- By Suchitra Kalyan Mohanty
NEW DELHI: A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?" That was how the Supreme Court framed the question on remission to 11 life convicts in the Bilkis Bano case in its preface.
In their much-applauded judgment, a two-judge bench of justices B V Nagarathna and Ujjal Bhuyan quashed the remission and ordered the convicts back to jail. By doing so, they restored justice to Bilkis, who was gang-raped when she was 21 by zealots at the height of the post-Godhra pogrom in Gujarat in 2002. Both her mother and cousin were gang-raped and murdered as well. The cousin was assaulted though she had just delivered a baby. In all, eight minors, including Bilkis’ three-year-old daughter, two minor brothers, two minor sisters and her cousin’s two-day-old infant were slain. A few other relatives, too, were killed.
With the local police dragging its feet on the probe, the Supreme Court sent the case to the CBI. It also transferred the trial to Maharashtra. Both orders came after Bilkis knocked the court's door. A special CBI court subsequently sentenced the 11 convicts to life. And the Bombay High Court allowed them to serve their sentence in a Gujarat prison. While dealing with their appeal against the sentence, another bench of the Bombay High Court said, “the truth and the falsehood are mixed up in such a manner that at every stage of investigation the truth is hidden under layers of intentional laxity, omissions, contradictions and falsehood and the truth is required to be unearthed”. It upheld the sentence.
As for the convicts, one of them, Radheshyam Shah, kept engaging the higher judiciary. Fortunes turned when a Supreme Court bench comprising justices Ajay Rastogi (now retired) and Vikram Nath on May 13, 2022 inexplicably turned a criminal procedure code (CrPC) provision on its head by holding that the government of the state where the offence had taken place has the jurisdiction to decide his application for remission. It flew in the face of the law that only the government of the state where the sentencing happened can take the premature release call.
Empowered by the SC order, the Gujarat government promptly began paperwork to apply its 1992 remission policy and ordered the release of all the convicts within less than three months - on August 10, 2022. By then, they had completed a little over 14 years in prison with liberal paroles and furloughs. The 1992 policy allows the release of life convicts after 14 years in jail depending on various parameters. Shah sought the application of the Gujarat policy since remission under Maharashtra's policy can be considered only after 28 years in jail.
Rastogi bench opened floodgates
The bench led by Justice Rastogi relied on a 2010 SC verdict which said the application for grant of premature release will have to be considered based on the policy that stood on the date of conviction. Applying that yardstick, the Rastogi bench said the policy on the date of conviction was a remission resolution adopted on July 9, 1992 in Gujarat.
Interestingly, the Gujarat government argued before the Rastogi bench that since the trial happened in Maharashtra, the 'appropriate government' as referred to under Section 433 of the CrPC would be the state of Maharashtra. But the bench rejected it saying though the trial was transferred to Maharashtra under exceptional circumstances, subsequently the case came back to Gujarat, which made it the appropriate government for the purpose of Section 432(7) of the CrPC.
SC raps convict
Curiously, the verdict authored by Justice Nagarathna did not name justices Ajay Rastogi and Vikram Nath while tearing their judgment apart. Instead of pointing fingers at them for taking off on a tangent, she went after Shah for concealing crucial aspects of the case before the Justice Rastogi bench and accused the convict of doing a fraud on the court. So, what information did he withhold?
Shah first went to the Gujarat High Court in 2019 challenging the non-consideration of his application for premature release. The court on July 17, 2019 asked him to seek relief from Maharashtra, which was the appropriate government for the purpose of Sections 432 and 433 of the CrPC.
Less than two weeks later, he approached the Maharashtra government for remission, citing the Gujarat HC's advice. Maharashtra began the consultation process by seeking the CBI's opinion, but it recommended no leniency. The Special CBI Court, Mumbai, too, gave a negative recommendation. Ditto, the Superintendent of Police, Dahod, Gujarat, on the ground that Bilkis and her family members apprehended harm to them if the convict is released prematurely. The Office of the Collector and District Magistrate, Dahod, concurred with the SP's opinion.
Shah again approached the Gujarat HC seeking remission but the court rejected it. The matter later went back to Special CBI Judge in Maharashtra, who said remission can be considered only on the basis of the state's 2008 policy, according to which the minimum period of imprisonment for such convicts is 28 years.
Usurpation of powers
The Rastogi bench was kept out of the loop on Maharashtra's consultation process and the opinions on the CBI and the trial court, as Shah chose not bring them up, possibly deciding against self-incrimination. The Gujarat government, too, did not appeal against the Rastogi bench's verdict, for which it got an earful from Justice Nagarathna's judgment. She saw in it Gujarat's attempt to usurp Maharashtra's powers. "The State of Gujarat failed to file a review petition seeking correction of the order of this Court dated 13.05.2022, (particularly when we have now held that the said order is a nullity). Complying with the said order can also be said to be an instance of usurpation of power when the provision, namely, clause (b) of sub-section (7) of Section 432 states otherwise."
She went on to describe it as a classic case where the order of the Rastogi bench was used for violating the rule of law while passing orders of remission in favour of the convicts by Gujarat, though it had no jurisdiction to do so. The Gujarat government acted in tandem with the convicts and was complicit with their request for early release, the verdict charged.
Order struck down
Justice Nagarathna struck down the Rastogi bench's verdict - a nullity and non est in law - since it was sought by suppression of material information and misrepresentation of facts. She described the Rastogi bench's take on the appropriate government to consider remission as per incuriam, which loosely means delivered without understanding the whole picture. With the bottom falling off the Rastogi bench's order, all proceedings based on it became null and void. Consequently, the remission was annulled.
Cell time back
With the remission struck down, should the convicts go back to jail was a question the verdict dissected at length. The convicts were in prison for a little over 14 years but had lost their right to liberty once they were convicted and imprisoned. The court said a person is entitled to protection of his liberty only in accordance with law.
"Wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes." It went on to say that compassion and sympathy have no role to play where the rule of law is required to be enforced. "If the rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill-will," the verdict said.
Apart from Shah, the other convicts are Jaswant Chaturbhai Nai, Keshubhai Vadaniya, Bakabhai Vadaniya, Rajibhai Soni, Rameshbhai Chauhan, Shaileshbhai Bhatt, Bipin Chandra Joshi, Govindbhai Nai, Mitesh Bhatt and Pradip Modhiya. They were ordered to go back to jail in two weeks.