A two-judge bench of the Supreme Court on Monday set aside the remission of 11 convicts in the Bilkis Bano rape case granted by the Gujarat government. The court, in its order, said that the Gujarat government was not competent to entertain the applications for remission or pass orders thereon. It also held that the Supreme Court’s own order dated May 13, 2022, was obtained through “fraud” and was thus nullified.
A division bench of Justices BV Nagarathna and Ujjal Bhuyan ruled against the remission on two principal grounds – a) the incompetence of the Gujarat government in considering the remission application of the 11 convicts; and b) suppression of relevant facts and making misleading statements by one of the convicts while seeking his premature release.
Also Read: Big blow to Gujarat govt! Supreme Court strikes down remission to 11 convicts in Bilkis Bano case
Gujarat govt usurped powers, breached rule of law
In a strong indictment of the Gujarat government for ordering the premature release of the 11 convicts in the Bilkis Bano case on August 15, 2022, the Supreme Court ruled that the remission orders passed by the state government of Gujarat was “an instance of usurpation of powers”.
“It was the state of Maharashtra who could have only passed the remission orders.. Respondent no 3 (convict) surreptitiously filed the plea before the Supreme Court. taking advantage of the May 13 order of this court. Other convicts also filed remission applications and Gujarat govt passed remission orders… Gujarat was complicit and acted in tandem with respondent no 3 (convict) 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 court ruled.
The court noted that Gujarat had earlier correctly contended that Maharashtra was the appropriate government to decide on remission in accordance with Section 437 of the CrPC and that it could have filed a review petition though it was set aside by the Supreme Court. “We fail to understand why the Gujarat government did not file a review seeking correction of the May 13, 2022 order, saying that Gujarat was not the appropriate government and it was Maharashtra. This litigation was not needed. But here the Gujarat government usurped the power of Maharashtra government.”
Convict played fraud on Supreme Court
“The petitioner contended that one of the convicts Radhesyam Bhagwandas had approached Gujarat HC so that the Gujarat government decides his remission plea. The HC disposed of saying that the Maharashtra government should consider it and the second plea was also dismissed. Then he moved the Supreme Court and did not disclose this fact. The convict argued that due to divergent opinion of two high courts, he had moved the Supreme Court,” the court observed.
Also Read: Who is Bilkis Bano? 2002 rape victim who will receive Rs 50 lakh relief from Gujarat govt
It further said that if the respondent was aggrieved by Gujarat HC’s order dated 2019, he could have filed an appeal before the Supreme Court. “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. HC order could not be set aside in an Article 32 plea (PIL).”
The court thus held that writ proceedings before the Supreme Court were a result of suppression of facts and that “it is a fraud played on this court”.
Also Read: Shell-shocked Bilkis Bano falls silent, husband numb as Gujarat frees 11 convicted of her rape
“Thus we hold that the May 13, 2022 order of this court was non est and invalid in law and hit by fraud. The petitioner had not approached the court with clean hands,” the court ruled.
The court has aksed the 11 convicts, currently out of jail, to report to the prison authorities within a period of two weeks. “Article 142 cannot be invoked by us to allow the convicts to remain out of jail and this would mean making them beneficiary of orders which are invalid. 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 of law must prevail. Thus all respondents are directed to report to jail authorities within two weeks,” the court ruled.