"The Gujarat government usurped the powers of the Maharashtra government, acting in furtherance of the judgement dated 13 May 2022, which is, in our opinion a nullity," the apex court ruled.
Published Jan 08, 2024 | 12:18 PM ⚊ Updated Jan 08, 2024 | 2:25 PM
Bilkis Bano case.
In the Bilkis Bano case, the Supreme Court, on Monday, 8 January, struck down the remission granted to 11 convicts on the ground that the Gujarat government had no competence to grant remission.
The convicts have been directed to surrender before jail authorities within two weeks.
A Bench of Justices BV Nagarathna and Ujjal Bhuyan said that the Gujarat government was not the appropriate government to pass the remission order
The Supreme Court held that the judgement of 13 May 2022 (which directed the Gujarat government to consider remission) is a nullity as it was obtained by ”playing fraud on the court” and by suppressing material facts.
“The Gujarat government usurped the powers of the Maharashtra government, acting in furtherance of the judgement dated 13 May 2022, which is, in our opinion a nullity. It was the state of Maharashtra which was the appropriate government to consider remission,” the Bench noted.
“We need not have gone into the other issues. But for sake of completion, we have all orders dated 10 August 2022 (remission orders) as stereotype and cyclostyled orders… Rule of law is breached because the Gujarat government usurped power not vested to it and abused its power. On that ground, the remission orders deserve to be quashed,” the Bench said, while pronouncing the judgement which spanned over 100 pages.
“We fail to understand why the State of Gujarat did not file a review petition against the judgement dated 13 May 2022. Had the government filed a review and impressed upon this court, the ensuing litigation would not have occurred,” it said.
“The exercise of power by the State of Gujarat is an instance of usurpation of power and abuse of power. This is a classic case where the order of this court was used to violate the rule of law by granting remission,” the Bench noted.
“The State of Gujarat acted in complicity with the convicts…it was this very apprehension which led this court to transfer the trial out of the state,” the Bench added.
Usurpation of power arises when power vested in one authority is exercised by another. Applying the principle in this case, having regard to our answer of “appropriate power”, the Gujarat government exercising the power was an instance of usurpation of power.
There is arbitrariness if there is a non-consideration of relevant factors, non-application of mind, acting on dictation, or any usurpation of power, the Bench stated.
Referring to the convicts and why they should be in jail, the court said, “We hold that deprivation of liberty to the respondents (convicts) is justified. They have lost their right to liberty once they were convicted and imprisoned. Also, if they want to seek remission again, it is important that they have to be in jail.”
The Bench observed that “allowing convicts to remain out of prison will amount to giving an imprimatur to invalid orders. In any case, the convicts were in prison for little over 14 years and “enjoyed liberal parole and furlough.”
About striking down the remission, the Bench stated, “It is the duty of this court to correct arbitrary orders at the earliest and to retain the foundation of trust of the public.”
If the convicts can “circumvent” the consequences of their conviction, peace and tranquillity in the society “will be reduced to a chimera”, the Bench added. Therefore, courts have to “mindful not just to the spelling of justice but also the content of it”.
Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing the horror of the communal riots that broke out after the Godhra train-burning incident in Gujarat.
Her three-year-old daughter was among the seven family members killed in the riots.
All 11 convicts were granted remission by the Gujarat government and released on 15 August 2022.
The apex court had, on 12 October last year, reserved its verdict after an 11-day hearing on the petitions, including the one filed by Bano.
While reserving the judgement, the apex court had directed the Union government and Gujarat government to submit by 16 October the original records related to the remission of sentence of the 11 convicts.
While hearing the matter in September, the top court had asked whether convicts have a fundamental right to seek remission.
During the earlier arguments, the apex court had observed that state governments should not be selective in granting remission to convicts and the opportunity to reform and reintegrate with society should extend to every prisoner.
Besides the petition filed by Bano contesting the remission granted to them by the Gujarat government, several other PILs, including one by CPI(M) leader Subhashini Ali, TMC leader Mahua Moitra, independent journalist Revati Laul, and former vice-chancellor of Lucknow University Roop Rekha Verma, have challenged the relief.
