- Justice B.V. NagarathnaFavored (Authored)
- Justice Ujjal BhuyanFavored (Concurred)
- Constitution of India (Articles 21, 32, 14, 142)
- Code of Criminal Procedure, 1973 (Section 432 - Power to remit sentences, Section 435)
- Indian Penal Code, 1860 (Sections 302, 376(2)(g))
- Laxman Naskar v. Union of India (2000) (Guidelines for remission)
- Union of India v. V. Sriharan (2016) (Definition of "appropriate government")
- Radheshyam Bhagwandas Shah v. State of Gujarat (2022) (The judgment which was held to be fraudulent)
This case was filed by Bilkis Bano, a survivor of the 2002 Gujarat riots, during which she was gang-raped and 14 members of her family, including her three-year-old daughter, were murdered. The 11 men convicted for these crimes were sentenced to life imprisonment by a special CBI court in Mumbai, Maharashtra, in 2008. Their conviction was upheld by the Bombay High Court and the Supreme Court.
On August 15, 2022, the Government of Gujarat granted premature release (remission) to all 11 convicts based on its 1992 remission policy, following a May 2022 Supreme Court order (in a plea by one of the convicts) that directed Gujarat to consider the remission. Bilkis Bano challenged this remission order, arguing it was illegal, arbitrary, and granted by the wrong government.
ARGUMENTS
Petitioner's Case (Bilkis Bano)
- The Government of Gujarat was not the "appropriate government" to grant remission under Section 432 of the CrPC. Since the trial was held in Maharashtra, only the Government of Maharashtra had the power.
- The May 2022 Supreme Court order (in Radheshyam Shah) was obtained by the convict by "playing fraud on the Court" and suppressing material facts.
- The remission order was passed without application of mind, ignored the heinous nature of the crime, the opinion of the trial judge (who opposed remission), and central agency guidelines.
- The order was arbitrary, violated the rule of law, and failed to consider the victim's rights or societal impact, thus violating Article 14 and 21.
Respondents' Case (State of Gujarat / Convicts)
- The Gujarat government acted in good faith based on the May 2022 Supreme Court order, which explicitly stated Gujarat was the "appropriate government".
- The remission was granted according to the 1992 policy, which was in effect at the time of the conviction and was more liberal.
- The convicts had served over 14 years and their conduct in prison was good.
- The state has the sovereign power to grant remission.
Case Progression Timeline
Crime Committed
Bilkis Bano is gang-raped and 14 family members murdered during the 2002 Gujarat riots.
March 3, 2002Trial Transferred to Maharashtra
Supreme Court transfers the trial from Gujarat to a special court in Mumbai, Maharashtra, to ensure fairness.
August 2004Conviction by Trial Court
Mumbai Special CBI Court convicts 11 men and sentences them to life imprisonment.
January 21, 2008Bombay High Court Upholds Conviction
The Bombay High Court upholds the life sentences of the 11 convicts.
May 2017SC directs Gujarat to consider remission
In Radheshyam Shah v. State of Gujarat, a 2-judge bench directs the Gujarat govt to consider remission, holding it to be the "appropriate government".
May 13, 2022Convicts Released
Government of Gujarat grants remission to all 11 convicts, who are released from jail.
August 15, 2022Bilkis Bano Files Petition
Bilkis Bano files a writ petition in the Supreme Court challenging the remission orders as illegal and arbitrary.
November 30, 2022Supreme Court Judgment
The 2-judge bench (Nagarathna & Bhuyan, JJ.) unanimously quashes the remission orders as fraudulent and void.
January 8, 2024The Supreme Court, in a scathing and unanimous judgment authored by Justice B.V. Nagarathna, quashed the remission orders granted by the Gujarat government. The Court held that the orders were illegal, arbitrary, and void ab initio (from the beginning).
The Court ruled that the Government of Gujarat was not the "appropriate government" under Section 432 of the CrPC to grant remission; the appropriate government was Maharashtra, where the trial and sentencing took place. The Court declared that the May 2022 Supreme Court judgment, which had directed Gujarat to decide, was obtained by "playing fraud on the court" and suppressing material facts, and was thus a nullity (non-binding). The Court strongly criticized the Gujarat government for "usurpation of power" and for acting in complicity with the convicts. All 11 convicts were ordered to surrender back to prison within two weeks.
COURT'S ANALYSIS
The judgment was a powerful affirmation of the rule of law over procedural manipulation and executive overreach. Justice Nagarathna's analysis focused on the statutory definition of "appropriate government" under the CrPC, affirming that it is tied to the location of the trial court, not the crime. By voiding a prior Supreme Court order as being obtained by fraud (a legal nullity), the bench took a strong stand on judicial integrity. The Court's sharp rebuke of the Gujarat government for exercising power it did not have, and for failing to apply its mind (e.g., ignoring the trial judge's negative opinion), re-established that remission is not an arbitrary executive privilege but a power to be exercised fairly, reasonably, and in accordance with law. The judgment re-centered the importance of the rule of law and the rights of the victim in the remission process.
FINAL VERDICT
- The remission orders dated August 10, 2022, passed by the Government of Gujarat for all 11 convicts are declared illegal, void ab initio, and quashed.
- The Government of Gujarat was not the "appropriate government" to consider the remission applications; the appropriate government was the State of Maharashtra.
- The May 2022 Supreme Court judgment (in Radheshyam Shah) was held to be a nullity, having been obtained by fraud and suppression of facts.
- All 11 convicts were directed to surrender to jail authorities within two weeks.
- The Court held that the State of Gujarat acted in "usurpation of power" and "abuse of discretion."
RATIO DECIDENDI
Under Section 432(7) of the Code of Criminal Procedure, 1973, the "appropriate government" empowered to grant remission is the government of the State within which the offender was tried and sentenced (in this case, Maharashtra), not the State where the crime occurred or where the offender is imprisoned (Gujarat). Orders obtained from the court by playing fraud or suppressing material facts are a nullity and cannot be considered binding precedent (non est). The rule of law requires that executive discretion, including the power of remission, must be exercised fairly, reasonably, and by the competent authority, not arbitrarily or through usurpation of power.