Arham Jain
Introduction
Gujarat Riots of 2002 has been the one of the darkest chapters in the history of India, which marked mass killings, brutal violence and even loss of lives. But there exist another side of the said incident which is majorly unknown to most of the people as it didn’t get enough attention that it deserves, i.e. raping of women from both the sides. Women of both the communities suffered brutal inhumane behaviour from their country mate which also include sexual violence. There is overshadowing of a large part of the narrative which include the sexual assault and gender brutality faced by women. Reports showed that Muslim women were disproportionately targeted in this violence but the uncovered reports have mentioned the instances of Hindu women also being the victim of this brutality. During the communal riots, women are targeted as the ultimate goal and their bodies are used in battlegrounds as revenge and domination. There came many such incidents which marked the sexual brutality with women but one of them gained widespread attention and the matter went to the Supreme Court of India, named as Bilkis Yakub Rasool v. Union of India.
Facts of the case
The background can be dated back from the communal violence in Gujarat back in the year 2002. The riots have a series of incidents but the case revolves around the Godhra train burning on 27 February 2002. The petitioner, also the victim of gang rape and witnessed the brutal murder of her family members which also included her daughter who was hardly three-and-a-half-year-old, was 21-year-old and also pregnant at that time. On 4 March 2002 she registered an FIR against the unknown accused and this resulted in the investigation and the agency filed its closure report, stating that the accused could not be traced, on 25 March 2003 which was also accepted by the Judicial Magistrate. Aggrieved by this decision, Bilkis Yakub approached the Supreme Court through a Writ Petition (Crl.) No. 118 of 2003, requesting for the reopening of the case therefore the Court directed the Central Bureau of Investigation (CBI) to conduct an investigation.
Following the event another trail conducted in Greater Mumbai before the Special Judge. All the eleven accused were convicted, which includes Bilkis’ mother and cousin on 21 January 2008, leading to a sentence of life imprisonment for gang rape and multiple murders. Even the investigation by CBI led to the conviction of Somabhai Gori, a police officer, for registering an incorrect FIR deliberately and these convictions were also upheld by the Bombay High Court and Supreme Court later.
The Petitioner, Bilkis Yakub Rasool, in 2019, seeks for the compensation for the atrocities she suffered. The Supreme Court then admitting the intensity and severity of her loss, hence acknowledging her hardships the court order dated 23 April 2019 directed the State Government to pay her Rs. 50,00,000 as compensation.
On the other hand, one of the convicts, Radheshyam Bhagwandas Shah applied for a premature release after serving a sentence of 14 years, 5 months and 6 days in the prison, on the ground of good behaviour. After their application got rejected on the ground that the appropriate government for considering the application of remission was Maharashtra, by Gujarat High Court in July 2019, the convict approached to the government in Maharashtra. After they failed to secure remission from their they again approach to Gujarat High Court in 2020 who reaffirmed their stance. Aggrieved by this they moved their application before the Gujarat government and the later approved the premature release of all the 11 convicts on the same ground they claimed and also due to some recommendations from certain authorities. This premature release was opposed by various agencies including CBI, stating that it undermines the justice and the security of the victim.
Following this the Petitioner, Bilkis Yakub, challenged this decision in the Supreme Court, along with the public interest petitioners, on the ground that it challenged the very principles of justice.
Issues Raised
- Whether the petition filed by one of the victims in Writ Petition (Crl.) No.491 of 2022 under Article 32 of the Constitution is Maintainable?
- Whether the writ petitions filed as Public Interest Litigation (PIL) assailing the impugned orders of remission dated 10.08.2022 are maintainable?
- Whether the Government of State of Gujarat was competent to pass the impugned orders of remission?
- Whether the impugned orders of remission passed by the respondent – State of Gujarat in favour of respondent Nos.3 to 13 are in accordance with law?
Key provisions discussed
The provisions of Indian Penal Code, 1860 and Code of Criminal Procedure, 1973
Contentions of the Parties
Petitioner
Petitioner argued and challenged the remission grant on various constitutional grounds. Counsel argued that the writ petition under Article 32 is maintainable as it grants the power to enforce fundamental rights specifically Right to life under Article 21 and Right to Equality under Article 14. The Petitioner cited the supreme court case, Epuru Sudhakar v. State of Andhra Pradesh AIR 2006 SC 3385 Click here to access the Judgement, in which the court stated that remission orders are also subject to judicial review in case it violates the constitutional principles. They also mentioned the case State of Maharashtra v. Sadhuram Bansal AIR 1984 SC 1471, in which the court affirmed the importance of victim’s say in remission decisions and the grant of remission by Gujarat Government is in the violation of right of victim. The Petitioner also quotes Article 51A(e) of the Indian Constitution which upholds the respect for women’s dignity.
The remission order was also arbitrary and lacked transparency as it contradicts the Section 432(2) of CrPC which cite that the remission decisions are to be considered with Presiding Judge. Adding further the remission decision violates the public policy and legal precedents established by law and mentioned in the case of Shraddhananda v. State of Karnataka AIR 2008 SC 3040 Click here to access the Judgement, where ruled that the remission decision should not go against the societal trust and in the case of V. Sriharan v. Union of India 2015 INSC 886 Click here to access the Judgement, the Supreme Court upheld that there is no absolute right to remission and it cannot be granted in a manner that it defeats the purpose of sentencing and undermines the justice system.
The Counsel also argued the validity of separation of power as the Government being an executive cannot override the judicial decision of sentencing without valid reasoning as the remission must align with the judicial findings which is ruled by the court in Narinder Singh v. State of Punjab 2014 INSC 217 Click here to access the Judgement. The Supreme Court time to time upheld that the decisions by the court or government should not undermine or endangers the women’s rights and safety, therefore there is need for stringent punishment in cases of rape and murder to main a deterrence in the society and the justice system is valued as mentioned by the Supreme Court in the case of Mukesh v. State (Nirbhaya Case)AIR 2017 SC 2161.
The Petitioner also argued that remission orders by the Government showed the arbitrariness of the executive power and lack of judicial insights in the process as mentioned in Mohammed Ishaq v. S. Kazam Pasha 2009 INSC 709 Click here to access the Judgement, in which the Court ruled the necessity of court’s intervention in remission decisions to overlook that they do not go against the law and justice.
By concluding the petitioner said that the present Writ petition is maintainable and it is in the interest of the public while the remission decision was arbitrary and against the public interest. Therefore, the Supreme Court must strike down the remission order by the government and establish strict precedents to prevent any future misuse of such powers.
Defendants
The State Government was represented by the Additional Solicitor General (ASG), he countered the arguments contended by the petitioners, that the writ petition was not maintainable, on the ground that petitioner being the third party has no locus standi. The advocate defended the remission orders on the ground that they were granted purportedly following due procedure under Section 432 and 435 of CrPC and were issued in accordance with the 1992 policy applicable at the time of conviction.
The Respondent Counsel challenged the writ petition filed by petitioner, the later challenged that the remission orders were not maintainable, since a review petition, which was dismissed by court, has been filed by the later leaving only the remedy of a curative petition as ruled out by supreme court in the case of Rupa Ashok Hurrah v. Ashok Hurrah 2002 INSC 189 Click here to access the Judgement. The Respondent contented that the Public Interest Litigation (PIL) filed by the petition against the remission orders, was not maintainable as the later were strangers to the matters and contented that third party intervention in criminal proceedings was impermissible. They further added that remission order was the part of administrative decisions and not a criminal proceeding hence it do not lie in the purview of Article 32, therefore not maintainable.
They further said that the Ste of Gujarat has appropriate jurisdiction over considering the remission application as the place for the occurrence of offence was Gujarat and the remission has to be considered under the 1992 policy. Additionally, they also contended that the convicts had voluntarily paid the fine. Therefore, in the view of the arguments presented the respondent pleaded that since there are no procedural errors, hence they had been free from 10 August 2022 and their freedom and liberty should to be protected for the sake of justice, under Article 142 of Constitution of India and prevent them from sending them back to prison.
Observation by the Supreme Court
The Court admits that it has no power of judicial review in case of order passed by the Governor under Article 161 of the Constitution, but also on the other hand if the order is in bad faith, arbitrary in nature and disregard the constitutional principles then the judiciary will intervene. The Court then noted whether the convicted respondents had paid the fines imposed by the Special Court which was later upheld by the High Court and Supreme Court. It further added that there is a lack, from the side of Jail Advisory Committee, as non- payment of fines was a crucial factor that should have been taken into consideration while examining the remission process. Therefore, the Jail Advisory Committee and State of Gujarat failed to consider this making the process of remission a legally flawed process and the convicts laying off the fines during the pendency of the case did not cure the defect.
The Court also upheld the principle of rule of law on the notion that it is a paramount in a democratic policy and courts plays an important role in upholding this principle and ensured that the judicial intervention is applied in decisions that violate it. The Court after careful observation ruled against the release of respondent no. 3 to 13 from imprisonment under remission orders, on the ground that it lacked the appropriate jurisdiction. Court subsequently also faced the question that whether they should be sent back to prison or not as allowing them to be free would effectively undermine the principle of rule of law and upheld the decision that was obtained through fraud and illegal means.
The Court on this issue gave its reasoning that Article 142 cannot be invoked to protect the liberty of the respondents, as if done then it amounts to judicial sanction of an unlawful benefit. Also the Respondent No. 3 abuse of legal procedure to secure remission could not override the basic principle of rule of law and justice. Therefore, despite being the fact that the respondents had spent more than fourteen years in the prison, the court ruled that their release under void remission orders required a return to the status quo ante. Also the Court mentioned that respondents if they wish, can file an application for fresh remission through legal procedure. Thus, to uphold the principle of natural justice and rule of law the plea to protect their liberty was rejected on valid grounds.
Conclusion
The Supreme Court in Bilkis Yakub Rasool v. Union of India uphold the paramountcy of the principle of rule of law and natural justice. The case also highlighted the importance of fair and transparent remission process so that it does not undermine the security and rights of the victim and ensures them the credibility of justice system. The judgement also marked that remission is not an absolute right but a privilege subject to legal and procedural safeguards. The Court reaffirmed that the state’s action, whether granting remission orders, must align with the constitutional principles and should not be arbitrary, unfair and unjust in nature as it erode the trust of society in the justice system. Therefore, by quashing the unjust remission orders by the State, the Supreme Court reaffirmed its commitment towards justice and the principle of rule of law that no one is above the law.
Case Name- Bilkis Yakub Rasool v. Union of India & Others
Petitioner- Bilkis Yakub Rasool
Respondent- Union of India & Others
Case Number- Writ Petition (Crl.) No. 491 of 2022
Bench- Justices B.V. Nagarathna and Ujjal Bhuyan
Decided On- 8 January 2024
Click here to access the Judgement
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