Bilkis Bano case: SC quashes remission to 11 convicts, orders them to surrender within 2 weeks
The top court faulted Gujarat government for “usurping” power of the Maharashtra government by failing to file a review petition against the May 2022 judgment by bringing the correct facts on record
The Supreme Court on Monday set aside the Gujarat government’s 2022 decision to prematurely release 11 convicts facing life term for the gangrape of Bilkis Bano and various other heinous crimes committed during the 2002 Gujarat riots and directed them to surrender before concerned jail authorities within 2 weeks.
A bench of justices BV Nagarathna and Ujjal Bhuyan quashed and set aside the orders of remission granted on 10 August 2022, ruling that the Gujarat government did not have the competence to decide the remission of the convicts as the trial in the case had shifted to Maharashtra.
The competent government to grant remission under Section 432 of the Code of Criminal Procedure (CrPC) shall be the state where the trial took place and in this case Maharashtra government, the bench said.
“The government of Gujarat had no jurisdiction to pass remission orders as it was not the appropriate government. On this short ground itself, the remission orders are set aside,” the bench held.
The Gujarat government had claimed to have jurisdiction by citing a 13 May 2022 judgment of the top court while dealing with a petition filed by one of the 11 convicts – Radheyshyam Bhagwandas Shah – where the top court directed the state to consider his remission within two months under a 1992 policy where gangrape convicts could also seek pre-mature release.
The top court set aside its 13 May 2022 decision as it found that Shah suppressed material facts from the court as he failed to disclose that he approached Gujarat HC which had directed him in July 2019 to seek remission from the Maharashtra government since all the convicts were sentenced to life imprisonment by a Special CBI court in Mumbai in 2008, and that it was the Bombay high court which had in 2017 upheld their conviction and sentence. Shah had since approached the Maharashtra government which refused to grant remission.
The top court faulted Gujarat government for “usurping” power of the Maharashtra government by failing to file a review petition against the May 2022 judgment by bringing the correct facts on record.
“The order of May 13, 2022 is vitiated by fraud and is a nullity and non-est in law. All proceedings initiated as a result of this order are hereby set aside,” Justice Nagarathna, who authored the judgment said.
The bench further said, “The Gujarat government usurped the power of Maharashtra government (to grant remission) by not filing a review.” Taking advantage of the May 2022 order, all convicts applied for remission.
“The Gujarat government acted on basis of a judgment which was contrary to law,” the judgment said, and the court stated that the May 2022 judgment was “per incuriam” as it went contrary to previous constitution bench decisions.
The top court said, “The Gujarat government was complicit with respondent 3 (Shah). This was what this Court had apprehended by transferring the trial (in Bilkis Bano case) from Gujarat to Maharashtra. This court was misled to issue directions contrary to the law. If Gujarat had adhered to rule of law, it should have filed a review. Had Gujarat filed review or impressed on this Court that it was not the appropriate government, all this litigation would not have resulted.”
Finally, with the remission orders being set aside, the Court said that balancing liberty of convicts with enforcement of rule of law is a “delicate” question.
“Compassion and sympathy have no role to play where rule of law is to be enforced. This court must be beacon in preserving rule of law,” the bench said as it ordered the 11 convicts to surrender back to the concerned jail authorities in Gujarat within two weeks.
The Court said that even if they seek remission again, it would be meaningless if they remain out of jail.
Bano was 21, and five months pregnant when she was gangraped as she tried to flee with her family to safety during the 2002 riots. The 11 convicts also killed seven members of her family, including her three-year old daughter. The trial of the case was shifted from Gujarat to Mumbai and the Central Bureau of Investigation (CBI) investigated the case.
