Context: This article is based on the news “Bilkis Bano case | Rule of law vs right to liberty: What the Supreme Court said” which was published in the Indian Express. The Supreme Court (SC) struck down the remission granted by the Gujarat government to 11 convicts who were serving life imprisonment for the gangrape of Bilkis Bano during the communal riots in Gujarat in 2002.

• The court directed the convicts to surrender in prison within two weeks. 

Bilkis Bano Case: Timeline of Events From 2002 to Recent SC Verdict

Also Read: Parliament Passes Three New Criminal Law Reform Bills

Legal Issues Addressed by the Court In Its Judgment: 

• Maintainability of Petitions: 

• • Bilikish Bano’s Right to File Under Article 32: She had filed a petition under Article 32 to enforce her fundamental rights under Article 14 and Article 21.
  • Object and Purpose of Article 32: The Court emphasizes that Article 32 is considered the ‘soul of the Constitution’ and is meant for enforcing other fundamental rights.
  • Fundamental Right to File under Article 32: The SC ruled that the plea filed under Article 32 was deemed “clearly maintainable”.

• Maintainability of PIL Challenging Remission Orders:

  • • Invocation of Article 32 by Bilkis Bano: The Court notes that Bilkis Bano invoked Article 32, making the question of PIL maintainability less relevant.
  • Competency of Gujarat Government for Remission Orders:

• • Focus on Section 432 CrPC: The bench said that the Gujarat government did not have the authority or jurisdiction because, under Section 432 of the Code of Criminal Procedure (CrPC), an application for remission can only be before the government within whose territorial jurisdiction the applicant was convicted. (In this case, Maharashtra, and not in Gujarat).

• Non-adherence to the Law in Remission Orders: 

  • The SC rules that the remission orders passed by the state government were not in accordance with the law. This is because of four reasons.
    • Usurpation of Power by Gujarat Government: The court said the Gujarat government had “usurped the powers of the State of Maharashtra” since the latter was the only state that could have considered the applications seeking remission.
    • Inapplicability of Gujarat Government’s Policy:  July 9, 1992 policy of remission of the Gujarat government, which was used to pass the remission order, did not apply to the case of the 11 convicts.
    • Ineffectiveness of Presiding Judge’s Opinion: The opinion of the presiding judge of the Special Court, Mumbai “was rendered ineffective” by the Gujarat government which in any case had no jurisdiction to entertain the convicts’ plea for the remission of their sentences.
    • Neglect of Unpaid Fines as Relevant Consideration: The Court highlights that the authorities ignored the fact that the convicts hadn’t paid fines ordered by the special court, Mumbai, which should have been a relevant consideration.

• Decision on Convicts’ Status After Quashing Remission:

  • Balancing Rule of Law vs Individual Liberty: The court said that it had attempted to balance the primary consideration of the rule of law against an individual’s liberty.
  • Primary Consideration of Rule of Law: It said it had attempted to balance the primary consideration of the rule of law against an individual’s liberty.
  • Setting Aside Remission Orders: The court directed the setting aside of remission orders and the convicts were instructed to report to jail authorities within two weeks.

The Essence of The Supreme Court Judgment:

• The Rule of Law Must Prevail: 

  • Rule of law over personal liberty: The bench favored the paramountcy of the rule of law over the personal liberty of the convicts by saying that Article 21 does not permit a deprivation of an individual’s right to liberty in a manner not supported by the rule of law.
  • Equality and judicial scrutiny under Article 14: The court said that breaching the rule of law amounts to negating equality and “equality” before law would itself become an “empty” word if its violation was not a matter of judicial scrutiny, and if courts didn’t enforce the rule of law. 
    • Judiciary is the guardian of the rule of law and the central pillar of a democratic State.
  • Quoting Justice V R Krishna Iyer: The court quotes the late Justice V R Krishna Iyer stating that “the finest hour of the rule of law is when law disciplines life and matches promise with performance” and justice “should remain loyal to the rule of law”.
  • Referring to Justice H R Khanna: The court refers to Justice H R Khanna’s dissenting judgement that “rule of law is the antithesis of arbitrariness”.
• Preservation of the Essence of Democracy: The bench said that compassion and sympathy have no role to play where rule of law is required, which forms the essence of a democracy, and should be “preserved” and enforced by courts without fear, favor, affection, or ill-will.

Options That Are Now Available For Convicts:

• Review Petition: The convicts can file a review petition before the SC within 30 days of the date of the judgment. 
• Application for Remission: The convicts may apply for fresh remission after spending some time in jail. However, they must appeal to the Maharashtra government for remission, as the trial occurred in that state. 

Punishment and Policy of Remission

• Punishment for Betterment: As per classical Greek philosopher Plato, “Punishment is to be inflicted not for the sake of vengeance but for the sake of prevention and reformation. 
  • The curative theory of punishment likens penalty to medicine administered for the sake of the one being punished. 
• The Core of Policy of Remission: If a criminal is curable, he ought to be improved by education and other suitable arts and then set free as a better citizen and less of a burden to the State. 
• Constitutional Provisions: Both the President (Article 72) and the Governor (Article 161) have the power of pardon.

  • Pardoning power of the President: 

• • • • Article 72: He/she can grant pardons, reprieves, respites or remissions of punishment or suspend, remit or commute the sentence of any person convicted of any offense

• • Pardoning power of the Governor: 

• • • • (Article 161): He/she can grant pardons, reprieves, respites or remissions of punishment, or suspend, remit or commute the sentence.

• • Difference Between Pardoning Powers of President and Governor:

• • • The President’s power under Article 72 is wider than the Governor under Article 161 which differs in the following two ways:
      • Court Martial: President to grant pardon extends in cases where the punishment or sentence is by a Court Martial but Article 161 does not provide any such power to the Governor.
      • Death Sentence: The President can grant pardon the sentence of death but the Governor’s power does not extend to death sentence cases.

• Supreme Court Observation while Granting Remission:

• • In ‘Laxman Naskar v. Union of India’ (2000) Case: The SC laid down five grounds:
    • Whether the offense is an individual act of crime that does not affect the society
    • Whether there is a chance of the crime being repeated in future
    • Whether the convict has lost the potentiality to commit crime
    • Whether any purpose is being served in keeping the convict in prison
    • Socio-economic conditions of the convict’s family
      • Also, convicts serving life sentences are entitled to seek remission after serving a minimum of 14 years in prison.
  • Kehar Singh vs. Union of India (1989) Case: It was observed that Courts cannot deny to a prisoner the benefit to be considered for remission of sentence.
  • The State of Haryana vs. Mahender Singh (2007) Case: The SC has observed that, even though no convict has a fundamental right of remission, the State in exercise of its executive power of remission must consider each individual case keeping in view the relevant factors.

The Challenges Revealed by the Bilkis Bano Case, that India Needs to Work Upon

• Prevalence of Communal Violence: The Bilkis Bano case exposes the issue of communal violence in India and the shortcomings in providing justice to the victims. 
  • To counter this challenge, the strict implementation of laws is a must.

• Poor Condition of Women: This case highlights the issue of women’s safety and dignity, and the ethical concern of thinking of them as objects. 
  • To counter this challenge, there is a need to protect women’s rights and mental shifting.
• Challenge in Achieving Justice: Bilkis Bano’s prolonged battle highlights the concern of achieving justice in a very difficult way. 
  • To counter this challenge, there is a need for symmetry in judicial understanding and verdicts.

Conclusion

The Supreme Court’s decision to overturn the remission restores faith in the legal system and it sets an example for future remission cases by emphasizing the importance of the Rule of Law.