Bilkis Bano Case: ‘Punishment should not be given out of revenge, but for prevention and reform. Like a doctor gives medicine for the welfare of the patient and not just on seeing the pain. Therefore, if a criminal can reform then he should get a chance. This is the belief behind pardoning the culprits.’
In the Supreme Court, the bench of Justice BV Nagarathna and Justice Ujjal Bhuyan started the decision related to the release of the convicts of Bilkis Bano with this theory of the Greek philosopher Plato. Immediately after this he said, ‘A woman deserves respect. Whatever his position or religion. Can there be relaxation in punishment for heinous crimes against women?’
After these two comments, the Supreme Court canceled the decision to release 11 convicts. Now all the culprits will have to surrender within two weeks. The court said that the culprits got release by fraud with the Supreme Court. The court also reprimanded the Gujarat government.
1. How did the 11 convicts in the Bilkis Bano case get acquittal, which was canceled by the Supreme Court?
- On January 21, 2008, the special CBI court had sentenced 11 accused in the Bilkis case to life imprisonment. In 2018, the decision of the CBI court was also upheld by the Bombay High Court.
- Radheshyam Bhagwandas Shah, one of the 11 convicts, filed an appeal in the Gujarat High Court seeking release before completion of his sentence under the remission policy. In July 2019, the Gujarat High Court rejected the petition saying that the sentence was pronounced in Maharashtra, hence the release application should also be made there.
- Radheshyam Shah applied for release under the remission policy to the Maharashtra government. Maharashtra DGP and the trial judge gave negative opinion on this. Meanwhile, Radheshyam filed a writ petition under Article 32 in the Supreme Court.
- In May 2022, the Supreme Court said that the Gujarat government should take a decision in this matter, because the crime took place there. On the instructions of the court, the Gujarat government constituted a committee under the chairmanship of Panchmahal Collector Sujal Mytra to take a decision on the release.
- Mytra Committee gave its decision in favor of remission i.e. premature release of 11 convicts. After this, on August 15, 2022, the Gujarat government released 11 convicts.
2. Why did the Supreme Court say that the Gujarat government does not have the right to pardon?
- Under Section 432 of the Code of Criminal Procedure, i.e. CrPC, the appropriate government can suspend the entire sentence of a criminal or forgive a part of it. Using this, the Gujarat government had released 11 convicts in the Bilkis Bano case.
- In its decision on January 8, the Supreme Court drew attention to the provision of Section 432 of CrPC which states that the appropriate government must take opinion on the application for early release from the judge who has tried the case.
- Justice Nagarathna said, ‘The intention of the law makers was that the appropriate government would be the state in which the accused was tried and sentenced. The emphasis here is on the place of punishment and not where the crime took place.’
- The culprits had committed the crime in Gujarat. As soon as the trial started in Ahmedabad, Bilkis reached the Supreme Court and appealed to transfer the case from Ahmedabad to Mumbai. The case was transferred to Mumbai in August 2004. All of them were sentenced to life imprisonment in the special CBI court.
- Justice Nagarathna said, ‘It is only on this short ground that the decision to release the convicts will have to be quashed. Gujarat government is not suitable for this decision.’ However, the court also said that the Gujarat government had to consider remission of sentence on the basis of a decision of the Supreme Court in May 2022. The Supreme Court had given such a decision because of concealment of facts and fraud by the culprits.
3. Why did the Supreme Court call the actions of the culprits a fraud and why did it question the decision of May 2022?
- The Supreme Court said on 8 January 2024 that the decision of 22 May 2022 was void as it was affected by the principle of fraud and per curiam. According to the principle of per curiam, when a decision is taken without proper context and facts.
- The Supreme Court, in its order, noted that the Gujarat High Court had rejected the plea of Radheshyam Shah, one of the convicts, and had asked him to approach the Maharashtra government for remission of sentence. The convict applied for remission of sentence to the Maharashtra government. The trial judge and the DGP of Maharashtra had also given their opinion on this.
- Meanwhile, the accused filed a writ petition under Article 32 in the Supreme Court. Under Article 32, a petition can be filed directly in the Supreme Court only when someone’s fundamental rights are being violated. In this petition, all the facts of the application to the Maharashtra Government were hidden. The Supreme Court said that the convict has committed fraud on this court. Therefore, the order of May 2022 was taken due to fraud and is void.
- There was a violation of law in releasing the culprits because the Gujarat government used and misused the powers despite not having them. On this basis also the remission order i.e. order of premature release should be cancelled.
4. Supreme Court canceled the release order, what will happen next?
After this decision, first of all the culprits will have to go to the trial court and surrender themselves. Convicts have two options while staying in jail…
- All 11 convicts can file a review petition on this decision of the Supreme Court. Article 137 of the Constitution of India gives the Supreme Court the power to reconsider any of its previous decisions. The review petition must be filed within 30 days and before the bench that delivered the verdict.
- After spending some time in jail, the convict can again apply for remission i.e. concession in punishment. However, this time he will have to appeal to the Maharashtra government. Supreme Court lawyer Virag Gupta says that the Supreme Court has raised questions on the procedure in Bilkis Bano case. In such a situation, if the convicts apply for remission back to the Maharashtra government, then the government can consider it.
