An analysis of the Supreme Court order by Sabrang India 

Monday, January 8 secured a major win for woman survivor Bilkis Bano and her valiant battle for justice for the murder of seven members of her family, including three year old baby daughter Saleha apart from suffering the violence of being gang raped. Justices BV Nagarathna and Ujwal Bhuyan summarily quashed the brazen move of the Gujarat government, backed by the Union Ministry Of Home Affairs (MHA) to grant peremptory remission to 11 of those convicted on several counts of murder and gang-rape of Bilkis Bano was quashed and the convicts ordered to surrender themselves to prison within a fortnight.

Advocate Shobha Gupta, who has stoically represented Bilkis in her battle for justice in the apex court told Sabrang India, “It is a victory for all of us.”

Strong words of censure against the deliberate lapses in procedure have been made in the much-hailed judgement. The bench slammed the Gujarat government of being “complicit” and having “acted in tandem with the convict in approaching the Supreme Court with unclean hands, making misleading statements and hiding relevant material” and having granted remission “as an instance of usurpation of power of the Maharashtra government.” J. Nagarathna also remarked that it was this same complicity by the Gujarat government with the convicts in the case that had resulted in the cases being transferred out of the state. Referring to the nullity of the May 2022 judgment of the Supreme Court, which had granted the power to the Gujarat Court to grant remission in the said case and was heavily relied by the respondents in the present case, the bench had pointed stated “We fail to understand why the state of Gujarat did not file a review petition against the judgment dated May 13, 2022. Had the Government filed a review and impressed upon this court, the ensuing litigation would not have occurred.”

Based on this, the bench deemed the present case to be a “A classic case where the order of this court was used to violate the rule of law by granting remission.”

In short, the Supreme Court quashed the remission order of the Gujarat government that granted premature release to the eleven convicts from their life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat. Through this highly anticipated judgement, the bench of Justices BV Nagarathna and Justice Ujjal Bhuyan emphasised on the duty of Constitutional Courts to ensure justice and rule of law and the importance that has been assured to the rights of a victim in India’s criminal justice system. Before beginning with the pronouncement, Justice Nagarathna had stated “A woman deserves respect”.

On January 8, the Supreme Court bench delivered its verdict in the case against the early release of Bilkis Bano Gangrape Convicts by the Gujarat Government on August 15, 2022. During the pronouncement of the verdict, judgment of which has been authored by Justice Nagarathna, the bench concerned itself with the following issues:

1. The maintainability of the petition filed by Bilkis Bano and other PILs, moved by CPI (M) Member of Parliament Subhashini Ali, journalist Revathi Laul and Prof. Roop Rekha Verma, former Trinmool Congress Member of Parliament Mahua Moitra, assailing the remission order were maintainable or not.

2. Whether the Gujarat Government was competent to pass the said remission orders and if due process had been followed in the said case.

3. Whether the remission orders in accordance with law.

Issue 1: Maintainability

Referring to the first issue, J. Nagarathna held Bilkis Bano’s petition challenging the grant of remission to be maintainable. In view of this, the bench refused to answer the question raised regarding the maintainability of the PILs (Public interest litigations) filed in the said case as the Court had already found Bilkis Bano’s petition to be maintainable.

Issue 2: Power of Gujarat government to grant remission

Addressing the said issue, J. Nagarathna observed that instead of holding the place of occurrence of crime and place of imprisonment as the relevant consideration in this case, emphasis needed to be on the place of trial. In view of this, the bench stated “Government of the state, i.e. the Maharashtra government, where the offender is sentenced is the appropriate one to grant remission and not the government of the state, i.e. the Gujarat government, where the offence took place.”

Based upon the said observation, the bench held that the state government of Gujarat was not the competent government to pass the said order. While holding the aforementioned ground, of the Gujarat government lacking competence, to be enough to hold the remission orders null, the bench went on to deal with the ruling of the Supreme Court of May 13, 2022, which had enabled the Gujarat government to consider remission of convicts.

In the said judgment of May 2022, the Supreme Court bench comprising former Justice Ajay Rastogi and Justice Vikram Nath was dealing with the petition filed by Radheshyam Bhagwandas Shah @ Lala Vakil seeking direction to the State of Gujarat to consider his application for pre­mature release under the policy that was existing at the time of his conviction. The said bench had held that the remission or pre­mature release in terms of the policy which is applicable in the State where the crime was committed has to be considered. The present bench held the above-mentioned petitioned filed by convict Radheshyam to be suppressing material facts as well as containing misleading facts. It was also pointed out the opinion of presiding judge in the earlier judgment of Bombay High Court was also not revealed. Furthermore, J. Nagarathna held the judgment delivered by Supreme Court in May to be a “nullity” as it was obtained by “playing fraud on the Court”. The bench also emphasised that the same was in contrary to the Constitution Bench judgment in Sriharan case, which had dealt with the power of the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen year.

In pursuance to making the said observations, the bench declared the judgment being relied upon to be a nullity, inasmuch as it was hit by fraud and the doctrine of per incuriam (bad in law). The bench added that the May 2022 judgement was per incuriam as it was contrary to the plain letter of the statute as well as binding judgments of the Supreme Court.

With this, the Supreme Court bench in the present case held that the government of Gujarat had no competence to entertain the applications for remission or pass orders thereon regarding the eleven convicts and that the May 2022 order of the Supreme Court had been obtained by fraud a nullity.

Issue 3: Remission orders to be in accordance to law

At the outset, J. Nagarathna observed all the remission orders dated August 10, 2022 to be “stereotype and cyclostyled orders”. Dealing with the test of whether test is whether the authority was acting within the scope of powers and if the same was exercised in accordance with law, J. Nagarathna observed that “There is arbitrariness if there is non-consideration of relavant factors, non-application of mind, acting on dictation, or any usurpation of power. Usurpation of power arises when power vested in one authority is exercised by another. Applying the principle in this case, having regard to our answer of ‘appropriate power’, Gujarat Government exercising the power was an instance of usurpation of power.”

In addition to terming the Gujarat government’s action of issuing the remission orders to be “usurpation of power” and “abuse of power”, J. Nagarathna also came down heavily at the Gujarat government for failing to file a review petition against the May 13, 2022 judgment of the Supreme Court. During her pronouncement, she stated “What is interesting is that in the earlier judgment, Gujarat Government had submitted before this Court that appropriate government was that of Maharashtra. But the same contention was rejected, which was contrary to precedents. Inspite of this, the state of Gujarat failed to file a review petition. We fail to understand why the state of Gujarat did not file a review petition against the judgment dated May 13, 2022. Had the Government filed a review and impressed upon this court, the ensuing litigation would not have occurred.”

The bench then slammed the Gujarat government of “acting in tandem” with the convict who had approached the Supreme Court with “unclean hands to suppress facts”.

In furtherance to this, J. Nagarathna pointed stated that it was this complicity of the state of Gujarat Government with the convicts that had resulted in the transfer of trial. As reported by LiveLaw, Justice Nagarathna observed “State of Gujarat acted in complicit with the convicts, which was the very apprehension that had led this Court to transfer the trial out of the State.”

Observing the abovementioned, the bench then held the present instance to be “A classic case where the order of this court was used to violate the rule of law by granting remission.” With this, the bench quashed the remission order and held the convicts to be the beneficiaries of an invalid order.

The primary question- Protection of personal liberty vs. rule of law?

Pursuant to the quashing of the remission orders issued by the Gujarat government, the question that loomed in front of the bench was to decide whether the released convicts should be sent back to prison. Pondering upon the same, J. Nagarathna stated “In our view, personal liberty is important. But this is a case where 11 convicts are granted liberty on a remission order which has been quashed. So, should they be sent back to prison? This is a delicate question.”

This question needed to be decision in view of the entitlement of liberty to a person under Article 21 of the Constitution of India. With regards to this, the bench held that “As per Article 21, a person is entitled to liberty only in accordance with law.” Exploring further on the same, the bench held that rule of law mean that no one can be above law and any breach of rule of law amounts to negation of right to equality.

Emphasising upon the duty of Court to step in and enforce the rule of law, the bench stated “This Court must be a beacon in upholding the rule of law. In a democracy, rule of law has to be preserved. Compassion and sympathy have no role to play. It is through power of judicial review conferred on independent institutions, like High Courts and Supreme Court, that the rule of law is preserved. Rule of law must be preserved unmindful of the ripples of the consequences.”

Imploring the duty of the court to “be mindful not just to the spelling of JUSTICE but also the content of it” as well as “to correct arbitrary orders at the earliest and to retain the foundation of trust of the public”, the bench asserted that by allowing the convicts to remain out of prison will amount to giving an imprimatur to invalid orders. The bench also highlighted that the eleven convicts had remained in prison for a little over fourteen years while enjoying multiple liberal parole and furlough. In view of ensuring that “rule of law prevails”, the bench then ordered the eleven convicts in the Bilkis Bano gang rape and murder case to surrender back to prison within 2 weeks.

J. Nagarathna also said “We hold that deprivation of liberty to the respondents (convicts) is justified. They have lost their right to liberty once they were convicted and imprisoned. Also, if they want to seek remission again, it is important that they have to be in jail.”

Bilkis Bano case was and is among the rarest of rare case. Since March 2002, she has fought virtually alone in the most adverse of circumstances, helped mainly by a band of human rights activists, many of whom themselves became victims of the processes of injustice, precisely because of the help extended in cases like Bilkis’. After 20 years, one can only hope that Bilkis’s quest for justice is over.

Brief background of the case:

During the communal violence that engulfed Gujarat in February- March 2002, in a particularly brutal attack, 14 members of Bilkis Bano’s family were killed, including Bano’s two-and-a-half-year-old daughter whose head was smashed on a rock! On March 3, moving from one village to another, the group were spotted by gangs of men in two cars hunting for Muslims. At the time she was carrying Saleeha, her three-year-old daughter, in her arms. She recognised the men, mainly from her own village, who rushed towards her. They tore the child from her arms and smashed her head on the ground. The child died before her mother’s eyes. Three men gang raped the pregnant Bilkis. Her sister and cousin sister were also raped. One of them had given birth only the day before. The baby was with her. Every single one of the group of eight was killed including the baby. Bilkis, who had lost consciousness, was left for dead, but she survived.

After Bilkis Bano approached the National Human Rights Commission (NHRC), the Supreme Court ordered a probe by the Central Bureau of Investigation (CBI). The accused were arrested in 2004 and the trial originally began in Ahmedabad. However, Bano expressed concerns about witness intimidation and evidence tampering and the case was transferred to Mumbai in August 2004. After a tortuous legal journey, the men were convicted by a special CBI court in January 2008. In 2017, the High Court upheld their conviction.

The order of remission:

After completing 14 years behind bars, Radheshyam Shah moved court for sentence remission. But the Gujarat High Court dismissed his plea stating the appropriate government to consider his plea under sections 432 and 433 of the Code of Criminal Procedure, was Maharashtra and not Gujarat. Then, Shah moved Supreme Court which ruled in May that Gujarat was the appropriate state to examine his plea. Besides, the presiding Judge who heard the trial in Mumbai after transfer, UD Salvi had also expressed his opinion against the remission.

A committee was formed to look into the plea for remission and according to Panchmahals collector Sujal Mayatra it “took a unanimous decision in favour of remission of all the 11 convicts in the case.” Both the Gujarat government and the Ministry of Home Affairs (MHA) acceded to the request.

The convicts who were granted remission were: Jaswant Nai, Govind Nai, Shailesh Bhatt, Mitesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Bakabhai Vohania, Rajubhai Soni, Pradeep Mordhiya, and Ramesh Chandana. They are all residents of Randhikpur village located in Daud district of Gujarat. They were all known to Bilkis Bano and her family; while some were neighbours, others did business with her family. In May 2022, the Supreme Court bench of Justice Rastogi and Justice Vikram Nath had held that Gujarat Government was the appropriate government to consider the remission in the case and directed that the remission applications be decided within two months. On August 15, 2022, as India was celebrating her 75th Independence Day, these convicts walked out of jail and were felicitated with garlands by their family and friends.

Outrage followed and many legal luminaries and civil society members also wondered how remission was granted for serious crimes like gang rape and mass murder. Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.” Then nearly 9,000 people from different walks of life in Mumbai participated in a signature campaign urging the Chief Justice of the Supreme Court to reverse the decision to grant remissions.

Then an NDTV investigation revealed that at least five people on the Advisory Committee that recommended the release are allegedly connected to the Bharatiya Janata Party (BJP). Citing an official document that lists the members of the advisory committee, NDTV said it included two BJP MLAs, a member of the BJP state executive committee and two others, who are also linked to the party.

Meanwhile, according to a report by journalist Barkha Dutt’s digital news platform Mojo Story, some of the eleven convicts were not living in their homes after their release. Families of some convicts said they were on pilgrimage, but none provided details of their whereabouts of when they would return. This is significant in light of the current hearings before the Supreme Court. The men need to be traceable so that they can be re-imprisoned.

Petitions against the Remission:

On August 25, 2022, the Supreme Court bench comprising of the then Chief Justice of India NV Ramana, Justice Ajay Rastogi and Justice Vikram Nath had issued notice to the state on the petition challenging the order of Gujarat Government allowing premature release of 11 convicts sentenced to life in the Bilkis Bano case for gangrape & murder. While Senior Advocate Kapil Sibal had narrated the grim facts of the case, relating to exodus of Muslim population, rampant incidents of rape and murders, etc., the counsel appearing for State of Gujarat on the other hand opposed the petition on ground of maintainability.

In October, 2022, the Gujarat government told the Supreme Court that it decided to release the 11 convicts in the Bilkis Bano case on completion of their 14 years sentence as their “behaviour was found to be good”. The approval for their release was granted despite opposition from a special court and the Central Bureau of Investigation (CBI). The Gujarat government also submitted before the Supreme Court that it was the Ministry of Home Affairs (MHA) that enabled the release of eleven men convicted in the Bilkis Bano case.

It is pertinent to note that one of the convicts, who was released by the Gujarat government on remission in the Bilkis Bano case, stands charge sheeted for outraging the modesty of a woman on June 19, 2020.

This article was originally published on Sabrang India and can be read here.