BILKIS YAKUB RASOOL v. UNION OF INDIAAND OTHERS (2024,INSC 24)

Case Name: BILKIS YAKUB RASOOL v. UNION OF INDIAAND OTHERS (2024,  INSC 24) 

BENCH: B.V. NAGARRATHNA J., UJJAL BHUYAN J. 

COURT: SUPREME COURT OF INDIA 

CASE TYPE: WRIT PETITION (CRIMINAL) NO. 491 OF 2022 

PETITIONER: BILKIS YAKUB RASOOL 

RESPONDENT: UNION OF INDIA & ORS. 

DATE OF JUDGEMENT: 8 JANUARY 2024 

INTRODUCTION 

The landmark Supreme Court judgment in Bilkis Yakub Rasool v. Union of India (8 January  2024) addressed the contentious premature release of 11 convicts. These men were convicted  in 2008 by a Mumbai court for the gangrape of pregnant Bilkis Bano and the murder of seven  of her family members, including her three-year-old daughter, during the 2002 Gujarat riots.  The release, granted by the Gujarat government in August 2022, was challenged for raising  serious questions regarding the appropriate government’s jurisdiction and the integrity of the  justice system, ultimately leading to the verdict from the Bench of Justices B.V. Nagarathna  and Ujjal Bhuyan. 

FACTS 

• February 28, 2002: Bilkis and family flee from Randhikpur after riots broke out  following the Godhra train burning a day earlier. March 3, 2002, Bilkis Bano, who was five months pregnant at the time, endured a horrific gangrape, and 7 of her family  members were killed by a mob, including her three-year-old daughter. 
• March 4, 2002: Bilkis was taken to Limkheda police station, FIR registered, but the fact  that she was raped was not stated. Accused not named despite her identifying 12 of  them who were residents of Randhikpur. 
• March 5, 2002: Bilkis is taken to Godhra Relief Camp, where her statement is recorded  by an executive magistrate on instruction from the then Panchmahal collector Jayanti  Ravi. Seven bodies of her family members were found in the jungle of Kesharpur. 
• Police Response: November 6, 2002, Police submitted summary reports ‘A’ stating that  the case was ‘true but undetected’, and the culprits were not found. Requests for closure  of the case. However, the court does not accept the closure report and directs it to  continue the investigation. 
• February 2003: Limkheda Police resubmit the summary report ‘A’ requesting closure  of the case, which is accepted by the court. 
• April 2003: Bilkis approaches the Supreme Court, praying that the Magistrate’s order  accepting ‘A’ summary be set aside. She seeks a CBI investigation. 
• December 6, 2003: Supreme Court order to transfer of Investigation to CBI. CBI DSP  KN Sinha takes charge of the investigation from the Gujarat Police.
• (Case Shifts to Mumbai) April 19, 2004: CBI files a chargesheet before CJM  Ahmedabad against 20 accused, including six police officers and two doctors who  performed the post-mortem on the seven bodies on March 5, 2002. 
• August 2004: The Supreme Court trial of the case from Gujarat to Mumbai, and directs  the central government to appoint a special public prosecutor. 
• January 21, 2008: Verdict passed by the Special Judge at Greater Mumbai, 11 convicted  to life imprisonment for murder, rape; seven acquitted; two abated during trial due to  death. 
• 2009-2011: Appeals filed by accused convicts as well as the CBI. CBI seeks  enhancement of the sentence for Jaswantbhai Chaturbhai Nai, Govindbhai Nai and  Shailesh Chimanlal Bhatt to a death sentence. CBI also appeals against the acquittal of  eight others under Sections 201, 217 and 218 IPC (of which one expired during the  pendency of the trial). 
• 2016: Bombay High Court begins hearing appeals 
• May 2017: Bombay High Court upholds life imprisonment conviction of the 11 by the  trial court, refuses to enhance punishment. Additionally sets aside the acquittal of seven  5 police officers and two doctors, convicting them under Sections 201 and 218 of the  IPC, sentencing them to the period of imprisonment undergone by them, along with a  fine. 
• May 2022: Convict Radheshyam Shah appeals against a July 17, 2019, order of the  Gujarat High Court, which had ruled that Maharashtra would be the “appropriate  government” to decide on his plea for remission on the ground that he had completed  15 years and four months of his life term awarded in 2008 by a CBI court in Mumbai. 
• May 13, 2022: A Bench of Ajay Rastogi and Vikram Nath asks the Gujarat government  to consider Shah’s application for premature release “within a period of two months”,  as per the policy that was applicable in the state on the date on which he was convicted. 
• August 15, 2022: 11 convicts released from Godhra sub-jail on remission by the Gujarat  government, including Radheshyam Shah. 
• September 2022: Bilkis Bano approaches the Supreme Court in a writ petition  challenging the premature release of the 11 convicts. 

ISSUES RAISED 

• It is a writ petition filed by the aggrieved victim (Bilkis Bano) directly under Article  32 of the Constitution, challenging a state’s decision on remission, a valid and  maintainable remedy? 
• Which State, based on the venue of the trial versus the venue of the crime, possessed  the appropriate jurisdiction and competence under section 432 of the Code of Criminal  Procedure (Cr.P.C.) to pass the orders of remission? 
• Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the  impugned orders of remission dated 10.08.2022 are maintainable? 
• Whether the impugned orders of remission were passed by the State of Gujarat in  favour of convicts in accordance with law?

CONTENTIONS OF THE PETITIONER (VICTIM) 

On August 15, 2022, immediately following the release of the 11 convicts, Bilkis Bano,  represented by her legal counsel, Advocate Shobha Gupta, filed a review petition to challenge  the premature release. This challenge was subsequently filed as a writ petition before the  Supreme Court on August 23, 2022. The primary contention was that the Gujarat Government’s  decision was a travesty of justice. The petition vehemently argued against the State’s use of its  remission power in favour of convicts who committed a “horrendous crime”—the gangrape of  the pregnant victim and the murder of 14 family members. The counsel stressed that the  Government’s duty in exercising clemency is not to favour convicts, but to act strictly in  accordance with public interest and legal principle, which was allegedly violated by the  decision. 

The petition specifically opposed the release of the 11 individuals: Radheshyam Shah,  Jasvantbhai Nai, Govindbhai Nai, Bipin Chandra Joshi, Shailesh Bhatt, Kesarbhai Vohania,  Bakabhai Vohania, Pradeep Mordhiya, Mitesh Bhatt, Rajubhai Soni, and Ramesh Chandana. 

A separate set of petitions, categorised as Public Interest Litigations (PILs), was filed by  concerned public figures, including CPI(M) leader Subhashini Ali, journalist Revati Laul,  former VC Roop Rekha Verma, and MP Mahua Moitra. These PILs also challenged the  remission decision by the Gujarat Government, asserting that it was a matter of public concern  and constitutional propriety. The PIL petitioners were represented by Senior Advocate Indira  Jaising. The Supreme Court acknowledged these challenges but initially focused on the  preliminary legal question: determining the legal standing (locus standi) of the third-party PIL  filers to challenge a criminal remission order. 

CONTENTIONS OF THE RESPONDENTS (CONVICTS) Arguments on Behalf of Convict Bipin Chandra Joshi (Advocate Sonia Mathur) 

Advocate Sonia Mathur, representing convict Bipin Chandra Joshi, raised two principal  arguments challenging the victim’s petition and defending her client’s release: Mathur strongly  asserted that Bilkis Bano, as the victim, lacked the authority to contest the remission order. She  contended that only the State has the legal standing to challenge a court decision. Mathur  argued that her client should not be penalised or held responsible for the lawful decision made  by the appropriate Government to grant remission. She maintained that the convicts met all  necessary conditions for premature release before being set free. While acknowledging the  “irreversible nature” of the incident and recognising the victim’s right to compensation  (employment, accommodation, and record-high compensation), Mathur distinguished this  from the convicts’ right to remission, asserting that the compensation related to the victim’s  rights, not the convicts’ eligibility for release. Arguments on PIL Maintainability (Senior  Advocate Sidharth Luthra) Senior Advocate Sidharth Luthra, representing another convicted  individual, specifically challenged the maintainability of the Public Interest Litigations (PILs) Relevance of Victim’s Presence: Luthra contended that the PILs were not admissible given that  the aggrieved party (Bilkis Bano) was already present in court and had filed her own  substantive petition challenging the remission. The argument implicitly or explicitly stated that  in a matter concerning the remission of specific convicts, third-party petitioners lacked the  necessary standing when the direct victim was actively litigating the issue.

TIMELINE OF JUDGEMENTS 

The case began with the horrific 2002 Gujarat riots crime: the gang-rape of a pregnant Bilkis  Bano and the murder of her family members. After facing police inaction, Bano secured a  Supreme Court order (Dec 2003) mandating a CBI inquiry. The trial was transferred from  Gujarat to Bombay (Aug 2004) due to threats and concerns about evidence. This culminated in  a Mumbai trial court conviction (Jan 2008), sentencing 11 men to life imprisonment, a verdict  upheld by the Bombay High Court in May 2017. 

The legal dispute escalated over remission: May 13, 2022: The Supreme Court ordered the  Gujarat Government to consider convict Shah’s remission plea under the 1992 Gujarat policy.  This order was later determined by the Court to have been obtained by fraud, as Shah had  concealed the opposition of the Maharashtra authorities (convicting court judge, CBI Director,  etc.). Mistakely perceiving the May 2022 direction as an order to grant release, and without  filing a review petition, the Gujarat Government granted remission to all 11 convicts on August  15, 2022, leading to their release. 

Supreme Court Challenge 

Petitions: The decision sparked public outrage, leading to both Public Interest Litigations  (PILs) and a direct writ petition filed by Bilkis Bano (Nov 2022) challenging the release. The  Supreme Court extensively questioned the Gujarat Government’s competence and decision,  emphasising the need to consider public interest in heinous crimes. It also noted the convicts’  fraud on the court and disparities in treatment. The Court reserved its final verdict in October  2023, demanding the original remission files from the Gujarat and Central Governments. 

FINAL VERDICT BY THE HON’BLE THE SUPREME COURT OF  INDIA: 

January 8, 2024: Supreme Court quashes Gujarat government’s decision to grant remission to  11 convicts. 

1. Holding Bilkis Bano’s request challenging the remission as maintainable, a bench of  Justice BV Nagarathna and Ujjal Bhuyan said the Gujarat government was not the  appropriate government to pass the remission order, as the trial was held in  Maharashtra. 
2. The Gujarat government should have filed a plea seeking review of the 2022 order stating that they aren’t the competent government. 
3. “The exemption order lacks competence,” the Supreme Court said. Criminals can be  released only by the state where they are tried, the court said. 
4. The Supreme Court, “The rule of law must be preserved, unmindful of the ripples of  the consequences.” 
5. The court said that the victim’s rights are important and that women deserve respect “A  woman deserves respect, however high or low she may otherwise be considered of  society, or to whatever faith she may follow, or whatever creed she may belong to. Can  heinous crimes against women permit remission? These are the issues that arise,”  Justice Nagarathna said.
6. The Supreme Court came down heavily against its own judgment in May 2022,  delivered by Justice Ajay Rastogi (retired), which allowed the convicts to appeal for  their early remission before the Gujarat government. 
7. The bench said that the Supreme Court order dated May 2022 was obtained through  fraudulent means and suspension of facts. 
8. “By suppressing material facts and making misleading facts, a direction was sought by  the convict to the state of Gujarat to consider remission. There was no direction from  this court to the Gujarat government to consider remission. This is a fraudulent act,” the bench said. 
9. While hearing the matter last September, the top court had asked whether convicts have  a fundamental right to seek remission. 
10. During the earlier arguments, the court observed that state governments should not be  selective in granting remission to convicts, and the opportunity to reform and  reintegrate with society should extend to every prisoner. 

LEGAL REASONING 

Maintainability and the Rule of Law 

The judgment affirmed the victim’s right to challenge the executive decision: 

Bilkis Bano’s writ petition under Article 32 (for enforcement of fundamental rights, particularly  Article 14 – Equality and Article 21 – Life and Personal Liberty) was held to be maintainable.  The Court emphasised that a victim has a right to challenge an arbitrary executive action that  jeopardises their fundamental rights. In addressing the convicts’ plea for continued liberty  (Article 21) after their release, the Court invoked the fundamental principle that the Rule of  Law must prevail over personal liberty that was obtained illegally. The Court asserted that  liberty is protected only in accordance with the law; therefore, liberty obtained by “usurpation  of power” and “abuse of discretion” cannot be protected. The decision reaffirmed the judiciary’s  power of judicial review over executive actions (like remission) when they suffer from non application of mind, arbitrariness, or jurisdictional errors. The Supreme Court called itself a  “beacon in upholding the rule of law” and directed the convicts to surrender to restore the  status quo ante (the situation that existed before the illegal act). 

Jurisdictional Competence: The Court held that, based on a clear reading of Section 432(7)  of the Cr.P.C., the “appropriate government” is the government of the state “within whose  territorial limits the offender is sentenced.” Since the trial was transferred from Gujarat to  Mumbai (Maharashtra) and the convicts were sentenced by the Mumbai Special Court, the  Maharashtra Government was the only competent authority to decide the remission application.  The location of the crime or the current place of imprisonment was deemed irrelevant. The  Court ruled that the Gujarat Government, in issuing the remission orders, had “usurped power”  and acted in a manner that was “illegal” and “completely lacking in jurisdiction.” 

The Court held that an order obtained by playing fraud on the court is a nullity. Because the  Gujarat Government’s subsequent remission orders flowed from this vitiated 13th May 2022 order, they were also rendered void and unsustainable.  

Surrender in Jail: The Supreme Court directed of remission to report to the concerned jail  authorities within two weeks.