Supreme court slams Gujarat HC on having no jurisdiction to issue remission against the offenders of Bilkis Bano case : The accused(s) sent back to jail.

TITLE : Bilkis Yakub Rasool V Union of India & Ors

CITATION : WP (CRL.) No. 491 of 2022

CORAM : Hon’ble justice Nagarathna

DECIDED ON : 8^th January 2024

INTRODUCTION :

The Bilkis Bano judgement by the Supreme Court on 8^th January 2024 sends the acquitted criminals back to jail for the charges of rape and murder which took place during the 2008 Gujarat riots. In the preface of the judgment, it is quoted that a woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Such powerful statement by the court is backed by the question of Can heinous crimes committed against women permit remission of the convicts by granting them a reduction of their sentences?

FACTS :

The accused of this current matter was released early by virtue of remission in 2022 who were guilty of committing heinous crimes during the Gujarat Riots of 2002. The crime came out of a communal vengeance against the victim who was brutally gang raped by the respondents. Further, the mother of Bilkis Yakub Rassol was gang raped and murder, including the cousin of the petitioner who at that time had just given birth. Along with that, eight other minors were murdered from the same family by the respondents. Furthermore, the petitioner’s three year old daughter and her brothers and sisters were also murdered by the accused.

Eventually, the perpetrators of the crime were convicted and sentenced. However, the petitioner had approached the hon’ble supreme court once again in challenging the remission granted to the respondents despite their commission of such heinous crimes.

The respondents were convicted for the offences punishable under Sections 143, 147, 148, 302 r/w 149 of the IPC for the murder of fourteen people; Section 376 (2)(e) & (g) for having committed gang-rape on the petitioner-victim; Section 376(2)(g) for having committed gang rape on other women.

One of the respondents after undergoing 14 years and 5 months in his sentence, filed an application to the Gujarat High Court challenging the not considering his application for premature release under Section 433 and 433A of CrPC and moved the case to the State of Maharashtra for premature release. The investigating officers, such as the CBI and police officers held in negative and stated that there should be no leniency given to the respondent and he must serve his full sentence. 

The respondent then again approached the HC of Gujarat in a criminal application seeking remission under Section 432 and 433 of CrPC. Furthermore, The Department of Home Affairs, Government of Gujarat, addressed a letter to the Secretary, Ministry of Home Affairs, Government of India, seeking sanction from the Government of India on the proposal for the premature release of the prisoners.

Submissions by the State :

• It was contended by the state that the PIL is not maintainable either by law or by facts, by claiming that a third party has no locus to challenge the orders of remission.
• It was submitted that since the petitioners not being aggrieved persons have invoked the jurisdiction of this Court under Article 32 of the Constitution for extraneous purposes. As the petitioners are not the “persons aggrieved”, the writ petition is not maintainable.
• It was argued that the remission under Section 432 of CrPC, the appropriate government for considering remission would be the state in which the offence was committed and not in which the trial was conducted, therefore the state of Gujarat should take cognizance.

Submissions by the Petitioner :

• It was submitted that in the present case, the right of the victim and the cry of the society at large have been ignored by the State and Central Governments while recommending the grant of remission to all convicts in the case.
• For the question on jurisdiction for remission, the petitioner argued that the investigation and trial took place in Maharashtra and hence it would be the appropriate government.

ISSUES

1. Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?
2. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
3. Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?
4. Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?
5. What Order?

 

ANALYSIS

1. Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is maintainable?

The court in its judgement held that Article 32 of the Constitution is a part of fundamental rights. The court stated that the petitioner had filed the writ to enforce her fundamental rights under Article 21 which talks about right to life and personal liberty and Article 14 which deals with the right to equality and equal protection of law. The court stated that Article 32 is a constitutional remedy which can be used to enforce the goals enshrined in the preamble of the Constitution which speak of justice, liberty, equality and fraternity.

The court stated that :

“Bearing in mind the expanded notion of access to justice which also includes speedy remedy, we think that the petition filed by the petitioner in Writ Petition (Crl.) No.491 of 2022 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 this Court. “

2. Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?

The court held that with regards to the maintainability of the PILs in this case, one of the petitioners was Bilkis Bano herself who has filed through Article 32 Aswell, the petition itself would suffice for the maintainability of writ.

Therefore, it held that maintainability of PIL challenging the order of remission would not call for an answer as there is already a writ in the hand.

3. Whether the Government of the State of Gujarat was competent to pass the impugned orders of remission?

The court held that the state of Gujarat is not the appropriate government as per Section 432 of CrPC which gives the provision for granting remission. Section 432(7) defines appropriate government as the :

“(7) In this section and in section 433, the expression” appropriate Government” means,-

(a) in cases where the sentence is for an offence against, or the order referred to in sub- section (6) is passed under, any law relating to a matter to which the executive power of the Union extends, the Central Government;

(b) in other cases, the Government of the State within which the offender is sentenced or the said order is passed.”

It was held that the state of Maharashtra would be the appropriate government as the sentence and trial took place there and stated that the remission orders have no legs to stand. It further stated that the government of Gujarat acted in jurisdictional error. It additionally held that the order of remission being vitiated and obtained by fraud and is therefore null and void.

4. Whether the impugned orders of remission passed by the respondent-State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?

The court gave the reasoning that the grant of remission is an exercise of discretion by the appropriate government. The test of discretion would be whether the authority concerned was acting within its powers. The power must not be in an arbitrary or perverse manner.

It held that there was a usurpation of power by the government of Gujarat. The assumption of power of State of Gujarat being the appropriate government is invalid and was set aside.

5. What order?

The court had to decide whether the released criminals must be sent back to prison since the remission order is quashed. The court relied on Article 21 of the constitution that no person shall be deprived of personal liberty except in accordance with the law.

The court stated that,

“Conversely, we think that a person is entitled to protection of his liberty only in accordance with law. When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law? In other words, should rule of law prevail over personal liberty of a person or vice-versa?”

It stated that the justice should remain loyal to the rule of law and justice cannot be given without adherence to rule of law.

Therefore, the court held that for the respondents to seek remission, they have to be in prison again and they cannot seek remission when on bail or outside the jail. Therefore the plea of protection of liberty was not accepted by the court.

CONCLUSION :

The Supreme Court has held that rule of law prevails over personal liberty when the question arises to uphold justice. This case which quoted Plato for the concept for punishment as something to be inflicted, not for the sake of vengeance, for what is done cannot be undone, but for the sake of prevention and reformation has rightly interpreted the scope of justice to prevail and serve the victim’s suffering. 

“PRIME LEGAL is a full-service law firm that has won a National Award and has more than 20 years of experience in an array of sectors and practice areas. Prime legal fall into a category of best law firm, best lawyer, best family lawyer, best divorce lawyer, best divorce law firm, best criminal lawyer, best criminal law firm, best consumer lawyer, best civil lawyer.”

Written by- Sanjana Ravichandran