journalists jumping in…This defies logic. Every now and then someone will come up and challenge remission orders granted by any state. This will be a dangerous precedent.”

Besides this, he also pointed out that the ‘public interest’ litigants had approached the court without going through the remission order which they, in their petition, criticised as ‘arbitrary’ and devoid of any ‘application of mind’.

“They asked for the remission order to be quashed without placing it on record. They admitted to not having a copy of the remission order and approached the court on the basis of media reports. The grounds are completely speculative. The language used – ‘arbitrary’, ‘non-application of mind’. It appears to them, without even seeing the order of remission, that there is something fallacious in it and as such, liable to be set aside. They did not even annex the remission order.”

Malhotra also relied on a 1992 judgment in which the Supreme Court disallowed a petition filed by Akali Dal leader Simranjit Singh Mann challenging its decision to confirm the death sentence awarded to two assassins of former army chief General AS Vaidhya. Mann had approached the top court claiming that his rights under Articles 14, 21, and 22 have been violated, but a bench headed by Justice AM Ahmadi (as he then was) turned him away on the ground of the absence of locus standi.

“There is one difference,” Justice Nagarathna said, before elaborating:

“Whereas in Simranjit Mann, there was a challenge to a conviction and a sentence, here the PIL petitioners have challenged the remission order, which is essentially an administrative order. Of course, conviction cannot be challenged by third parties. As the former chief justice has rightly said, if a third party challenges a conviction, one party may ask for the death penalty, while another party asks for an acquittal. The whole process will crumble if this were the case.”

Malhotra attempted, “The facts are a little different I understand…”

Justice Nagarathna stopped him. “The facts are vitally different. We are in an entirely different realm here. We are in the realm of administrative law.”

“This is not a criminal matter anymore,” Justice Bhuyan also added, “The simple question is whether the order of remission is good or bad and whether it is in public interest. This judgment is not applicable.”

There has to be an infringement of a fundamental right for the Supreme Court’s writ jurisdiction under Article 32 to be invoked, the senior counsel argued next. “What fundamental right of the petitioners has been violated? They have not even alleged that their fundamental rights have been violated.”

“In public interest litigations, the petitioners’ fundamental right is not in question because it has been filed in public interest, not private interest,” Justice Nagarathna countered, before explaining that both Article 32 and 226 of the Constitution could be pressed into service against an infringement of one or more right of the petitioners themselves, as well as in public interest where no individual rights of the petitioners have not been violated.

Remission is nothing but reduction of sentence which does not countenance PILs 

Additional Solicitor-General SV Raju told the Supreme Court that a public interest litigation challenging a remission order was not maintainable inasmuch as the remission was essentially a reduction of sentence, the quantum of which was not something that third parties could have a say in.

“I just want to say two things,” ASG Raju argued, relying on a 2003 ruling in which the Supreme Court defined ‘remission’ as a reduction of a sentence without changing its character, “Remission is nothing but reduction of sentence, and on a sentence, there cannot be a public interest litigation. There is a judgment of this court to that effect. No third party can have a say in the reduction of sentence. This is a matter exclusively between the court, the accused, and the prosecution.”

“But an order of remission is an administrative order,” said Justice Nagarathna.

“It may be an administrative order,” ASG Raju conceded, before adding that the effect of such an administrative order was the reduction of sentence, which stood on a different footing even if it was by way of an administrative order.

The consultation preceding the grant of remission is by a government, and not a judicial authority, Justice Nagarathna pointed out.

“The procedure may be different. But when the question is of the quantum of sentence, a third party can never have a say,” the law officer insisted. No third party or strangers’ interference in criminal matters is permissible under the garb of PILs, he contended. He also claimed that this was a ‘misuse’ of public interest litigation and the jurisdiction of the Supreme Court, and that the PIL petitioners were nothing but ‘interlopers’ and ‘busybodies’.

Unnecessary third party interference would prejudice rights of accused: Senior Advocate Sidharth Luthra

Senior Advocate Sidharth Luthra told the bench that third parties had no role to play in the prosecution of an offender, nor in any collateral proceeding, such as the grant of remission. Any 'unnecessary interference' by such parties would be prejudicial to the rights of the accused, the senior counsel argued.

“There is a concept in penology called ‘penal couple’ which involves the perpetrator and the victim of a crime,” Luthra began, before taking the court through the rights of the victims in criminal law. Before 2009, the de facto complainant or the victim did not have much role in the prosecution of an offender, but major changes were introduced in the criminal justice delivery system through the enactment of the Criminal Procedure Code (Amendment) Act, 2008, which came into effect in December 2009. Through this amending act, several modifications were made in various provisions of the Code of Criminal Procedure, 1973 facilitating the participation of the victim of a crime in various stages of the prosecution of the perpetrator by, inter alia, granting them the power to file appeal against an acquittal order, a conviction order vis-à-vis a lesser offence, or an order imposing inadequate compensation.

While victims have been given a limited role to play in the prosecution of an accused, there is no space in criminal law for third parties. After relying on a catena of cases, Luthra told the bench:

“The right of a victim to participate in a criminal proceeding – which is the basis of where we are today – is controlled by statute, and no more. This makes it very clear that third party interference is not permissible. There are a number of decisions of this court. In the context of any criminal proceeding or collateral action, arising out of the proceeding, there are three entities which have a right. So far, the jurisprudence has called is a ‘penal couple’, but I would say it is a ‘penal trio’ because the State, representing the will of the people, also has the right to be heard. What must be noted is that there is a consistent view that in relation to criminal proceedings, there would be no third party intervention or interference.”

“Though this may be an administrative order. But, the question is, what are the contours of decision-making?” Luthra asks, before explaining that the ‘contours of decision-making’ are: A decision has been taken by the judiciary, which has culminated into finality, and after it culminated into finality, the executive exercised its powers of clemency under the Code of Criminal Procedure on the basis of parameters laid down by the Supreme Court. The counsel insisted, “The grant of remission statutory exercise which takes into consideration various elements. Whether it’s rightly done or not is something this court will have to decide. But the question today is that who can espouse a cause there.”

The senior counsel argued that remission, according to the decisions of the Supreme Court, was a modification in the period of sentence which did not affect the conviction itself. There are numerous considerations for the grant of remission, such as the ill-health of the accused, family considerations, or considerations relating to reformation and rehabilitation, Luthra told the bench.

“Your Lordships spoke about the doctrine of just punishment yesterday. But that is not the only principle of law to be applied. We are also supposed to look at reformation and rehabilitation,” Luthra said, before asking, “Are we to say that however heinous the crime may be, people are not capable of reformation?”

Justice Nagarathna replied that the doctrine of jus deserts was spoken about in a different context, but Justice Bhuyan added, “Even if it were that context, we had put a query as to whether any remorse or repentance had been expressed by the convicts in their application.”

“My point was that there are elements of reformation and rehabilitation in the penal policy in this country, however, confused it may be,” Luthra clarified, before continuing to make his point about the criminal jurisprudence not envisioning any role of third parties in the prosecution of an offender. Arguing that any ‘unnecessary interference’ by third parties would prejudice the right of an accused, he submitted:

“Can we have a situation where we have a third party, however well-meaning, intervenes and asks the accused’s liberty to be curtailed? It is for the victim to consider whether the contours of application of the power of remission is correct, but we cannot have third-party elements.”

Besides this, the senior counsel also told the bench that the ‘society’s cry for justice’ test was only applicable when the court is deciding between death sentence and a sentence of life imprisonment. Bano’s lawyer, Shobha Gupta had argued that this test would be an important consideration at the stage of the grant of remission. Disagreeing, Luthra argued, “In the Nirbhaya case, a three-judge bench of the Supreme Court laid down that this test would apply only in ‘life versus death’ cases. This is bringing into elements of public discourse, which are not to be brought into criminal law. The stage where this test could have been applied is over and it cannot be used for the purposes of determining whether the remission was done fairly.”

Accused’s right of appealing before two fora being deprived: Senior Advocate S Guru Krishna Kumar

Senior Advocate S Guru Krishna Kumar, appearing for another convict, questioned the maintainability of Bano’s petition under Article 32 as well, saying that the appropriate forum to hear the challenge against the remission would be a high court, so that the convicts are not deprived of their right to appeal before a division bench of the high court as well as the Supreme Court. He argued:

“I have one submission on the victim’s petition with regard to how it is appropriate for it to be heard by a high court. This is because, the right of appeal of the accused before two fora will be taken away. I am on a larger issue of an approach…without in any manner diluting the exercise this court is undertaking, or, for that matter disputing the jurisdiction of this court under Article 32. My submission is that any petition of this nature, which puts in issue, an administrative or statutory order is more appropriately heard by the high court at the first instance.”

“I’ll only take about ten minutes to make my submission,” Kumar told the bench.

“We’ll give you five,” Justice Nagarathna replied, before permitting the senior counsel to present his arguments tomorrow before the counsel for the public interest litigants began their submissions at 2:30 PM.

Bano’s counsel, 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 were 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. Among other things, she 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.

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