Early Release of Bilkis Bano Gangrape Convicts | Day 5: Petitioners Argued that the Gujarat Gov. Wrongfully Released Convicts

Maharashtra is the ‘Appropriate Government’ for Considering Remission 

Gupta submitted that the Gujarat Government is not the appropriate authority to grant remission to the convicted persons. She relied on Section 432 of the Criminal Procedure Code (CrPC) which stipulates that an ‘appropriate government’ can consider remission after a convict makes a formal application. In Sangeet v State of Haryana (2012) the Supreme Court held that a government cannot remit a convict of its own volition—it may respond to an application by the convicted person. 

Section 432(7) of the CrPC states that the ‘appropriate government’ is the state government within which the offender was convicted. In the present case, the trial of convicts was transferred from Gujarat to Maharashtra. This was done because the victim, Bilkis Bano, received death threats in Gujarat amidst the ongoing trial. Gupta insisted that according to this provision, the appropriate government would be Maharashtra, not Gujarat. 

Gupta relied on four Supreme Court judgements to buttress her point. In State of Madhya Pradesh v Ratan Singh, (1976), Hanumant Dass v Vinay Kumar (1982) Government of Andhra Pradesh v M.T. Khan (2003), the Supreme Court had held that the ‘appropriate Government’ would be the one where the offence was committed. This decision was further upheld by a Five-Judge Constitution Bench in 2015 in V. Sriharan v Union of India. 

Justice B.V. Nagarathna asked if the Supreme Court Bench, which directed the Gujarat government to consider the remission applications of the 11 convicts, had referred to V. Sriharan.  

Gupta reminded the Bench that the Court held that all four cases were inapplicable to this one, as the circumstances of this case were different. Justice Nagarathna then inquired whether the Supreme Court gave any further reasoning or case law to justify its disregard for V. Sriharan. Gupta replied that there was no such justification offered. 

Justice Nagarthna, full of questions for the counsel, asked who the appropriate government would be, in cases where the Central Bureau of Investigation (CBI), and not a specific government, is the investigating body. All 11 convicts in the present case were convicted by a Special CBI Court.

Gupta responded that the state government may consider an application for remission after consulting the Central Government in such instances. 

Remission Policy was ‘Oblivious’ to Latest Legal Developments 

The remission of the convicts was considered on the basis of the Gujarat Remission Policy of 1992 (1992 Policy). This remission policy was drafted on the basis of Section 433A of the CrPC, which states that no person shall be released until they serve a prison sentence of 14 years for any offence which carries a punishment of the death penalty. 

The 1992 Policy stated that the Gujarat government may solely consider  ‘good behaviour’ of convicts to grant remission. This was cancelled by the Gujarat Government after the Supreme Court laid down a stronger law for granting remission in Sangeet. The Gujarat Remission Policy of 2014 was thus born. The 2014 policy, in contrast, showed the ‘wisdom’ of the Gujarat Government. 

As the 11 offenders were convicted before the 2014 policy came into effect, their remission was considered under the 1992 policy. Gupta stated that the Gujarat Government failed to consider the factors that influenced the stronger 2014 policy. Further, the Gujarat Government left out the four Supreme Court decisions—all delivered before the 2014 Policy—which advocated for more robust standards for the remission of convicts of heinous crimes.

Further, Gupta stated that in the present case, the Gujarat Government did not consider the opinion of the presiding judge who convicted the accused. The Constitution Bench in Sriharan made it mandatory for the state government to consult the presiding judge of the case. This was a shift from the previously accepted law, which had not made such consultation mandatory. Next, in Ram Chander v State of Chhattisgarh (2022) the Court held that the ‘ultimate order of suspension or remission should be guided by the opinion to be rendered by the Presiding Judge’. Gupta argued that the Gujarat Government made a bare reading of the 1992 policy and was ‘oblivious’ of any other factors, especially relevant provisions of the CrPC which deal with remission. Justice Nagarathna agreed that the policy must be read into the context of the relevant provisions. 

Remission of Convicts Affected Public Conscience  

Gupta pointed out that the Gujarat government failed to consider other factors while granting remission such as impact test, impact on the society at large, impact on public conscience, etc. She stated that the impact on society was evident when there were public agitations across the country after the convicts were released. Justice Ujjal Bhuyan interjected—‘Is that important?’. Gupta replied in the affirmative, as the Supreme Court in Sriharan had stated that the ‘impact of the public at large’ should be taken into consideration while granting remission. She continued that several petitioners approached the Court to protest the remission granted to the convicts. 

Gupta concluded that the decision to release the convicts was made ‘arbitrarily’ with ‘non-application of mind’ without any inputs from the presiding Judge of the Maharashtra Court or the CBI. 

The Bench will hear the respondent’s arguments at 3:00 PM tomorrow.