The Supreme Court has struck down the Gujarat government’s remission orders that allowed the early release of 11 men convicted in the Bilkis Bano gangrape case of 2002. A Bench of Justices B V Nagarathna and Ujjal Bhuyan on Monday (January 8) said the Gujarat government’s August 10, 2022 decision to remit the convicts’ sentences was “illegal”.
The court ruled that the Gujarat government had no jurisdiction to entertain the remission applications or pass orders granting remission as the trial took place in Maharashtra, making the Maharashtra government the “appropriate” one to decide on the remission.
The court’s 251-page ruling identified five main issues or questions for its consideration. What were they, and how did the court address them? (‘Bilkis Yakub Rasool vs Union of India’)
1. Whether the petition, filed by one of the victims in the case, is maintainable under Article 32 of the Constitution.
Article 32 is in Part III of the Constitution, which deals with fundamental rights. The court said that the right to file a petition under Article 32 is also a fundamental right.
Bilkis had filed her petition under Article 32 to enforce her fundamental rights under Article 21, which guarantees the right to life and liberty, and Article 14, which guarantees the right to equality and equal protection of the law.
The court ruled that the “object and purpose of Article 32…which is also recognised to be the ‘soul of the Constitution’ and which is a Fundamental Right in itself, is…the enforcement of other Fundamental Rights…”.
Thus, the plea filed under Article 32 was “clearly maintainable”, the court ruled.
2. Whether the PIL challenging the August 10, 2022 remission orders was maintainable.
The court recorded the detailed submissions made by the parties to the case on this aspect, but it did not find it necessary to answer the point regarding the maintainability of PILs. This is because one of the victims, Bilkis Bano, had invoked Article 32, which was held to be maintainable.
“The consideration of that petition on its merits would suffice in the instant case,” the court ruled. Consequently, the consideration of maintainability of PILs was rendered “wholly academic” and “not requiring an answer” in this case, it said.
3. Whether the Gujarat government was competent to pass the remission orders.
This was at the heart of the challenge, and the decision of the court on this aspect was the most important part of the judgment. Here, the court focused on Section 432 CrPC which deals with the government’s power to suspend or remit sentences.
While Section 432(1) allows the appropriate government to suspend the execution of a sentence or remit the punishment in whole or part, Section 432(2) puts an important condition.
It says that “whenever an application is made to the appropriate Government for the suspension or remission of a sentence” it may require the presiding judge of the court “before or by which the conviction was had or confirmed” to state his opinion as to whether the application should be granted or refused, together with his reasons for the same.
Under Section 432(7), the “appropriate government” is the state government, within whose jurisdiction the offender is sentenced (in this case, Maharashtra), the court noted in its ruling. It said:
“…The place of occurrence of the incident or place of imprisonment of the convict (in this case, Gujarat) are not relevant considerations and the same have been excluded from the definition of the expression appropriate Government in clause (b) of sub-section (7) of Section 432. If the intention of the Parliament was that irrespective of the Court before which the trial and conviction had taken place, the order of remission can be considered by the Government within whose territorial jurisdiction the offence has been committed or the offender is imprisoned, the same would have been indicated by the definition.”
Consequently, the orders of remission dated August 10, 2022, passed in favour of the 11 convicts were declared “illegal, vitiated and therefore, quashed”.
“In view of Section 432(7) read with Section 432(1) and (2) of the CrPC, we hold that the Government of the State of Gujarat had no jurisdiction to entertain the prayers seeking remission of respondent Nos. 3 to 13 (the 11 convicts) herein as it was not the appropriate Government within the meaning of the aforesaid provisions,” the court ruled.
4. Whether the remission orders passed by the state government were in accordance with the law.
No, the court ruled. This is because of four reasons.
(i) The Gujarat government had “usurped the powers of the State of Maharashtra” since the latter was the only state which could have considered the applications seeking remission, the court said.
(ii) The July 9, 1992 policy of remission of the Gujarat government, which was used to pass the remission order, did not, in fact, apply to the case of the 11 convicts, the court said.
(iii) The opinion of the presiding judge of the Special Court, Mumbai or the court before which the conviction of the 11 convicts happened “was rendered ineffective” by the Gujarat government which in any case had no jurisdiction to entertain the convicts’ plea for remission of their sentences.
The judge of the special CBI court had given a negative report on January 3, 2020, after Maharashtra had sought the opinion of the court. The matter had reached the Maharashtra government after one of the petitioners, Radheshyam Shah, had approached it on August 1, 2019 after the Gujarat High Court had said that Maharashtra was the appropriate government for his case. This same petitioner had then moved the Supreme Court seeking directions to Gujarat for premature release under the 1992 policy.
(iv) While considering the applications for remission, the Jail Advisory Committee, Dahod, Gujarat and other authorities had lost sight of the fact that the convicts hadn’t paid the fine ordered by the Special Court, Mumbai yet, which was also confirmed by the Bombay High Court later. “Ignoring this relevant consideration also vitiated exercise of discretion in the instant case,” the court said.
5. After the remission has been quashed, should the convicts be sent back to prison, or given the benefit of liberty?
This was a “delicate” question, and it had given it “anxious thought”, the court said. It said it had attempted to balance the primary consideration of the rule of law against an individual’s liberty.
However, ultimately, the rule of law “must prevail” and, consequently, the orders of remission under challenge must be set aside and their natural consequences must follow. Hence, the court directed the convicts to report to the concerned jail authorities within two weeks from the date of the ruling.
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