The January 8 order came on a batch of petitions challenging the release. Along with the writ petition filed by Bilkis Yakub Rasool (Bilkis Bano) in November 2022, several other petitions were also previously filed. These were by senior women politicians’ activists and journalists.

Citing the public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights, these petitions held their ground. The Supreme Court, primarily addressing Bilkis Bano’s petition, chose not to rule specifically on maintainability calling it an “academic” point.

The background

The brutality of communal violence experienced in February 2002 in Gujarat –a widespread and shocking impact for thousands –seminally changed the life of Bilkis Bano. Carrying her three year old daughter, Saleha, as she was fleeing for her life from the small town of Randhikpur where she had been born, a mob –many of whom she recognised – fell upon her and several others from her family including her mother and sister—smashed her child’s head and raped her and others. She was left only because she was unconscious, believed to be dead. Of the total lives lost which were 14, seven were Bilkis’ family alone; three other women were also raped before being killed.

Bilkis was one of the sole survivors and courageously fought—for 22 long years to obtain substantive justice. When the local police closed down her complaint, replete with details and filed an ‘A’ summary report (closure report) and this was shockingly accepted by the local magistrate, she, assisted by a band of activists and lawyers, approached the National Human Rights Commission (NHRC). In 2002, it was former Chief Justice JS Verma, who had led an intrepid investigation into the Gujarat 20002 carnage recommending an investigation by the Central Bureau of Investigation. By 2004, when the Supreme Court finally ordered a transfer of the trial to Mumbai, another for chief justice, Justice AS Anand was chairperson, NHRC.

Finally in 2008, a special CBI Court Judge, Judge UD Salvi convicted 11 persons for the mass targeted crimes, and their conviction was upheld by the Bombay High Court in 2017. Finally in 2019, the Supreme Court of India not only upheld this conviction but directed payment of Rs 50 lakhs in compensation, a suitable home/land to be provided by the state of Gujarat as reparation. She was also directed to be provided employment; however when she requested that her husband be employed instead since she was unlettered this direction remains unfulfilled.

Drama hit this case again in 2022. As the country was being made to “celebrate” Amrit Mahotsav –75 years of Independence from Brtish rule –on August 14, 2022, 11 of these convicts were released in celebratory fanfare by the Gujarat government, still ruled by the supremacist Bharatiya Janata Party (BJP). Ministers in the state government and officials of the ruling party garland and welcome these mass murderers and rapists in their midst.Outrage all over India follows with thousands participating in signature campaigns demanding a withdrawal/cancellation of the remission. By September 2022, that is within a month three prominent women file writ petitions challenging the remission. By November 2022, Bilkis Bando herself, represented by Advocate Shobha Gupta also approaches the Supreme Court. The matter is heard at length, the Solicitor General Tushar Mehta predictably represents the Gujarat government and on January 8, 2024, the Supreme Court delivers this verdict.

How did the remission orders come to be passed?

Having spent 14 year behind the bars, convict Radheshyam Shah, appeals for consideration of remission first with the State of Gujarat where it is ruled that the appropriate government would be the government of Maharashtra. At the time, the Maharashtra government is ruled by the Maharashtra Vikas Aghadi (MVA). Not approaching Maharashtra then, he challenges this finding of jurisdiction and approaches the Supreme Court on the question. During the hearings in April-May 2022, both he as convict and the Gujarat government as respondent conceal material facts from the Supreme Court – for instance the fact that the Judge who had tried the case and convicted these men, Judge UD Salvi had vehemently opposed the remission when duly consulted; the fact that the prosecuting agency, the CBI, too, when approached by on the issue as is due, also had strongly commented against remission. This concealment of facts led to the Supreme Court in May 2022 to deem the Gujarat government/administration as being the jurisdiction to deliver a response on remission. It is this sinister concealment by the Gujarat government before the Supreme Court has led to the present order of January 8, 2024 to state that “a fraud was committed on the Supreme Court” by the Gujarat government.^[1]

In a well -orchestrated move, around the same time, 10 other convicts also furnish remission pleas before the State of Gujarat, ostensibly, in compliance of Section 432 of the Code of Criminal Procedure (CrPC). And then, on August 15, 2022, during Independence Day celebrations, the Gujarat government duly delivers on this after accepting the remission applications for all 11 convicts who were sentenced to life imprisonment. The Gujarat government stated that they were granted early release in accordance with the 1992 policy, citing the ‘good conduct’ of the convicts while imprisoned. The convicts are all granted remission in reliance of the order dated August 10, 2022.

[[Later media investigations reveal –following the nationwide outrage that follows their release that these convicts –serving terms in Gujarat—had been granted obscene number of days of parole by the prison authorities rendering their incarceration a joke. Advocates Shobha Gupta and Vrinda Grover had argued that they had, in fact not served their sentence. ^[2]Also, that in the “Committee” appointed by the Gujarat government to consider the remission applications, three dominant members were office bearers of the ruling BJP! One of the convicts was even booked in 2020 for a gender violence case while on parole! ^[3]]]

Aptly aggrieved by this, Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, filed the writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated August 10, 2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai were released prematurely.

The issues under discussion

The heart of the matter revolved around the sustainability of petitions, the power vested in the Gujarat government to provide remission, and the fundamental freedom of the convicts. The verdict ruled in favour of the petitioners on all these fronts.

The following points outline the issues in detail:

1. Whether the writ petition filed by the petitioner is maintainable?

Petitioner

• Grant of remission is an administrative function that involves the reduction or cancellation of a punishment. Administrative Orders, which pertain to decisions made by government agencies and officials, are subject to judicial review, allowing courts to assess their legality and fairness. Thus, the petition by Bilkis Bano should have concrete standing.

Respondents

• The remission order flows from a writ of mandamus by the Supreme Court. This writ cannot be challenged by filing a review petition and would require a curative petition.
• One of the learned counsel also highlighted that Bilkis Bano should have first approached the Gujarat High Court availing her right under Article 226 of the Constitution and approaching the Supreme Court should have been a last resort.

Judgement

• Discarding these objections, the Apex Court upheld the maintainability of the petition.
• The petition filed by the cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before the Supreme Court.
• One more compelling justification for supporting the viability of the petition was that Radheshyam Shah, one of the offenders, had filed an Article 32 plea with the Supreme Court asking the Gujarat government to review his remission. On May 13, 2022, the Supreme Court instructed the Gujarat government to evaluate remission under the 1992 Gujarat Policy. However, the Gujarat government was incompetent to address the petition given that it falls out of its jurisdiction. Crucial facts were also concealed from the Supreme Court at the time. The maintainability of Bano’s petition also clarifies this.

2. Whether the writ petition filed as a PIL challenging the order of a remission is maintainable?

Petitioner

• Pained by the order of remission, following petitioners

o   In Petition (Crl.) No.352 of 2022, Dr. Meeran Chadha Borwankar, a former woman police officer, an ex-Indian Foreign Service bureaucrat, and an academic seek to set aside the remission Orders.

o   Subhashini Ali, a former parliamentarian, Revati Laul, an independent journalist, and Roop Rekha Verma, former Vice-Chancellor of Lucknow University, collectively file Writ Petition (Crl.) No.319 of 2022 challenging the same Orders.

o   Mahua Moitra, Member of Parliament from Krishnanagar constituency, West Bengal, files Writ Petition (Crl.) No.326 of 2022.

o   Writ Petition (Crl.) No.403 of 2022 is filed by the National Federation of Indian Women (NFIW), a women-centric organization, seeking a mandamus to revoke remission granted to respondent Nos.3 to 13

o   Asma Shafique Shaikh, a lawyer and social activist, files Writ Petition (Crl.) No.422 of 2022 seeking to quash the Orders dated 10.08.2022.

• The claim largely relied on public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights.

Respondent

• It was also contended that the petitioners who have filed the public interest litigation are interlopers and busybodies and are not persons who are aggrieved.
• Remission is an affair between the state and the convict, hence, there should be no third-party influence and they retain no locus standi.
• Such interferences would unsettle the position of law and open floodgates of litigation involving “un-aggrieved party”

Judgement

• The judgement held that the merits of the remission orders were considered under the petition by Bano. It stated that the maintainability of PILs was an “academic” discussion which need not be answered in the present case.^[4]

3. Whether the Gujarat Government was competent to pass the order of remission?

Petitioner

• Definition of the expression ‘appropriate government’ finds meaning in sub-section 7 of section 432 of CrPC
• The state in which the offender has been sentenced is competent to consider an application of remission. This means that the place of the occurrence of the incident or the place of the imprisonment is irrelevant and similarly they have been excluded from the definition in Section.
• In the present case where there was a transfer of the trial form Gujarat to Maharashtra, the transfer becomes relevant in deciding the State competent to review remission.
• Additionally, the viewpoint of the presiding judge in the convicting court is pivotal when a convict seeks remission. In this case, both the convicting court and its presiding judge were in Maharashtra.
• Reference was made to the precedent set in the case of State of Madhya Pradesh v Ratan Singh (1976), wherein the Supreme Court established that the convicting state of Madhya Pradesh would be deemed the “appropriate government,” irrespective of the fact that the convict was serving the sentence in Punjab. Additionally, reliance was placed on the decision in Union of India v V. Sriharan (2016), where a Constitution Bench reaffirmed the definition of the “appropriate government.”

Respondent

• Vehemently argued that the place appropriate for the consideration of the remission is to be the place where the offence has occurred and which is also the place where the convicts are incarcerated.

Judgement

• State of Maharashtra to have the jurisdiction to consider the application of the remission vis-à-vis R No. 3 to 13 (the convicts) as they were sentenced by the Special Court, Mumbai.
• Given that the order of the remission (of R No. 4 to 13) were passed by the State of Gujarat which had no jurisdiction, the order thus passed has no leg to stand. There seems to be an error of jurisdiction.
• When an authority, which is the Government of State of Gujarat in the instant case, was lacking jurisdiction to consider the applications for remission. Just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed, or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of law.
• Therefore, the Order of remission passed holds no ground simply on this reasoning
• Additionally, the court establishes that the May 2022 of the Supreme Court which grants the State of Gujarat to decide the request of remission is per incuriam which is to say that it is not based on law or fact and goes against V Sriharan (Union of India vs V. Sriharan @ Murugan & Ors. (Writ Petition (Crl.) No.185/2014).
• Radheshyam, the petitioner in the May 2022 case, intentionally left out crucial details when approaching the Supreme Court. Following the dismissal of his plea by the Gujarat High Court, he sought remission from the Maharashtra government. However, his application faced adverse recommendations from both the Central Bureau of Investigation and the Special Judge, Mumbai – who was also presiding over his case. The Superintendent of Police and District Magistrate of Dahod were also against his release.
• Radheshyam’s claim about a conflicting stance between the Gujarat High Court and Bombay High Court on his remission petition was disproved; as it turns out, this related to a different matter altogether – specifically involving transfer of convicts from Maharashtra to Gujarat.
• The judgment clarified that the remission proceedings initiated solely through Radheshyam did not extend to considering the remission of other convicts. With the nullification of the May 2022 Order, all subsequent actions were annulled, rendering the Gujarat government’s remission order, a direct consequence of the May 2022 order, null and void.

4. Whether the order of remission was in accordance with law?

Petitioner

• All orders dated August 10, 2022 are a stereotyped and cyclostyled orders.
• The Gujarat Government did not factor in key considerations under its 1992 Policy which was replaced by a stringent 2014 Remission Policy.
• Moreover, the consent of the presiding judge was neglected while accumulation the views on the remission of the convicts.

Respondent

• Firmly believing that the remission is within the jurisdiction of State of Gujarat, the learned counsels impose reliance on the 1992 policy stating that it should considered given that at the time of the conviction, the 1992 policy was enforceable and not the more stringent 2014 one.
• Additionally, the counsels argue that the section uses the word “may” while asking for the opinion of the “presiding officer of the court”. The opinion therefore is not a mandate but a mere suggestion.

Judgement

• The judgement underscores and usurpation of power and an instance of abuse of discretion on the part of Gujarat’s government.
• “The State of Gujarat has acted in tandem and was complicit.”   In Radheshyam’s petition, the Gujarat government had taken a different stance and argued that the Maharashtra government was the “appropriate government” to consider remission. However, it did not file a review petition to correct the May 2022 order of the Supreme Court.
• This judgement claims that “ensuing litigation would not have arisen at all” if the Gujarat government had informed the Supreme Court of this error.  Further, as no such review petition was filed, the Gujarat government usurped the power of the Maharashtra government. Subsequently, other convicts who were not involved in the petitions also filed remission applications relying on the May 2022 Order.
• This duplicity of the Gujarat government led to an arbitrary and mechanical delivery of remission order without a proper consideration of the material facts and lacking complete reliance on the law.
• Lastly, it was also established that the “appropriate government seeking the opinion of the Presiding Officer” is not a suggestive part of the section rather a mandatory action to have a bona fide remission.

5. What follows?

The central question following the quashing of the remission order that arose before the Division Bench came to be, “whether the personal liberty of the convicts under Article 21 should be protected i.e. should they be allowed to continue their freedom?”

Petitioner

• The convicts have enjoyed several parole and furloughs during their incarceration despite the gravity of the crime and the concern of public interest.
• The learned counsel states that the attainment of justice would only be accomplished when the convicts are returned to prison. If any remission were to follow, it must only be accepted when done in accordance to law.

Respondents

• The learned counsels for the convicts claim that having experienced freedom after a long imprisonment, the liberty of the convicts must be protected.
• The Court must exercise jurisdiction under Article 142 of the Constitution.

Judgement

• Article 21 of the Constitution establishes that no person should comprise their liberty except in accordance with law. In the present case the crutch of liberty availed has been granted in violation of law
• The Bench clarifies that the rule of law prevails, which is to say that “no one, howsoever high or low, is above the law.” In a case of failure of the State to perform, the Court must step in to realign with the rule of law.
• Judiciary being the guardian of the rule of law and centre pillar of a democratic state must at all costs emphasize on the supremacy of rule of law.
• The judgement underscores the importance of justice, the cardinal principle of respecting the law, the accountability of the faith instilled by the people, and the highest responsibility of the Court to rectify arbitrary orders.
• The reasoning arising from the above leads to the conclusion that the invocation Art 142 would lead to an ignorance of rule of law. The ‘depravation of liberty’ with regards to the convicts is thus justified given the abuse of law exercised in attainting the remission.

Verdict

1. The outcomes of other petitions were rendered redundant in regards to the present petition.
2. The order of May 2022 with regards to the appropriate government was declared null and non eston grounds of concealment of material facts and misrepresentation of facts. It was also declared per incuriam and not to be a binding precedent.
3. The impugned orders of remission dated August 10, 2022 were quashed
4. The convicts were ordered to report to the concerned jailed authority

Though victory has come Bilkis’ way again, in 2024, given that remission and the right to grant sentence is an available remedy in criminal law, there is little to prevent these convicts from now approaching the Maharashtra government. Where a more friendly government currently rules.

(The judgement primer has been researched by CJP’s legal intern’s team including Karishma Jain)

^[1] 432 od CRPC Section 432 of the CRPC: Power to suspend or remit sentences

^[2] https://www.ndtv.com/india-news/bilkis-bano-rapists-were-out-of-jail-for-1-000s-of-days-on-parole-before-release-3440854

^[3] https://timesofindia.indiatimes.com/india/in-the-bilkis-case-parole-and-furlough-are-on-trial/articleshow/95917873.cms?from=mdr

^[4] Citizens for Justice and Peace, in all its legal actions concerning survivors of 2002 Gujarat, Dhule, Maharashtra, Muzaffarnagar, Uttar Pradesh has always approached the court on behalf of and with survivors and not in isolation.

Related:

Bilkis Bano speaks: First person account, Godhra Relief Camp, March 2002

Today, I Can Breathe Again: Bilkis Bano on landmark Supreme Court judgement

Bilkis Bano Case: Supreme Court strikes down remission for gang rape and murder convicts, citing flagrant violation of rule of law

The post Justice once more for Bilkis Bano, but what now lies ahead? appeared first on SabrangIndia.

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 presence 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. If the court overturns the decision to grant remission, 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.

Related:

‘Be ready with files’, SC warns as it issues notice to GoI, Gujarat govts on Bilkis Bano’s plea against remission of convicts

Bilkis Bano gang rape convict shares stage with BJP MP, MLA: Gujarat

“I will stand & fight again, against what is wrong & for what is right, for women everywhere’: Bilkis Bano

Bilkis Bano case: Convicts set free with MHA’s approval, despite opposition from CBI and Special Court

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