Authored By: Hardi Durugkar
Indore Institute Of Law
Case Title and citation:
Bilkis Yakub Rasool Bano v. State of Gujarat & Others, (2024) SCC OnLine SC 1 ∙ Bilkis Yakub Rasool v. Union of India, decided on January 8 (2024) INSC 24 Court Name and
Bench:
Supreme Court of India
Justice B.V. Nagarathna and Justice Ujjal Bhuyan
Division Bench
Date of judgement :
8th January 2024
Parties Involved
Brief description of the petitioner : Bilkis Yakub Rasool Bano was a 21-year-old woman and a victim of the 2002 Gujarat communal riots. She was five months pregnant at the time and was gang-raped by a mob while fleeing the violence. Tragically, seven members of her family, including her three-year-old daughter, were murdered in the same attack.
Bilkis Bano later became the petitioner challenging the premature release (remission) of the 11 convicted perpetrators by the Gujarat government under its remission policy. Her petition sought to uphold justice, ensure accountability for the heinous crimes committed against her and her family, and maintain the rule of law and procedural propriety under BNSS, 2023.
Brief description of respondents
State of Gujarat – The primary respondent. he Gujarat government had granted premature release (remission) to all 11 convicts involved in the gang-rape and murder of Bilkis Bano and her family during the 2002 Gujarat riots.The legality of this remission, granted under the State’s 1992 Remission Policy, was challenged on the grounds that Gujarat was not the competent authority to decide remission, as the trial and conviction had occurred in Maharashtra.
The Central Government, acting on behalf of the Union of India, was the case’s secondary respondent. The petition raised concerns under Articles 14, 21, and 32 of the Constitution by alleging that the state apparatus had failed to protect citizens and uphold justice, therefore the Union was added as a party. The inclusion of the Union emphasized the crucial duty to maintain peace and order, protect basic rights, and guarantee the successful prosecution of offenses resulting from intercommunal violence.
Facts of the case
On March 3, 2002, amid the communal violence in Gujarat, Bilkis Bano, who was 21 years old and five months pregnant, was attempting to escape from her village with her family. A mob assaulted them; Bilkis was gang-raped, and seven of her family members, including her three year-old daughter, were brutally murdered. Initially, the local police poorly managed the investigation. Eventually, the Supreme Court ordered that the case be transferred to the Central Bureau of Investigation (CBI).The trial was moved from Gujarat to a Special CBI Court in Mumbai to guarantee impartiality. In 2008, the Special CBI Court found 11 individuals guilty of gang rape and murder, sentencing them to life imprisonment.
Remission Granted by Gujarat (2022): On 15th August 2022 (Independence Day), the Government of Gujarat awarded remission/premature release to all 11 convicts in accordance with its 1992 Remission Policy. The release of the convicts sparked widespread outrage across the nation and led to petitions contesting the legality of the remission.
Petitions Challenging the Remission: Bilkis Bano, alongside social activists and public interest groups, submitted petitions to the Supreme Court. The primary argument was that Gujarat was not the “appropriate government” to grant remission, as the trial and conviction occurred in Maharashtra.
Supreme Court’s Findings (2024):The Court held that the State of Gujarat had no jurisdiction to grant remission; the power lay with the State of Maharashtra.The earlier May 2022 order, which had asked Gujarat to consider remission, was obtained by suppressing facts and was declared a nullity (non est in law).On 8 January 2024, the Supreme Court quashed the remission orders and directed all 11 convicts to surrender within two weeks.
Legal Issue
Jurisdiction to Approve Remission: Which state’s government qualifies as the “appropriate government” under Section 432 of the Code of Criminal Procedure (CrPC) to evaluate and approve remission — Gujarat (where the offense took place) or Maharashtra (where the trial and sentencing occurred)?
Legitimacy of the Supreme Court Order from May 2022: as the Supreme Court’s previous order on May 13, 2022, which instructed Gujarat to review the remission request of one convict, legitimate — or was it acquired by concealing essential facts and thereby rendered invalid in the eyes of the law?
Legitimacy of the 2022 Remission Order by Gujarat: Did the Gujarat Government engage in unlawful and unauthorized actions by granting remission to the 11 convicts according to its 1992 Remission Policy?
Rule of law and victim’s rights principle: Does the Constitution’s provision of victim rights, the rule of law, and the ideals of justice get in the way of awarding remission for such horrible crimes as gang rape and many killings during community violence?
Legal Reasoning
The Gujarat government’s ability to provide remission
According to Section 473 of the BNSS, the Supreme Court ruled that the Gujarati government was not the “appropriate government” to pardon the 11 convicted individuals. The government of the state where the criminal was found guilty and given a sentence is considered the relevant government. The Maharashtra government was the appropriate authority because the prisoners were convicted in Mumbai, Maharashtra.
Application of the BNSS, 2023
The Court noted that the remission policy of the Gujarat government was inconsistent with the provisions of the BNSS, 2023, which mandates that remission can only be granted after consulting the presiding judge of the convict’s trial court and the jail advisory board. The Gujarat government’s remission order did not follow these procedural safeguards, rendering it unlawful
Fraudulent Representation in Seeking Remission
The Court found that the petitioners had misrepresented facts by concealing the judgment of the Gujarat High Court, which had clarified the competence of the Maharashtra government to grant remission. This suppression of material facts led to the earlier Supreme Court order being obtained by fraud, rendering it a nullity
Violation of the Rule of Law and Victim’s Rights
The Court underlined that the remission of sentences for horrific crimes such as murder and gang rape breaches the victim’s rights under Articles 14 and 21 of the Constitution and undercuts the rule of law. It was determined that the Gujarat government’s remission decision was capricious and against constitutional norms.
Arguments of the parties [ key contentions by the petitioner]
Maintainability under Article 32
The petitioner contended that she had a right to move the Supreme Court under Article 32 of the Constitution to enforce her fundamental rights (especially Articles 14 & 21), rather than being required to first approach the High Court under Article 226. It was argued that the remedy under Article 32 is itself a fundamental right and is necessary to enforce constitutional rights swiftly and effectively.
Appropriate Government for Remission Power
A major contention was that Gujarat government was not the “appropriate government” to grant remission, because the trial and conviction in the Bilkis Bano case had been carried out by a CBI Special Court in Maharashtra. Therefore, according to the petitioners, remission should have been under the authority of the Government of Maharashtra, not Gujarat.
Violation of Remission Policy & Jurisdictional Law
It was contended that Gujarat’s remission policy (1992 policy) was improperly applied/enforced. The petitioners argued that the policy was either inapplicable (since the convicting State is Maharashtra) or that the remission was “premature” and done in a mechanical manner without adequate individual consideration. Also, that the remission policy cannot displace the convicted persons’ fundamental rights of the victim, or ignore the nature of the crime, seriousness, and the public interest.
Rights of the Victim and Equality, Non‐Discrimination
Bilkis Bano argued that her rights (and the rights of victims more generally) under Article 21 (right to life and personal liberty) and Article 14 (equality before law) were being violated by the remission orders. That remission should not be granted automatically just because the policy permits it; the gravity of the crime, moral considerations and seriousness matter.
Rule of Law / Arbitrariness
Another contention was that the remission orders violated rule of law: the State (Gujarat) had misused or over‐stepped its authority and acted arbitrarily. For example, that the May 2022 Supreme Court order to consider remission was obtained by suppression of material facts (in the petition by Radheshyam Shah), amounting to a “fraud on court,” which tainted subsequent remission orders.
No Absolute Right to Remission
The argument that remission is not an absolute right (i.e. being convicted and serving part of the sentence doesn’t entitle automatic early release). The crime was grave; remission must be consistent with law, policy, and fairness.
Arguments of the parties [ key contentions by the respondents]
Maintainability under Article 32 vs Article 226
The respondents contended that the victim (Bilkis Bano) should not have filed the petition in the Supreme Court under Article 32 (i.e. directly invoking enforcement of fundamental rights). They argued that since an alternative remedy was available — namely a writ under Article 226 before the Gujarat High Court — the petition under Article 32 is not maintainable.
That remission was granted lawfully under the applicable policy, considering all required criteria
It was argued by the Gujarat State government that they followed the 1992 remission policy, the one in force at the material time, in processing the applications of the convicts. The State argued that all required factors under that policy (good behaviour, reform etc.) were considered. The respondents also relied on the doctrine of reformation / rehabilitation in criminal law: that even for heinous crimes, once the convict has undergone part of the term, displayed good behavior, etc., the State has discretion to consider remission
Jurisdiction / ‘Appropriate Government’ Argument
Some respondents argued that Gujarat was the appropriate government under the May 2022 Supreme Court order mandating that Gujarat consider the remission applications. So they asserted that their acts were lawful under the mandate. Also, the convicts’ side argued that since the trial court, and confirmation of the sentence, did not bar remission, and the sentencing was “life imprisonment simpliciter” (i.e. without judicial exclusion of remission), they are legally eligible for remission under State policy
Liberty, balancing of rights, and consequences of withdrawal
The convicts/private respondents argued that once remission was granted, they enjoyed liberty, which implicates their right to life and personal liberty, and that this cannot be lightly curtailed. In effect, that revoking remission (after release) would impact their liberty in a way that needs strong justification. For example, one of them (a 70-year old agricultural labourer) argued that his age, social background, time served, behavior etc. should favour him
Precedents, legal certainty, consistency
The respondents contended that the earlier Supreme Court order of May 2022 binding Gujarat to consider remission under its 1992 policy should be respected. Also, convicts argued that the nature of life sentence without special conditions implies that remission is not precluded — i.e. unless the courts have explicitly excluded remission, it remains a possibility. They also raised that once remission is granted by a competent authority following policy, that remission can’t be interfered with arbitrarily. That is, there must be procedural regularity; if those steps are followed, the courts should not disturb the order
Judgement / Final decision
What the Court Decided
∙ The Supreme Court quashed the Gujarat government’s remission orders that had released the 11 convicts.
∙ It held that Gujarat was not the “appropriate government” to decide remission, because the trial and sentencing took place in Maharashtra, not Gujarat.
∙ The remission orders were declared illegal, without jurisdiction, and void — as if they never existed.
∙ The Court also overturned its own 2022 order (which had asked Gujarat to consider remission), stating it had been obtained by misrepresentation and suppression of facts — amounting to fraud on the court.
Whether the Appeal Was Allowed or Dismissed
∙ The petitions by Bilkis Bano and others were ALLOWED.
∙ The remission orders passed by Gujarat were SET ASIDE (cancelled). ∙ Later, review and challenge petitions by the convicts and the Gujarat government were DISMISSED — the Court stood by its judgment.
Important Directions Given by the Court
∙ All 11 convicts were directed to SURRENDER and return to prison within two weeks from the date of the judgment (January 8, 2024).
∙ The Court emphasized thatNo remission can be granted by a government that lacks jurisdiction.Remission must follow the rule of law, not public pressure, political influence, or procedural shortcuts.Personal liberty, though valuable, cannot protect an illegal order.
∙ The Court also made strong remarks about: Abuse of judicial process through fraudulent petitions.The importance of victim rights and public interest in remission decision.The State’s duty to act lawfully and fairly, even in politically sensitive cases.
Ratio – Decidendi
The ruling in Bilkis Bano v. State of Gujarat by the Supreme Court is a historic upholding of the rule of law and procedural discipline in the criminal justice system. The Court upheld the rigorous legislative construction approach by ruling that only the state of conviction (Maharashtra) has the right to provide remission, barring other States from exercising their executive power arbitrarily or for political reasons. This stops remission rules from being abused in delicate situations involving violent crimes or community conflict. The ruling emphasizes how BNSS, 2023 requires certain procedural protections, such consulting the Jail Advisory Board and the sitting judge. By invalidating Gujarat’s remission for non-compliance, the Court emphasized that the process of granting remission is not a mere formality but a judicially reviewable function that must respect both law and victims’ rights
The conclusion that orders obtained by suppressing information are null and void reinforces the principle that courts must act upon complete and truthful disclosure, discouraging the use of deception or manipulation in legal procedures.
Crucially, the Court also struck a balance between constitutional morality and legislative interpretation, emphasizing that remission cannot supersede victim concerns or the public interest in deterrent, especially when it comes to gender-based violence. All things considered, the case establishes a standard for remission and parole judgments in the future, highlighting legality, procedural accuracy, and consideration for the seriousness of the offense. It serves as a vital reminder to criminal law academics and decision-makers that even executive actions taken after a conviction must adhere to constitutional and legal requirements
Conclusion
The Supreme Court, in its landmark January 8, 2024 judgment, upheld the rule of law, victim rights, and the integrity of the justice system by striking down the Gujarat government’s remission orders that prematurely released 11 convicts in the Bilkis Bano gang-rape and murder case.
The Court ruled that:
∙ Gujarat had no jurisdiction to grant remission — only Maharashtra, where the trial occurred, could do so.
∙ The remission orders were declared null and void — illegal from the outset. ∙ The 2022 order of the Supreme Court (which had directed Gujarat to consider remission) was obtained by fraud and was thus recalled.
∙ All convicts were ordered to surrender and return to prison within two weeks.
This judgment reasserted that no one is above the law, and even administrative decisions like remission must strictly follow constitutional and legal mandates. The decision also sent a strong message that fraud on the court and procedural manipulation will not be tolerated.
