GS Paper II

News Excerpt: 

The Supreme Court (SC) quashed the order of en masse remission granted by the State of Gujarat in August 2022 to 11 men sentenced to life imprisonment for the gangrape of Bilkis Bano and the murder of her family, including a two-month-old infant during the 2002 riots.

• While quashing the Gujarat government’s decision, the SC acknowledged the importance of personal liberty as a fundamental right under Article 21 of the Constitution but also sought to address the question of whether the rule of law can prevail over it.

Rule of Law vs Personal Liberty:

• Rule of Law is defined as “a government of laws and not of men”, and acts as a check to the executive’s lawlessness by ensuring that no official or administrator can arrest or detain a person without legislative sanction.
• In the present case, the court explained the concept to mean that whenever the State fails to perform its duties, the court will step in “to ensure that the rule of law prevails over the abuse of the process of law”. 
  • Such abuse could stem from inaction, arbitrary actions of protecting offenders, or the failure of different authorities to discharge obligations according to the law.

• Breaching the rule of law amounts to negating equality, as prescribed by Article 14. 

• It means no one, howsoever high or low, is above the law; and the concept is “closely intertwined” with adjudication by courts of law.
• Referring to Justice H R Khanna’s dissenting judgment in ADM, Jabalpur vs. Shivakant Shukla (1976), the court noted that “rule of law is the antithesis of arbitrariness”.
• The court noted that the concept of justice includes not just the convict’s rights but also those of the victims and the law-abiding sections of society while referring to the 2014 ruling in Surya Baksh Singh vs. State of UP,
• The SC on dealing with the plea of the convicts not to be sent back to prison states that liberty is precious when it is obtained by due process law.
• Rejecting the convicts’ plea for protection of liberty, the court held that the rule of law must prevail and the orders of remission be set aside.

On what grounds did the Supreme Court strike down the remission given by the Gujarat government in 2022?

• The Gujarat government did not have the authority or jurisdiction to consider the remission applications of the convicts, to reduce their sentence. 
• This was because the trial in the case was transferred from Gujarat — where the crime was committed — to Mumbai, Maharashtra, in 2004 by the SC after concerns and apprehensions were raised about evidence tampering, and the absence of a conducive situation for a fair trial in Gujarat.
• Following the trial, a special CBI court in Mumbai convicted and sentenced the 11 men in 2008.
• The SC said that as per the provisions of Section 432 of the Code of Criminal Procedure Code (CrPC), 1973, an application for remission can only be before the government within whose territorial jurisdiction the applicant was convicted, in this case, Maharashtra, and not where the offence took place, in this case, Gujarat.
• Under Section 432 of the CrPC, state governments do have the power to suspend or remit a sentence, but Section 7(b) of the law clearly states that the appropriate government is the one in whose jurisdiction the offender is sentenced.
• The state of Gujarat had “usurped the powers of the state of Maharashtra which only could have considered the applications seeking remission”.
• The Gujarat government had no jurisdiction to entertain the remission applications or pass orders granting remission as the trial took place in Maharashtra, making the Maharashtra government the “appropriate” one to decide on the remission.
• The court also noted that the convicts were considered for an early release based on a policy of the state of Gujarat dating back to 1992, which could not have been applied to them. 
• That policy allowed for an early release of prisoners who have completed 14 years of imprisonment — but was subsequently cancelled, and substituted by another policy in 2014 which barred the grant of remission to convicts of heinous crimes.
• The court also said that the convicts had not fulfilled the condition of paying a fine ordered by the trial court to be considered for remission.

Can the convicts apply for remission again? 

• The criminal justice system has provisions like remission or reduction of sentence, taking into account the fact that a person can reform, and can be set free as a better citizen.

• The SC said that there are competing interests — that of the rights of the victim or her family to justice, and that of a convict’s claim to a second chance. The court also said that this is not an “indefeasible” (not capable of being annulled or voided) right of a convict.
• The convicts can approach the Maharashtra government for remission in the future. Whether remission is granted will, however, depend on various aspects, including the remission policy of the state. 
• Ordering status quo ante, SC reasoned that for the convicts to apply for remission again they had to be back in prison first.

Conclusion: 

Gangrape is a crime against humanity. The Statute of the International Criminal Court prescribes a sentence of 30 years for crimes against humanity with no remission. By considering human rights and personal liberty, this verdict by SC is the triumph of the will of Bilkis Bano to fight for justice and the collective contribution of the women’s movement which has worked tirelessly in supporting her and articulating their vision of justice.