The landmark case of Bilkis Bano reminds us of the unfortunate riots that took place in Gujarat in 2002. This case made headlines again as the 11 men who were convicted of gang rape and killing the family of Bilkis Bano were released from jail early. However, the Supreme Court of India on 8th January, 2024 cancelled this release. This decision shows the true stance and commitment of the courts in India. Women should be respected in the society, however high or low her position in the society, her religion, or her creed. The Supreme Court stated that granting remission and setting the culprits free by the Gujarat Government was illegal.
Brief details of Bilkis Yakub Rasool vs. Union of India
| Name of the Case | Bilkis Yakub Rasool vs. Union of India and Others |
| Case Number | W.P.(Crl.) No.-000491 – 2022 |
| Diary Number | 38741/2022 |
| Parties of the Case | Petitioner – Bilkis Yakub RasoolRespondent – Union of India and Others |
| Equivalent Citations | WRIT PETITION (CRL.) NO.491 OF 2022 |
| Type of the Case | Criminal Writ Petition |
| Court | Supreme Court of India |
| Statutes, Provisions, Judgements Involved In the Case | Indian Penal Code, 1860 now replaced by Bharatiya Nyaya Sanhita (BNS) (2023)Code of Criminal Procedure, 1973 now replaced by Bharatiya Nagarik Suraksha Sanhita (BNSS) (2023) |
| Bench | Hon’ble Mrs. Justice B.V. NagarathnaHon’ble Mr. Justice Ujjal Bhuyan |
| Judgement Date | 8/1/24 |
Facts of the Bilkis Bano Case
Bilkis Bano was gang raped during the Gujarat riots in 2002 by a group of men. These men also killed other members of her family. Despite numerous attempts made by Bilkis Bano to file an FIR about the incident, the local police would dismiss and threaten her. Bilkis Bano moved to the Supreme Court. In 2003, CBI took over the investigation of the case following the direction given by the court. The case was transferred to the court in Mumbai in 2004.
The 11 men who were accused were convicted of the offences (murder and gang rape) by the Special Judge. The conviction was upheld by both the Supreme Court and the High Court of Bombay in 2009 and 2017. The Apex Court in 2019 ordered that compensation must be given to Bilkis Bano as she has suffered a lot.
One of the convicts made an appeal for remission under Section 433 and 433A of CrPC (now Section 475 of BNSS). The convict then in 2019 filed an application in High Court of Gujarat which challenged the non consideration of the government regarding the remission application. The High Court of Gujarat observed that the trial had taken place in Mumbai, hence granting the application for remission by Gujarat Government is not possible. The convict then moved the application before the government of Maharashtra. After the consultation of Special CBI and the Maharashtra Government opined that such grant should not be given.
In 2022, one of the convicts filed a writ petition in the Supreme Court asking the Gujarat Government to look into his request for early release from prison. It was stated that the Gujarat Government had the right to decide on his release and his case should be considered under the 1992 remission policy, which was in place when he was convicted.
Scenario before the CBI Inquiry
During the initial stage, the Gujarat Police did not conduct a proper investigation. The evidence was tampered as the medical examination took place after a few days of the incident. It was delayed intentionally so that evidence can be tampered with and lost. This was in the later stage proved in the court, which resulted in the doctors and police officers getting charged for tampering evidence. The FIR was initially refused to be registered by the Police. However, in the later stage when they filed an FIR, vital information was not included.
Scenario after the CBI Inquiry
After Bilkis Bano filed a petition, the Supreme Court asked the CBI to look into the matter. To make sure the trial was fair, the case was shifted to the Mumbai Sessions Court. The CBI properly investigated the case and filed a charge sheet, where they named 19 people, including some police officers and doctors who tried to hide the crime.
During the investigation, the CBI found all the important details about what happened. They even found some bodies of Bilkis Bano’s family members, but without their skulls. Later, the trial was conducted in the Mumbai Sessions Court.
Timeline of the events which took place
| Year | Event |
| March 2002 | Bilkis Bano along with her family was attacked during the Gujarat riots in 2002. She was gang-raped and seven of her family members were killed. |
| 2002-2003 | When she went to file her case in the local police station she faced many hurdles. The local police dismissed and threatened her. She then further moved to the National Human Rights Commission and Supreme Court. |
| 2004-2008 | The investigation was taken over by the CBI and the case was moved to Mumbai from Ahmedabad. 12 people were convicted in the case, from which 11 of them were punished with life imprisonment in 2008. |
| 2011-2017 | In 2017, appeals were filed by the convicts, however, the Mumbai Court upheld the sentences. |
| 2022 | Under the remission policy of Gujarat Government in 2022, 11 convicts were released. This led to a huge criticism. . |
| 2023-2024 | The case was reviewed by the Apex Court. The court cancelled the premature release of the convicts. |
Key issues and questions in this case
- Which government had the right to decide on early release, Gujarat or Maharashtra?
- Can the Gujarat Government decide on release even though the trial happened in Maharashtra?
- Whether the Gujarat Government was legally allowed to give the convicts early release?
- Was the decision to release the convicts done properly and according to the law?
Grounds raised in Bilkis Yakub Rasool vs. Union of India
Grounds raised by the victim
Speaking on the victim’s behalf, advocate Shobha Gupta said that the convicts’ actions were planned and not impulsive, and that they were a part of a bigger criminal conspiracy to rape and kill the victim’s family. The convicts behaved extremely cruelly and followed the victim and her family with obvious purpose. The victim underlined the seriousness of the crimes, including the gang rape of a five-month pregnant lady who lost consciousness as a result.
The victim’s daughter was cruelly killed by being crushed against a rock, and other women in the household were also sexually assaulted. After that, the convicts killed a number of relatives, leaving their remains in a state that was unrecognizable, including the victim’s mother, cousins, uncles and aunts, and four younger siblings. The victim strongly opposed any leniency, pleading with the court to consider the gravity and inhumanity of the offenses before rendering its judgment.
Grounds raised by convicts
The convicts challenged the veracity of the accusations made against them. They said that the allegation of gang rape was dubious since the victim had given birth to a child subsequent to the incident. Additionally, they argued that the Central Bureau of Investigation’s (CBI) evidence was inaccurate. The convicts argued that there was not enough evidence to prove the murders because the dead bodies of the said murder victims were never found. They contested the validity and dependability of the evidence used to condemn them, claiming their innocence.
Remission of the Bilkis Bano case convicts
When a convict asks for a cancellation or reduction of a punishment or a penalty it is known as remission. The government or any other relevant authority can provide it. They can either reduce the sentence’s severity or release the person. The President and the Governor under Article 72 and 161 of the Indian Constitution can pardon a convict, remit, suspend, or commute a sentence.
Under Section 473 of BNSS, 2023 gives the State Government the power to remit sentences. In order to ensure that these powers and provisions are not misused, Section 475 of BNSS, 2023 puts some restrictions. If a person is given life imprisonment for a crime where the law also allows the death penalty, or if their death sentence is changed to life imprisonment, then that person cannot be let out of prison until they have spent at least 14 years in jail.
In the landmark ruling of Laxman Naskar vs. Union of India (2000), the Supreme Court had laid down 5 grounds which are to be checked when remission is being considered. The five grounds are:
- Whether the convict can now no longer commit the crime or not?
- The convict’s family’s socio-economic conditions.
- Whether there are chances of committing such a crime again or not?
- Is the crime something that only affected one person and didn’t harm society as a whole?
- Is there any real benefit or reason to keep the person in jail?
Contentions made by the petitioner
The remission was challenged by the petitioner on the grounds that it violated Article 21 and Article 14 of the Constitution. They argued the writ petition under Article 32 is maintainable since it is for enforcing fundamental rights. The petitioner cited the case of Epuru Sudhakar vs. State of Andhra Pradesh (2006), where the Apex Court had held that orders for remission can be reviewed by the courts if they are against the principles of constitution.
Another case of State of Sadhuram Bansal vs. Pulin Behari Sarkar & Ors (1984) was also referred, wherein the court put great emphasis that the opinion of the victim also matters a lot in case of remission. In the current case, the rights of the victim (Bilkis Bano) were being ignored. The representatives of the petitioner referred to Article 51A(e). They said remission went against the duty to respect women’s dignity. It was pointed out that Section 475 of BNSS, 2023 (previously Section 432(2) of CrPC) was violated. The presiding judge’s opinion was not taken properly.
They also referred to Swamy Shraddananda @ Murali Manohar Mishra vs. State of Karnataka (2008), where the court said remission should not go against public trust, and Union Of India vs V. Sriharan @ ,Murugan & Ors (2015), which clarified that there is no absolute right to remission. An argument was also made that it was essential to uphold strict punishments for crimes like murder and rape as it is important for justice and deterrence.
The petitioner also cited the landmark case of Mohammed Ishaq vs. S. Kazam Pasha (2009), where the court had emphasised the significance of judicial review when it comes to remission decisions to ensure they are lawful and fair. The request before the Supreme Court to cancel the remission was made stating that it was unjust, arbitrary, and against the public interest.
Contentions made by the defendant
The State Government, through the Additional Solicitor General, argued that the writ petition was not maintainable because the petitioner was a third party (Subhashini Ali, Roop Rekha Verma, and Revati Laul,were co-petitioners along with Bilkis Bano) with no legal standing (locus standi). They said the remission was lawful, granted under Sections 432 and 435 of CrPC, and followed the 1992 policy, which applied at the time of conviction. They cited Rupa Ashok Hurrah vs. Ashok Hurrah (2002) to claim that since a review petition was already dismissed, only a curative petition could be filed, not a writ petition.
The government stated that remission is an administrative act, not part of the criminal trial, so Article 32 does not apply. Since the crime occurred in Gujarat, the state had the jurisdiction to decide the remission. They added that the convicts had paid the fine, and since no procedural errors occurred, their release on 10 August 2022 was valid. Lastly, they invoked Article 142 to argue that the freedom of the convicts should be upheld in the interest of complete justice, and they should not be sent back to prison.
Judgement in Bilkis Yakub Rasool vs. Union of India
After the CBI inquiry, all 11 convicts were sentenced to life imprisonment by the Mumbai Sessions Court in 2008. In the year 2022 the convicts were released under the remission policy of the government of Gujarat. This led to a massive public opposition and other legal challenges. Bilkis Bano along with others filed a petition in the Supreme Court challenging this remission. In January 2024, the Supreme Court overturned the remission order given by the Gujarat Government. The Supreme Court stated that the order was unlawful in nature. The convicts were asked to surrender within 14 days.
Takeaways from this case
In the case of Bilkis Yakub Rasool vs. Union of India, the Supreme Court stressed that the rule of law and fairness must always be followed. It made it clear that remission, or early release from prison, is not a right but a privilege that can only be given if proper legal steps are taken. The court pointed out that such decisions should not harm the rights of the victim or shake the public’s trust in the justice system. It also said that the government must act according to the Constitution and cannot make unfair or arbitrary decisions. By cancelling the remission granted by the State, the court reinforced that justice must be upheld and no one is above the law.
References
- https://jlrjs.com/wp-content/uploads/2024/02/28.-Nikita-Sonker.pdf
- https://www.ijllr.com/post/case-analysis-bilkis-yakub-rasool-v-union-of-india
- https://ili.ac.in/pdf/18.pdf
- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5052079
- https://www.juscorpus.com/wp-content/uploads/2023/02/165.-Kanika-Meena.pdf
- https://www.scconline.com/blog/post/2024/01/09/explained-supreme-court-verdict-premature-release-11-convicts-bilkis-bano-gang-rape-case/
- https://www.scconline.com/blog/post/2024/01/10/bilkis-bano-gang-rape-case-supreme-court-indicates-factors-considered-entertaining-application-remission-crpc/
