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Why Bilkis Bano remission verdict makes crucial legal points



Why Bilkis Bano remission verdict makes crucial legal points

Why Bilkis Bano remission verdict makes crucial legal points

The Supreme Court judgment on Monday scrapped the premature release of 11 convicts, sentenced to life in 2008 for the gang rape of Bilkis Bano and murder of seven of her family members during the 2002 Gujarat communal riots, striking a fine balance between the legal principles and the curious facts of the case — even as it came down hard on the Gujarat government.

It regretted that 20 years later, the turn of events and the Gujarat government’s conduct justified the original decision to shift the trial outside the state to ensure fairness and justice, while touching upon a raft of key legal issues that will go a long way in criminal law jurisprudence.

The judgment by the bench of justices BV Nagarathna and Ujjal Bhuyan cements some concrete principles of criminal laws that must ascertain justice for the victims of crime and compliance of the State with the rule of law.

Right of a victim to directly move the Supreme Court against remission

Bano’s writ petition under Article 32 of the Constitution was challenged by several convicts. They argued that her plea should not be entertained by the top court because allowing a victim to challenge remission orders through a writ petition could open floodgates of litigation. The convicts said that she must approach the high court where the alternative remedy of filing a writ petition under Article 226 of the Constitution was available. They also pointed out that the only legal remedy Bano could avail of in the apex court was to file a curative petition against the dismissal of her review petition that had assailed the May 2022 order of the Supreme Court whereby the Gujarat government was asked to take a call on the remission of the convicts.

But the bench shot down all these contentions. Justice Nagarathna, writing the judgment, highlighted that the right to file a petition under Article 32 of the Constitution is also a fundamental right and that Bano has filed her writ petition under Article 32 to enforce her fundamental rights under Article 21 of the Constitution, which speaks of right to life and liberty, and Article 14, which deals with right to equality and equal protection of the laws.

“The object and purpose of Article 32, which is also recognised to be the ‘soul of the Constitution’ and which is a fundamental right in itself, is for the enforcement of other fundamental rights in Part-III of the Constitution. We think that the aforesaid constitutional remedy is also to enforce the goals enshrined in the Preamble of the Constitution, which speaks of justice, liberty, equality and fraternity,” stressed the judgment.

It noted that the expanded notion of access to justice also includes speedy remedy, adding that Bano’s petition cannot be dismissed on the grounds of availability of an alternative remedy before the high court under Article 226 or on the ground of its maintainability under Article 32. The judgment further said that the high court could not have been in a position to take a view on Bano’s petition even otherwise since a contentious decision of the Supreme Court in May 2022 was involved.

Remission does not wipe out the crime

In its 251-page judgment, the bench dwelled upon the concept of remission and the principles governing the statutory provision under the Code of Criminal Procedure (CrPC) that empowers a state government to release life term convicts after they complete at least 14 years in jail.

The bench remained emphatic that in the case of a remission, the guilt of the offender is not affected, nor is the sentence of the court, except in the sense that the person concerned does not suffer incarceration for the entire period of the sentence but is relieved from serving out a part of it.

An order of remission, the court said, does not wipe out the offence. “It also does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence… An order of remission thus, does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court even though the order of conviction and sentence passed by the court still stands as it is,” it added.

Citing a spree of Supreme Court judgments in the past, the bench maintained that although a convict cannot claim remission as a matter of right, once a law has been made by the appropriate legislature, it is not open for the executive authorities to surreptitiously subvert its mandate or not apply it equally.

“A convict undergoing a sentence does not have a right to get remission of sentence. However, he certainly does have a right to have his case considered for the grant of remission… the power of remission cannot be exercised by an appropriate government arbitrarily and the decision to grant remission has to be well informed, reasonable and fair to all concerned,” it said.

Why the Gujarat government was not the “appropriate government” to grant remission

The CrPC clothes the “appropriate government” with the power to suspend the execution of a sentence or remit the whole or any part of the punishment to which a person has been sentenced. Referring to pertinent clauses of the CrPC, the bench held that the government of the state within which the offender is sentenced has to be the “appropriate government” for the purposes of considering a remission plea.

“The aforesaid consistency is significant in as much as the intent of the Parliament is, it is only the government of the state within which the offender was sentenced which is competent to consider an application for remission and pass an order remitting the sentence of a convict. This clearly means that the place of occurrence of the incident or place of imprisonment of the convict are not relevant considerations,” held the bench, ruling that the Gujarat government lost the jurisdiction to consider the remission pleas after the trial was shifted to Maharashtra by an order of the Supreme Court.

The court declared that even in a case where the trial has been transferred by this Supreme Court from a court of competent jurisdiction of a state to a court in another state, it is still the government of the state within which the offender was sentenced which is the “appropriate government”, having the jurisdiction as well as competency to pass an order of remission under Section 432 of the CrPC.

“Therefore, it is not the government of the state within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission… It is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis the convicts as they were sentenced by the special court in Mumbai,” said the bench, stating the only course available to the Gujarat government was to reject the convicts’ pleas citing lack of jurisdiction.

The remission orders passed by the Gujarat government in August 2022 had “no legs to stand”, said the bench, adding the impugned orders of remission are lacking in competency and hence a nullity.

May 2022 order of the Supreme Court is per incuriam for ignoring precedents

Curiously, the two-bench judgment on Monday not only declared the May 2022 order of a coordinate bench to be a “nullity” because it was obtained by concealment of relevant facts by one of the convicts in the case but also held the previous order to be “per incuriam” because it was contrary to the previous judgments of the Supreme Court on the meaning of “appropriate government” for granting remission.

While it is usually a larger bench that can declare an order or a judgment of a smaller bench as “per incuriam”, the two-judge bench on Monday dubbed the May 2022 order of another two-judge bench “per incuriam”, holding that the 2022 order directing the Gujarat government to consider the remission pleas was passed contrary to the relevant CrPC provisions and the judgements of the Constitution bench and other benches of the Supreme Court.

“ It was observed that uniformity and consistency are cores of judicial discipline. But, if a decision proceeds contrary to the law declared, it cannot be a binding precedent,” it said.

It added: “A decision rendered by ignorance of a previous binding decision of its own or of a court of coordinate or higher jurisdiction or in ignorance of the terms of a statute or of a rule having the force of law is per incuriam. Such a per incuriam decision would not have a precedential value. If a decision has been rendered per incuriam, it cannot be said that it lays down good law, even if it has not been expressly overruled.”

Gujarat government was complicit, aided convicts

The judgment reproached the Gujarat government for trying to defend its action by arguing that it had no option but to decide the remission pleas in the wake of the May 2022 order of the top court.

“The state of Gujarat has acted on the basis of the direction issued by this court but contrary to the letter and spirit of law,” maintained the bench, criticising the state for a manifest abuse of discretion — usurpation of power.

It noted that even though the Gujarat government had itself submitted in the top court that it was not the “appropriate government” under the CrPC to grant remission to the convicts, the state went ahead and ordered for premature release of the 11 convicts instead of seeking a review of the May 2022 order.

“Had the state of Gujarat filed an application seeking review of the said order and impressed upon this Court that it was not the ‘appropriate government’ but the State of Maharashtra was the ‘appropriate government’, ensuing litigation would not have arisen at all. Complying with the said order (May 2022) can also be said to be an instance of usurpation of power,” said the bench.

The state of Gujarat “has acted in tandem and was complicit” with the convict who had approached the court for a direction to the state to consider the remission plea, lamented the bench. “This is exactly what this court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI (in 2003) and the trial to the special court at Mumbai (in 2004),” it said.

According to the bench, the Gujarat government would have filed a review petition seeking correction of the May 2022 order if it had concerns about the rule of law and the judgments of the Supreme Court. By failing to do so, the earlier orders of this court in the matter have been vindicated and more importantly, rule of law has been breached.

Commenting on the text of the remission orders, the court rued that all 11 orders were “stereotyped and cyclostyled”, reflecting complete non-application of mind.

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