Bilkis Yakub Rasool v. Union of India & Others

CASE CITATION AND BASIC INFORMATION

Full Case Name: Bilkis Yakub Rasool v. Union of India & Others

Citation: 2024 INSC 24; Writ Petition (Criminal) No. 491 of 2022; 2024 SCC Online SC 25[1]

Court: Supreme Court of India

Date of Decision: January 8, 2024

Bench Composition: A two-judge Bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan. The 251-page judgment was authored by Justice B.V. Nagarathna.

Legal Provisions Involved: Code of Criminal Procedure, 1973 – Sections 432, 433, 433A, and 435; Constitution of India- Articles 32 and 226.

BRIEF INTRODUCTION

Some cases are civilisational statements. The Bilkis Bano case is one such statement.[2] It tells the story of a survivor who spent twenty years fighting an indifferent and often hostile state machinery to secure convictions against her rapists and the murderers of her family. When those convictions were finally affirmed at every judicial level, the State of Gujarat, through a combination of legal sleight of hand, procedural subversion, and outright political calculation engineered the release of all eleven convicts in August 2022.[3] The judge who had originally sentenced the rapists said the early release set a bad precedent.[4] The Supreme Court’s January 2024 judgment is therefore not simply about remission law.[5] It is about whether hard-won justice can be administratively dismantled, and whether the rule of law has the courage to prevent it.

FACTS OF THE CASE

During the 2002 Gujarat riots, Bilkis Bano who was five months pregnant was gang-raped by the eleven convicts. Her mother was gang-raped and murdered, her cousin who had just delivered a baby was raped and killed, and eight minors, including a two-day-old infant, were killed. Her three-year-old daughter was murdered by having her head smashed against a rock.[6]

This unsettling incident was followed by initial police failure when the FIR at Limkheda police station deliberately omitted any mention of rape, and the accused were not named despite Bilkis identifying them as known residents of Randhikpur. The police twice sought case closure. Bilkis approached the NHRC and the Supreme Court, forcing a CBI investigation in 2003 and a transfer of trial to Mumbai in 2004. In 2008, the Mumbai Special Court convicted all eleven accused and sentenced them to life imprisonment. The Bombay High Court and Supreme Court upheld the convictions in 2017.

In 2022, one convict, Radheshyam Shah, approached the Supreme Court, concealing that the Gujarat High Court had already rejected his remission application on jurisdictional grounds, and that he had then been told by the High Court to approach Maharashtra. The Supreme Court, misled by this suppression of facts, directed Gujarat to consider remission. On August 15, 2022, all eleven convicts were released in celebratory fanfare. After being released from jail, they were welcomed with sweets and their feet were touched in respect.

The facts of this case span two decades of persistent legal battles by a survivor who braved through the barriers of legal hurdles and societal pressures.[7]

Legal Issues

The Supreme Court addressed four principal questions of law:

Issue 1: Whether the writ petition filed directly by Bilkis Yakub Rasool under Article 32 of the Constitution was maintainable before the Supreme Court, or whether she was required to first approach the High Court under Article 226.

Issue 2: Whether the remission orders passed by the State of Gujarat complied with Sections 432–435 of the CrPC, particularly the question of which state constituted the “appropriate government” for the purpose of granting remission.

Issue 3: Whether the Public Interest Litigations filed by civil society members and activists challenging the remission orders were maintainable in law.

Issue 4: Whether the remission orders dated August 10, 2022, issued by the State of Gujarat in favour of the eleven convicts were passed in accordance with law and could be sustained.

Arguments Presented

By the Petitioners (Bilkis Bano and Co-Petitioners):

The petitioner’s counsel argued that although the crime took place in Gujarat, the trial and investigation occurred in Maharashtra as per Supreme Court directives. According to Section 432(7)(b), the “appropriate government” for considering the convict’s remission application was therefore Maharashtra. The orders by the Gujarat government accordingly lacked jurisdiction, were null, and ought to be quashed. The counsel cited State of Madhya Pradesh v. Ratan Singh, State of Andhra Pradesh v. M.T. Khan, and Union of India v. V. Sriharan to support this argument.[8]

The petitioners further contended that the remission violated procedural norms under Section 432(2) since the opinion of the Presiding Judge of the convicting court in Mumbai was never sought. The 1992 Remission Policy was argued to be inapplicable given the heinous nature of the crime and non-compliance with mandatory legal procedures.[9] The petitioner’s fundamental rights under Article 21 were also argued to have been compromised by the release.

The petitioners further argued that each individual application had to be considered separately rather than releasing all eleven convicts en masse, and that the Gujarat government should have consulted the Union government before granting remission since the convictions arose from a CBI Special Court which is a central agency.

By the Respondents (State of Gujarat and the Convicts)

The State of Gujarat contended that it acted within its rights, interpreting the 1992 Remission Policy as applicable. They relied on the Supreme Court’s own May 13, 2022 order, which had directed Gujarat to consider remission, arguing that they had merely followed judicial direction. Senior counsel for the convicts also argued that remission policy should focus on behaviour in jail rather than on the heinousness of the underlying crime, and that personal liberty under Article 21 of the convicts was entitled to due weight. The respondents challenged the maintainability of the PILs, contending that third parties had no locus standi in criminal proceedings.

Court’s Reasoning and Analysis

The judgment by Justice B.V. Nagarathna is remarkable for its rigour and its unequivocal moral clarity.

On Maintainability: Justice Nagarathna upheld the maintainability of Bano’s petition, stating that Article 32 is the “soul of the Constitution” used for the enforcement of fundamental rights. She further pointed out that the Gujarat High Court could not have entertained the petition in any case, given that the Supreme Court itself had issued the May 13, 2022 direction to the Gujarat government.

On Jurisdictional Competence: The Court held that, based on a clear reading of Section 432(7) of the CrPC, 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.

On Fraud Upon the Court: The Gujarat government’s subsequent remission orders were found to flow directly from the vitiated May 13, 2022 Supreme Court order, an order that was itself obtained by suppression and misrepresentation of material facts. The Court declared it a nullity, making all subsequent proceedings non est in law.

On Procedural Lapses: The opinion of the Sessions Judge consulted was found to be wholly without jurisdiction, in breach of Section 432(2) of the CrPC. The Jail Advisory Committee and other authorities had also failed to account for the fact that the convicts had not yet paid the fine ordered by the Special Court in Mumbai.

The Court referred to Maru Ram v. Union of India (1981)[10], which emphasized reformation over retribution; Sangeet v. State of Haryana (2013)[11], which clarified that the remission policy in force at the time of conviction must guide the process; and Union of India v. V. Sriharan (2016)[12], which reinforced that the appropriate government is the one where the conviction is pronounced.

Judgment and Ratio Decidendi

On January 8, 2024, the Supreme Court quashed the remission orders and directed all eleven convicts to return to prison to serve their remaining sentences. The Court held: “Their plea for protection of their liberty is rejected. To keep them out would not be in consonance of the rule of law.”

The binding ratio decidendi is twofold. First, in court-transferred trials, the sentencing state is the sole competent authority for remission. The geography of crime does not override jurisdiction of sentence. Second, any order obtained by fraud, misrepresentation, or suppression of material facts before a court is an absolute nullity, voiding all proceedings that flow from it.

Critical Analysis

The August 2022 release was not an administrative misstep. It was a structured subversion, one that operated simultaneously at the legal, procedural, political, and symbolic levels.

Legally, the release exploited an error-ridden Supreme Court order that had itself been obtained by misrepresentation. Five of the ten members of the remission committee were associated with the ruling BJP, including two sitting MLAs. Godhra legislator C.K. Raulji publicly stated that the convicts were “sanskari Brahmins” who may have been framed.[13] This was a panellist rendering a moral endorsement of convicted gang rapists on television while sitting on the very body charged with assessing their fitness for release. Another member of the panel was a key prosecution witness in the Godhra train burning case which was the foundational event of the very riots in which these crimes were committed. The question of whether this constituted structural bias was never answered by the Gujarat government. The Supreme Court, however, was unequivocal: it described the Gujarat government as having “abused its discretion,” “acted in tandem” with the convicts, and “usurped” the authority of the Maharashtra government. [14]

Symbolically, the release was devastating. The convicts were welcomed with sweets and garlands on Independence Day, even as the Prime Minister delivered a speech about women’s safety.[15]The visual of convicted rapists being publicly honoured as heroes sent a message that communicated that political solidarity with perpetrators was not merely tolerated but celebrated.

The judgment’s most enduring strength lies in its willingness to correct the Supreme Court’s own prior error. The May 2022 direction to Gujarat had been issued by a bench that was misled. The 2024 bench did not hesitate to call that order a fraud-induced nullity. This intellectual honesty with which the court corrected itself is constitutionally significant and reflects the kind of institutional courage that victims like Bilkis Bano had long been waiting for. The court’s observation that “a woman deserves respect howsoever high or low she may be considered in society or to whatever faith she may follow” was a direct response to a process in which the victim’s religion had been used, implicitly and explicitly, to justify leniency toward her perpetrators.

The one notable weakness is the court’s deliberate silence on PIL maintainability. By leaving unresolved whether civil society members can challenge remission orders, the judgment creates a gap that future governments may exploit.

Conclusion

Bilkis Yakub Rasool v. Union of India (2024 INSC 24) is the story of justice won, systematically dismantled, and ultimately reclaimed but only after a survivor was once again forced to wage a constitutional battle for what had already been established. The case consolidates that in transferred trials, only the sentencing state may grant remission; that fraud vitiates even Supreme Court orders; and that victims hold a cognizable fundamental rights interest in challenging the erosion of their hard-won justice. Beyond doctrine, the case is a warning that remission powers can be weaponised when political will displaces legal principle. Bilkis Bano’s response to the judgment captured what law alone cannot: “I have smiled for the first time in over a year and a half. It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again.”[16]That a woman’s ability to breathe was restored by a court order and taken from her by a government’s decision is the case’s most lasting and humbling truth.

Bibliography

Bilkis Yakub Rasool v Union of India & Others (2024) INSC 24; (2024) SCC OnLine SC 25

‘Bilkis Bano case: A timeline of events’ The Indian Express (India, 8 January 2024)

‘Bilkis Bano case: Trial judge says remission of convicts sets bad precedent’ The Indian Express (India, 18 August 2022)

‘Explained: Why were the 11 convicts in the Bilkis Bano case released?’ The Hindu (India, 17 August 2022)

Apoorva, ‘Inside Supreme Court’s verdict on premature release of 11 convicts in Bilkis Bano gang rape case’ SCC Online Blog (9 January 2024)

Citizens for Justice and Peace, ‘De-coding the historic Bilkis Bano verdict’ (15 January 2024)

State of Madhya Pradesh v Ratan Singh (1976) 3 SCC 470

State of Andhra Pradesh v M T Khan (2004) 1 SCC 616

Union of India v V Sriharan (2016) 7 SCC 1

Government of Gujarat, Remission Policy 1992 (State Government Policy, 1992)

Maru Ram v Union of India (1981) 1 SCC 107

Sangeet v State of Haryana (2013) 2 SCC 452

Union of India v V Sriharan (2016) 7 SCC 1

‘Half of remission panel in Bilkis Bano case are BJP MLAs, members’ The Free Press Journal (India, 19 August 2022)

Vora A, ‘Early release of Bilkis Bano gangrape convicts | Judgement Summary’ Supreme Court Observer (10 January 2024)

‘India court quashes remission to 11 men in Muslim woman’s gang rape case’ Al Jazeera (8 January 2024)

‘India court quashes remission to 11 men in Muslim woman’s gang rape case’ CNN (8 January 2024)

[1] Bilkis Yakub Rasool v Union of India 2024 INSC 24.

[2] ibid

[3] ‘Bilkis Bano case: A timeline of events’ The Indian Express (India, 8 January 2024) https://indianexpress.com/article/explained/bilkis-bano-case-timeline-9101643/ accessed 24 April 2026.

[4] ‘Bilkis Bano case: Trial judge says remission of convicts sets bad precedent’ The Indian Express (India, 18 August 2022) <https://indianexpress.com/article/india/bilkis-bano-case-trial-judge-remission-bad-precedent-8095631/> accessed 24 April 2026.

[5] Bilkis Yakub Rasool v Union of India & Others (2024) INSC 24; (2024) SCC OnLine SC 25; ‘India Supreme Court allows petition of 2002 communal riots victim’ (Jurist, 8 January 2024) https://www.jurist.org/news/2024/01/india-supreme-court-allows-petition-of-2002-communal-riots-victim/ accessed 24 April 2026.

[6] Apoorva, ‘Inside Supreme Court’s verdict on premature release of 11 convicts in Bilkis Bano gang rape case’ SCC Online Blog (9 January 2024) https://www.scconline.com/blog/post/2024/01/09/explained-supreme-court-verdict-premature-release-11-convicts-bilkis-bano-gang-rape-case/ accessed 24 April 2026.

[7] Citizens for Justice and Peace, ‘De-coding the historic Bilkis Bano verdict’ (15 January 2024) https://cjp.org.in/de-coding-the-historic-bilkis-bano-verdict/ accessed 24 April 2026.

[8] State of Madhya Pradesh v Ratan Singh (1976) 3 SCC 470; State of Andhra Pradesh v M T Khan (2004) 1 SCC 616; Union of India v V Sriharan (2016) 7 SCC 1.

[9] Government of Gujarat, Remission Policy 1992 (State Government Policy, 1992).

[10] Maru Ram v Union of India (1981) 1 SCC 107.

[11] Sangeet v State of Haryana (2013) 2 SCC 452.

[12] Union of India v V Sriharan (2016) 7 SCC 1.

[13] ‘Half of remission panel in Bilkis Bano case are BJP MLAs, members’ The Free Press Journal (India, 19 August 2022) https://www.freepressjournal.in/india/half-of-remission-panel-in-bilkis-bano-case-are-bjp-mlas-members accessed 24 April 2026.

[14] Advay Vora, ‘Early release of Bilkis Bano gangrape convicts | Judgement Summary’ Supreme Court Observer (10 January 2024) accessed 24 April 2026.

[15] ‘India court quashes remission to 11 men in Muslim woman’s gang rape case’ Al Jazeera (8 January 2024) https://www.aljazeera.com/news/2024/1/8/india-court-quashes-remission-to-11-men-in-muslim-womans-gang-rape-case accessed 24 April 2026.

[16] ‘India court quashes remission to 11 men in Muslim woman’s gang rape case’ CNN (8 January 2024) https://edition.cnn.com/2024/01/08/india/bilkis-bano-supreme-court-india-rape-intl-hnk accessed 24 April 2026.