REMISSION IN BILKIS BANO CASE

 

Remission in the Bilkis Bano Case : Supreme Court Upholds Rule of Law over Political Expediency

By: 

Salil Kumar P

Advocate, 

Kozhikode - 673001

Roll No. K/136/ 1999

Email: advocatesalil@gmail.com

Mobile: 8075113965

I. Introduction

In a historic judgment delivered on January 8, 2024, the Supreme Court of India quashed the Gujarat Government’s decision to release 11 convicts in the Bilkis Bano gangrape and murder case. The Court held that the remission orders were illegal, arbitrary, and passed without jurisdiction, thereby directing the convicts to return to prison immediately.

The case serves as a milestone in reaffirming the principle that executive discretion in granting remission must be guided by legality, fairness, and due process, not political considerations.

II. Background: The 2002 Gujarat Riots and Bilkis Bano’s Ordeal

Bilkis Bano, a 21-year-old pregnant Muslim woman, was gangraped in the wake of the 2002 Gujarat riots. Fourteen of her family members were killed. In 2008, after a CBI investigation, 11 accused were convicted and sentenced to life imprisonment by a Mumbai sessions court.

On August 15, 2022, the Gujarat Government granted remission to all 11 convicts, releasing them prematurely. This act triggered massive public outrage and legal challenges, eventually culminating in the Supreme Court's intervention.

III. Supreme Court Verdict: Key Findings on Procedural Lapses

In Bilkis Yakub Rasool v. Union of India & Others (2024 SCC OnLine SC 2), the Constitution Bench led by Justice B.V. Nagarathna laid down several critical procedural errors in the remission process, which are discussed below:

IV. Procedural Errors Identified

1. Gujarat Had No Jurisdiction to Grant Remission

Error: The Gujarat Government exercised the power of remission even though the trial and conviction had taken place in Maharashtra, not Gujarat.

Legal Basis: Under Section 432(7) of the CrPC, the “appropriate government” is the government of the state where the trial took place, i.e., Maharashtra in this case.

Supreme Court Finding: The Gujarat Government had no authority to consider or grant remission. The remission was ultra vires and void ab initio.

2. Misrepresentation Before the Supreme Court

Error: One of the convicts filed a writ petition in 2022 seeking remission and claimed Gujarat was the appropriate government.

Legal Basis: The May 2022 Supreme Court order, which allowed Gujarat to consider remission, was obtained by suppressing material facts and misguiding the Court.

Supreme Court Finding: The Court held that its earlier order was obtained by fraud, and “fraud vitiates everything.”

3. Non-Application of Remission Guidelines of 2014

Error: The Gujarat Government relied on its outdated 1992 remission policy, which was more lenient, instead of the MHA’s 2014 policy, which restricts remission in heinous crimes, including rape and murder.

Legal Basis: The 2014 policy was binding, as it was in force at the time the remission was considered.

Supreme Court Finding: Application of the 1992 policy was arbitrary, illegal, and against public policy.

4. Mechanical and Non-Speaking Orders

Error: The Gujarat Government’s remission orders did not provide proper reasoning or show application of mind.

Legal Principle: Remission is an executive discretion that must be exercised judiciously, not arbitrarily.

Supreme Court Finding: The remission orders were stereotyped, lacked transparency, and failed to consider the gravity of the offence or the victims’ rights.

5. Failure to Consider Victim’s Views

Error: Bilkis Bano was not heard before remission was granted.

Legal Basis: In Union of India v. V. Sriharan (2016) 7 SCC 1 (Rajiv Gandhi Assassination case), the Supreme Court mandated that victims must be heard in remission processes.

Supreme Court Finding: The Gujarat Government failed to ensure the principle of victim participation, rendering the process legally flawed.

6. Arbitrary Exercise of Clemency Powers

Error: The decision to release the convicts on Independence Day 2022 appeared symbolic and politically motivated.

Legal Principle: Clemency powers under Article 161 or Section 432 CrPC cannot be exercised as a political favour.

Supreme Court Observation: The remission order mocked the rule of law and insulted the conscience of the nation.

V. The Way Forward: Institutional Checks on Executive Discretion

The Bilkis Bano judgment has laid down a powerful precedent that remission must never override constitutional morality, victim rights, and due process. The ruling reaffirms the need for:

Mandatory consultation with the presiding trial court.

Victim and public prosecutor’s participation.

Uniform application of current remission guidelines.

Judicial review of politically influenced executive actions.

VI. Conclusion

The Supreme Court’s verdict in the Bilkis Bano remission case is not just a victory for one woman—it is a reaffirmation of India’s commitment to justice, institutional integrity, and constitutional rule.

It warns against the abuse of remission powers and ensures that heinous crimes against women and minorities are never trivialised by administrative shortcuts.

References:

Bilkis Yakub Rasool v. Union of India, 2024 SCC OnLine SC 2

Union of India v. V. Sriharan (2016) 7 SCC 1

Maru Ram v. Union of India (1981) 1 SCC 107

Section 432–435, CrPC; 

Article 161, Constitution of India