New Delhi: Delivering a massive blow to the Gujarat government, the Supreme Court on Monday quashed the remission order granted by the state government to 11 men convicted of the gangrape of Bilkis Bano and murdering seven of her family members during the 2002 riots, and ordered that they be sent back to jail within two weeks.
The Gujarat government was “complicit and acted in tandem with one of the convicts” who had approached the Supreme Court with his plea for premature release in the Bilkis Bano case, the apex court said while setting aside the remission order. The Opposition parties, on their part, hailed the apex court decision.
Accusing the Gujarat government of abusing its power, the Supreme Court said that the remission order was without “application of mind”.
A bench of Justices B.V. Nagarathna and Ujjal Bhuyan asked whether “heinous crimes against women permit remission” whatever faith she may follow or creed she may belong to.
Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing the horror of the communal riots that took place after the Godhra train burning incident in February 2002. Ms Bano's three-year-old daughter was among the seven family members lynched.
After the remission of the sentence of all the 11 convicts by the Gujarat government, they were released on August 15, 2022.
“We strike down the remission orders on the ground of usurpation of power by the Gujarat government,” the bench said.
In its 251-page judgment, the apex court noted the Gujarat government was not the appropriate government to pass the remission order. It clarified that the state in which an offender is tried and sentenced is competent to decide the remission plea of convicts. The convicts were tried in Maharashtra.
“We need not have gone into the other issues. But for sake of completion, we have. The rule of law is breached because the Gujarat government usurped power not vested in it and abused its power. On that ground also, the remission orders deserve to be quashed,” the bench said.
The top court also nullified its May 13, 2022 order of another bench asking the Gujarat government to consider a remission plea of one of the convicts as the order was obtained by “playing a fraud on the court”, and by the suppressing of material facts.
The bench further said that this was a classic case where the order of this court was used to violate the rule of law by granting remission.
Attacking the Gujarat government for not filing a review plea against the May 2022 judgment, the Supreme Court said that only the State of Maharashtra could have passed the remission orders.
“Taking advantage of May 13, 2022 order of this court, other convicts also filed remission applications… Gujarat was complicit and acted in tandem with respondent No. 3 (one of the convicts) in this case. This court was misled by suppressing facts,” the bench said.
The top court also held that the PIL contesting the remission filed by Bilkis Bano under Article 32 of the Constitution was maintainable. According to Article 32: “It is a fundamental right, which states that individuals have the right to approach the Supreme Court seeking enforcement of other fundamental rights recognised by the Constitution.”
Quoting Greek philosopher Plato extensively, Justice Nagarathna said: “Punishment is to be inflicted not for the sake of vengeance for what is done cannot be undone but for the sake of prevention and reformation.”
“In his treatise, Plato reasons that the lawgiver, as far as he can, ought to imitate the doctor who does not apply his drug with a view to pain only, but to do the patient good. This curative theory of punishment likens the penalty to medicine administered for the sake of the good of one being chastised,” Justice Nagarathna said, quoting Plato.
Thus, if a criminal is curable, he ought to be improved by education and other suitable arts, and then set free as a better citizen and less of a burden to the state, she said. “This postulate lies at the heart of the policy of remission.”
In addition, there are also competing interests involved -- the rights of the victim and the victim’s family to justice vis-à-vis a convict’s claim to a second chance by way of remission or reduction of his sentence for reformation, she said.
Observing that the victim’s rights are also important, Justice Nagarathna said a “woman deserves respect, howsoever high or low she may be considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are issues which arise in these petitions,” Justice Nagarathna said.
“Can heinous crimes against women permit remission? These are the issues which arise,” she said.
On October 12 last year, the apex court reserved its verdict after an 11-day hearing on the petitions, including the one filed by Bilkis Bano.
While reserving judgment, the apex court had directed the Centre and the Gujarat government to submit by October 16 the original records related to the remission of sentence of the 11 convicts.
Besides the petition filed by Bilkis Bano, several other PILs, including one by CPI(M) leader Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma and another by Trinamul Congress leader Mahua Moitra, challenged the remission of the convicts and their premature release from jail.
Reacting to the apex court order, Congress leader Rahul Gandhi attacked the BJP, saying the verdict has shown once again who the “protector of criminals” is.
In a post in Hindi on X, Mr Gandhi said: “The tendency to ‘murder justice’ for electoral gains is dangerous for a democratic system. Today, the Supreme Court's decision once again showed the country who gives ‘patronage to criminals’.”
“Bilkis Bano's tireless struggle symbolises the victory of justice against the arrogant BJP government,” the former Congress chief added.
The CPI(M) welcomed the Supreme Court judgment, dubbing it a “hard slap” on the face of the state government. The politburo of the Left party welcomed the court verdict “nailing down the Gujarat government's illegal action” of granting remission to the 11 convicts who were sentenced to life for raping pregnant Bilkis Bano and killing seven of her family members during the 2002 Gujarat “communal carnage”.
“The court has categorically asked the convicts to surrender back to prison within two weeks,” it pointed out.
In a post on X, CPI(M) general secretary Sitaram Yechury said: “It appears that justice is being delivered to Bilkis Bano finally after two long decades. The brutality of gangrapes and mass murders cannot be brushed aside and the perpetrators remain unpunished.”
The Congress on Monday hailed the Supreme Court order quashing the Gujarat government's decision to grant remission to 11 convicts in the Bilkis Bano case, saying it has removed the veil over the BJP’s anti-women policies. “With this order, the veil over the anti-women policies of the Bharatiya Janata Party has been removed. After this, public confidence in the justice system will be further strengthened. Congratulations to Bilkis Bano for continuing her fight bravely,” AICC general secretary Priyanka Gandhi Vadra said in a post in Hindi on X.
