Bilkis Bano Judgment: A Detailed Explainer

The Supreme Court has passed a significant judgment, quashing the remission of eleven convicts who gang raped Bilkis Bano and murdered seven of her family members during the 2001 Gujarat Pogrom. Here is a detailed explainer on the judgment.

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In a damning indictment of the Gujarat government as well as the Supreme Court itself, a Supreme Court Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan has quashed the remission Orders releasing eleven convicts in the Bilkis Bano gang rape and multiple murder case.

The Bench has directed the convicts to report to the concerned jail authorities within two weeks from the date of judgment.

Justice Nagarathna, who authored the judgment, has said the courts had to be mindful of the spelling of the word “justice” and the content of the concept. Courts have to dispense justice and not let justice be dispensed with, she added.

Justice Nagarathna held that the grant of remission by the Gujarat government was a usurpation of the power of the Maharashtra government and against the rule of law.

Justice Nagarathna, who authored the judgment, has said the courts had to be mindful of the spelling of the word “justice” and the content of the concept.

Bilkis was 21 years old and pregnant when she was gang raped. She lost all the members of her family in the communal carnage. Her three-and-a-half-year-old daughter was butchered to death before her eyes.

The Central Bureau of Investigation (CBI), on the direction of the Supreme Court, investigated the matter, and the trial was held in Maharashtra on the directions of the Supreme Court to ensure an impartial investigation and fair trial.

In 2008, a Mumbai sessions court convicted the accused persons for offences under Section 302 and 376(2)(e)(g) read with Section 149 of the Indian Penal Code (IPC), and awarded them rigorous imprisonment for life and fine.

In May 2017, a division Bench of the Bombay High Court upheld the conviction and sentence awarded by the trial court. The findings recorded by the trial court as well as the Bombay High Court were also upheld by the Supreme Court.

What triggered the premature release of the convicts?

The Order passed by a two-judge Bench comprising Justice Ajay Rastogi and Justice Vikram Nath on May 13, 2022 was the bone of contention. Justice Rastogi’s Bench, while acting on a petition filed by one of the convicts, namely Radheshyam Bhagwandas Shah alias Lala Vakil, under Article 32 of the Constitution had quashed a Gujarat High Court Order of 2019 that held that since the trial had been concluded in Maharashtra, the application for premature release had to be filed in Maharashtra and not in Gujarat.

The high court had relied upon the decision of the Constitution Bench in Union of India versus V. Sriharan.

Justice Rastogi’s Bench also directed the Gujarat government to consider the premature release of the convict as per the 1992 remission policy which, according to the convicts, was in force when they were convicted.

Armed with the Order of Justice Rastogi’s Bench, the Gujarat government decided to grant premature release to all eleven convicts based on their “good behaviour” on August 10, 2022.

The release of all the eleven convicts sent shock waves across the country leading to the filing of public interest litigation (PIL) by social activists Subhasini Ali, former member of Parliament (MP) Mahua Moitra, and former Indian Police Services (IPS) officer Meeran Chanda Borwankar, among others.

Bano was represented by advocate Shobha Gupta, Moitra was represented by senior advocate Indira Jaising, Ali was represented by Aparna Bhat and Borwankar was represented by advocate Vrinda Grover.

Courts have to dispense justice and not let justice be dispensed with, Justice Nagarathna said.

Based on the arguments advanced before Justice Nagarathna’s Bench, ranging from the very maintainability of the petitions under Article 32 to the competence of the Gujarat government to grant the remission, the Bench framed the following questions:

1. Whether the petition filed by Bilkis Bano under Article 32 of the Constitution was maintainable?
2. Whether the writ petitions filed as PIL challenging the remission Orders were maintainable?
3. Whether the government of Gujarat was competent to pass the Orders of remission? 
4. Whether the Orders of remission passed by the respondent Gujarat government in favour of convicts are in accordance with the law? 

On the first question, the Bench held that the petition filed by the victim under Article 32 was maintainable. The Bench opined that Bilkis had filed the petition to enforce her fundamental rights under Article 21 of the Constitution which speaks of the right to life and liberty and Article 14 which deals with the right to equality and equal protection of the laws.

The Bench further observed that Article 32 is also to enforce the goals enshrined in the preamble of the Constitution, which speak of justice, liberty, equality and fraternity.

Thus, bearing in mind the expanded notion of access to justice, which also includes speedy remedy, the Bench held that the petition filed by Bano could not be dismissed on the ground of the availability of an alternative remedy under Article 226 of the Constitution or the ground of its maintainability under Article 32 of the Constitution.

The Bench also gave another reason to hold the petition by Bano maintainable. It noted that one of the convicts had filed a petition under Article 32 seeking a direction to the Gujarat government to consider his case for remission under the policy of 1992.

Justice Rastogi’s Bench had issued a direction to that effect, which the state government understood as if it was a command or a direction to grant remission within two months.

In the very same case, Justice Rastogi had rejected the contention of the Gujarat government that it was not the ‘appropriate government’ to grant remission.

Since there had been serious doubts about whether the Gujarat government was the appropriate government under Section 432(7) of the Code of Criminal Procedure (CrPC), 1973 and the same was argued as one of the grounds to challenge the remission Order, Justice Nagarathna opined that the high court would not have been in a position to entertain the petition under Article 226 of the Constitution of India in light of Justice Rastogi’s judgment.

Bilkis was 21 years old and pregnant when she was gang raped.

On the second question which concerned the maintainability of PILs filed by activists and public-spirited persons, Justice Nagarathna’s Bench chose not to provide an answer since Bano had also filed a writ petition adding that the consideration of Bano’s petition on its merits would suffice in the instant case.

The Bench thus opined that the consideration of the point on the maintainability of the PILs had been rendered wholly academic and did not require an answer in this case.

Coming to the heart of the matter, that is, whether the government of Gujarat was competent to pass the Orders of remission. Examining the scheme of the CrPC in particular Section 432(7)(b), the Bench reiterated what the Constitution Bench in V. Sriharan held.

That is, the appropriate government is the government of the State within which the offender is sentenced or the said Order is passed.

The Bench thus ruled that in the Bilkis Bano case, Maharashtra had the jurisdiction to consider the application for remission of the convicts as they were sentenced by a special court, Mumbai.

Justice Rastogi’s judgment obtained through fraud

Additional Solicitor General S.V. Raju, for the Gujarat and Union governments, sought to hide behind Justice Rastogi Bench’s Order directing the Gujarat government to consider the premature release of the convicts within two months.

The Order passed by a two-judge Bench comprising Justice Ajay Rastogi and Justice Vikram Nath on May 13, 2022 was the bone of contention.

Hence, the state government had no option but to consider the applications seeking premature release filed by the convicts. Here Justice Nagarathna’s Bench accepted the arguments made by senior advocate Indira Jaising on behalf of Moitra that the judgment dated May 13, 2022, passed by the Bench led by Justice Rastogi was null because it was obtained by playing fraud on the court in that there had been suppression of facts as well as misleading of court with erroneous facts.

The Bench highlighted the following facts among others:

• Radheshyam did not state in his petition before the Supreme Court that the High Court of Gujarat had dismissed his petition seeking premature release by taking note of Section 432 (7) of the CrPC and based on the decision in V. Sriharan as the trial had been concluded in Maharashtra. 
• He did not mention that the application for premature release had been filed by him in Maharashtra and not in Gujarat, as directed by the judgment of the Gujarat High Court dated July 17, 2019. 
• Although he approached this court as well as Gujarat High Court, he had termed the Order of the Gujarat High Court dated July 17, 2019 as an “impugned Order.” The said Order was not at all impugned or assailed in the proceedings before the Supreme Court. What was filed by the convict Radheshyam before the Supreme Court was a writ petition under Article 32 of the Constitution seeking a direction to the Gujarat government to consider his remission application.
• In fact, there was no pleading or prayer for seeking setting aside of the Gujarat High Court Order dated July 17, 2019, nor was there any challenge to the said Order. 
• That said Order had attained finality as no special leave petition against it was filed by the writ petitioner, Radheshyam; rather he had acted upon it. 
• Curiously, in the writ petition filed under Article 32 of the Constitution, the Order dated July 17, 2019 has been set aside even in the absence of there being any prayer or discussion regarding it.

Justice Nagarathna thus held that writ proceedings before the Bench led by Justice Rastogi are in pursuance of suppression and misleading of the court and a result of suppressio veri suggestio falsi. She thus declared that the Order dated May 13, 2022 was obtained by fraud played on the court and hence, was a nullity and non est in law.

Justice Rastogi’s judgment is per incuriam

Justice Nagarathna’s Bench then went a step further. She held that the judgment by Justice Rastogi Bench was per incuriam for two reasons.

For a judgment to be per incuriam, it has to be ignorant of relevant statutory provisions or precedents.

Armed with the Order of Justice Rastogi’s Bench, the Gujarat government decided to grant premature release to all eleven convicts based on their “good behaviour” on August 10, 2022.

Justice Nagarathna’s Bench held that first, the judgment has ignored the binding precedent of the five-judge Bench in V. Sriharan which held that even if an offence is committed in state A but the trial takes place and the sentence is passed in state B, it is the latter state that shall be the appropriate Government. Secondly, it was passed in ignorance of a nine-judge Bench in Naresh Shridhar Mirajkar which held that an Order of a high court could not be set aside in a proceeding under Article 32 of the Constitution.

On the fourth question, of whether the remission Orders were passed in accordance with the law, the Bench opined that remission Orders were non-speaking reflecting complete non-application of mind.

“All Orders dated August 10, 2022 are stereotyped and cyclostyled Orders. It is not necessary to dilate upon each of the aforesaid aspects of abuse of discretion in the instant case, as we have observed that the consideration of the impugned Orders or manner of exercise of powers is unnecessary, having regard to the answer given by us to point no. 3,” the Bench held.

Usruption of power by the Gujarat government

The Bench also held that the passing of the remission Orders by the Gujarat government was an instance of usurpation of power since it was not an appropriate government. The Bench criticised the Gujarat government for not filing a review petition against Justice Rastogi Bench’s Order.

“We fail to understand as to why the Gujarat government, the first respondent herein, did not file a review petition seeking correction of the Order dated May 5, 2022 passed by this court in writ petition no. 135 of 2022 in the case of respondent no.3 herein.

“Had the Gujarat government filed an application seeking review of the said Order and impressed upon this court that it was not the ‘appropriate government’ but the Maharashtra government was the ‘appropriate government’, ensuing litigation would not have arisen at all.

“On the other hand, in the absence of filing any review petition seeking a correction of the Order passed by this court dated May 13, 2022, the first respondent, the Gujarat government, herein has usurped the power of the Maharashtra government and has passed the impugned Orders of remission on the basis of an Order of this court dated May 13, 2022 which, in our view, is a nullity in law,” the Bench held.

The Bench went on holding that the Gujarat government acted in tandem and was complicit with what Radheshyam had sought from the court.

Referring to the earlier Orders of the Supreme Court transferring the trial of the case to Maharashtra, Justice Nagarathna observed that this was exactly what the Supreme Court had apprehended at the previous stages of this case, which is why it had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to a special court in Mumbai.

“But, in our view, when no intervention was called for in the writ petition filed by one of the convicts or respondent no.3 herein, this court was misled to issue directions contrary to law and on the basis of suppression and misstatements made by respondent no.3 herein.

The Bench held that the petition filed by the victim under Article 32 was maintainable.

“We have held that the Order of this court dated May 13, 2022 to be a nullity and non est in the eye of law. Consequently, the exercise of discretion by the Gujarat government is nothing but an instance of usurpation of jurisdiction and an abuse of discretion,” the Bench held.

It added: “This is a classic case where an Order of this court has been used for violating the rule of law. Therefore, without going into the manner in which the power of remission has been exercised, we strike down the Orders of remission on the ground of usurpation of powers by the Gujarat government not vested in it. The Orders of remission are hence quashed on this ground also.”

Rule of law must prevail

Having quashed the remission Orders, the Bench wondered whether it should accept the argument by the convicts that their liberty may not be curtailed after having been out of jail for a year and more with no misuse of the liberty.

The Bench rejected the argument of the convicts and held breach of the rule of law amounts to negation of equality under Article 14 of the Constitution.

The Bench ruled that Maharashtra had the jurisdiction to consider the application for remission of the convicts as they were sentenced by a special court in Mumbai.

“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 Bench observed.

“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 added.

It opined that in the event convicts are inclined to seek remission in accordance with the law, they have to be in prison as they cannot seek remission when on bail or outside the jail. The Bench thus directed them to report to jail authorities within two weeks.