13 Feb 2024 4:09 PM GMT
In a latest development in the Bilkis Bano case, the Gujarat government has filed a review petition in the Supreme Court seeking certain critical remarks made by it regarding the conduct of the state government with respect to the premature release of the 11 convicts, to be expunged.
The state government has insisted that it was acting as per the Supreme Court's May 2022 judgment which directed it to consider the remission application of one of the convicts. The State of Gujarat, in its review petition, has submitted that it cannot be held to have 'usurped' the jurisdiction of the State of Maharashtra when it was acting according to the Supreme Court's directions. It argues that the state had consistently maintained before the court that Maharashtra was the appropriate government to handle the remission pleas under the Code of Criminal Procedure. Additionally, Gujarat's plea highlights the filing of a separate review petition by the victim, Bilkis Bano, contending that all pertinent facts were presented to the court through this process. It has also emphatically pointed out that Bano's plea seeking a review of this judgment was dismissed by a speaking order. Therefore, the state government's decision to not file a review, it has said, should not be construed as an admission of wrongdoing or complicity.
Alleging errors on the face of the record, the petition further states -
While setting aside the remission of 11 convicts in the Bilkis Bano case, the Supreme Court in January slammed the Gujarat government, stating that it had acted 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 convict's 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 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 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 -
Case Details
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022