Bilkis Bano case: Why Supreme Court quashed Gujarat’s remission of convicts

The Supreme Court on Monday struck down the relief granted by the Gujarat government in August 2022 to 11 men who were sentenced to life for the gangrape of Bilkis Bano and murder of her family members during the 2002 riots, and ordered them to surrender to jail authorities within two weeks.

In its order, a bench of Justice BV Nagarathna and Justice Ujjal Bhuyan said the Gujarat government’s decision to grant remission to convicts was “an instance of usurpation of jurisdiction and… of abuse of discretion” and that the State “acted in tandem and was complicit” with the convicts. Remission means a reduction in sentence imposed on a person convicted of a crime.

The Supreme Court said Gujarat was not the “appropriate government” to decide on the remission plea of the 11 men convicted for the “grotesque and diabolical crime…driven by communal hatred”.

Following the writ petition of one of the convicts — Radheshyam Shah, who had completed 15 years and 4 months in jail, the Supreme Court had on May 13, 2022, ordered that the Gujarat government was the appropriate government to decide his remission plea in accordance with the state’s 1992 remission and premature release policy.

Following the Supreme Court’s May 13, 2022, order in Shah’s case, the Gujarat government had on August 15, 2023, released the 11 convicts under its 1992 remission policy. It had cited a “unanimous” recommendation of the Jail Advisory Committee (JAC) to grant the convicts remission on grounds of “good behaviour”.

Castigating the state of Gujarat for not filing a review petition seeking correction of the May 13, 2022, order by another bench of the Supreme Court, the bench comprising Justice Nagarathna and Justice Bhuyan, said,

“Had the state of Gujarat filed an application seeking review of the said order and impressed upon this court that it was not the appropriate government, but the state of Maharashtra… ensuing litigation would not have arisen at all. On the other hand… the state of Gujarat has usurped the power of state of Maharashtra and passed the orders of remission based on the order of this court dated May 13, 2022 which in our view is a nullity in law.”

“This is exactly what this court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI, and the trial to the Special Court at Mumbai,” the bench said Monday.

The bench, which perused the remission order in the case of Shah, said it reflected “complete non-application of mind”. It added “all” the remission “orders dated 10.08.2022 are stereotyped and cyclostyled orders”.

The Supreme Court held the May 13, 2022 judgement “nullity and non est in law” since it said “the order was sought by suppression of material facts as well as by misrepresentation of facts and therefore, fraudulently obtained at the hands of this Court”. Consequently, “all proceedings taken pursuant to the said order also stand vitiated and are non est in the eye of law”, it said.

The Supreme Court bench rejected the prayer of the convicts to protect their liberty and said allowing them to remain out of jail “would be an instance of this Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders, which in our view, are null and void and therefore non est in the eye of law”.

The Court said even if the convicts wanted to seek remission afresh in accordance with the law, “they have to be in prison as they cannot seek remission when on bail or outside the jail”.

According to the Supreme Court, Radheshyam Shah who had earlier failed to get any relief from the Gujarat HC had “surreptitiously filed the writ petition before this court seeking to consider his case for remission without revealing the full and material facts before this court” and “relief was granted by this court by conferring jurisdiction on state of Gujarat which it did not possess… in the guise of consideration for remission on the basis of the 9-7-1992 policy which stood cancelled in the year 2013”.

The bench said it “cannot be unmindful of the conduct of respondent Nos.3 to 13, particularly respondent No.3 who has abused the process of law and the court in obtaining remission… 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, we hold that ‘deprivation of liberty’ vis-à-vis respondent Nos.3 to 13 herein is justified in as much as the said respondents have erroneously and contrary to law been set at liberty… the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). But, they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored”.

The bench pointed out that when Radheshyam Shah’s plea was being heard by another bench of the apex court in 2022, the Gujarat government had “correctly submitted…that the appropriate government in the instant case was the state of Maharashtra and not the state of Gujarat” though this was ultimately rejected in the May 13 judgement. The bench of Justices Nagarathna and Bhuyan wondered on Monday why the Gujarat government had not approached it seeking correction of the May 13, 2022, order given its earlier stand.

While upholding the maintainability of Bilkis Bano’s petition, the Supreme Court did not rule on the maintainability of other PILs filed in a criminal case and left the question open to be decided in an appropriate case.