8 Jan 2024 7:34 AM GMT
While setting aside the remission of 11 convicts in the Bilkis Bano case, the Supreme Court on Monday (January 8) slammed the Gujarat government for acting in tandem with the convict who had moved the top court seeking a direction for the consideration of his premature release application. In response to the convicts writ petition, the court had in May 2022 held the State of Gujarat to be the appropriate government for considering the remission plea, triggering the series of events that resulted in the release of all 11 life termers.
These convicts, who were sentenced to life imprisonment for multiple murders and gang rapes against the backdrop of the 2002 communal riots in Gujarat, were released by the Gujarat government in August 2022, on Independence Day. The top court, however, has now ruled in favour of Bilkis Bano, a gang rape survivor, who had filed a writ petition assailing the remission granted to them. A bench of Justices BV Nagarathna and Ujjal Bhuyan held today that the State of Gujarat was not the 'appropriate government' to decide their remission pleas within the meaning of Section 432 of the Code of Criminal Procedure, with the trial having been transferred out of the state to Maharashtra and accordingly, set aside the remission orders.
Another ground on which the remission orders were found to be illegal was the 'usurpation of power' and 'abuse of discretion' by the Gujarat government, in exercising its discretion and directing the premature release of the 11 convicts. While acknowledging that by its May 2022 order, the top court had directed the State of Gujarat to consider the remission application of one of the convicts, Radheshyam Shah, under its 1992 remission policy, the bench today ruled that the order had been obtained by Radheshyam Shah, one of the convicts, by playing fraud on the court and misrepresenting or suppressing material facts.
This decision was a nullity, inasmuch as it was hit by fraud and the doctrine of per incuriam, the bench said. It also held that since this order was found to be 'non-est' and a 'nullity', compliance with it can be said to be an instance of usurpation of power rightfully belonging to the State of Maharashtra.
Significantly, the court noted the conspicuous absence of any application by the Gujarat government seeking a review of this order -
The State of Gujarat has acted on the basis of this court's direction, but contrary to the letter and spirit of law, Justice Nagarathna reasoned. Pointing to previous orders of the court which had deemed it necessary to transfer the investigation and trial of the case to the Central Bureau of Investigation and the State of Maharashtra respectively, the judge slammed the Gujarat government for not filing a review of its May 2022 order, accusing it of 'acting in tandem' with the convict who had approached this court and being complicit with what he sought. This is exactly what this court had apprehended at the previous stages of this case, which had, in the interest of truth and justice, led to their intervention on three earlier occasions, she said -
On the issue of whether the remission orders were in accordance with law, the bench concluded, "Therefore, without going into the manner in which the power of remission has been exercised, we strike down the remission on the ground of usurpation by the State of Gujarat of power not vested in it. The orders of remission are hence quashed on this ground also."
After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan had reserved its judgment in this case on October 12. Advocate Shobha Gupta appeared for Bilkis, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.
The Supreme Court on Monday morning directed the 11 convicts to report to the concerned jail authorities within two weeks and surrender. "Rule of law must prevail. Since the remission orders are set aside, the natural consequences must follow."
Other reports about the judgment can be read here.
Case Title
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022
Citation : 2024 LiveLaw (SC) 22
Click here to read the judgment