Source: The Hindu

Introduction

Supreme Court has recently given judgment in Bilkis Yakub Rasool v. Union of India & Ors. (2022). The SC set aside its judgment given on 13^th May 2022 which gave the power to the state government of Gujarat to decide the premature release of the 11 life convicts convicted for the Bilkis Bano rape case. The SC declared its own judgment a nullity and termed it bad in law.

What are the Facts of Bilkis Bano Case?

• Filing of Petitions:
  • Writ petitions were filed in SC assailing the Orders of State of Gujarat dated 10^th August 2022, granting remission and early release of 11 convicts who were all convicted, having been found guilty of committing heinous crimes during the large-scale riots in Gujarat on 28^th February 2002 and a few days thereafter which occurred in the aftermath of the burning of the train incident in Godhra in the State of Gujarat on 27^th February 2002.
• Facts Mentioned in the Bilkis Bano’s Petition:
  • The petition was related to brutally gang raping the petitioner Bilkis Yakub Rasool, who was pregnant at that time.
  • Further, the petitioner’s mother was gang raped and murdered, and her cousin who had just delivered a baby was also gang raped and murdered.
  • Eight minors including the petitioner’s cousin’s two-day-old infant were also murdered.
  • The petitioner’s three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha (paternal uncle), phupi (aunt), mama (maternal uncle) and three cousins were all murdered.
  • The Special Central Bureau of Investigation (CBI) court sentenced 11 accused to life imprisonment on the grounds of conspiring rape of a pregnant woman, murders, and unlawful assembly under the Indian Penal Code, 1860 (IPC) on 21^st January 2008.
• Other Petitions Filed Before Court:
  • Several Petitions were filed in the name of Dr Meeran Chadha Borwankar v. State of Gujarat (2002), Subhashini Ali v. State of Gujarat (2022), Mahua Moitra v. State of Gujarat (2022), National Federation of Indian Women (NFIW) v. State of Gujarat (2022), Asma Shafique Shaikh v. State of Gujarat (2022) and by the victim herself against the order of Gujarat Government on 10^th August 2022.

What were the Issues Involved in the Bilkis Bano Case?

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

What were the Contentions of Petitioners?

• Conviction was Done by Maharashtra Court:
  • Petitioners said that once a competent Court in the State of Maharashtra had tried and convicted the accused then that State is the ‘appropriate Government’.
  • Therefore, the Orders of remission passed by the State of Gujarat in respect of 11 convicts are without jurisdiction and nullity and thus, are liable to be quashed.
• Remission Policy of 1992:
  • The petitioner submitted that since the ‘appropriate government’ in the instant case is the State of Maharashtra, the remission policy of the State of Maharashtra would be applicable.
  • Thus, the remission policy of the State of Gujarat dated 09^th July 1992 would be wholly inapplicable.
  • The Remission Policy of 1992 of State of Gujarat was applied for these remissions as then the remission policy of 2014 did not came into force.
  • The Remission Policy of 1992 did not exempt rape convicts from getting the benefit of remission.

What was the Major Defence of the State of Gujarat?

• The State of Gujarat in its affidavit said that if a policy which is beneficial to the convict exists at the time of consideration of the application of premature release, then the convict cannot be deprived of such beneficial policy and that judicial review of the order of remission is not permissible in law.

What is the Conclusion of Supreme Court on the Bilkis Bano Judgment?

• Appropriate Government:
  • If the State of Gujarat had filed an application seeking review of the said order stating that it was not the “appropriate Government” but the State of Maharashtra was the “appropriate Government”, ensuing litigation would not have arisen at all.
  • On the other hand, in the absence of filing any review petition seeking a correction of the order passed by SC on 13^th May 2022, the State of Gujarat herein has usurped the power of the State of Maharashtra and has passed the impugned orders of remission is in court’s view a nullity in law.
• Nullified the Order of 13^th May 2022:
  • The judgment dated 13^th May 2022 passed by SC is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts and therefore, fraudulently obtained at the hands of SC.
• Surrender in Jail:
  • SC directed the beneficiaries of remission to report to the concerned jail authorities within two weeks.