The Supreme Court bench, comprising Justices BV Nagarathna and Ujjal Bhuyan, delivered the judgment after reserving it on October 12, following an extensive 11-day hearing that began in August.
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In a highly anticipated and significant ruling, today 8th jan 2024, the Supreme Court of India overturned the Gujarat government’s decision to grant early release to 11 convicts in the Bilkis Bano case, a matter that has been a subject of intense legal scrutiny and public debate. The case pertains to the gang rape of Bilkis Bano and the murder of her family members during the 2002 Gujarat riots.
Also read-BREAKING | Supreme Court Quashes Remission Of 11 Convicts In Bilkis Bano Case. (lawchakra.in)
The bench, comprising Justices BV Nagarathna and Ujjal Bhuyan, delivered the judgment after reserving it on October 12, following an extensive 11-day hearing that began in August. The judgment was in response to several petitions challenging the remission granted to the convicts, namely Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.
Justice Nagarathna, who authored the judgment, invoked the philosophy of Plato at the outset, stating,
“On competence of Gujarat government to pass remission orders, it is apparent that appropriate government had to take permission of the court before passing remission orders. This means that place of occurrence or place of imprisonment of convicts are not relevant for remission. The definition of appropriate government is otherwise. The intention of the government is that the State under whom the convict was tried and sentenced was the appropriate government. This places emphasis on the place of trial and rather than where the crime took place,”
She further added,
“Punishment is to be inflicted not for the sake of vengeance but for the sake of prevention and reformation. In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine administered for the sake of the one being chastised. Thus, if a criminal is curable, he ought to be improved by education and other suitable arts and then set free as a better citizen and less of a burden to the State. This postulate lies at the heart of the policy of remission.”
The judgment addressed four key issues. Firstly, it declared the petition filed by Bilkis Bano under Article 32 of the Constitution as clearly maintainable, rejecting the arguments of senior advocates Guru Krishna Kumar and V Chitambaresh. Secondly, the court chose not to answer the maintainability of the PIL petitions, considering Bano’s petition sufficient. Thirdly, the court ruled on the competence of the State of Gujarat to pass the remission orders, interpreting Section 432 of the Code of Criminal Procedure.
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Justice Nagarathna explained,
“This clearly means that the place of occurrence of the incidence or place of imprisonment are not relevant considerations, and they have been excluded from the definition of Section 432 of the Code of Criminal Procedure. The intent of the legislature is that the appropriate government is of the state within which a convict was tried and sentenced. The emphasis is on the place of trial and sentence, rather than the place of commission of offence or sentencing.“
The court also noted that the May 2022 judgment, which led to the release of the convicts, was obtained by playing fraud upon the Court.
“The convict played fraud on this court. The Gujarat High Court’s order could not have been challenged in a writ petition, nor could it have been set aside in writ proceedings. Hence the said order is a nullity and non-est in law. Consequently, the May 2022 order is hit by fraud and is a nullity. It cannot be given effect to. All proceedings pursuant to the said order are vitiated. This judgment is also ‘per incuriam’ as it refused to follow binding precedents, including the Constitution Bench judgment in Sriharan, regarding the appropriate government for remission,” Justice Nagarathna stated.
Advocate Shobha Gupta, representing Bilkis Bano, argued against the leniency shown to the convicts, highlighting the brutality of the crimes. She questioned the Supreme Court bench, “...Bilkis saw her first child’s head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or her family no mercy… Are these people – the perpetrators who have been found guilty of committing these crimes – deserving of the leniency shown to them?”
The Supreme Court’s decision marks a significant moment in the Indian legal system, emphasizing the importance of judicial scrutiny in cases of remission, especially those involving heinous crimes. The ruling upholds the principles of justice and the rights of victims, setting a precedent for future cases involving the remission of sentences.
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