Published On: August 07, 2026
Authored By: Emmanuel Omole
University of Lagos
I. Case Details
Full Case Name: Bilkis Yakub Rasool v Union of India and Others
Citation: [2024] 1 SCR 743; 2024 INSC 24
Court: Supreme Court of India (Division Bench)
Bench: Nagarathna J and Bhuyan J
Date of Judgment: 8 January 2024
Petition: Writ Petition (Criminal) No 491 of 2022 under Article 32 of the Constitution of India
II. Facts and Issues
A. Facts
During the 2002 Gujarat communal riots, Bilkis Yakub Rasool, then twenty-one years old and five months pregnant, fled her village with sixteen family members. An armed mob intercepted the group. The petitioner and four other women were gang-raped, and seven members of her family were killed, including her three-and-a-half-year-old daughter.
Local police filed a closure report. The petitioner then approached the National Human Rights Commission and the Supreme Court, which in December 2003 ordered a CBI[1] investigation. In August 2004, the Court transferred the trial from Gujarat to a special court in Mumbai owing to threats against the petitioner and the risk of partiality. On 21 January 2008, the Special Judge at Greater Mumbai convicted eleven accused of gang rape and murder under sections 302 and 376(2)(e) and (g) read with section 149 of the Indian Penal Code 1860[2] and sentenced them to life imprisonment. Both the Bombay High Court and the Supreme Court upheld the convictions.
After serving over fifteen years, convict Radheshyam Shah sought remission from the Gujarat High Court in 2019. The High Court declined, holding that Maharashtra was the appropriate government under section 432(7) of the Code of Criminal Procedure 1973 (CrPC).[3] Shah then petitioned the Supreme Court. On 13 May 2022, a two-judge bench directed the Gujarat government to consider his application under the 1992 Gujarat Remission Policy. On 15 August 2022, the Gujarat government released all eleven convicts en masse. The petitioner filed a writ petition challenging the remission of the convicts under Article 32 in November 2022, joined by several public interest petitions.
B. Issues
The Court identified four questions: (i) whether the petitioner’s Article 32 writ petition was maintainable; (ii) whether the public interest petitions were maintainable; (iii) whether the Gujarat government was competent under section 432(7) CrPC to grant remission; and (iv) whether the remission orders were otherwise valid in law.
III. Arguments
A. Petitioner
Counsel advanced four contentions. First, the Gujarat government lacked jurisdiction; under section 432(7)(b) CrPC, only the government of the state of sentencing, namely Maharashtra, was the appropriate authority. Second, the May 2022 Supreme Court order was obtained by fraud, as Shah had concealed that his prior remission application to Maharashtra had been rejected by every recommending authority, including the CBI, the presiding Special Judge, the Superintendent of Police, and the District Magistrate. Third, the simultaneous en masse release of all eleven convicts without individual consideration breached the principles in Sangeet v State of Haryana.[4] Fourth, the gravity of the offences rendered the remission inconsistent with constitutional morality and public policy.
B. Respondents
The Gujarat government and the convicts argued that remission is a matter solely between the state and the convict, leaving the petitioner and public interest litigation (PIL) petitioners without locus standi. On the merits, the Gujarat government maintained that, since the offence was committed in Gujarat, the state retained jurisdiction as appropriate government despite the transfer of trial. It relied on the convicts’ good prison conduct and on the May 2022 bench direction as binding authority. The convicts separately argued that returning them to prison after over a year of liberty constituted a disproportionate interference with their rights under Article 21 of the Constitution.[5]
IV. Judgment and Ratio Decidendi
The Supreme Court unanimously allowed the petitions and quashed the remission orders, directing all eleven convicts to surrender within two weeks. Justice Nagarathna authored the principal judgment.
On maintainability, the Court held the petitioner’s Article 32 petition to be fully maintainable. As a victim of the crimes for which the convicts were sentenced, she had a direct and legally cognisable interest in the lawful exercise of remission power. The maintainability of the PILs was treated as academic.
On jurisdiction, the Court applied section 432(7)(b) CrPC as authoritatively construed in Union of India v V Sriharan,[6] which defined appropriate government as the government of the state in which the offender is sentenced. Since the convicts were sentenced in Mumbai, Maharashtra alone had jurisdiction. The Gujarat government’s argument, that the place of the offence governed, was expressly rejected. The Court held that Parliament’s definition of appropriate government by reference to the place of sentencing was deliberate and applied with full force to transferred trials.
On the May 2022 order, the Court found that Shah had withheld from the two-judge bench that his earlier application to Maharashtra had been refused, and that the Gujarat High Court had already declined jurisdiction on the same ground that Maharashtra was the appropriate government. The 2022 order was declared per incuriam and a nullity. The subsequent remission orders, founded upon it, fell accordingly.
On the merits of the remission orders, the Court found them arbitrary, unreasoned, and passed without individual consideration of any convict’s case, contrary to the principle in Sangeet. The Gujarat government was found to have abused its discretion and acted in tandem with the convicts. The convicts’ personal liberty argument was rejected; the Court held that the rule of law prevails over liberty obtained by the corruption of judicial process.
The ratio is threefold: first, where a trial is transferred by the Supreme Court, the appropriate government for remission under section 432(7)(b) CrPC is the government of the state of sentencing, not of the offence; second, an order procured by suppression of material facts is a nullity incapable of conferring jurisdiction; and third, the power of remission must be exercised individually and in good faith, not as a collective or politically convenient act.
V. Critical Analysis
The judgment is legally defensible and its conclusions follow from established principles. Three observations are, however, warranted.
The decision marks a significant expansion of victim standing in remission proceedings. Indian law had previously treated remission as a bilateral affair between the state and the convict, especially in criminal proceedings. By recognising the petitioner’s Article 32 locus standi, the Court affirmed that victims retain a constitutional interest in the integrity of the criminal justice process beyond the point of conviction. This is consistent with the trajectory of victim jurisprudence in India and is a development to be welcomed.
The per incuriam characterisation of the May 2022 order, while technically accurate, obscures the more serious ground for nullifying it. The earlier bench did not merely overlook V Sriharan and section 432(7)(b); it was actively deceived. Fraud vitiates any judicial order independently of whether the court misapplied the law. The judgment would have benefited from a clearer separation of these two bases, each of which independently sufficed to make the 2022 order a nullity.
The Court’s treatment of the liberty question is rhetorically confident but doctrinally underdeveloped. The proposition that convicts who abuse legal process forfeit the protection of Article 21 of the Constitution is intuitively sound. Its application in this case is justified. Yet, the Court did not engage with its own precedents on the right to liberty of long-serving prisoners, which may produce tension in future litigation. A more thorough engagement with the proportionality analysis would have strengthened the reasoning.
Overall, the judgment is a necessary and principled restatement of the limits of executive clemency. It confirms that remission is a statutory power governed by law, subject to judicial review, and must not be exercised as an administrative favour or in collusion with those whom it benefits. The decision will endure as a leading authority on the per incuriam doctrine, jurisdictional competence in transferred trials, and the expanding role of victims in post-conviction proceedings.
References
[1] The Central Bureau of Investigation (CBI).
[2] The Indian Penal Code, 1860 (Act No. 45 of 1860).
[3] The Code of Criminal Procedure, 1973 (Act No. 2 of 1974).
[4] Sangeet v State of Haryana (2013) 2 SCC 452.
[5] The Constitution of India, 1950.
[6] Union of India v V Sriharan (2016) 7 SCC 1.
