[2024 SCC OnLine SC 25].
Before B.V. Nagarathna and Ujjal Bhuyan, JJ.
Writ Petition (Crl.) No. 491 of 2022.
Decided on January 8, 2024.
Following the Godhra train burning incident, communal riots erupted in Gujarat, India, leading to heinous crimes, including the rape of Bilkis Yakub Rasool alias Bilkis Bano. Her family was massacred, including her three year old daughter and mother, who was also raped, prompting her to seek justice. Concerned about bias and security, she moved the Supreme Court to transfer the case to Maharashtra, where 11 men were convicted. Fourteen years later, one sought remission, facing opposition for the gruesome crimes. Despite objections, the Gujarat government released them. Bilkis Bano and others filed a petition challenging their release, emphasizing the need for them to remain incarcerated.
ISSUE
There are 2 issues in the case
- Was the writ petition filed by Bilkis Yakub Rasool maintainable.
- Did Gujarat government have the authority to pass remission orders and the orders validity.
CONTENTIONS
Rishi Malhotra, the counsel for one of the respondents, contested the validity of the writ petition from the start. He argued that challenging the court’s judgment is not permissible, citing the precedent set by the Constitution Bench of the Supreme Court in a the notable case Rupa Ashok Hurra v. Ashok Hurra . In that case, the court ruled that filing a writ petition to challenge the court’s judgment after the dismissal of the review petition is not allowed. The Constitution Bench clarified that the only remedy in such a situation is to file a Curative Petition.
The senior counsel representing another convict made a similar argument, emphasizing the case of Naresh Shridhar Mirajkar v. State of Maharashtra, In this case, it was established that a writ should not be filed against an order of a Constitutional Court.
Ms. Shobha Gupta, counsel for the petitioner, argued that the remission orders, being administrative and without a right of appeal, can be challenged through a writ petition under Article 226 and Article 32 is invoked for fundamental rights violations or administrative decisions shocking public conscience, as seen in Epuru Sudhakar v. State of Andhra Pradesh, Satpal v. State of Haryana and Mohammed Ishaq v. S. Kazam Pasha.
The counsel points out that this Court has previously considered writ petitions from the respondent regarding premature release, citing cases like Ram Chander v. State of Chhattisgarh, Laxman Naskar v. Union of India and Rajan v. State of Tamil Nadu. She argues that objecting to maintainability is flawed, as one of the respondents filed a similar writ petition without objections.
The counsel States that the petitioner was unaware of the convict’s release petition. In response, she filed a review petition, which was dismissed, making the writ petition crucial on its own merits. Lastly, she argues that the ‘right to justice’ is a fundamental human right, citing Anita Kushwaha v. Pushap Sudan .
Another court contention involved the term “appropriate government” in section 432(7) of the Criminal Procedure Code, 1973. The respondent’s counsels upheld their stance based on a Supreme Court judgment. The court instructed the Gujarat government to review the premature release of the respondent within two months. The judgment clarified that Gujarat, where the crime occurred, is considered the appropriate government since the trial and conviction took place in Maharashtra, and the matter was transferred to the State of the actual crime.
The counsel argued that the convict qualifies for premature release under the old Gujarat Prisoner Remission Policy of 1992, not the new one. It is a settled principle in Indian law that the prisoner is subject to the policy in effect on the date of their conviction, supported by cases like Rashidul jafar v. State of U.P and State of Haryana v. Raj Kumar.
The petitioner’s counsel argued that although the crime took place in Gujarat, the trial and investigation occurred in Maharashtra as per Supreme Court directives. According to the language of section 432(7)(b), the “appropriate government” for considering the convict’s remission application is Maharashtra. Therefore, the orders by the Gujarat government lack jurisdiction, are null, and should be quashed. The counsel cited cases like State of Madhya Pradesh v. Ratan Singh, State of Andhra Pradesh v. M.T. Khan and Union of India v. V. Sriharan to support this argument.
Regarding the validity of the Gujarat government’s remission orders, the petitioner’s counsel contended that the remission policy used for the respondent was non-existent as on the date of consideration of remission application. It was scrapped after the Supreme Court’s judgment in Sangeet v. State of Haryana, through a circular circulated by the Central Government requiring the States/UTs to comply with the orders. The counsel adds that after canceling the old policy, Gujarat government had to formulate a new policy, which, for two reasons does not entitle respondent to remission:
- Maharashtra’s remission policy will be applicable.
- The new policy prohibits remission for respondent’s of heinous crimes.
The counsel argued that the government did not adhere to due process and issued orders arbitrarily, disregarding the presiding judge’s negative opinions on the premature release of respondent, contravening established rulings of Sangeet v. State of Haryana and Ram Chander v. State of Chhattisgarh. Also, the premature release was illegal as the respondent had not paid the fine of 34000 Rs. Imposed by the Trial Court. The court had issued orders to be followed in case of default in payment stating that each respondent would have to serve another 34 years each (concurrently) for such non-compliance of the court order. Furthermore, the counsel contended, that the government had failed to consider critical elements laid down in Laxman Naskar v. State of West Bengal, if not then the order was mechanical, critical elements to consider:
- Is the crime isolated?
- Is there a risk of re-offending?
- Has the convict lost the criminal potential?
- Is continued confinement fruitful?
- Convict’s family’s socio-economic status?
Counsel for the government could only argue that they followed due process of law and sought opinions from Jail Advisory Committee, DM of Dahod, Superintendent of Police (CBI) and Special Court judge and etc.
RATIONALE
The Court noted that, firstly Article 32, a fundamental right, grants the right to file a petition. Bilkis Bano has used this right to file a writ petition, seeking enforcement of her fundamental rights guaranteed under Article 21 and Article 14 of the Constitution. Recognized as “the soul of the Constitution”, Article 32 aims to enforce all other fundamental rights. Hon’ble Bench Stated aforesaid constitutional remedy is also to enforce the ideals enshrined in the Preamble, which speaks of justice, liberty, equality and fraternity. The Bench emphasized on the expanded notion of access to justice, that is inclusive of speedy remedies. The Bench held that the victim’s petition cannot be dismissed based on the existence of an alternate remedy.
The petitioner relied on Article 32, allowing her to approach the Supreme Court, instead of Article 226 for a High Court appearance. Similarly, one respondent filed a writ petition in the Supreme Court under Article 32 seeking writ of mandamus. The court issued directions that the Gujarat government interpreted as a command, prompting swift action. The petitioner’s counsel argued that the Gujarat government lacked authority to grant remission. This viewpoint was shared by the Gujarat High Court when dismissing a writ petition of the same respondent. Therefore, when the Gujarat High Court declared that it wasn’t the appropriate authority to consider the writ petition related to respondent’s remission, citing judicial propriety, challenging it under Article 226 becomes absurd.
For the second issue concerning the term “appropriate government”, the Court observed that, according to Section 432(7) of the Criminal Procedure Code, 1973, the appropriate government is that State of trial and sentencing. This conclusion was drawn from the criteria established in the case of State of Madhya Pradesh v. Ratan Singh and the Constitution Bench decision in Union of India v. V. Sriharan. These cases emphasized the importance of the presiding judge’s opinion in the trial court when considering remission. In the current situation, both judges were in Maharashtra.
About the validity of remission order issued by the Gujarat government based on the decree passed by the Court previously, the court held it to be per incuriam because the order did not take Union of India v. V. Sriharan into consideration. The Court discovered that Radheshyam in his pursuit of remission deliberately concealed information when approaching the Supreme Court. After his plea was rejected by the Gujarat High Court he appealed to the Maharashtra government despite facing recommendations from various entities such as the CBI, Special Judge (CBI) Mumbai, Superintendent of Police and District Magistrate of Dahod. Radheshyam distorted a disagreement between the Gujarat and Bombay High Courts even though the latter decision had no relation to remission. The ruling invalidated the order for his remission. Consequently subsequent actions, including Gujarat’s remission order, were ineffective. Since only Radheshyam initiated the remission proceedings, no other convicted individuals were taken into consideration.
The court accused the State of Gujarat of being complicit with Radheshyam’s petition. Although the Gujarat government initially argued that Maharashtra should handle the remission they did not file a review petition, after the Supreme Court’s previous order. The Bench criticized the government for not rectifying this mistake. Stated that it resulted in unnecessary legal disputes. The judgment Stated that by not filing a review petition Gujarat infringed on Maharashtra’s authority. As a result other convicts, who were not originally part of the petitions also sought remission based on the now invalid court order.
DEFECTS OF LAW
- Failure to consider legal precedents: The petitioner asserts that the Gujarat government may have disregarded considerations from previous legal cases like Union of India v. V. Sriharan and Laxman Naskar v. State of West Bengal while making their decision on remission. This raises concerns,about the application of established legal principles and the possibility of arbitrary decisions.
- Per incuriam decision: According to the Court’s ruling the remission order issued is considered per incuriam as it was made without taking into account the Union of India v. V. Sriharan case. This suggests there may be a problem with the decision making process leading to concerns about the knowledge and carefulness of the Gujarat government when issuing remission orders.
- Failure to inform the Supreme Court: The Gujarat government’s inability to submit a review petition and inform the Supreme Court about the mistake in the ruling demonstrates a shortcoming. This oversight not triggered avoidable legal proceedings but also resulted in the release of offenders due to an inaccurate order.
INFERENCE
In the case of Bilkis Yakub Rasool v. Union of India the petitioner named Bilkis Bano sought justice after her family became victims of crimes during the Gujarat communal riots. The main issues revolved around whether Bilkis’s writ petition could be considered valid and if the Gujarat government had the authority to issue remission orders. Various legal arguments were put forth including challenges to the validity of the writ petition interpretations of the term ” government ” and criticisms of Gujarat governments remission policy. The court emphasized the right to access justice under Article 32 and discussed how Article 226 applies in this context. The court identified legal flaws, such as failure to consider previous legal precedents, a decision made without proper consideration (per incuriam) and the Supreme Court not being informed by the Gujarat government about certain matters. The judgment concluded that the remission orders were made without consideration (per incuriam) and accused Gujarat State of being involved in these flaws. These identified flaws raise concerns about adherence to principles and decision making processes.
VAIBHAV MISHRA,
SYMBIOSIS LAW SCHOOL, PUNE.