Bilkis Bano.
Credit: PTI File Photo
New Delhi: The Supreme Court on Monday quashed the Gujarat government's decision of August 10, 2022 to grant remission to 11 convicts sentenced to life term for the gang rape of Bilkis Bano and killing her family members during the 2002 Gujarat riots, for "usurping" the power of Maharashtra government and lacking competence and jurisdiction.
The top court directed the convicts to surrender within two weeks.
A bench of Justices B V Nagarathna and Ujjal Bhuyan declared the government of Gujarat where the offence took place was not the competent authority to take such a decision, as the state of Maharashtra where the offenders were tried on the order of this court was only capable to take the decision on remission of the convicts.
"We hold that the Gujarat government had no jurisdiction to entertain the prayers seeking remission as it was not the appropriate government within the meaning of the provisions of the Criminal Procedure Code," a bench of Justices B V Nagarathna and Ujjal Bhuyan said.
"Hence, the orders of remission dated 10.08.2022 made in favour of respondent Nos 3 to 13 (11 convicts) herein are illegal, vitiated and therefore, quashed," the bench added.
The court thus held deprivation of the liberty of the convicts was justified as the Rule of Law has to prevail.
The court also held that the previous judgement of May 13, 2022 by a two-judge bench allowing the Gujarat government to take a decision on remission was "nullity and non est in the eyes of law" for the order was obtained by playing fraud upon the court and non disclosure of complete facts and misrepresentation of facts.
The order of remission passed on August 10, 2022 was without jurisdiction and an act of usurpation of competence by the Gujarat government from the Maharashtra government where the trial was ordered to be shifted, the bench said.
The court also held that the petition filed by victim Bilkis Bano, challenging remission order by the Gujarat government was maintainable.
The bench, however, said it was not necessary to give a finding whether PILs filed by a number of activists including former CPI(M) MP Subhashini Ali and expelled TMC MP Mahua Moitra were maintainable.
The question is wholly academic, it is kept open for consideration in other appropriate case, the bench said.
The bench also said the SC's May 13, 2022 order, is per incuriam and is not a binding precedent for it was contrary to the larger bench decisions of this Court, which held that it is the government of the State within which the offender is sentenced which is the appropriate government which can consider an application seeking remission of a sentence.
"The opinion of the Special Court, Mumbai (Maharashtra) was rendered ineffective by the Government of the State of Gujarat which in any case had no jurisdiction to entertain the plea for remission. The opinion of the Sessions Judge at Dahod was wholly without jurisdiction as the same was in breach of sub-section (2) of the Section 432 of the CrPC," the bench said.
The court also noted that the Jail Advisory Committee, Dahod and the other authorities had lost sight of the fact that the convicts had not yet paid the fine ordered by the Special Court, Mumbai which had been confirmed by the Bombay High Court.
"Ignoring this relevant consideration also vitiated exercise of discretion in the instant case," the bench said.
On October 12, 2023, the bench had reserved its judgement on the petitions filed by Bilkis Bano herself and others.
In November, 2022, Bilkis Bano, the victim of gang rape during the 2002 Gujarat riots, herself approached the court against the state government's decision of premature release of 11 men sentenced to life term, contending it was "one of the most gruesome crimes of extreme inhuman violence and brutality, persuaded by hate towards a particular community".