The Supreme Court on Monday quashed the order of en masse remission granted by the State of Gujarat in August 2022 to 11 men sentenced to life imprisonment for the gangrape of Bilkis Bano and murder of her family, including a two-month-old infant during the 2002 riots.
Terming what befell Ms. Bano, who was pregnant at the time, and her family as a “grotesque and diabolical crime driven by communal hatred”, a Bench of Justices B.V. Nagarathna and Ujjal Bhuyan delivered a scathing reprimand of the ruling BJP government in Gujarat for acting “in tandem” with the prisoners to order their early release after “usurping the power” to do so. Monday’s judgment comes as a blow to the Centre which had approved the men’s premature release.
SC quashes remission granted to 11 men convicted in Bilkis Bano gang rape case | Live
“A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?” Justice Nagarathna, who authored the 251-page judgment, asked.
The court ordered the men to report back to jail in a fortnight, declining their fervent plea to sympathise with them and not strip their personal liberty away.
“Can rule of law surrender to liberty earned as a consequence of its breach? Can breach of rule of law be ignored in order to protect a person’s liberty that he is not entitled to? Should the scales of justice tilt against rule of law? Only when the rule of law prevails will liberty and all other fundamental rights prevail under our Constitution… Rule of law does not mean the protection of a fortunate few,” Justice Nagarathna responded.
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Orders status quo
Ordering status quo ante, Justice Nagarathna reasoned that for the convicts to apply for remission again they had to be back in prison first.
The court said Gujarat did not have the jurisdiction to grant remission to the convicts. Justice Nagarathna said Gujarat was not the “appropriate government” under Section 432(7)(b) of the Code of Criminal Procedure, which covered the subject of power to suspend and remit sentence.
The case was transferred by the Supreme Court in August 2004 from Gujarat to Maharashtra after noting that Ms. Bano had been “coerced to live the life of a nomad and an orphan… the gruesome and horrific acts of violence have left an indelible imprint on her mind which will continue to torment and cripple her”. The CBI Special Judge in Greater Mumbai had convicted the 11 men and sentenced them to life imprisonment in January 2008.
Hence, the court clarified, it was the State of Maharashtra, where the 11 men were tried and sentenced, and not Gujarat, where the crime had occurred or the convicts were imprisoned , which was the “appropriate government” to grant remission under Section 432(7)(b). This tenet of law extended even to transferred cases.
Explained | The remission laws that paved the way for release of the Bilkis Bano case convicts
Justice Nagarathna held that a Supreme Court order in May 2022 allowing Gujarat to consider the remission applications of the 11 men under the State’s remission policy of 1992 was procured by fraud, suppression and misrepresentation of material facts.
For one, the judge said, the 1992 policy had already been cancelled. Moreover, Gujarat’s remission policy was not applicable to Maharashtra. Besides, one of the 11 men, Radheyshyam Bhagwandas Shah, who had approached the apex court leading to the May 2022 order, did not disclose the fact that the Gujarat High Court had twice held that Maharashtra was the competent authority. The second order of the Gujarat High Court in March 2020 had never been challenged or recalled or set aside.
Fine not paid
Besides, the CBI, the Special Court in Greater Mumbai which tried the case, the Superintendent of Police and the District Magistrate at Dahod in Gujarat had all refused the man’s plea for an early release. To top it all, the judgment said, the convicts had not bothered to pay the fine imposed on them by the Mumbai court. The petitioners, who included Ms. Bano, had argued that the convicts were to pay a fine of ₹34,000 or face 34 years in prison.
Focussing on Gujarat’s role, Justice Nagarathna pointed out that the State had itself agreed in the apex court hearings leading to the May 2022 order that Maharashtra was the competent authority to grant remission. Instead, the State went ahead and released the convicts without bothering to seek a correction of the May 2022 order. Ms. Bano was also not arraigned as a party in the Supreme Court in 2022, denying her an opportunity to object to the plea for remission.
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“Fraud and justice never dwell together,” Justice Nagarathna said. The Bench declared the May 2022 order a “nullity and no est in law”.
Sending the men back to prison was one of the “natural consequences” of striking down Gujarat’s remission order, Justice Nagarathna said.
