India dispatch: SCI Bilkis Bano ruling invites reconsideration of remission and parole processes Dispatches
India dispatch: SCI Bilkis Bano ruling invites reconsideration of remission and parole processes

Indian law students are reporting for JURIST on law-related developments in and affecting India. This dispatch is from Sunidhi Das, a JURIST Assistant Editor and a second-year student at National Law School of India University, Bengaluru.   

On February 27, 2002, a tragic incident unfolded at the Godhra station in Gujarat, India, when a train carrying Hindu pilgrims returning from Ayodhya, a revered site for Hindus, caught fire. This unfortunate event resulted in the death of 59 people, predominantly pilgrims. The cause of the fire has been a subject of controversy, with conflicting accounts suggesting either a pre-planned attack by a Muslim mob or an accidental cooking fire sparking the inferno.

The aftermath of the Godhra incident saw a sharp escalation of tensions and widespread violence across Gujarat. Fuelled by rumors and misinformation, Hindu mobs retaliated against Muslim communities, targeting their homes, shops, and places of worship. The state government, led by Chief Minister Narendra Modi, faced severe criticism for its alleged failure to control the violence and safeguard the minority community.

The ensuing riots persisted for three days, claiming over 1,000 lives, with the majority of the victims being Muslims. The Godhra incident and its aftermath remain as dark chapters in India’s history, raising questions about communal harmony, the role of political leadership, and the need for effective measures to prevent and address such tragic events.

On January 8, 2024, the Supreme Court of India quashed the Gujarat government’s decision to grant remission to the 11 convicts who were sentenced to life imprisonment for the gangrape of Bilkis Bano and the murder of seven members of her family during the 2002 Gujarat riots. This means that the convicts will have to surrender back to prison to serve their remaining sentence.

The Bilkis Bano case stands as a haunting episode of communal violence in India. In 2002, amid the riots, 21-year-old Bilkis Bano, five months pregnant, endured a horrific gang rape while fleeing the chaos. Tragically, seven members of her family, including her three-year-old daughter, were brutally murdered. Initially, local police failed to register Bilkis’s complaint and even subjected her to threats. Undeterred, she persevered, seeking assistance from the National Human Rights Commission and eventually reaching the Supreme Court.

In 2003, the Supreme Court directed the Central Bureau of Investigation (CBI) to investigate the case, and in 2004, the trial was transferred to a competent court in Mumbai. After a protracted legal battle, in 2008, a Bombay court convicted the 11 men on multiple charges, including murder and gang rape, sentencing them to life imprisonment. The Bombay High Court and the Supreme Court upheld the convictions and sentences in 2009 and 2017, respectively. In 2019, the Supreme Court ordered compensation for the torment and ordeal suffered by Bilkis Bano.

In 2024,  the division bench comprising Justices B V Nagarathna and Ujjal Bhuyan, delivered a significant judgment in the case of Bilkis Yakub Rasool v. Union of India (referred to as ‘Bilkis Bano’). The primary petitioner, Bilkis Yakub Rasool, commonly known as Bilkis Bano, contested the Government of Gujarat’s decision on August 10, 2022, to grant remission to 11 individuals convicted of raping her during the 2002 Godhra Riots in Gujarat. In a landmark ruling, the Court deemed the remission illegal and directed the convicts to surrender to the appropriate jail authorities within a two-week timeframe.

The controversial remission granted by the Gujarat government in August 2022, on Independence Day, triggered widespread outrage and protests across the nation. One of the convicts had sought remission under Sections 433 and 433A of the Code of Criminal Procedure, 1973(CrPC). In 2019, he challenged the government’s non-consideration of his remission application before the High Court. In its 2019 order, the High Court of Gujarat noted that since the trial occurred in Mumbai, the Government of Maharashtra, not Gujarat, was the appropriate authority for remission. The convict then applied to the Maharashtra Government, which, following its remission policy, consulted the CBI and the Special CBI Court, both of which opposed the remission. In 2021, the remaining convicts also applied for remission, with the CBI and the Special CBI Court once again opposing it.

In 2022, one of the convicts filed a Writ Petition in the Supreme Court, seeking a writ of mandamus directing the Government of Gujarat to consider his application for premature release under its 1992 Policy.

Several critical questions arise in connection with this decision regarding jurisdiction. Firstly, it is essential to ascertain whether the Gujarat Government possessed the authority to grant remission. Secondly, the remission must align with the 1992 policy of the Gujarat Government, as it prevailed at the time of conviction. The insistence on adhering to the 1992 Policy stems from the fact that the current policy, revised in 2014, prohibits remission for those accused of heinous crimes such as rape and murder.

The Supreme Court rendered a judgment on this matter in 2022, affirming that the Government of Gujarat was the competent authority to grant remission and emphasizing the necessity for adherence to its 1992 policy. However, the Court erred by erroneously conferring jurisdiction on the Gujarat Government for remission. This decision overlooked Section 432(7)(b), which defines ‘appropriate government’ under Section 433 as “the Government of the State within which the offender is sentenced or the said order is passed.” Additionally, it disregarded previous Supreme Court rulings indicating that the appropriate government in such cases is the one where the conviction and sentence were pronounced.

The petitioner-convict in the Bilkis Bano case engaged in misrepresentation and the suppression of vital facts during legal proceedings. The petitioner concealed that, in accordance with the Gujarat High Court judgment, they had initiated an application for remission before the Maharashtra Government.  This misrepresentation was baseless, as the Gujarat High Court’s judgment clarified the government’s competence to grant remission, while the Bombay High Court, in 2013, merely addressed the transfer of prisoners to their home state post the trial’s conclusion, without expressing an opinion on the competence of either government to decide on remission. Despite the divergence in the issues addressed by the two judgments, they were falsely portrayed as conflicting before the Court. This misrepresentation played a pivotal role in vitiating the 2022 judgment.

Despite the clarity provided by a Constitution Bench decision in Union of India vs V. Sriharan (2015) that the appropriate government to decide a remission application is the state where the convicts are sentenced, the Court observed that the Gujarat government “usurped” power from the Government of Maharashtra. Consequently, the Court declared the earlier two-judge Bench decision of the Supreme Court, which considered the Gujarat government as the appropriate government for remission in this case, as illegal (per incuriam). As a result, the remission orders for the 11 convicts were canceled, and they were directed to return to prison within two weeks.

The Supreme Court is rightly commended for upholding the rule of law in the face of the exceptional injustice prevalent in Bilkis Bano’s struggle. The decision emphasized that the violation of the rule of law and equality before the law is a matter of judicial scrutiny, reinforcing the importance of legal principles.. Justice Nagarathna’s words serve as a soothing reassurance, particularly in light of the disturbing memory of celebrations following the release of the 11 convicts in August 2022.

The ongoing case is a glaring instance of unrestrained discretion. In the  Epuru Sudhakar vs. State of Andhra Pradesh (2006) decision, the Supreme Court established that judicial review of a remission order is only permissible under specific circumstances: non-application of mind, failure to consider relevant materials, malice in intent, basing the decision on irrelevant factors, or exhibiting arbitrariness. In the absence of explicit reasons guiding these decisions, challenging them on these grounds becomes challenging. This lack of applied reasoning becomes particularly evident in the case of the 11 convicts related to Bilkis Bano, as the orders issued by the Gujarat government for each of them are identical.

In the Bilkis Bano remission case, the Supreme Court unearthed illegalities and injustices, pointing to ‘fraud’ and the ‘usurpation of power’ by the government, thereby obviating the need to delve into complex normative questions. Certain remission policies adopted by states bring this issue to the forefront more starkly.

Presently, some Indian states have remission policies that categorically exclude certain offenders from any remission opportunities or impose significantly longer incarceration periods for specific offenses before even considering remission. The Indian Constitution designates prisons as state subjects, allowing each state to establish its rules for prisoners to engage in reformative activities, earning remission in the form of deducted days from their sentence. This practice aligns with the idea that prisons should focus on rehabilitation rather than solely punitive measures.

For life convicts, eligibility for remission arises after serving a minimum of 14 years, subject to individual application and committee evaluation based on factors outlined by the Supreme Court. These factors include the nature of the offense, the likelihood of reoffending, loss of criminal potential, the necessity of continued confinement, and the socio-economic condition of the convict’s family. Despite the subjective nature of these considerations, the lack of transparency in committee formation and decision-making processes creates a potential for arbitrary exercise of power in the remission system.

This prompts the necessity to address whether offenders classified by crime categories should be automatically disqualified from remission or if a more constructive approach involves establishing suitable conditions for remission and ensuring fair and meaningful adherence to those conditions. A blanket denial of remission based on crime categories, rather than ensuring effective compliance with remission conditions, steers us toward a punitive framework grounded in retribution.

The Supreme Court’s decision in cases of heinous crimes emphasized justice and deterred the selective application of the law, restoring hope in the legal system’s ability to protect vulnerable communities. This case calls for vital reforms in law enforcement and government bodies to ensure unbiased investigations and transparent processes for remission and parole. The Bilkis Bano case is anticipated to be a pivotal moment in India’s efforts against communal violence and violence against women.