This article has been written by Adv. Aniket P. Kamtam, a 2nd Year MBA-LAW Student from SVKM’s NMIMS SBM College, Vile Parle West.
Case law: Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022.
On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter, were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.
In a notable development, after almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on the ground of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to ‘exceptional circumstances’, only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts’ applications for remission. Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government last year, causing a great furore. Not only Bano herself but also other activists have filed public interest litigation (PIL) petitions challenging this controversial decision before the top court. (Convicts were released on 15/08/2022.)
The state government has told the Supreme Court in an affidavit that the decision was taken after the center’s approval, taking into consideration the ‘good behavior’ of the convicts who had been under incarceration for 14 years. Among other things, the state’s affidavit revealed that the presiding judge of the special CBI court in Mumbai objected to the release of the convicts on the ground that the offence was grave and heinous. Advocate Shobha Gupta, appearing on behalf of Bano, has also vehemently opposed the government’s decision saying that the gang rape survivor has suffered egregious violence upon her person and her immediate family members.
Supreme Courts View: The question is whether govt applied its mind, what material formed the basis of its decision, etc…(Judicial) order requiring convicts to be in jail for rest of their natural life…(they were) released by executive order…Today it is this lady (Bilkis). Tomorrow, it can be you or me. There must be objective standards…If you don’t give us reason, we will draw our own conclusions,” Justice Joseph observed.
Supreme Court was concerned that whether the Government has properly applied it mind in taking the decision of remission. SC was just want to know that what was the reason to consider the remission application of the convict, was of the state and central government under Crpc section;- 435. Supreme Court asked the Respondents (central & State Government of Gujarat) to file a report consisting the reason of the Remission. SC was just concerned about the applicability of the procedure established by law.
The application for grant of premature release will have to be considered on the basis of the policy which stood on the date of conviction. [Referred to State of Haryana vs. Jagdish 2010(4) SCC 216]
As per the conviction date of this case the remission policy in the state of Gujarat was dated of 9th July, 1992 which was existing at the time of this controversial conviction
The government has also said that the decision was taken as per the policy dated 09.07.1992 “as directed by” the apex court and not “1 under the circular governing grant of remission to prisoners as part of celebration of ‘Azadi Ka Amrit Mahotsav’. The government considered the opinions of seven authorities to grant the remission, it has told the apex court.
At the time when this crime of rape was committed the term gang rape was not so elaborative it was just in the Explanation in section 376 of IPC before the amendment of 03-02-2013. Now under section – 376D after the amendment by act 13 of 2013 the gang rape has been exclusively defined in the IPC. So when this remission application was considered the government of Gujarat and central government precluded the earlier section of 376 before 03-02-2013 amendment.
The law concerning the Remission as per Crpc is elaborated in Chapter 32, E- Suspension, remission and commutation of sentences. From section 432 to 435.
In this case on 13/05/2022 Supreme court in WRIT PETITION (CRL.) NO(S). 135 OF 2022; MAY 13, 2022 RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL Versus STATE OF GUJARAT & ANR. Has stated in Para no 14. In the instant case, once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be considered including remission or pre-mature release, as the case may be, in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court.
Initially in this case of pleas challenging the premature remission of convicts the counsel for respondent argued the court that the petitioner (in this case under PIL) doesn’t hold any locus stand. A bench of Justices KM Joseph and BV Nagarathna was hearing a batch of petitions challenging the decision of the Gujarat government to prematurely release the 11 convicts.
The state and Centre were affirm that the remission was as per the laws and policy at the time of crime committed and the date of conviction. So for the court to consider whether there was the heinous crime, the court would be required to refer the old provision of section 376 and its heinousness which affects the society at large.
The Gujarat Government has told the Supreme Court in an affidavit that the decision was taken after the approval of the Central Government, considering the good behavior of the convicts and the completion of 14 years sentence by them. The State’s affidavit revealed that the CBI and the Presiding Judge of the Trial Court (Special CBI Court at Mumbai) objected to the release of the convicts on the ground that the offence was grave and heinous.
Currently this case is in the development stage and not disposed, next date of hearing is on 02-05-2022. For the issue of Respondents to submit the Files and document having the report in it, reasoning the remission of convicts. Till now in an oral statement respondent has urged that the remission of convict on the basis of their good behavior and in line with the Section- 433 of Crpc.
- RADHESHYAM BHAGWANDAS SHAH @ LALA VAKIL Versus STATE OF GUJARAT & ANR, SC WRIT PETITION(CRL.) NO(S). 135 OF 2022