Gujarat government’s decision to remit sentences of convicts in Bilkis Bano case flies in the face of  legal precedents

The remission is highly improper, arbitrary and capricious when the presiding judge of the Mumbai court which convicted the accused gave an opinion against their premature release. 

—-

What is the case about?

THE premature release of 11 convicts in the Bilkis Bano case by the Gujarat Government has sent shock waves across the country. Bilkis is a victim of the 2002 Gujarat pogrom. She was 21 years old and pregnant when she was gang raped.  She lost all the members of her family in the communal carnage. Her three-and-a-half-year-old daughter was butchered to death before her eyes. The Central Bureau of Investigation (CBI), on the direction of the Supreme Court, investigated the matter, and the trial was held in Maharashtra on the directions of the Supreme Court to ensure impartial investigation and fair trial.

In 2008, the Mumbai Session court convicted the accused persons guilty of offence under Section 302, 376(2)(e)(g) read with Section 149 of the Indian Penal Code (IPC), and awarded them rigorous imprisonment for life and fine. In May 2017, a division bench of the Bombay High Court upheld the conviction and sentence awarded by the trial court. The findings recorded by the trial court as well as the Bombay High Court were also upheld by the Supreme Court.

Apparently, the convicts have served 15 years of imprisonment till now.

What prompted the premature release of the convicts by the state government?

Radheshyam Bhagwandas Shah alias Lala Vakil,  one of the convicts in the Bilkis Bano case, in May 13 this year, approached the Supreme Court by filing a writ petition under Article 32, seeking direction to the Gujarat Government to consider his application for pre­mature release under the policy dated July 9, 1992, which was existing at the time of his conviction.

The petitioner did not mention that he was connected to the Gujarat riots. He projected the petition as if it was a case of remission, simpliciter. His grievance before the court was that his premature release should be considered as per the 1992 policy, and not the policy brought in by the state government in 2014. According to him, the 2014 policy prohibits remission to those whose cases had been investigated by the CBI, while there was no such prohibition in the 1992 policy.

Before this, Lala Vakil approached the Gujarat High Court seeking premature release. In 2019, the high court, relying upon the decision of the Constitution Bench in Union of India v. V. Sriharan, (2016), dismissed the petition holding that since the trial had been concluded in the State of Maharashtra, the application for pre-mature release had to be filed in Maharashtra and not in Gujarat.

Before the Supreme Court, Lala Vakil had not arrayed Bilkis Bano a party to the case. Deciding on the petition, the division bench comprising Justices Ajay Rastogi and Vikram Nath, held that the policy of 1992 would be applicable since that was the policy in place at the time of conviction. The bench relied upon the decision of the court in State of  Haryana  Vs. Jagdish(2010). 

The Central Bureau of Investigation (CBI), on the direction of the Supreme Court, investigated the matter, and the trial was held in Maharashtra on the directions of the Supreme Court to ensure impartial investigation and fair trial.

For the second question, the bench held that the appropriate government is Gujarat Government because the case was transferred to Maharashtra for a limited purpose, that is, trial of the case. And after the conclusion of trial and the prisoner being convicted, the case stood transferred to the state where the crime was committed.  Therefore, the Supreme Court held that the Gujarat Government would remain the appropriate Government for the purpose of Section 432(7) of the Code of Criminal Procedure(CrPC).

Also read:  Power to remit sentence: opinion of the presiding judge should be reasoned and given due weightage by the government, says Supreme Court

The bench thus set aside the Gujarat High Court order, and directed the Gujarat Government to consider the application of Lala Vakil for premature release in terms of its policy of 1992. That the Supreme Court quashed the high court order in this case, despite the petition not being a Special Leave Petition (it was a writ petition under Article 32), raised eyebrows.  The high court judgment was not under challenge before the Supreme Court. It could not have been challenged under Article 32, as no writ can lie against a judicial order.

The bench also directed that if any adverse order is passed, the petitioner be at liberty to seek remedy available to him under the law.

It is this order, which is being projected by the state government for releasing the 11 convicts.

Interpreting Section 432(7) CrPC, the Constitution Bench held in that case that even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government.

Why is the Supreme Court's order in the Radheshyam Bhagwandas Shah alias Lala Vakil case per incuriam?

The division bench's order holding that it was Gujarat Government which was the 'appropriate government' to decide the remission application of the convict is not good law in the light of the decision of the five-judge Constitution Bench in V. Sriharan case.

Interpreting Section 432(7) CrPC, the Constitution Bench held in that case that even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government.

Even though the decision in V. Sriharan was known to the division bench in the Radheshyam case, it nowhere cared to explain as to how the said decision was inapplicable to this case.  The trial in the Bilkis Bano case was held in Maharashtra and the appeals against the trial court's verdict were also heard by the Bombay High Court. The division bench only said that since the crime was committed in Gujarat, and the case was transferred to Maharashtra for the limited purpose of trial, the Gujarat Government would be the appropriate government.

Also read: Supreme Court cancels the bail of the rape-accused who publicly celebrated his release

This reasoning goes against what was held in V. Sriharan. In fact, the Gujarat Government before the division bench contended that it was the Maharashtra Government, which was the appropriate government.

In State of Madhya Pradesh versus Ratan Singh, (1976), the division bench of the Supreme Court held that the test to determine the appropriate Government is to locate the State where the accused was convicted and sentenced and the Government of that State would be the appropriate Government.

The Constitution Bench in V. Sriharan affirmed the decision in Ratan Singh case. In the Ratan Singh case, the Court had also observed that only the Government can call for the opinion of the presiding Judge of the court which had control over the said presiding Judge or the court which is situated within the jurisdiction of the said Government. The opinion of the presiding judge of the Court which had convicted and sentenced the accused is required while considering the application of remission.

Does the Supreme Court's order in Radheshyam Bhagwandas Shah @ Lala Vakil, which was cited by the Gujarat Government for its decision to remit, suffer from any other flaw?

The judgment erroneously assumes that a co-accused in the Bilkis Bano case, Ramesh Rupabhai, had secured an order from the Bombay High Court in 2013 to the effect that the state which had the jurisdiction to remit his sentence and consider his application for premature release was Gujarat. The Supreme Court cited the Bombay High Court as having held that because the crime had happened in Gujarat and once trial which was held in Mumbai in peculiar circumstances, had concluded and the accused convicted, the appropriate prison would be in Gujarat, and the convict's application for premature release must be examined as per the policy applicable in Gujarat.

Based on this erroneous assumption, the Supreme Court bench of Justices Ajay Rastogi and Vikram Nath had found it relevant to decide that Radheshyam Bhagwandas Shah @ Lala Vakil also can approach the Gujarat Government with his application for premature release under its 1992 remission policy.

However, the August 5, 2013 order of the Bombay High Court, in Writ Petition No.305 of 2013, which the Supreme Court had cited in its order on May 13 in Radheshyam Bhagwandas Shah @ Lala Vakil case, is silent on the question of 'appropriate government' to decide the question of premature release of the convicted prisoner.

When Ramesh Rupabhai had approached a division bench of the Bombay High Court in 2013 seeking his transfer from the jail in Maharashtra to jail in Gujarat, it was apprised of the order passed by the Inspector General of Prisons, Maharashtra transferring the petitioner to the competent prison and particularly the Vadodara Central Prison in Gujarat. The bench, therefore, noted that nothing survived in the petition. It however directed the state authorities to ensure all such orders are passed in respect of other similarly placed convicts. The bench nowhere discussed the issue as to which was the appropriate government to examine the application of the convicts for premature release since it wasn't the issue before it.

What are the sources of power to grant remission and commutation?

There are two sources from where the power to grant remission, commutation and suspension of the sentence is derived: Article 72(power of the President) and Article 161(power of the Governor). This is a constitutional power vested in Executive Head viz. the President or the Governor of the State, respectively.

Another source is Section 432(power of the appropriate government to suspend or remit sentence) and Section 433(power to commute sentence). This is a statutory power vested in the 'appropriate government'.

In so far as the exercise of the constitutional powers by the President and the Governor is concerned, there are no fetters on their powers. However, constitutional courts have consistently held that the decision of the President and Governor is not beyond judicial review. Thus, any order, which is based on extraneous or mala fide factors, will vitiate the exercise.

Which is the appropriate government to grant remission in this case?  Should that government mandatorily consult the Union Government before taking the decision?

The expression 'appropriate government' as used in Sections 432 and 433 of the Cr.PC would be the Central Government in case the sentence is for an offence against any law relating to a matter to which the executive power of the union extends. In other cases, the State Government would be the appropriate government. Section 434 of the Cr.PC provides that the powers conferred by Section 432 and 433 of the Cr.PC upon the State Government may, in the case of a sentence of death, also be exercised by the Central Government.

Also read: Union Government proposes special remission to prisoners on the occasion of 75th anniversary of India's Independence

In the case of Bilkis Bano, the appropriate government in light of the law laid down in Rattan Singh and V. Sriharan, is the Maharashtra Government. It is important to note that section 435 of the CrPC prohibits the State Government to exercise powers conferred under Sections 432 and 433 in certain cases, except after 'consultation' with the Central Government.

Section 435(1)(a) CrPC mandates that the State Government to act after consultation with Central Government if the offence was investigated by the Delhi Special Police Establishment (DSPE) constituted under the Delhi Special Police Establishment Act, 1946, or by any other agency empowered to make investigation into an offence under any Central Act other than CrPC. Delhi Special Police Establishment is known as CBI.

That the Bilkis Bano case was investigated by the CBI is an undisputed fact. Thus, the appropriate government is under obligation to consult the Union Government before deciding the application for remission. Importantly, a Constitution Bench in V. Sriharan, (2016), held that consultation referred to in Section 435 is 'concurrence'. This would mean that the consent of the Union Government to remit or to commute the sentence in Bilkis Bano case is mandatory. Whether the Union Government's concurrence was obtained in this case is not in public domain.

Is the opinion of the presiding judge, which had earlier convicted the accused, on remission mandatory?

It is a requirement under Section 432(2) CrPC that when an application for remission is made, the appropriate Government 'may' require the presiding Judge of the Court which had convicted or confirmed the conviction, to state his or her opinion as to whether the application should be granted or refused. In the V. Sriharan case, this procedural requirement was held to be mandatory. It held that the decision of the government on remission should be guided by the opinion of the presiding officer of the concerned court.

According to the report published by Scroll.in, the Mumbai trial court that had sentenced the accused to life imprisonment for rape and murder, asked the Gujarat Government not to grant remission to the convicts.  Instead, the Gujarat Government chose to follow the jail advisory committee's recommendation to grant remission.  All the ten members of the jail advisory committee are government appointees, five of whom are office bearers in the Bharatiya Janata Party. Two of them are  MLAs.

The procedural safeguard under section 432(2) would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission.

Earlier this year, a division bench comprising Justices D.Y. Chandrachud and Aniruddha Bose held, in Ram Chander vs. The State of Chhattisgarh & Anr., that the opinion of the presiding judge under Section 432(2) has a determinative effect on an application for remission of the sentence. The bench further held that the purpose of the procedural safeguard under section 432(2) would stand defeated if the opinion of the presiding judge becomes just another factor that may be taken into consideration by the government while deciding the application for remission.

The purpose of safeguard under section 432(2) is to check the arbitrary exercise of remission power by governments. It also held that procedure under Section 432 (2) couldn't be allowed to become a mere formality. Besides, it was held that the appropriate government need not follow the opinion of the presiding judge if it contains no reasons for the opinion, or if the judge does not consider the relevant factors for grant of remission that have been laid down in Laxman Naskar v. Union of India.  In that event, the government may request the presiding judge to consider the matter afresh.

Also read: Outrage over the premature release of Bilkis Bano convicts

It is thus clear from the judgment of the Constitution Bench in V. Sriharan and the division bench in Ram Chander that the opinion of the presiding judge is a determinative factor on an application for remission of the sentence. Overlooking the opinion of the presiding judge is nothing but an arbitrary exercise of the power to release the convicts based on extraneous reasons.

What are the factors to be considered while dealing with a remission application?

In Laxman Naskar case, the Supreme Court laid down certain factors for assessing whether a convict should be granted remission, namely: (i) whether the offence affects the society at large; (ii) the probability of the crime being repeated; (iii) the potential of the convict to commit crimes in future; (iv) if any fruitful purpose is being served by keeping the convict in prison; and (v) the socio-economic condition of the convict's family.

One of the convicts in the Bilkis Bano case had approached the Supreme Court because he wanted his remission application examined as per the 1992 policy which makes no exception whether the case is investigated by the CBI as in the case of the 2014 policy.

Though the division bench in Lala Vakil case was right in holding that the policy which existed at the time of the conviction would be applicable, it needs to be noted that the convict has no indefeasible right to be released on remission. A convict undergoing life imprisonment is expected to remain in custody till the end of his life, subject to any remission granted by the appropriate Government which in turn is subject to the procedural checks and further substantive checks under Section 433-A.

Given the heinous and diabolical nature of the crime involved in the present case coupled with the fact that it was a case of communal carnage, the release of the 11 men does not comply with the requirements of law laid down for the purpose.

Moreover, the sight of the convicts receiving garlands on their release from jail shows they have no remorse for the barbaric crime they had committed. It is not only demeaning to the survivor's dignity, but sends out a chilling message that no matter how heinous the crime the accused has committed, he will be set free after 14 years of imprisonment.  Such things only confirm that the authorities considered extraneous factors for their premature release.

Why does remission set a dangerous precedent, and represents an improper exercise of discretion?

The release of the 11 convicts has set an extremely dangerous precedent. Firstly, the decision of the Gujarat Government is without any jurisdiction, and if even we assume for a moment that it was an appropriate authority, even then the discretion exercised by it, is highly improper, arbitrary and capricious – more so when the presiding judge of the court which found them guilty gave an opinion against their release on remission.

Rape is an impact crime and when committed against a woman of a minority community it is intersectoral violence based on sex and religion. When it occurred as part of the communal carnage as in Gujarat in 2002, it was a crime against humanity. It will be too naïve to ignore the fact that Bilkis Bano is a victim of communal carnage. Bilkis' case speaks of depravity and degradation.

Rape is not only a crime against society at large, but it also deeply affects the survivor. With the release of her perpetrators, Bilkis Bano will have to relive the crime again.

The judiciary needs to intervene before this case becomes a precedent for other states to release gang rape convicts on the pretext of the remission.