The Supreme Court on Monday quashed the Gujarat government’s decision allowing the early release of 11 convicts in the Bilkis Bano gang-rape case and the murder of seven members of her family during the 2002 Godhra riots in Gujarat. It directed the convicts to surrender before jail authorities within two weeks.
A bench of Justices BV Nagarathna and Ujjal Bhuyan ruled that the Gujarat government was not entitled to pass the remission order for the convicts, rather the appropriate government to do so was the Maharashtra government since the trial in the case had taken place in Maharashtra.
“On the competence of the Gujarat government to pass remission orders, it is apparent that the appropriate government had to take permission of the court before passing remission orders. This means that place of occurrence or place of imprisonment of convicts are not relevant for remission. The definition of appropriate government is otherwise. The intention of the government is that the State under whom the convict was tried and sentenced was the appropriate government. This places emphasis on the place of trial and rather than where the crime took place,” the Court said.
Indicating that the government of the state within whose territory the offence has occurred is not empowered to pass the remission order and thus, it has been quashed.
Bilkis Bano had approached the Supreme Court in a writ petition in September 2022, challenging the Gujarat government’s order regarding the premature release of 11 convicts after they were released from Godhra sub-jail on remission in August 2022.
Regarding which the SC said that “the Gujarat government was complicit and acted in tandem with convicts”.
The court said that the Gujarat government should have filed a review petition against the Supreme Court judgment of May 2022 that declared the State to be competent to decide the plea for remission of convicts in the case.
A document presented in the court showed that the Gujarat government had earlier accepted that it was not the appropriate government to grant remission in the case. “Though it was set aside by the Supreme Court, Gujarat could have filed a review petition,” Justice Nagarathna said.
Moreover, the Court ruled that the May 13, 2022 judgment of the Supreme Court holding Gujarat is the State to decide on convicts early release, “has been used to usurp the powers and abuse the process of law”. The bench said that it is bad in law since it was obtained through fraud.
The bench headed by Justice Nagarathna found that the convict who had approached the top court had not disclosed the material facts, and that he had “played fraud” with it.
“If respondent 3 was aggrieved by Gujarat High Court order of 2019 he could file an appeal here. But he did not do so. He moved Maharashtra for remission. When the opinion on remission there was negative, he moved the Supreme Court. Thus, he played fraud on this court. High Court order could not be set aside in an Article 32 plea,” the Court noted.
Accordingly, due to the suppression of the facts, the bench held the earlier ruling as non est and invalid in law. “May 13, 2022 order of this court is also per incuriam since it does not follow the binding decision of the nine judge bench of the Supreme court where a HC order cannot be set aside in a PIL..,” it said.
In addition to that, on the conundrum of re-imprisonment of the convicts, the Court held that the rule of law is above the liberty of the convicts. The bench opined that the rule of law does not mean protection to a fortunate few.
In ADM Jabalpur, Justice Khanna had said rule of law is the antithesis to arbitrariness. We hold that justice cannot be done without adherence to the rule of law.
“Thus, all respondents are directed to report to jail authorities within two weeks,” the bench ordered,” it ordered.
