- The background of this case dates back to 2002 Gujrat riots. In 2002, Gujarat was engulfed in communal violence, instigated due to the burning of “Sabarmati Express” which was coming back from Ayodhya. The burning took place in Godhra in Gujarat on 27.02.2002, hence also popularly known as “Godhra Kand”. As a result of the subsequent violence that erupted following the Godhra accident; the petitioner, Bilkis Yakoob Rasool, who was 21-year-old and five months pregnant at that time, fled her village with her three-year-old daughter and 15 other family members. Following which, Bilkis and four women, including her mother, were brutally gang-raped. Of the 17-member group of Muslims with whom petitioner and her family members were travelling, eight were found dead and six were missing. Only Bilkis, a man and a three-year-old survived the diabolic attack. Bilkis remained unconscious for about three hours after the incident.
- After she gained her consciousness back, with the help of a home guard, she went to the Lim Kheda Police Station where she registered her complaint with the head constable of the said police station. Following which, her case went to the Supreme Court and National Human Right Commission, which ordered a probe to be conducted by the Central Bureau of Investigation in the said mater.
- After the successful conduction of probe by CBI, which showcased how various evidences were distorted and supressed to protect the accused; the trial was transferred from Gujarat to Maharashtra in 2004, on the request of the Petitioner to transfer the trial to a neutral place. The other major reason for the transferring of this trial was so that there can be no interference in the proceedings by external forces.
- Eventually, A special court in Greater Mumbai convicted and sentenced 11 perpetrators in January 2008 under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women. The convicts were sentenced life imprisonment by the special court in its decision.
- After serving 15 years of conviction, two of the convicts, namely, Ramesh Rupabhai and Radheyshyam Shah, advanced towards the Bombay High Court requesting for their premature release under the umbrella of the remission policy introduced in India in 1894 through the Prison Act of 1894. However, the Bombay High Court ruled the Gujarat Government to be the appropriate government for granting a remission to the convicts in the said matter. The order of the Bombay High Court was challenged in the Supreme Court of India. However, the Supreme Court upheld the decision of Bombay High Court and directed the Gujarat government to take into cognizance the plea of the convicts for premature release by applying the 1992 remission policy of Gujarat. The reason for the aforementioned judgement of Supreme Court, was later discovered to be the “suppression of material facts” by the Respondent No. 3, namely, convict Radheshyam Shah. Without filing any review petition against the Supreme Court judgement dated May 3, 2022, the Gujarat government passed the remission orders under the 1992 remission policy; ultimately, leading to the premature release of all the eleven convicts in August 2022
- Bilkis Yakub Rasool, being an unfortunate victim of the previously discussed odious crime of rape, filed the current writ petition under Article 32 of the Constitution of India in the Supreme Court challenging the premature release of the convicts by the Gujarat Government and thereby requested the apex court to quash the order of premature release of the convicts.
ISSUES RAISED:
- Whether the following petition filed under Article 32 of Indian Constitution maintainable?
- Whether the government of Gujarat was competent to grant the remission to the convicts?
- Whether the order of remission passed by the Gujarat government was in accordance with the law?
CONTENTION:
By the Respondent:
In its counter affidavit that was submitted in the top court, the Gujarat Government stated that the petitioners have not stated as to how they possess the locus to seek a writ petition to quash the order of remission passed by the respondent No. 1 with respect to the eleven convicts.
The Gujarat government also averred that the petitioners have not pleaded as to how their fundamental rights have been curtailed by the action of State Government. It further concluded that the petitioners are not aggrieved persons and therefore, have filed the petition in the apex court for irrelevant purposes. As the petitioners are not the persons aggrieved, hence, the writ petition is not maintainable.
Gujarat Government further stated that the Apex Court had by itself in its order of May 2022 held that the State of Gujarat will be the appropriate government for granting the order of remission to the convicts and that the state policy of 1992 will be applicable for deciding the remission application of the convicts.
It further relied on Jagdish and V. Sriharan to assert that if a policy of beneficial nature exists for the convict when the application of premature release is being considered, then, the convict cannot be prevented from gaining benefit of such a policy and that judicial review of a remission order is not permissible in law.
By the Petitioner:
Learned Counsel for the petitioner contended that the granting of remission order of the eleven convicts had not only quivered the ethics of the Indian society but had also gravely shattered the petitioner and her family members. It was further asserted that in the present case, the right of the victim was ignored by the State and Central Government granting remission to all the convicts in the case.
The learned counsel further stated that since the Court which tried and convicted the accused was in the State of Maharashtra, therefore, the Government of Maharashtra shall be the ‘appropriate Government’. Hence, the remission granted by the Gujarat Government is without appropriate authority and thus, should be quashed.
The learned counsel while relying on the opinion of the Special judge, Sessions Court, Greater Mumbai concluded that the policy that should be applicable cannot be that of Gujarat, but should instead be that of Maharashtra.
Relying on previous case laws, it was stated that remission policies do not provide an indestructible right to remission and the decision to grant remission should be well informed, reasonable and fair and that the power to grant the same cannot be exercised indiscriminately. It was also averred that the power of remission is not immune from judicial review, vide Epuru Sudhakar.
It was further asserted that the premature release was also illegal as the imprisonment due to default in the payment of a fine of Rs. 2,000 was not served.
To justify the writ petition under Article 32, it was stated that since remission is an administrative function, filing a writ petition under Article 32 of the Constitution was the only remedy available. While stating so, it also relied on the previous cases that the Apex Court dealt with in which Article 32 was invoked.
RATIONALE:
The Supreme Courts’ decision was based on the protection of rights of victim-petitioner and ethical principles of the society. Its decision was centred around the fact that Gujarat Government did not have any jurisdiction to grant remission to the convicts sentenced in Maharashtra.
In its decision, the court deliberated over the requirements that need to fulfilled in order to grant a remission. It also stressed on how the government needs to keep in cognizance the impact that the granting of remission will have on the society at large. Hence, while giving the judgement, the Court highlighted how the order of remission lacked proper consideration.
The court also pointed out how the previous judgement of Supreme Cort regarding the same matter was obtained through the concealment of facts, constituting fraud upon the court. This judgement was therefore also based on the very important fact that the apex court can overrule its own previous judgement if the same is obtained through fraud.
The court in its judgement tried to reiterate the meaning of rule of law and emphasised on how this grant of remission was a typical case of using the Apex Court’s order to violate the rule of law. The Court highlighted that it must be the flag- bearer when it comes to upholding the law. Hence, this judgement was also based on the importance of preserving rule of law in the democracy.
DEFECTS OF LAW:
Remission signifies the complete ending of a sentence before the sentence was actually supposed to end. That is, in remission the duration of sentence is shortened and its nature remains unchanged. The concept of remission traces its roots back to the time of British India. In India, there are both constitution and statutory provisions with regards to the remission, which makes the granting of remission quite accessible.
Although, it was originally done with an intention of making sure that that anyone who is eligible for a grant of remission is given a speedy justice, but with time, the remission policy became an instrument of interference and power abuse in the hands of political executives. The Supreme Court also highlighted the same in the grant of remission by Gujarat government stating it to be an instance of abuse of power. Moreover, we should also keep in mind how remission policy doesn’t have any specific provision that takes into cognizance various medical and financial factors concerning the convict and leaves the human angle regarding remission policy completely in the hands of the concerned authorities, thus leaving ambiguity in the policy which can be potentially misused by authorities; again highlighting how important it is to add suitable provisions in remission policy which decrease the possibilities of power abuse by the government.
INFERENCE:
The recent judgement of Apex Court with regards to the following writ petition underlines how there is a dire need for government to take the human angle into cognizance while granting remission.
It also highlights that the eligibility of convicts for a grant of remission is not the sole factor that the government or the principal court should take into cognizance while granting the remission and how it is imperative to also analyse the effects that a grant of remission will have not only on the society at large, but also on the victim and his family.
This judgement also highlights the importance of a much debatable power of judiciary, namely, judicial review, which allows the courts to review the orders of the legislative and executive branches of the government. If Supreme Court wouldn’t have reviewed the order of remission granted by Gujarat Government on the plea of the writ petitioner, the loopholes in the process of grant of remission to the perpetrators of the heinous gang rape of Bilkis Bano might have gone unnoticed.
This judgement once again reiterates the firm belief of our courts in the principles of “Satyameva Jayate”, i.e., truth alone triumphs, as the Supreme Court decided to overrule its own previous order which directed the Gujarat Government power to look into the matter of granting remission to the perpetrators of Bilkis Bano Case citing that the same was obtained by practicing fraud in the proceedings of Apex Court. It also highlights how citizens of India can always rely on courts and seek constitutional remedy from the apex court under article 32 if their fundamental rights get violated.
KAASHVI MALIK
DR. B.R. AMBEDKAR NATIONAL LAW UNIVERSITY, HARYANA.