Bilkis Yakub Rasool v. Union of India & Others. (2024) 1 SCC 1

Case Name: Bilkis Yakub Rasool v. Union of India & Others. (2024) 1 SCC 1

Cause Number: Writ Petition (Criminal) No: 491 of 2022

Date of Judgment: 8 January 2024

Court: Supreme court

Bench: Constitution Bench (5 Judges)  (Justice B. V. Nagarathna, Justice Ujjal Bhuyan, Justice A. S. Bopanna, Justice Dipankar Datta, Justice Manoj Misra)

Brief Facts:

The case resulted from the March 2002 communal riots in Gujarat. When Bilkis Bano was attacked, that time she was five months pregnant and had escaped with her family from her village in Gujarat’s Dahod district. A gang killed seven members of her family, including her 3-year-old daughter, and gang-raped her.

According to Section 406 of the CrPC, 1973, the Supreme Court of India ordered to transfer of a criminal trial from Gujarat to Maharashtra. After the case was transferred, it was tried in a Special CBI Court in Mumbai, which found 11 defendants are involved guilty of gang rape, murder, and criminal conspiracy and sentenced them to life in prison in 2008.

They had spent over 14 years in jail after which the convicts approached the Gujarat government for their release. In 2022, the Gujarat government released all the 11 prisoners under its remission policy of 1992. Many were concerned about the decision and opposed it.

Bano and others who sought the public good had challenged the orders for remission in the Supreme Court. Some argued the Gujarat government had no legal authority to grant remission because the trial and conviction was conducted in Maharashtra, meaning its government was the “appropriate government” under the CrPC. Others said the remission did not consider the severity of the crime, violated the rights of the victim and was immoral under law.

On January 8,2024 the Supreme Court quashed their remission orders. The Gujarat government had acted without authority and obtained the remission fraudulently by suppressing relevant information, the court said. As long as it does not contradict constitutional principles or the rule of law in a country in which, according to international human rights organizations, we are forced to prioritize justice for victims and their families, especially so in cases involving gender-based violence and other types of atrocious crimes, people said the legislation that would grant remission must be respected.

Important Issues Involved:

• Whether the Gujarat Government was the “right government” under Section 432 CrPC to give remission when the trial and conviction happened in Maharashtra.
• Whether the remission given to the convicts was invalid because of fraud, hiding important facts, or not having the right to do so.
• Whether the use of remission power in a case of gang rape and mass murder went against Articles 14 and 21 of the Constitution of India, especially the ideas of equality, dignity, and justice for the victim.
• Whether the executive powers of remission are open to judicial scrutiny, particularly in instances of egregious and gender-motivated offences.

Arguments:

Petitioner’s arguments:

No remission could be granted under Section 432 CrPC, the petitioners led by Bilkis Yakub Rasool submitted, as the Gujarat Government had no jurisdiction to do so since the trial and conviction occurred in Maharashtra as per a Supreme Court transfer. Thus, the only one eligible to be “appropriate government” for remission was Maharashtra Government.

The plea had also contended the remission was vitiated by “fraud” and more so because of suppression of material facts, as prior judicial findings and binding directions from the Supreme Court were not disclosed at the time of seeking remission. The petitioners argued therefore that the executive decision was illegal and void ab initio.

The petitioners had also argued that providing remission in a case involving gang rape and mass murder during communal riots was… Such an act, they contended, struck at the dignity of a victim, the public’s confidence in the justice system and constitutional morality.

Lastly, it was argued that executive power of remission is subject to judicial review and particularly in the case of heinous crimes, where such a power has been exercised by the certifying authority in an irrational manner/ mala fide manner; the court should have steps in extend requisite relief.

Respondent’s arguments:

The Contd. 7 Court noticed that the respondents including the State of Gujarat and released convicts contended that since the offence was committed in Gujarat and also that the convicts were lodged in prisons at Gujarat, the State Government of Gujarat was competent Government within section 432 CrPC empowered to grant remission.

The convicts had undergone over 14 years of incarceration, satisfying the statutory criteria under Section 433A CrPC and were hence entitled to be considered for remission,” they argued. Arguing it was a matter of executive policy qua eye to the executive, courts should leave the decision alone unless it is grossly arbitrarily or illegal.

The respondents also contended that the remission was granted in accordance with the Gujarat Government’s 1992 remission policy, only after consideration by competent authorities and good conduct in prison and prospects of reformation justified release.

It was also argued that the victim has no vested right to oppose remission and further remission does not erase a conviction, rather it only modifies the mode and term of sentence and so it lies within executive domain.

Judgement:

The Supreme Court reiterated that the power to grant remission was determined by which State tried a case and passed a sentence, not where the crime occurred or where convicts were housed in prison. Since the conviction in the Bilkis Bano case was recorded by a Mumbai court and the proceeding was transferred to Maharashtra by Supreme Court, only State of Maharashtra could legally consider remission. Thus, the Gujarat Government acted without jurisdiction and the remission orders were legally unsustainable.

The Court also held that the remission was rendered in a manner that was arbitrary and non-transparent. Some material facts were not disclosed at all, or were presented in a misleading fashion when permission to apply was sought for remission. Emphasising the established legal doctrine that fraud vitiates everything, the Court declaimed that no advantage gained through suppression or misrepresentation is protected by law.

In its consideration of the constitutional aspect, the Supreme Court noted that this was a case of extreme brutality gang rape, murder and communal violence not only against the individual victim but against society’s conscience. Even a slight error could cost one their life; therefore, it was imperative for the highest officer to consider all aspects before finally remitting death sentence and that without doing this due authority would be vitiated in exercise of its power and thus any such step would be arbitrary, violating articles 14 & 21 of Constitution [equality before law] and (right to life with dignity) as granted under our statute.

The Court also explained that while remission is the function of the executive, it is not an absolute power nor immune from judicial scrutiny, especially in a matter involving heinous crime. Decisions regarding remission cannot be a private affair between the State and convicts but should embody constitutional values, rule of law and victim-centric justice. As a result, the Supreme Court struck down the orders of remission and directed that as many convicts had been ordered to be released they should go back into prison due to serve remaining portions of their sentences once again holding in mind that mercy can only act within law and justice.

Ratio Decidendi:

According to Section 432 of the Code of Criminal Procedure, 1973, the Supreme Court ruled that the only “appropriate government” with the authority to grant remission is the State Government where the trial was held and the sentence was handed down. Any remission given by a state that does not have this authority is null and void from the start. Furthermore, since fraud taints all actions, remission orders obtained by deception, fraud, or the suppression of important facts are not legally enforceable. According to the Court, executive powers of remission must adhere to constitutional principles outlined in Articles 14 and 21, such as equality before the law and the rights and dignity of victims, and are subject to judicial review, particularly in cases involving heinous crimes.

Obiter Dicta:

The Supreme Court noted that, particularly in situations involving horrible crimes like rape and mass murder, the remission power should not be applied mechanically. The Court stressed that although remission is an executive function, it must be guided by the impact of the crime on society, victim sensitivity, and constitutional morality. The Bench stated that victims’ dignity and sense of justice cannot be disregarded, and they are significant participants in the criminal justice system. It also warned that indiscriminate remission of serious crimes could erode the deterrent effect of punishment and erode public trust in the rule of law.

Final Decision:

In the Bilkis Bano case, the Supreme Court granted the petitions and overturned the remission orders given to the eleven convicted individuals. The court ruled that because the trial and conviction had occurred in Maharashtra, the Gujarat government lacked the authority to grant remission. It also stated that the remission was unlawful and unconstitutional because it was tainted by the suppression of important facts. The Court reaffirmed that executive mercy must operate strictly within the bounds of law, constitutional values, and victim-centric justice by directing all of the released convicts to surrender before the appropriate authorities and return to prison to serve the remainder of their life sentences.