Why Bilkis rapists had acquitted from jail: Points that SC considered and answered
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Brief: Bilkis had filed her petition under Article 32 as it was her fundamental right under Article 21, which ensures the right to life and liberty. Also, under Article 14, which ensures the right to equality and equal protection of the law for any individual.
The Supreme Court has invalidated the Gujarat government’s prior orders granting early release to 11 individuals convicted in the Bilkis Bano(bilkis rap) gangrape case of 2002. Justice B V Nagarathna and Ujjal Bhuyan declared the Gujarat government’s August 10, 2022, decision to remit the convicts’ sentences as “unlawful”.
The court determined that the Gujarat government lacked the authority to handle the remission applications or issue remission orders since the trial occurred in Maharashtra. Consequently, the Maharashtra government holds the rightful jurisdiction to decide on such matters.
In its extensive 251-page verdict titled ‘Bilkis Yakub Rasool vs Union of India,’ the court identified and deliberated on five key issue regarding the case. It thoroughly addressed these concerns, primarily focusing on the jurisdiction aspect, clarifying the appropriate authority and process for remission in such cases.
1. Whether the petition filed by any victim of the case or is maintainable under Article 32 of the Constitution of India.
Article 32, settled within Part 3 of the Constitution, holds sway over fundamental rights. The court stipulated that the act of petitioning under Article 32 itself constitutes a fundamental right. Bilkis invoked Article 32 to secure her rights enshrined in Article 21 – ensuring life and liberty – and Article 14 – ensuring equality and equitable legal protection.
The court’s ruling emphasised the essence and intent of Article 32, acknowledged as the ‘heart of the Constitution’ and a fundamental right in its own regard, being the facilitator for enforcing other fundamental rights.
This plea is filed under Article 32 which clearly indicates “sustainability”, the court ruled.
2. Whether the PIL challenges on August 10th, 2022 to remission orders was maintainable.
The court meticulously documented the extensive arguments presented by both parties involved in the case concerning this matter. Yet, it deemed unnecessary to address the issue regarding the viability of Public Interest Litigations (PILs). This decision stemmed from Bilkis Bano(bilkis rap), one of the affected individuals, invoking Article 32, a move deemed maintainable by the court.
“The examination of that particular petition, based on its merits, would sufficiently address the present case,” the court decreed. As a result, the assessment of the PILs’viability was deemed” entirely theoretical” and “unnecessary to resolve” within this specific case, according to the court’s statement.
3. Why the Gujarat government had been competent to implement the remission orders.
The crux of the challenge lay here, where the court’s ruling hinged significantly. This facet stood out as pivotal within the judgement. Specifically, the court delved into Section 432 CrPC(bilkis rap), governing the authority vested in the government to either suspend or mitigate sentences.
Under section 432(1), the relevant government holds the prerogative to halt the implementation of a sentence or alleviate the punishment either wholly or partially. However, Section 432(2) imposes a crucial condition.
According to the court’s ruling, under Section 432(7), the “appropriate government” pertains to the state government where the offender is sentenced- specifically Maharashtra in this instance.
The incident’s location or where the convict is imprisoned (here, Gujarat) aren’t factors to consider, as they’re excluded from the definition of the ‘Appropriate Government’ in clause (b) of sub-section (7) of Section 432. If parliament intended for the Government within the territorial jurisdiction of where the offence occurred or where the offender is held to consider the remission order, regardless of the trial and conviction’s court, it would have been explicitly stated in the definition.
“Repercussions of the orders of remission were enforced on August 10, 2022, which was in favour of the convicts to declare “illicit, vitiated, and quashed. Under section 432(7) with section 432(1) and (2) of the CrPC, holding that the Government of Gujarat had no jurisdiction regarding remission of respondent. As it was not the appropriate Government according to the aforesaid provisions” the court ruled.
4. The remission orders were passed by the Government of Gujarat in accordance with the law?
No, orders were given by the court. There are four reasons given.
- The Gujarat government had “usurped the powers of the State of Maharashtra” since Maharashtra was the latter state which considered the remission applications, the court said.
- The policy of remission of the Gujarat government was enforced on July 9, 1992, in order to pass the remission order. It was implemented in the case of the II convicts, stated the court.
- * The Gujarat government, had no jurisdiction to consider the convicts’ plea for sentence remission, nullified the viewpoint of the presiding judge of the Special Court in Mumbai or the court where 11 accused were convicted, rendered it ineffective.
* After receiving the negative report(bilkis rap) on January 3, 2020, by the judge of the special CBI court, the government of Maharashtra had sought the reason of the court. The case reached the Maharashtra government when one of the petitioners, Radheshyam Shah, approached on August 1, 2019 after the Gujarat High Court declared that Maharashtra was the appropriate government for his case. Then, the same petitioner had moved to the Supreme Court for premature release under the 1992 policy.
- Considering these applications for remission, the Jail advisory committee of Dahod, Gujarat with other authorities found that the convicts hadn’t paid the fine yet imposed by the Special Court, Mumbai, confirmed by the Bombay High Court later. Indifference to this consideration devastates the practice of discretion in the instant case,” said the Court.
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