Name of Court: The Hon’ble Supreme Court of India
Date of Judgement: January 8, 2024
Type of Case: This particular case is one of Constitutional law with elements of Criminal law
Petitioners: Subhashini Ali; Bilkis Bano; Roop Rekha Verma; Revati Laul
Respondent: The State of Gujarat
Legal Counsel:
- Petitioners’ side: Advocate Shobha Gupta; Advocate Aparna Bhat; Senior Advocate Indira Jaising; Senior Advocate Vrinda Grover; Advocate Nizam Pash
- Respondents’ side: S.V. Raju (Additional Solicitor General); Senior Advocate Sonia Mathur; Senior Advocate Sidharth Luthra; Senior Advocate Rishi Malhotra
Judges on Bench: Justice B.V. Nagarathna and Justice Ujjal Bhuyan
FACTS
- Numerous writ petitions challenged an order issued by the Gujarat Government on 10.8.2022 that called for the release of 11 convicts involved in the 2002 Gujarat riots who were responsible for the brutal gang-rape of Bilkis Yakub Rasool, then aged 21 and pregnant, as well as the murder of several of her family members.
- She initially filed an FIR which was rejected by the police on grounds that the accused were untraceable. She then challenged this by approaching the Supreme Court who ordered to transfer the case to the CBI and shifted the entire trial from Ahmedabad to Mumbai.
- In 2008, the 11 accused were convicted for gang rape, murder, and rioting. These convictions were upheld by the Bombay High Court in 2017 who also criticised the Gujarat police’s botched investigation. The Supreme Court dismissed all appeals and affirmed the convictions.
- In 2019, one of the respondents/prisoners, namely Radheshyam Bhagwandas Shah, applied for premature release under Sections 432 and 433A of CrPC. The Gujarat High Court had earlier ruled that since the trial was held in Mumbai, only the Maharashtra government could consider the remission application, citing the V. Sriharan judgment. Shah then applied to Maharashtra, but multiple authorities (CBI, Special CBI Court, SP Dahod, and DM Dahod) rejected the request, citing both the seriousness of the offence and the persistent threat it posed to the victim.
- In 2020, the Gujarat High Court reiterated that Maharashtra was the “appropriate government.”
- In 2022, Shah filed a Writ Petition in the Apex Court which ruled that Gujarat was the “appropriate government” under Section 432(7) CrPC since the crime occurred there and that remission needed to be considered under the 1992 Gujarat Policy (which was in force at the time of conviction), as per State of Haryana v. Jagdish.
- Despite earlier negative opinions from CBI and the CBI Court (Mumbai), the Jail Advisory Committee and several local officials gave positive opinions on remission. The Gujarat government issued release orders for the convicts on 10 August 2022 after receiving assent from the central Ministry of Home Affairs on 11 July 2022.
- The remission of the convicts garnered widespread backlash. Aside from Rasool, activists (like Subhashini Ali) filed PILs challenging the remission.
STATEMENT OF ISSUES
- Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?
- Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
- Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
- Whether the impugned orders of remission passed by the respondent– State of Gujarat in favour of respondent are in accordance with law?
CONTENTIONS
PETITIONER’S ARGUMENTS
- The petitioners in this case, which included Shobha Gupta; Indira Jaising; Vrinda Grover; Aparna Bhat; and Mohammad Nizamuddin Pasha aside from Bilkis Bano, challenged the 10.08.2022 remission orders for the 11 prisoners convicted for the gang rape of Bano and the rape and murder of her family.
- Their argument revolved around how the remission violated fundamental rights, was ignorant of victims’ voices, and shocked public conscience.
- They cited cases such as Epuru Sudhakar, Shraddhananda, and Laxman Naskar, stressing that remission must take into account societal impact and judicial opinion even if it is an executive decision. Additionally, Grover shed light on how the judge who convicted the accused was opposed to remission.
- The petitioners also defended their locus standi by asserting their fundamental duties under Article 51A(e); invoking PIL principles; and citing A.R. Antulay and Sheonandan Paswan.
- They argued that the remission process lacked transparency, defied constitutional morality, invalidated the victim, and bypassed procedural safeguards.
- They criticised respondent No.3, aka Radheshyam Bhagwandas Shah for omitting key facts in his prior applications and thus committing fraud.
- Lastly, they called for accountability in executive decisions under Section 432 CrPC, seeking to safeguard public interest and uphold the rule of law.
RESPONDENT’S ARGUMENTS
- Firstly, the Respondents contested that the remission of the 11 convicts was granted under the direction of the Supreme Court. Respondent No.3, aka Radheshyam Bhagwandas Shah, argued that his remission was completely lawful as it was given the green light by Supreme Court in Criminal Writ Petition No. 135 of 2022. The Apex Court had held that the State of Gujarat was the “appropriate government” under Section 432(7) CrPC to grant him remission.
- Secondly, they contested that the Gujarat Government had acted correctly when it granted remission under its 1992 Remission Policy. They cited State of Haryana v. Jagdish (2010) which held that remission must be considered under the policy in force at the time of conviction, not future ones.
- Thirdly, they contested that the remission of the convicts was duly considered and granted by the competent authorities only after:
- Seeking opinions from relevant officials and departments;
- Evaluating the convicts’ behavior, time served (over 14 years), and eligibility;
- Consulting the Union Government, as required under Section 435 CrPC, since the case was investigated by the CBI.
- Fourthly, the respondents emphasised only the executive has the discretion of granting remission. It cannot be subject to judicial review unless it is found to be arbitrary, of mala fide intentions, or against public interest — which they denied was the case in this situation. Cases such as Maru Ram v. Union of India and Epuru Sudhakar were used to argue against the interference of courts when a decision appears unpopular. They also pointed out the absence of any statutory provisions for consulting victims during remission proceedings. They cited the CrPC which does not contain any provision for notifying the victim, unlike trial or parole proceedings.
- Lastly, they contended that those petitioners who were members of civil society, lawyers and activists lack any Locus Standi and are third parties who were not directly connected to the case. They argued that they were “meddlesome interlopers” and the petitions were politically motivated rather than being genuinely driven by interests concerning public well-being. They cited Sheonandan Paswan v. State of Bihar to assert that either directly aggrieved parties or the State can challenge remission.
RATIONALE
The Supreme Court quashed the Gujarat government’s remission orders releasing 11 convicts, holding them illegal, without jurisdiction, and in violation of the rule of law.
The Court upheld the maintainability of the writ petitions. It ruled that Bilkis Bano “rightly” approached the court under Article 32. It kept the maintainability of the Public Interest Litigations (PILs) open for future discussion but rejected the respondents’ argument that only the victim or her relatives had locus standi. Taking into account, public law principles and constitutional morality, the Court affirmed that public-spirited citizens could challenge remission orders, especially when they raise concerns about executive overreach, arbitrariness, and the erosion of fundamental rights.
Crucially, the Court held that the Maharashtra government was the “appropriate government” under Section 432(7) of the CrPC and not Gujarat since both the trial as well as the sentencing of the 11 accused were conducted in Maharashtra following a transfer ordered by the Supreme Court due to concerns of bias and safety in Gujarat. Thus the remission orders by the Gujarat government were executed without any proper jurisdiction, rendering them null and void. Only the State of Maharashtra had the authority to decide on the remission of the accused in this case.
Third, the Court found the remission orders themselves to be arbitrary, mechanical and ambiguous and hence legally invalid. It noted that critical materials were ignored. For instance, the convicts had not paid their fines; and had negative recommendations from the CBI, the presiding trial judge, the Superintendent of Police, and the District Magistrate. Moreover, the Jail Advisory Committee’s recommendation was vague and based on an incorrect assessment of good behavior, despite several of the convicts having committed serious parole violations including a sexual assault complaint. The Court found that the remission orders were non-reasoned, and went against constitutional obligations.
Lastly, the Court clarified that while remission is an executive function, it does not lie outside the scope of judicial scrutiny. Thus, whenever such decisions are passed in abuse of power; through suppression of facts; or in violation of statutory provisions, courts are empowered and obligated to intervene. In this case, it was found that the respondent had applied for remission fraudulently and that the remission applications for all the convicts were not processed according to the proper procedure.
Consequently, the Apex Court quashed the remission orders; declared them non est i.e. having no legal existence; and directed the 11 convicts to surrender within two weeks. It restored the status quo ante and emphasised that liberty obtained either through fraud or illegality cannot be protected. Upholding the rule of law and constitutional morality is paramount in a democratic society.
DEFECTS OF LAW
This particular case raises several inconsistencies, ambiguities and defects in the application of the law in India in both procedural and substantive contexts. Two of the most prominent defects are dealt with below:
- The first of these defects that the case brought to light is the confusion over what comes under the ambit of “Appropriate Government” under the CrPC provisions regarding remission. Section 432(7) defines which government is authorised to remit a sentence but in this case, both courts and executive authorities have been inconsistent in their interpretation of whether Gujarat or Maharashtra was the “appropriate government” to decide on remission. This was because the initial 2008 trial was conducted by the Mumbai High Court even though the crime itself occurred in Gujarat. This led to several legal proceedings and contradictory interpretations of what is considered an “appropriate government” by the courts. The defect is that the CrPC does not clearly account for situations such as transferred trials under Article 139A which creates ambiguity and leaves the floor wide open for manipulation.
- Secondly, the case highlights the glaring absence of any legal requirement under the present remission policy that involves consulting the victim before granting remission. In spite of being a rape survivor and a petitioner before the Apex Court, Bilkis Bano’s opinion regarding the remission of her attackers was not taken into consideration. This is violative of a victim’s rights, procedural fairness, and natural justice. The bottom line is that the individual liberty of convicts cannot completely invalidate the dignity and safety of the victim.
INFERENCE
The Supreme Court quashed the Gujarat government’s remission orders and ordered the 11 convicts to surrender within two weeks of the judgement. Later, in July 2024, the Court dismissed pleas by two of the convicts attempting to challenge the quashing of remission and remarked that they were “absolutely misconceived” thus maintaining the finality of the earlier decision.
The significance of this particular judgement lies in how it emphasises the rule of law, legal accountability, and victims’ rights over general rules of punishment theory. The holding was lauded by activists, legal commentators, journalists and civil society. Most viewed it as a correction of executive overreach; a clarification on where to draw the line between rehabilitating convicts back into society and safeguarding victims; as well as a reaffirmation of accountability in cases involving violence against women. It is also noteworthy that it resulted in the strengthening of some state remission policies such as Maharashtra’s. Essentially, the holding sends a clear message that remission is not a matter of privilege but of law, and must follow due process and justice.
Name: Isha Bhat
College: Jindal Global Law School