Explained: Did Bilkis Bano Rapists Deserve Remission? As Supreme Court Corrects Its Course, The Way Forward

In a telling observation, the top court said that the Gujarat government “acted in tandem” with one of the convicts, Radheshyam Bhagwandas Shah, who filed the petition. However, reading into the details of the two court orders, one cannot help but question what made the Supreme Court direct the state government to grant remission in the first place.

The apex court bench of Justices BV Nagarathna and Ujjal Bhuyan has said that Shah, following whose petition the rest of the convicts filed for premature release, deceived the court by hiding crucial information to secure a favourable ruling. SC also held that Gujarat government had “usurped” power that it did not possess and criticised the convict and the government for not bringing to the top court’s notice that the 1992 remission policy did not apply to the 11 convicts in the Bilkis Bano case.

1992 v. 2014 Remission Policy

In 2022, when Supreme Court directed the Gujarat government to decide on the remission, it cited the 1992 policy instead of the 2014 remission policy which is in effect now. Under the 2014 policy, rape-and-murder convicts cannot be prematurely released by the state government. The two-judge bench of Justices Ajay Rastogi and Vikram Nath had reasoned that the Gujarat government should rely on the policy that was in effect at the time of their conviction in 2008.

Speaking to Outlook, Manwendra Tiwari, a professor at Dharmashastra National Law University (DNLU), Jabalpur, explains that in some cases, where there are two policies applicable, the accused has the right to choose the one that is beneficial for them. In this case, the 1992 remission policy is liberal towards the convicts as it makes remission applicable after serving a minimum of 14 years of the full sentence. The catch here is that it is applicable on a case-to-case basis and in any case the remission policy of Gujarat could not be applied in Maharashtra.

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The Rastogi-Nath bench had also held that the appropriate government to decide the remission question was Gujarat because the case was transferred to Maharashtra for a limited purpose—trial of the case—following which the case stood transferred to the state where the crime was committed. This was in contradiction to two prior landmark judgements of the Supreme Court—Union of India vs V. Sriharan (2014) and Naresh Shridhar Mirajkar v. State of Maharashtra (1966)—and as a result, did not justify either the 2022 verdict or the release of the 11 convicts.

Moreover, the second Gujarat High Court order in 2020 had never been challenged, recalled or set aside.

A Series Of Violations

Not only were there these contradictions but the Gujarat government had violated the legal process of remission by hiding the fact that the convicts had been roaming free without paying the fine imposed on them by the Mumbai court. Bano’s petition challenging the remission mentioned that the convicts were to pay a fine of Rs 34,000 or face 34 years in prison and they had failed to do either. There are also allegations that two of the convicts committed crimes while on parole.

The Supreme Court also came down heavily on Gujarat government for granting a premature release without due process as Bano was not even arraigned as a party in the 2022 Supreme Court judgement, denying her the opportunity to object to the convict’s plea. Interestingly, the committee that had been set up to consider the remission pleas had three BJP members and other associates of the party.?

“Fraud and justice never dwell together,” Justice Nagarathna observed. The Gujarat government, which had granted remission to the 11 convicts on “good behaviour”, had skipped the conditions required to be met.?

In this case, all of the remission orders of the 11 convicts were alike and lacked proper reasoning. Professor Tiwari says, “When you say good behaviour, there has to be recorded evidence substantiating it. Additionally, the court or presiding officer of the court that convicted the accused, has to be consulted before passing the remission order. This means that the facts and circumstances in which the offence was committed as proven before the court also become relevant. And going by that, the manner in which the offence was committed [in Bilkis Bano case] was very brutal. So I don't think any presiding officer of the court would grant remission.”

Bone Of Contention

In Monday’s order, Justice Nagarathna underscored that the 2022 verdict in the Bilkis Bano case, which has been a bone of contention for the last one-and-a-half years, was a result of suppressio veri suggestio falsi. This means, the petitioner, Shah, suppressed facts that he was bound to disclose and misled the court with erroneous facts, resulting in fraud.

The petitioner had taken two completely different judgements to the Supreme Court—one of the Gujarat High Court which observed twice that the State of Maharashtra is the appropriate authority to consider remission, and another of Bombay High Court which dealt with the place of imprisonment.

Nagarathna also observed that the judgment by Justice Rastogi’s bench was per incuriam, citing two reasons. First, the bench had ignored the binding precedent of the five-judge bench in Union of India vs V. Sriharan which states that in cases of remission, the state where the trial has taken place is the appropriate authority for the decision.?

Secondly, the court observed, the verdict had ignored the precedent of the nine-judge bench in the Naresh Shridhar Mirajkar case that a high court order could not be set aside in a proceeding under Article 32 of the Constitution.

Professor Tiwari says that it is a case of interpretation of Clause 7 of Section 432 of the Code of Criminal Procedure. “In CrPC, as far as the language is concerned, it is very clearly written that the appropriate government for the purpose of remission shall be the government of the place where the trial took place. So, it is clear that the authority has to be Maharashtra and not Gujarat in this case. So the interpretation of Section 432 (7) in the 2022 order was wrong and the Supreme Court has now said that using the word per incurium.”

The Way Forward

Rape is a heinous crime against humanity. And the gangrape of Bilkis, whose family was murdered before her eyes, was a crime of extreme measure. How can remission be justified in such cases? Even the Statute of the International Court of Justice does not permit remission in crimes against humanity.?

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The argument of liberty, that the convicts presented before the Supreme Court for their remission, was rejected by the bench on Monday. Justice Nagarathna held that liberty was precious when obtained with regard to due process but the convicts breached the rule of law, which amounts to the negation of equality under Article 14 of the Constitution. As a result, the Supreme Court declared that the convicts must return to jail.

“Rule of law does not mean protection to a fortunate few. The very existence of the rule of law and the fear of being brought to book operates as a deterrent to those who have no scruples in killing others if it suits their ends,” the bench observed.

Justice Nagarathna opined, “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 court also ruled that the decision for a premature release of the convicts falls under the jurisdiction of the Maharashtra government, where the BJP is in coalition with Shinde’s Shiv Sena. However, in order to seek remission, they must be in prison first. The court gave them two weeks to surrender to prison.

Asked about the possibility of the convicts getting remission again, Professor Tiwari says, “Given the kind of indictment of the Gujarat government, they [the convicts] may want to file for remission but they would probably not attempt to do so at least in the near future. Obviously, it is within their rights but they know that it will again be challenged in court.”