SC quashes remission granted to 11 men convicted in Bilkis Bano gang rape case | Live

The convicted men are directed to report to the jail authorities within two week, the court states. 

Justice Nagarathna’s Bench answers this question. 

While it was contended that since rule of law was violated, justice can be done only be sending them back to prison, the respondents opposed saying they be not subjected to imprisonment again. 

The primary question is when is the liberty of a person protected? In our view, as per Article 21, person is entitled to liberty only in accordance with law, the verdict states. 

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.

The rule of law does not mean protection to a fortunate few, she adds. 

The Bench holds the Gujarat government has usurping the powers of the government of Maharashtra. The orders are quashed for this reason also, she adds. 

It was the State of Maharashtra which was the appropriate Govt to consider the remission.

Interestingly, in the earlier judgment, Gujarat government had submitted that appropriate Govt was Maharashtra. But this contention was rejected, which was contrary to precedents. The state of Gujarat failed to file a review petition, notes Justice Nagarathna. 

“We fail to understand why the State of Gujarat did not file a review petition against the judgment dated May 13, 2022. Had the Govt filed a review and impressed upon this court, the ensuing litigation would not have occurred.”

The judgment notes that the original records, which is an English translation, has been examined. All orders of remission were stereotyped. 

Justice Nagarathna cites legal precedents on how false statements and suppression of facts vitiates an order of this court.

May 13, 2022 order of this court is also per incuriam since it does not follow the binding decision of the nine judge bench of the Supreme court where a HC order cannot be set aside in a PIL. 

The Bench points out none of the other convicts other than convict no. 3 had sought for remission and hence their remissions have also been quashed. 

Justice BV Nagarathna-headed Bench quashes the remission granted by the Gujarat govt to 11 convicts in the Bilkis Bano case. 

Justice Nagarathna points out the earlier Supreme Court verdict that led to Gujarat government considering their remission. She says the convict misled the court. 

She terms the earlier order passed in May 2022 was vitiated by fraud.

The ‘appropriate government’ is the government under which the place of the trial was conducted, and not the place of crime or where the convicts were lodged, she says. 

In this case, the crime occurred in Gujarat but the trial took place in Maharashtra after the Supreme court’s intervention. 

Thus Gujarat government was NOT competent to pass the remission orders, her judgment states. 

Writ petition filed by the vicitm, Bilkis Bano are maintainable. However, the PILs filed in this case are not maintainable. The challenges against remissions are kept open, Justice Nagarathna says. 

She begins reading out her verdict quoting Plato stating punishment is for reformation but not for vengeance.

Can heinous crimes against women be considered for remission, she wonders. 

The counsel for one of the convicts, advocate Rishi Malhotra, argued that Gujarat had decided the plea for early release on the basis of a Supreme Court judgment in May 2022. 

This judgment had allowed the State to consider the pleas for early release under the State’s Premature Release Policy of 1992.

The apex court had dismissed a plea to review the May 2022 judgment.

Advocate Vrinda Grover, also in favour of Ms. Bano, said the convicts were supposed to pay a fine of ₹34,000 or face 34 years in prison. “The fine has not been paid. That sentence was never served,” she submitted.

Bilkis Bano’s lawyer, advocate Shobha Gupta, submitted that the convicts did not deserve remission for the heinous nature of their crimes.

She also challenged the jurisdiction of Gujarat. She said the trial in the case had happened in Maharashtra, and the State government there was the competent authority to decide on the issue of remission.

She referred to Section 432(7)(b) which said the “appropriate government” would be the “State within which the offender is sentenced”.

Judicial decisions advocate both subjective and objective norms for remission. Courts have ruled that remission should be informed, fair and reasonable, and not arbitrary; that it should not undermine the nature of the crime.

Here is The Hindu’s explainer on remission and the case. 

While life imprisonment normally means convicts remain in jail for the whole of their life, they can be released by the State and Central governments at some point, but not before they complete 14 years, by remitting the remaining prison term. 

When Radheshyam Shah, an accused, approached the Supreme Court, a two-judge Bench ruled on May 22, 2023, that Gujarat is the appropriate government to consider remission.

The Gujarat government ordered the release of all the 11 convicts, and they walked free on August 15, 2022.

Bilkis Bano was 21 years old and five months pregnant when she was brutally gang-raped during her attempt to flee along with her relatives in the violence that broke out during the post-Godhra communal riots in Gujarat. The mob that attacked the group killed her three-year-old daughter, Saleha, and 14 other members of her family, maintains Bilkis Bano. 

Violence had broken out in Gujarat in the aftermath of the Sabarmati Express train burning incident at Godhra on February 27, 2002 amidst an already communally charged atmosphere. Fifty-nine people were charred to death after a mob torched one of the coaches returning from Ayodhya to Ahmedabad with a large number of ‘kar sevaks’ of the Vishwa Hindu Parishad (VHP). 

In his book ‘ Between Memory and Forgetting: Massacre and the Modi Years in Gujarat’, author Harsh Mander narrates the horror. The family was moving in a truck to a village, but before they could reach their destination, a mob of 20-30 people attacked them. The men snatched the three-year-old from Bilkis, and smashed her head to the ground. With her daughter dead, three men, all from her village and people she knew, took turns to rape a pregnant Bilkis. “In the mayhem around her, the 14 members of her family were raped, molested, and hacked to death by the mob,” the author notes. Taking her for dead, the assailants left her naked and unconscious. However, Bilkis Bano lived to retell the horror.