SC Revokes Release of Bilkis Bano Case Convicts

On Monday, the Supreme Court nullified the relief extended by the Gujarat government in August 2022 to 11 individuals convicted for the heinous acts of gangrape against Bilkis Bano and the murder of her family members during the 2002 riots. The court directed the convicted individuals to surrender to jail authorities within a span of two weeks.

The bench, comprising Justice BV Nagarathna and Justice Ujjal Bhuyan, denounced the Gujarat government’s decision to grant remission to the convicts, characterizing it as an “instance of usurpation of jurisdiction” and a clear “abuse of discretion.” The court asserted that the State had actively collaborated with the convicts, emphasizing that the act of remission amounted to complicity in the wrongdoing. Remission, in this context, refers to a reduction in the sentences imposed on individuals convicted of a crime.

The Supreme Court emphasized that Gujarat was not the suitable authority to adjudicate on the remission plea submitted by the 11 men convicted for the “grotesque and diabolical crime” motivated by communal hatred. The bench highlighted Section 432(7)(b) of The Code of Criminal Procedure, clarifying that the power of remission lies with the State in which the offender receives the sentence, rather than the jurisdiction where the crime occurred or where the convict is incarcerated.

Bilkis Bano endured a brutal gangrape, and tragically, her three-year-old daughter was among the 14 individuals murdered by a mob, which included the 11 men. This horrific incident occurred on March 3, 2002, during the riots in Limkheda taluka of Gujarat’s Dahod district. It is noteworthy that Bilkis Bano was pregnant at the time of these harrowing events.

In 2008, a CBI court in Mumbai convicted the 11 men for their involvement in the crimes. The Supreme Court, citing “exceptional circumstances,” had transferred the trial from Gujarat to Maharashtra in 2004.

After a writ petition was filed by one of the convicts, Radheshyam Shah, who had served 15 years and 4 months in jail, the Supreme Court, on May 13, 2022, directed that the Gujarat government was the rightful authority to decide on his remission plea. The decision was to be made in accordance with the state’s 1992 remission and premature release policy.

In compliance with the Supreme Court’s order on May 13, 2022, regarding Radheshyam Shah’s case, the Gujarat government, on August 15, 2023, released the 11 convicts under its 1992 remission policy. The release was justified by the government based on a “unanimous” recommendation from the Jail Advisory Committee (JAC), which considered the convicts’ remission eligibility due to their demonstrated “good behavior.”

Strongly rebuking the state of Gujarat for its failure to submit a review petition aimed at rectifying the May 13, 2022, order issued by a different bench of the Supreme Court, the current bench led by Justice Nagarathna and Justice Bhuyan expressed dissatisfaction. The bench remarked, “Had the state of Gujarat filed an application seeking a review of the said order and emphasized to this court that it was not the appropriate government, but the state of Maharashtra… the subsequent legal dispute could have been avoided altogether. Instead, the state of Gujarat has assumed the authority of the state of Maharashtra and issued remission orders based on the court’s order dated May 13, 2022, which, in our perspective, is legally invalid.”

“On Monday, the bench remarked, ‘This is precisely the concern that this court had foreseen at earlier stages of this case, prompting intervention on three prior occasions in the pursuit of truth and justice. This intervention involved transferring the investigation to the CBI and subsequently relocating the trial to the Special Court in Mumbai,'”

The bench, after examining the remission order related to Shah’s case, remarked that it exhibited a “complete non-application of mind.” Furthermore, it noted that “all” the remission orders dated 10.08.2022 were characterized as “stereotyped and cyclostyled orders.”

The Supreme Court declared the judgment of May 13, 2022, as a “nullity and non est in law,” asserting that the order was secured through the suppression and misrepresentation of material facts, constituting a fraudulent acquisition from the court. Consequently, the court stated that all proceedings initiated in accordance with the said order are also invalidated and hold no legal standing.

The Supreme Court bench dismissed the plea of the convicts to safeguard their liberty, asserting that permitting them to stay out of jail “would be an instance of this Court’s endorsement of disregarding the rule of law and instead assisting individuals who are recipients of orders that, in our perspective, are null and void, and therefore, legally nonexistent.”

The Court emphasized that even if the convicts wished to pursue remission anew in compliance with the law, “they must be incarcerated, as seeking remission is not permissible while on bail or outside the confines of the jail.”

As per the Supreme Court, Radheshyam Shah, who had previously been unsuccessful in obtaining relief from the Gujarat High Court, had “surreptitiously filed a writ petition before this court, urging the consideration of his case for remission without disclosing complete and material facts.” The court further noted that relief was granted by conferring jurisdiction on the state of Gujarat, which it did not rightfully possess. This was done under the pretext of considering remission based on the policy dated 9-7-1992, a policy that had been annulled in the year 2013.

The bench emphasized that it “cannot overlook the conduct of respondent Nos.3 to 13, particularly respondent No.3, who has misused the legal process and the court to secure remission.” Therefore, in upholding the principles of the rule of law, which includes the principle of equal protection under Article 14 of the Constitution, the court affirmed that the “deprivation of liberty” concerning respondent Nos.3 to 13 is justified. This is due to the fact that these respondents were erroneously and against the law released, having spent a little over fourteen years in prison (including periods of parole and furloughs). Their release was a result of the annulled remission orders, and accordingly, the status quo ante must be reinstated.

While affirming the legitimacy of Bilkis Bano’s petition, the Supreme Court refrained from making a determination on the admissibility of other Public Interest Litigations (PILs) filed in a criminal case. The court left this question unresolved, indicating that it would be addressed in a suitable case as deemed appropriate.

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