Supreme Court Sets Aside Remission Of 11 Convicts In Bilkis Bano Case; Asks Them To Surrender In Prison

In a highly anticipated judgment, the Supreme Court on Monday (January 8) set aside the remission of 11 convicts sentenced to life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat.The court held that the State of Gujarat was not the "appropriate government" to decide the issue of remission as the trial was held in the State of Maharashtra. Since the Gujarat Government was found to be incompetent, the remission orders were held to be invalid. Accordingly, the court directed the convicts, who were given premature release in August 2022, to surrender in prison within two weeks.After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan reserved its judgment on October 12. Besides this, the court also directed the Gujarat and union governments to submit original records available with them. Today, Justice Nagarathna, who authored the judgment, began her pronouncement by invoking classical Greek philosopher Plato. "Punishment is to be inflicted not for the sake of vengeance but for the sake of prevention and reformation. In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens penalty to medicine administered for the sake of the one being chastised. Thus, if a criminal is curable, he ought to be improved by education and other suitable arts and then set free as a better citizen and less of a burden to the State. This postulate lies at the heart of the policy of remission."Not only the reformative theory of punishment, but she also prefaced the judgment by pointing out the competing interests involved, of the rights of the victims and the victims' families to justice, and the right of convicts to a second chance by remission or reduction of their sentence. She added, "A woman deserves respect howsoever high or low she may otherwise be considered in society or to whatever faith she may follow or whatever creed she may belong to. Can heinous crimes against women permit remission? These are the issue which arise."In its judgment, the court answered five main issues. First, answering the question of whether the petition filed by Bano, one of the victims, under Article 32 of the Constitution was maintainable, the bench said, "It is clearly maintainable. The arguments of senior advocates Guru Krishna Kumar and V Chitambaresh are not accepted."Second, the court refused to answer the question of whether the petitions filed as public interest litigation (PIL) petitions were maintainable. Justice Nagarathna said, "We do not think it is necessary to answer this question since one of the victims herself has approached the court. The question of the maintainability of the PILs do not call for an answer, being rendered academic and is left open in an appropriate case. Consideration of the merits of Bano's petition is enough."Third, the judge proceeded to read out the portion of the ruling dealing with the competence of the State of Gujarat to pass these remission orders. She began with an interpretation of Section 432 of the Code of Criminal Procedure, which mandates the appropriate government to seek the opinion of the convicting judge while considering applications for premature release -"This clearly means that the place of occurrence of the incidence or place of imprisonment are not relevant considerations, and they have been excluded from the definition of Section 432 of the Code of Criminal Procedure. The intent of the legislature is that the appropriate government is of the state within which a convict was tried and sentenced. The emphasis is on the place of trial and sentence, rather than the place of commission of offence or sentencing. This also takes within its ambit a situation where a trial is transferred from a competent court within the territorial jurisdiction of one state, to one in another state.""On that short ground alone, the orders of remission has to be quashed. The competency of the State of Gujarat goes to the heart of the matter," Justice Nagarathna said, but quickly added that the matter did not end there. The judge acknowledged that Gujarat government had to decide the applications and pass the order under challenge in terms of the May 2022 decision of the Supreme Court.However, Justice Nagarathna reasoned that this direction was issued in a writ petition filed by one of the convicts, Radheshyam Shah, by suppressing material facts like an earlier decision of the Gujarat High Court and the opinion of the presiding judge and making misleading statements. This decision was a nullity, inasmuch as it was hit by fraud and the doctrine of per incuriam, the court held. The Court also held that the said judgment (which held that Gujarat Government was competent to decide remission) was per incuriam as it was contrary to the...

Supreme Court Sets Aside Remission Of 11 Convicts In Bilkis Bano Case; Asks Them To Surrender In Prison

Awstika Das

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