The Supreme Court set aside the remission of 11 convicts in the Bilkis Bano case and held that they should be sent back to prison. Even while underlying the significance of the reformative theory of punishment and the importance of remission policy in general, Justice B V Nagarathna, who authored the judgement, exposed the illegality that had vitiated the whole process of remission. The judgement examined each argument in support of the government’s action and repelled them with a unique sense of clarity and judicial courage. The judgement was also a search for truth.
The court was required to interpret Section 432 of the Criminal Procedure Code dealing with the power of the “appropriate government” to “remit the whole or any part of the punishment”. The court said that in this case, the appropriate government was the government of Maharashtra, since the case was transferred and the trial was held in Maharashtra, which resulted in conviction and sentencing of the accused. Section 432(2) mandates that the opinion of the judge who convicted the accused should be sought. The trial judge, who is conversant with the case, should also provide reasons in support of her opinion. This provision was breached. Remission was granted by the Gujarat government, not Maharashtra.
But the contention of the Gujarat government was that its order for premature release was based on the directions of the Supreme Court. The top court, in May 2022, had directed the Gujarat government to deal with the request for premature release of the accused, based on its remission policy of 1992. The court has now rejected this contention mainly on two grounds—one, the said verdict was obtained by suppressing many things, including an earlier decision by the Gujarat High Court and the opinion given by the presiding judge in Maharashtra, which did not support remission; and two, the judgement ignored the law and binding judicial precedents with respect to the premature release of convicts.
The present judgement is an illustrative instance of the court’s counter-majoritarian function in the process of judicial review. It confronted the state’s executive power and drew boundaries for an aggrandising government. It underlined the significance of the Rule of Law, which would also mean equality before the law and equal protection of the laws, as promised by Article 14 of the Constitution.
The lessons from the judgement are not merely legal. They are historical, political and ethical. The court correctly finds that “the grotesque and diabolical crime” was “driven by communal hatred”. The gang rape of a pregnant woman along with her mother and her cousin was followed by the murder of many in the family including those who were raped. Young children and other close relatives of the petitioner also were murdered. A three-year-old child’s head was smashed, according to the prosecution.
The politics based on religious fanaticism, which led to this and other gruesome incidents, is an issue before the nation. Mere reliance on a majority or electoral victory does not justify acts which are ostensibly inhuman. As Henrik Ibsen said, “The majority is always wrong.” Politics in India has always proved him right.
The idea of the Rule of Law conceptualised by jurist A V Dicey in the context of the British system is now an integral facet of modern constitutions across the world. It is the surest check against abuse of power and authoritarianism.
Yet, the Rule of Law is not a blind adherence to the laws. There could be strict invocation of laws even under a king or a military regime or a demagogue. Therefore, the Rule of Law should be understood and ensured in the democratic and constitutional sense of the term. Law cannot distinguish between crimes based on the religion, caste or political affiliation of the persons committing them. In the present case, Justice Nagarathna wrote that “the state of Gujarat acted in tandem and was complicit” in sabotaging truth and justice and in obtaining a judgement from the Supreme Court in 2022, which is now declared as a nullity in the eyes of law. The verdict also said that there was “usurpation of jurisdiction” by the state of Gujarat in granting remission.
It is not only the heinous nature of the offence that should trouble the conscience of the nation. It is the fanaticism that normalised such offences and propagated the politics of hatred across the country that should concern us. It is the blatant use of the machineries of the state to institutionalise the injustice that should trouble us.
The judgement has come at a time when the top court faced criticism for its failure to provide a check on many recent executive and legislative measures. It failed to fix a time limit for re-conferring state status on Jammu and Kashmir. The court was also criticised for approving actions ranging from demonetisation to economic reservation.
In the remission case, however, the top court performed its constitutional dharma as against a derailed executive. It was a reminder to the court itself during the tough times of majoritarian onslaught. Justice Nagarathna reiterated the fundamentals of the Rule of Law by stating that “no one, howsoever high or low, is above the law” and that “Rule of Law does not mean protection to a fortunate few”.
The selective misuse or non-use of penal laws is a contemporary reality in India. In many states, bulldozers are invoked as a means of community punishment. Fake encounter killings as a means of instant punishment also are not uncommon. Draconian laws like the Unlawful Activities (Prevention) Act or UAPA are blatantly misused for suppressing dissent. On the other hand, political affiliation has often created an effective impunity to the higher-ups in cases ranging from molestation to murder.
The grievous injury to the very idea of democracy signals our transformation to an ethnic autocracy. The culprits are now brought back to prison as directed by the court. The court has done its part and it is for the society to take the message forward. Judge Learned Hand had put the point in perspective: “A society so riven that the spirit of moderation is gone, no court can save... a society where that spirit flourishes, no court need save.”
(Views are personal)
(kaleeswaramraj@gmail.com)
Kaleeswaram Raj, Lawyer, Supreme Court of India