SC Nullifies Remission For Bilkis Bano's Culprits: 5 Key Statements

The Supreme Court, led by Justices BV Nagarathna and Ujjal Bhuyan, pronounced its verdict on the petitions challenging the Gujarat government's controversial decision to grant remission to 11 convicts involved in the gang rape of Bilkis Bano and the brutal murder of seven of her family members during the 2002 Gujarat riots.

The remission of 11 convicts involved in the heinous crimes during the 2002 communal riots in Gujarat. This decision, rendered on Independence Day in 2022, sparked widespread controversy and raised constitutional challenges.

Chronology of the events around the case 

Bilkis Bano, at the age of 21 and five months pregnant, faced the horrifying ordeal of being gang-raped during the communal riots that erupted in Gujarat on February 27, 2002. Fleeing the violence with her family, tragedy struck as her three-year-old daughter and six other family members were mercilessly murdered by a raging mob. The heinous crime shocked the nation and became a symbol of the brutality witnessed during the 2002 Gujarat riots.  The riots ensued after the Sabarmati Express burning incident near the Godhra railway station.

The convicts were initially sentenced to life imprisonment by a Mumbai trial court in 2008. Later, the Gujarat government's decision to grant remission in August 2022 sparked widespread outrage, coinciding with India's 75th independence anniversary.

The release of these convicts ignited a fierce debate over the delicate balance between personal liberty and the rule of law. The 2002 communal riots in Gujarat left an indelible mark on the nation's conscience, and the subsequent legal proceedings have been a testament to the complex and sensitive nature of the case.

After an exhaustive 11-day-long hearing that commenced in August, the division bench of Justices BV Nagarathna and Ujjal Bhuyan reserved its judgment on October 12. The court not only scrutinized the remission orders but also directed both the Gujarat and Union governments to submit original records pertaining to the case.

• 2002: Bilkis Bano, 21 years old and five months pregnant, was gang-raped during the Gujarat riots.
• 2008: Convicts sentenced to life imprisonment by a Mumbai trial court.
• 2014: Change in law discouraging releases in capital offence cases.
• 2022: Gujarat government grants remission to 11 convicts, triggering public outcry.
• 2024: Supreme Court declares the Gujarat government "not competent" to decide on remission and directs all convicts to return to jail.

SC Verdict Highlights

The bench, assembled on January 8, 2024, asserted the maintainability of Bilkis Bano's petition challenging the remission granted to the convicts. This crucial ruling sets the stage for a continued legal battle, indicating that the Supreme Court recognizes the significance of addressing Bano's concerns regarding the release of those convicted.

Rule of Law vs. Personal Liberty

The primary question before the court was whether the rule of law should prevail over personal liberty. The justices pondered the interplay between liberty, including the right to equality, and adherence to the rule of law. The court highlights that the protection of personal liberty is contingent upon conformity with the law, emphasizing Article 21 as the guiding principle.

Primary question, 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. Should rule of law prevail over personal liberty? Only when rule of law prevails with liberty, including the right to equality...whether liberty has any meaning in the absence of rule of law or same being turned a blind eye. Breach of rule of law amounts to negation of right to equality. Rule of law means no one, how highsoever, is above the law. There can be no rule of law if there is no equality. Court has to step in to enforce the rule of law.

The contention that the convicts should be sent back to prison due to the violation of the rule of law was a pivotal argument during the proceedings. Yet, the Supreme Court, in a resolute stance, emphasized that the deprivation of liberty for the respondents (convicts) is justified. Once convicted and imprisoned, the court contends, individuals lose their right to liberty.

Courts have to be mindful not just of the spelling of JUSTICE but also the content of it. If the convicts can circumvent the consequences of their conviction, peace and tranquility in society will be reduced to a chimaera. Allowing convicts to remain out of prison will amount to giving an imprimatur to invalid orders. The convicts were in prison for little over fourteen years and enjoyed liberal parole and furlough. 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.

Competence of the Gujarat Government

The Supreme Court unequivocally ruled that the Gujarat government lacked the competence to decide on remission in this case. Justice Nagarathna emphasized that it is not the government of the state where the offence took place or where the offenders are imprisoned that holds the authority for remission. Instead, the governing body of the state where the conviction occurred is deemed appropriate.

It was the State of Maharashtra which was the appropriate Govt to consider the remission.Gujarat Govt usurped the powers of Maharashtra Govt acting in furtherance of the judgment dated May 13, 2022, which in our opinion is a nullity. We hold : (1) Govt of State of Gujarat had no competence to entertain the applications for remission or pass orders thereon.

Gujarat Government's Defense

Additional Solicitor General (ASG) SV Raju, representing the state, defended the convicts' release under a 1992 remission policy. However, the ASG's argument faced scrutiny as the court pointed out that a 2014 law restricting releases in cases of capital offences had superseded the 1992 policy. The convicts, convicted in 2008, were considered under the outdated policy, raising questions about the application of legal frameworks.

Suppression of Material Facts

Justice Nagarathna exposed, "The writ petition was filed by the convict by suppressing relevant facts." The court condemned the suppression of material facts. The Supreme Court holds that the judgment of May 13, 2022 (which directed the Gujarat government to consider remission of convicts) was obtained by "playing fraud" on the court and by suppressing material facts. The convicts had not approached the court with clean hands, according to the Supreme Court.

We hold : (2) This Court's order dated 13.05.2022 obtained by fraud a nullity. All proceedings taken in furtherance of the judgment are also vitiated and a nullity in law.

Gujarat Government 'on Thin Ice'

During the hearings, the Supreme Court expressed concern over Gujarat's stance, stating that the state was on 'thin ice' regarding the convicts' early release.

The exercise of power by the State of Gujarat is an instance of usurpation of power and abuse of power. This is a classic case where the order of this court was used to violate the rule of law by granting remission. Usurputation 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 Govt exercising the power was an instance of usurpation of power.

The court questioned the release of the convicts after serving 14 years, especially considering the commutation of their death penalty to life imprisonment.

Respect for Victims' Rights

Justice Nagarathna invoked Plato's wisdom, asserting, "Punishment is not for vengeance but for reformation." The court emphasized the curative theory, likening punishment to medicine and stating, "If a criminal is curable, he should be set free."

The bench highlighted the significance of respecting women's rights, stating, "A woman deserves respect." It pondered whether heinous crimes against women should permit remission, quoting Justice Krishna Iyer and George Bernard Shaw, "Men are not improved by injuries."

The Supreme Court's verdict on the Bilkis Bano case serves as a powerful reaffirmation of the principles that underpin a just and equal society. It sends a clear message that justice cannot be dispensed without adherence to the rule of law. This landmark ruling sets a precedent for the sanctity of legal procedures, emphasizing that even the highest echelons of power are not exempt from judicial scrutiny.