The Supreme Court while quashing the remission orders issued to prematurely release 11 convicts in the Bilkis Bano case reserved some harsh words for the Gujarat government. “The state of Gujarat has acted in tandem and was complicit” with the convict who moved the Supreme Court seeking a direction for the consideration of his premature release application, the court said. It also said the Gujarat government was guilty of “abuse of discretion” and “usurpation of power”.
The bench of Justices BV Nagarathna and Ujjal Bhuyan held that the court order that directed the Gujarat government to consider a convict’s remission was “obtained by fraud” and directed the 11 convicts to surrender back to prison within two weeks.
The 11 convicts in the case were granted remission by the Gujarat government on August 15, 2022, based on a Supreme Court order of May 2022 passed by a bench of Justices Ajay Rastogi and Vikram Nath. The court pointed out that this order was obtained by “suppressing material aspects” and “misleading” the court.
Read: Bilkis Bano judgement shows how remorseless convicts scammed the court
Gujarat not appropriate government
The SC bench held that the state of Gujarat was not the “appropriate government” within the meaning of Section 432 (power to suspend or remit sentences) of the Code of Criminal Procedure (CrPC) to decide the remission pleas of the convicts. It also ruled that the State of Maharashtra was the appropriate government to consider the pleas. “Hence the applications filed by [10 convicts] seeking remission had to be simply rejected by the state of Gujarat owing to lack of jurisdiction to consider them,” the court said.
Usurpation of power
The top court held that the Gujarat government passing remission orders releasing the 11 convicts was an instance of “abuse of discretion” and “usurpation of power”. The latter of which occurs “when a particular discretion vested in a particular authority is exercised by some other authority in whom such power does not lie”, the court said.
The court found it interesting that the Gujarat government did not file a review petition to this order, when it had correctly submitted during the 2022 case hearing that the appropriate government to make a decision in the case was not Gujarat but Maharashtra.
Stating that if the Gujarat government had filed a review petition, Bilkis wouldn’t have had to file a litigation, the court slammed it by saying, “in the absence of any review petition, the state of Gujarat has usurped State of Maharashtra's power and passed the remission orders."
While the bench acknowledged that the May 2022 verdict by the SC led to the Gujarat government orders for remission of Radheshyam and others, it ruled that it was obtained fraudulently.
Read: Bilkis Bano judgement shows how remorseless convicts scammed the court
The court observed that Radheshyam had “surreptitiously” filed his petition at the SC without disclosing the “full and material facts”, and that all the other convicts took advantage of the May 2022 order to file remission applications “even in the absence of any such direction in their cases” by the courts. The Gujarat government granted remission to 10 other convicts without any court order, SC observed. It held that the state of Gujarat “acted in tandem” with Radheshyam and “was complicit” in what he sought before the court.
The SC bench considered four questions while pronouncing the judgement: Whether the petition filed by Bilkis Bano under Article 32 is maintainable; if public interest litigations (PIL) assailing the remission order is maintainable; the competency of Gujarat government in passing the remission orders; and if the remission orders were in accordance with the law.
Apart from the gangrape, the 11 persons in the case were convicted in the killing of seven of Bano's family members during the 2002 Gujarat riots. Bano was gangraped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven of her family who were killed.