Context: The Supreme Court has struck down the Gujarat government’s remission orders that allowed the early release of 11 men convicted in the Bilkis Bano gangrape case of 2002. A Bench of Justices B V Nagarathna and Ujjal Bhuyan on Monday (January 8) said the Gujarat government’s August 10, 2022 decision to remit the convicts’ sentences was “illegal”.

Background:

The Bilkis Bano case is related to the gang-rape of a 21-year-old Muslim woman, Bilkis Bano, during the communal riots that broke out in Gujarat in 2002.She was five months pregnant at the time of the incident. The case has been marked by several key milestones and controversies, including the conviction of 11 accused, their release on remission, and challenges to the premature release in the Supreme Court

• The incident occurred on March 3, 2002, in the district of Dahod, Gujarat, during the Godhra riots
• Bilkis Bano and her family were fleeing from the violence when they were captured by a mob of 20-30 Hindus
• She was raped, and 14 of her family members were killed
• Bilkis was taken to the Limkheda police station, where an FIR was registered, but the fact that she was raped was not stated, and the accused were not named

Trial and Conviction:

• The local police repeatedly rejected Bilkis Bano's case, citing insufficient evidence
• However, the CBI, after a thorough investigation, gathered all the evidence and arrested all the accused against whom the complaint was filed
• In December 2003, Bilkis Bano approached the Supreme Court, where she filed a guilty plea
• The National Human Rights Commission (NHRC) and Supreme Court took up the case and directed a CBI investigation
• In January 2004, the CBI filed a chargesheet against 20 accused
• In May 2017, the Bombay High Court upheld the conviction and life imprisonment of 11 convicts

Premature Release and Challenges:

• In February 2020, the Gujarat government granted remission to the 11 convicts, allowing their release
• Bilkis Bano and several other petitioners challenged the premature release of the convicts in the Supreme Court
• The Supreme Court reserved its verdict on the pleas challenging the premature release of the 11 convicts and asked the Centre and Gujarat to produce records

On what grounds did the Supreme Court strike down the remission given by the Gujarat government in 2022?

• The Gujarat government lacked the authority to consider remission applications for convicts seeking a reduced sentence, according to Justices B V Nagarathna and Ujjal Bhuyan.
• The Supreme Court emphasized that, according to Section 432 of the CrPC, an application for remission should be submitted to the government within the territorial jurisdiction where the applicant was convicted, in this case, Maharashtra.
• Despite the power of state governments under Section 432 to suspend or remit a sentence, Section 7(b) specifies that the appropriate government is the one within whose jurisdiction the offender is sentenced.
• The court accused the state of Gujarat of exceeding its powers by considering remission applications that should have been handled by Maharashtra.

Can the convicts apply for remission again? If so, before whom, and under what rules?

• The criminal justice system includes provisions for remission or reduction of sentences, acknowledging the potential for a person's reformation.
• The Supreme Court emphasized the existence of competing interests, balancing the rights of the victim or their family to justice against the convict's claim to a second chance.
• The court expressed skepticism about granting a second chance, especially for heinous offences, stating that it is not an indefeasible right of a convict.
• Convicts can seek remission from the Maharashtra government in the future, with the decision depending on various factors, including the state's remission policy.
• The judge referred to the Government Resolution (GR) dated April 11, 2008, which mandates a minimum imprisonment of 28 years for convicts guilty of crimes against women and minors with exceptional violence before applying for remission.

After the remission has been quashed, should the convicts be sent back to prison, or given the benefit of liberty?

Despite the careful consideration, the court concluded that the rule of law must take precedence over individual liberty.Consequently, the court decided to set aside the remission orders under scrutiny, leading to the natural consequence of the convicts being directed to report to the relevant jail authorities.