Bilkis Yakub Rasool vs Union of India, 2002 

Published On: 15th March, 2024

Authored By: Shubra Jain
Dr D.Y Patil Law College, Pune

Background of the case

The Bilkis Bano tragedy took place in Gujarat on March 3, 2002, in the district of Dahod amidst communal riots involving Hindus and Muslims. Bilkis Bano, the victim, chose to flee with her family to ensure their safety but encountered a group of twenty to thirty Hindus, who subjected them to the horrific gang rape of Bilkis Bano and other female family members. At the time of the incident, Bilkis Bano was 21 years old and five months pregnant. Tragically, seven members of her family were attacked and murdered by the attackers.

In the aftermath, Bilkis Bano, having regained consciousness after three hours, went to the police station to file a complaint. She alleged that the police refused to include essential details necessary for the case in the First Information Report (FIR). Left with no alternative, she sought help from the National Human Rights Commission (NHRC) and subsequently the Supreme Court, and she secured a Central Bureau of Investigation (CBI) inquiry.

The NHRC played a pivotal role in supporting Bilkis Bano during this challenging time. Former Chief Justice of India J S Verma met her at a relief camp organized by the NHRC in Godhra. The commission provided her with legal counsel for representation before the Supreme Court. Within a month of the inquiry’s commencement, the accused were apprehended and brought before the Gujarat High Court.

Facing death threats during the proceedings, Bilkis Bano approached the Supreme Court to address the perilous situation. Consequently, the Supreme Court decided to transfer the case from the Gujarat court to the court in Maharashtra to ensure a fair and impartial investigation.

Before the CBI inquiry started, the Gujarat police failed to conduct a thorough investigation in the initial stages. Tampering with evidence was evident as the medical examination was intentionally delayed for seven days after the incidents, aiming to hinder the discovery of crucial evidence. This deliberate delay led to the loss of vital information. Consequently, police officers and Doctors involved were charged with evidence tampering.

Initially, when Bilkis Bano reached the police station to register her complaint, the police refused to file the First Information Report (FIR). Even when they eventually registered it, crucial details about the incident were omitted from the FIR.

Issues of the case

  • Whether the Government of the state of Gujarat competent to pass the impugned orders of remission?
  • Whether the orders of remission in accordance with the law?  

Judgment by Mumbai Sessions Court:

Upon receiving death threats, Bilkis Bano sought justice from the Supreme Court, emphasizing the insufficient inquiry carried out by the Gujarat Police, the Supreme Court directed the relocation of the case to the Mumbai Session Court. The trial commenced in 2008, and in 2017, the Mumbai Session Court delivered its judgment, convicting 11 individuals, including a police officer, for their involvement in the crimes. Others were acquitted due to insufficient evidence linking them to the offences.

The defendants were sentenced to strict life imprisonment and fined as a deterrent against future heinous crimes. They were found guilty under Section 302 and Section 376(2) of the Indian Penal Code, 1860, read with Section 149.

The Mumbai High Court affirmed the Session Court’s verdict in May 2017. The Supreme Court directed the Gujarat government to provide Bilkis Bano with a job, housing, and a sum of fifty lakh rupees as compensation. The police officer among the convicts received life imprisonment, while the remaining were sentenced to seven years of imprisonment and a fifty lakh rupees fine.

In the same year, the Mumbai High Court affirmed the life imprisonment rulings for the 11 convicts. Certain persons initially discharged by the trial court due to a perceived lack of direct involvement were subsequently convicted by the Mumbai High Court. Those acquitted by the trial court, under the premise of being entangled in the circumstances without active participation, remained free from imprisonment.

Judgement of the Bombay High Court:

The Mumbai High Court exonerated Bhagora and others, overturning the Trial Court’s decision to release them. Initially, The Trial Court released Bhagora and others, accepting their assertion of non-involvement in the crimes leading to the convictions. They asserted that they were merely ensnared in a web of circumstances, leading to their release from prison. However, the Mumbai High Court reversed the judgment of the Trial Court and upheld the conviction of the 11 other individuals involved in the case.

Additionally, the Mumbai High Court accused five police officers and two doctors of evidence tampering pursuant to Section 201 and failing to perform their duties under Section 218 of the Indian Penal Code, 1860. These charges were brought against them in connection to the case.

Judgement of the Hon’ble Supreme Court of India on the appeal of the convicts:

After carefully reviewing the arguments from both parties, the Supreme Court rejected the appeals of the convicts. On July 10, 2017, the appeals filed by two doctors and four policemen were dismissed. The Supreme Court affirmed the judgment of the Mumbai Session Court Citing substantial evidence against the convicts. It also criticized the Mumbai High Court for unreasonably acquitting the other individuals implicated in the case. Consequently, the Supreme Court upheld the Session Court’s decision and confirmed the conviction of Bhagora and others, who had been acquitted by the trial court previously.

Appeal for Remission

Radheshyam Shah, convicted in the case, applied for early release from the Gujarat High Court after completing over 14 years of imprisonment. Nevertheless, the Gujarat High Court denied his request, prompting him to move to the Supreme Court. In his appeal, he references the Gujarat government’s remission policy dated July 9, 1992.

Before the Supreme Court, Radheshyam argued that having served 15 years and 4 months in prison, he qualified for release under the remission policy. Despite receiving a life sentence from the CBI court in Mumbai in 2008, he claimed entitlement to seek premature release after serving 14 years, as it was tantamount to the period of life imprisonment.

Upon hearing his plea, the Supreme Court delegated the authority to the Gujarat Government to decide on his release under the 1992 Gujarat Remission policy within two months.

The plea for remission was filed under Section 432 and Section 433 of the Code of Criminal Procedure, 1973, in the Gujarat High Court in 2022. However, the Gujarat High Court declined the jurisdiction, citing the trial’s venue at the Mumbai Court. Consequently, the Mumbai Court was deemed competent to adjudicate the remission plea.

Radheshyam, when appealing to the Supreme Court, argued that the Gujarat High Court had jurisdiction over the remission policy, given that the state was the place of incident, the court concurred. It clarified that the 1992 Gujarat Remission policy, not the 2014 one, would apply.

In compliance with the Supreme Court’s order, the government established a committee to review the remission matter. The committee unanimously recommended granting remission to all convicts in the case. Subsequently, the Prime Minister of India endorsed their remission appeal, ordering the early release of all the convicts. This decision triggered global outrage due to the heinous nature of the crimes committed, which included the gang rape of a pregnant woman and the murder of her family members.

Review Petition filed by Bilkis Bano and other PILs against Remission

After hearing about the release of the convicts through remission, Bilkis Bano initiated action by filing a review petition in the Supreme Court. Furthermore, numerous individuals lodged a Public Interest Litigation (PIL) contesting the remission provided by the Gujarat Government to the 11 convicts, allowing them to be released from jail despite committing the horrifying crimes of gang rape and murder against Bilkis Bano and her family members.

The PIL argued that the government, in such cases, should not exercise its power in favor of the convicts but rather in the interest of the public. This challenge to the grant of remission was presented before the Supreme Court on August 23, 2022.

Upon the release of all the convicts from prison on August 15, 2022, Advocate Shobha Gupta, acting on behalf of Bilkis Bano, lodged a review petition contesting their early release. Several Public Interest Litigations (PILs) were also initiated by different individuals objecting to the decision to release the convicts involved in severe crimes. In retaliation, a senior advocate, representing one of the convicts, contended that others failed to file PILs when the petitioner herself was present in court and had already filed a petition against the convicts’ premature release.

Response of the Convicts on review petition against

Representing another convicted person, Bipin Chandra Joshi, Sonia Mathur said that the state alone has the power to challenge the court’s ruling. The victim lacks this right. She also contended that her client is not responsible for the government’s decision. The state should be held liable for any mistake in granting remission. She acknowledged that compensating the individual will not undo the past; But she was provided with a job, housing, and so far the highest amount of compensation paid to any rape victim up till now, addressing the victims’ entitlement versus the convict’s rights.

Mathur further argued that the convicts were released from prison only after meeting all the conditions required for the premature release, and outsider lacks the right to file Public Interest Litigation (PIL) as they lack the legal right to intervene during the remission process. She also supported the decision of various higher courts that ruled in favor of releasing convicts early on remission.

Response of the Supreme Court

After listening to the arguments presented by Advocate Mathur, the bench raised a pertinent question about the persistent overcrowding in Indian jails. The bench questioned why, if prisoners who complete a 14-year sentence are released on remission for rehabilitation, the jails still remain densely populated.

Advocate Mathur also informed the court about the medical condition of Joshi’s wife, who was fighting cancer. Furthermore, she stated that a portion of Joshi’s compensation, totaling Rs 6,000, was disbursed in 2019. It was highlighted that the trial court had approved this penalty without any objections.

The proceedings in the Bilkis Bano case were adjourned, and the case was scheduled to resume on August 31, 2023.

Issues raised by the Supreme Court

  • Whether the severity of the offence committed by the convict taken into account by the Gujarat Government before their release?
  • Whether the convicts are frequently granted parole during their life imprisonment sentence.
  • Did the Gujarat Government adhere to the same standards applied in other murder cases when releasing the convicts involved in the particular murder case?
  • Did the Gujarat Government consider the gravity of the crime committed by the convicts when granting them release, possibly demonstrating leniency?

Judgement of the Hon’ble Supreme Court of India

On April 23, 2023, the Supreme Court of India strongly criticized the Gujarat Government for the premature release of the convicts involved in the rape and murder case. The court emphasized that it was the government’s responsibility to comprehend the gravity of the crimes before releasing any convicts from prison. The Supreme Court expressed its opinion that individuals guilty of such atrocious acts, including gang-raping a pregnant woman and murdering her family members, should not have been released.

Justice K.M. Joseph asserted that the government must exercise its authority in a manner that serves the best interest of the state’s citizens. He questioned whether the Gujarat Government was equating the massacre of 14 helpless people, who were the victim’s family members. Justice Joseph emphasized that a massacre cannot be compared to the murder of a single person.

In response to the court’s order, the Gujarat Government and the central government decided to challenge it, necessitating the gathering of all relevant documents related to remission. They submitted a review petition on March 27, 2023. However, the bench expressed strong opposition to this proposal, disapproving of it. The Supreme Court granted them time to decide whether to submit the review petition or not. Additionally, the court sought an extension of the parole granted to the convicts during their life imprisonment sentence. The court observed that the state government’s authority to grant remission could not be subjected to judicial review unless the remission order was issued arbitrarily by the government.

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