Shivani Bhardwaj
New Delhi: Supreme Court of India on Monday 8 January 2024 declared the remission of life sentence of 11 convicted of mass rape of Bilkis Bano and murder of her family, including a young infant, as null and void and ordered the men to report back to jail in two weeks.
On the question, whether the State of Gujarat was competent to pass the orders of remission in the case of the 11 men, the apex Court order says: “even in a case where the trial has been transferred by this Court from a court of competent jurisdiction of a State to a court in another State, it is still the Government of the State within which the offender was sentenced which is the appropriate Government which has the jurisdiction as well as competency to pass an order of remission under Section 432 of the CrPC. Therefore, it is not the Government of the State within whose territory the offence occurred or the convict is imprisoned which can assume the power of remission. on a plain reading of sub-section (7) of Section 432 of the CrPC and considering the judgments of the Supreme Court, it is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis the 11 men as they were sentenced by the Special Court, Mumbai.
Hence the applications filed for seeking remission had to be simply rejected by the State of Gujarat owing to lack of jurisdiction to consider them. This is because Government of Gujarat was not the appropriate Government, the order says.
The order says Article 142 of the Constitution cannot be invoked by the Supreme Court in favour of the 11 men to allow them to remain out of jail as that would be an instance of the Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders that are null and void and therefore non est in the eye of law.
Further, the order says “we cannot be unmindful of the conduct” of the 11 men, particularly respondent No.3, who abused the process of law and the court in obtaining remission. In such a situation, arguments with an emotional appeal though may sound attractive become hollow and without substance when placed in juxtaposition with the court’s reasoning on the facts and circumstances of this case.
Therefore, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Article 14 of the Constitution, the court has held that ‘deprivation of liberty’ vis-à-vis the 11 men is justified in as much as the said respondents have erroneously and contrary to law been set at liberty.
These men were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and were imprisoned, the order says adding they were released pursuant to the impugned remission orders which have now been quashed by the Supreme Court. Consequently, the order says the status quo ante must be restored.
The men involved can seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail. Therefore, for these reasons the Supreme court has held that the plea of ‘protection of the liberty’ of these men cannot be accepted by the Court.
The instant order has come in response to Writ Petition (Crl.) No.491 of 2022.
The order says: “The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law. Justice is supreme and justice ought to be beneficial for the society. Law courts exist for the society and ought to rise to the occasion to do the needful in the matter. Respect for law is one of the cardinal principles for an effective operation of the Constitution, law and the popular Government. The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law”.
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