The Supreme Court on Monday quashed the Gujarat government’s decision to allow premature release of convicts in the Bilkis Bano gangrape case [Bilkis Yakub Rasool v. Union of India and ors].[Bilkis Yakub Rasool v. Union of India and ors].
A bench of Justices BV Nagarathna and Ujjal Bhuyan held that the eleven convicts who were set free by the State, have to report back to the jail authorities within two weeks.
The convicts are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radheshyam Bhagwandas Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Court said that the Gujarat government was not empowered to pass the remission order since appropriate government entitled to pass orders of remission was the government of the State where the trial had taken place which in this case was Maharashtra and not Gujarat.
“On competence of Gujarat government to pass remission orders, it is apparent that 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.
It is not the government of the State within whose territory the offence has occurred which can pass the remission and thus, the order of remission has to be quashed, the bench held.
The Court in its judgment also strongly came down upon one of the convicts, Radhyesham, for playing fraud upon the Court by suppressing material facts and getting a favourable order from the top court in May 2022 which eventually led to the release of all the eleven convicts.
The Court said that the May 2022 judgment was obtained by fraud and therefore, not good in law.
The Court also came down upon the Gujarat government for not filing a review plea against the May 2022 judgment and instead being complicit and acting in tandem with the convicts and usurping the Maharashtra government’s jurisdiction to grant remission to convicts.
“It was the State of Maharashtra who could have only passed the remission orders respondent no 3 surreptitiously filed the plea before the Supreme Court. Taking advantage of May 13, 2022 order of this Court, other convicts also filed remission applications and the Gujarat government passed remission orders…Gujarat was complicit and acted in tandem with respondent no. 3 in this case. This Court was misled by suppressing facts. Use of power by Gujarat was only an usurpation of power by the State,” the apex court ruled.
On the conundrum of sending the convicts back to the jail, the Court held that rule of law has to prevail over the liberty of the convicts.
“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 justice cannot be done without adherence to the rule of law,” the Court opined.
If that is not the case then such orders of the court would be reduced to chimera. Courts have to dispense justice and not allow justice to be dispensed with, the bench underlined.
“We hold that deprivation of liberty to the respondents is justified. They have lost their right to liberty once they were convicted and imprisoned. if they want to seek remission in accordance with law then they have to be in jail. Rule law must prevail. Thus, all respondents are directed to report to jail authorities within two weeks,” the bench ordered.
The judgment came in a batch of petitions challenging the remission granted to the convicts in the case.
The case concerns the early release of 11 convicts who had gang raped Bano and murdered her family members during the riots.
The convicts who were set free by the State are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.
The Gujarat government had granted a remission of their sentence following a May 2022 judgment in which the top court held that an application of remission should be considered in line with the policy of the State where the crime was committed and not where the trial was held.
Pursuant to that judgment, the Gujarat government had applied its remission policy to release the convicts though the trial in the case had taken place in Maharashtra.
But the top court in its verdict today noted that the May 2022 judgment came in an Article 32 petition filed by one of the convicts (respondent no. 3) after his petition was dismissed by the Gujarat High Court which said that the Maharashtra government will have to consider the plea for remission.
He then filed a remission application in Maharashtra and presiding judge of trial and DGP Maharashtra had given their opinion on it.
Meanwhile, he moved the Supreme Court suppressing these facts and the Supreme Court passed a judgment in his favour opining that the Gujarat government was the appropriate government
“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 underscored.
Since the May 2022 judgment was obtained by playing fraud upon the Court, it was held to be non est in law.
Gujarat Additional Chief Secretary (Home) Raj Kumar had reportedly said that the convicts were released due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.
The Gujarat government’s decision was challenged by various petitioners including Bano before the top court.