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CASE COMMENT: BILKIS YAKUB RASOOL V. UNION OF INDIA

Case Comment, Publications

DATE: 23 AUGUST 2022

BENCH: BV NAGARATHNA & UJJAL BHUYAN

COURT: SUPREME COURT OF INDIA

CASE TYPE:  WRIT PETITION (CRIMINAL) NO. 491 OF 2022

PETITIONER: BILKIS YAKUB RASUL

RESPONDENT: UNION OF INDIA & ORS.

DATE OF JUDGEMENT:  8 JANUARY 2024

During the 2002 Gujarat riots, Bilkis Bano, who was pregnant at the time, endured a horrific gangrape, while a mob killed seven members of her family, including her three-year-old daughter. The Central Bureau of Investigation (CBI) conducted a thorough investigation into the case.

In 2004, due to death threats faced by Bilkis, the Supreme Court ordered the trial to be moved from Gujarat to Mumbai. Additionally, the central government was directed to appoint a special public prosecutor to ensure a fair trial.

In 2008, a Mumbai court delivered justice by convicting 11 individuals for their participation in the gangrape and murder, marking a crucial milestone for Bilkis Bano. However, in August 2022, the Gujarat government granted remission to these 11 convicts, resulting in their release. This decision stirred controversy and legal challenges, raising concerns about the authority and jurisdiction responsible for granting such remissions.

FACTS

  • During 2002 Gujarat riots, Bilkis Bano a pregnant woman at that time was subjected to a gangrape by the convicts, while seven members of her family including her three-year old daughter were murdered brutally.
  • Charges of gang rape, murder and rioting armed with deadly weapons with a common intention were framed against twelve persons, six police personnel and two doctors.
  • Following extensive legal proceedings, the Central Bureau of Investigation (CBI) investigated the case.
  • Bilkis Bano approached the Supreme Court by filing a Transfer Petition seeking transfer of the trial of her case from the State of Gujarat to a neutral place as she was facing death threats. The transfer petition was granted by the Apex Court.
  • In 2008, the Trial Court (Mumbai) convicted the eleven accused and sentenced them to life imprisonment for the offences, and one police personnel for deliberately recording the FIR incorrectly.
  • After undergoing 14 years of sentence, one of the convicts filed Criminal Application before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433-A of the Code of Criminal Procedure, 1973 (‘CrPC’). Wherein the Court observed that it had been tried in the State of Maharashtra, hence, as per Section 432 (7), the ‘appropriate government’ for the purpose of Sections 432 and 433 of the CrPC would be the State of Maharashtra. Thereafter, the Special CBI Court, Gujarat High Court rejected the application. The rest of the convicts had also applied for remission.
  • A writ petition was filed by the convict before the Supreme Court seeking a direction to the State of Gujarat to consider his application for pre-mature release under its policy dated 09-07-1992, which was existing at the time of commission of his crime and his conviction. Wherein, the Court noted that that the policy on the date of conviction was as per the resolution dated 09-07-1992 passed by the State of Gujarat. Hence, the convict would be governed by the same. [1]
  • The Gujarat government in August 2022, granted remission to all 11 convicts after getting approval from Secretary, Ministry of Home Affairs and Government of India, leading to their release. This decision sparked controversy and legal challenges due to concerns regarding the authority and jurisdiction responsible for granting such remissions.
  • On November 30, 2022 Bilkis Bano challenges Gujarat’s remission decision by filing a writ petition.
  • ISSUES RAISED
  •  
  • Whether the writ petition filed by Bilkis Bano 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 Gujarat Government was competent to pass the impugned orders of remission?
  •  
  • Whether the impugned orders of remission passed by the State of Gujarat in favour of convicts are in accordance with law? [2]
  •  
  • CONTENTIONS OF THE PETITIONER (VICTIM)
  •  
  • On August 15, 2022, after the release of all the convicts, Advocate Shobha Gupta, who serves as Bilkis Bano’s legal counsel, submitted a review petition opposing the untimely release of 11 individuals involved in the case. The convicts in question include Radheshyam Shah, Jasvantbhai Nai, Govindbhai Nai, Bipin Chandra Joshi, Shailesh Bhatt, Kesarbhai Vohania, Bakabhai Vohania, Pradeep Mordhiya, Mitesh Bhatt, Rajubhai Soni, and Ramesh Chandana. It was argued that how the Gujarat government allowed the convicts to walk out of the jail freely after committing such horrendous crime of gangraping the victim and all the women in her family and murdering 14 family members. In any case, it is not the duty of the Government to exercise its power in the interest of the public or in favour of the convicts. This grant of remission was challenged before the Supreme Court on 23rd August, 2022.
  •  
  • Several other people, such as CPI(M) leader Subhashini Ali, independent journalist Revati Laul, former vice-chancellor of Lucknow University Roop Rekha Verma, and Trinamool Congress MP Mahua Moitra, also submitted a Public Interest Litigation (PIL) on the ground of remission of the 11 convicts by the Gujarat government.
  • Senior Advocate Indira Jaising represented one of the petitioners. The Supreme Court opted to consider the arguments presented by all PIL filers and determine whether they had the legal standing (locus standi) to submit their petitions. [3]
  •  
  • CONTENTIONS OF THE RESPONDENTS (CONVICTS)
  •  
  • Sonia Mathur, the advocate representing Bipin Chandra Joshi, one of the convict in the case, asserted that only the state possesses the authority to contest a court decision, emphasizing that the victim lacks the standing to do so. She argued that her client should not be held responsible for the government’s decision to grant remission. Sonia Mathur further contended that while she acknowledges the irreversible nature of the incident experienced by the victim, the compensation provided, which includes employment, accommodation, and the highest compensation awarded in any rape case, is a matter of the victim’s rights rather than the rights of the convict. Mathur also contended that the convicts have been released from prison only after they have fulfilled all those conditions that are necessary for premature release
  •  
  • Senior Advocate Sidharth Luthra, who served as the counsel for one of the convicted individuals, contended that those who filed PILs lacked the right to do so, particularly when the petitioner herself was already present in court and had already filed a petition opposing the premature release of the convicts. [4]
  •  
  •     WHAT IS REMISSION?
  •  
  • Remission is the complete ending of a sentence at a reduced point. In remission, the nature of the sentence remains untouched, while the duration is reduced i.e., the rest of the sentence need not be undergone.
  • The effect of the remission is that the prisoner is given a certain date on which he shall be released and in the eyes of the law he would be a free man.
  • However, in case of breach of any of the conditions of remission, it will be cancelled, and the offender has to serve the entire term for which he was originally sentenced.
  •  
  • RATIONALE
  •  
  • The Bench, in response to the initial question, determined that the petition submitted by Bilkis Bano under Article 32 was maintainable. It was emphasized that Bilkis had lodged the petition to uphold her fundamental rights under Article 21, encompassing the right to life and liberty, as well as Article 14, addressing the right to equality and equal protection under the law.
  • Furthermore, the Bench noted that Article 32 serves to enforce the principles outlined in the Constitution’s preamble, emphasizing justice, liberty, equality, and fraternity. Considering the comprehensive concept of access to justice, which includes the pursuit of speedy remedies, the Bench concluded that Bano’s petition could not be dismissed based on the existence of an alternative remedy under Article 226 or concerns about its validity under Article 32.
  •  
  • The Bench also justified the viability of Bano’s petition on another basis. It pointed out that one of the convicts had filed a petition under Article 32, seeking a directive for the Gujarat government to assess his case for remission under the 1992 policy. Justice Rastogi’s Bench had issued such a directive, which the state government interpreted as a mandate to grant remission within two months.
  •      In the same legal matter, Justice Rastogi had dismissed the Gujarat government’s argument that it was not the ‘appropriate government’ to grant remission. Given the substantial uncertainties about whether the Gujarat government qualified as the appropriate authority under Section 432(7) of the Code of Criminal Procedure (CrPC), 1973, and considering this as one of the grounds to contest the remission Order, Justice Nagarathna suggested that the high court would not have been able to entertain the Article 226 petition in light of Justice Rastogi’s judgment.
  •  
  • Regarding the second inquiry regarding the validity of Public Interest Litigations (PILs) filed by activists and individuals with public-spirited intentions, Justice Nagarathna’s Bench opted not to offer a response. This decision was based on Bano’s concurrent filing of a writ petition, with the Bench asserting that evaluating the merits of Bano’s petition alone would be sufficient in this particular instance.
  • The Bench expressed the view that the examination of the question concerning the admissibility of PILs had become entirely theoretical and unnecessary for resolution in this case.
  •  
  • Delving into the core issue of whether the Gujarat government had the authority to issue remission Orders, the Bench scrutinized the Criminal Procedure Code (CrPC), specifically Section 432(7)(b). The Bench reiterated the stance established by the Constitution Bench in the V. Sriharan case, emphasizing that the appropriate government is the one pertaining to the state where the offender is sentenced or where the said Order is issued.
  • Consequently, the Bench concluded that in the Bilkis Bano case, Maharashtra held the jurisdiction to review the application for remission for the convicts, given that they were sentenced by a special court in Mumbai.
  •  
  •  
  • Addressing the fourth query regarding the legality of the remission Orders, the Bench expressed the view that these Orders lacked justification and demonstrated a complete absence of thoughtful consideration. Additionally, the Bench determined that the Gujarat government’s issuance of the remission Orders amounted to an unauthorized exercise of power, given its status as a non-appropriate government in this context. Criticism was directed at the Gujarat government for failing to file a review petition challenging the Order issued by Justice Rastogi’s Bench. [5]
  •  
  •      INFERENCE
  •  
  • After nullifying the remission Orders, the Bench deliberated on whether to entertain the convicts’ assertion that their freedom, maintained for over a year without any misuse, should not be restricted. However, the Bench dismissed the convicts’ argument, asserting that violating the rule of law constitutes a denial of equality under Article 14 of the Constitution.
  • “In our view, this court must be a beacon in upholding the rule of law failing which would give rise to an impression that this court is not serious about the rule of law and, therefore, all courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law. This would result in a dangerous state of affairs in our democracy and democratic polity,” the Bench observed.
  • The Bench expressed the view that if the convicts intend to pursue remission in compliance with the law, they must be incarcerated, as seeking remission is not permissible while on bail or outside of jail. Consequently, the Bench instructed the convicts to present themselves to the jail authorities within a span of two weeks.
  •       The judgement passed by Justice Nagarathna will have deep impact for years to come.
  •    It has not only held high the value of rule of law and equality for all but has also placed the    
  • social relevance of law very high. [6]
  •  
  • By Sk. Sajid Hossain of Bikash Bharati Law College, University of Calcutta (Kolkata)
  •  

[1] SCC online, www.scconline.com (19th Jan. 2024)

[2] SCC online, www.scconline.com (19th Jan. 2024)

[3] iPleaders, blog.ipleaders.in (20th Jan.2024)

[4]iPleaders, blog.ipleaders.in (20th Jan.2024)

[5] IndiaToday, www.indiatoday.in (20th Jan.2024)

[6] Madras Courier, madrascourier.com (20th Jan.2024)