New Delhi: In its judgment sending the 11 convicts in the Bilkis Bano gangrape case back to jail, the Supreme Court has asserted that depriving them of their liberty is “justified” as they had been let free “erroneously and contrary to law”.
Bano was gang-raped and according to the prosecution, fourteen members of her family — including her three-year-old daughter Saleha — were killed by a mob in Gujarat’s Randhikpur village, when they were fleeing during the Godhra riots of March 2002. Bano was 19 and five months pregnant at the time.
The bench led by Justice B.V. Nagarathna Monday quashed the Gujarat government’s decision to allow remission of life imprisonment of the 11 convicts in the case. They were granted liberty and released from imprisonment through remission orders passed in August 2022. The apex court has now ruled that the Gujarat government lacked jurisdiction to grant premature release to the convicts, and set aside the state government’s decision.
The next question, therefore, was whether the convicts should now be sent back to jail. The convicts had demanded that their liberty must be protected, and that the court should use its powers under Article 142 of the Constitution, which allows the Supreme Court to pass any order necessary to do “complete justice” in any case. This, the court said, has been a “delicate question” for consideration before it.
The convicts had demanded that even though the remission order is quashed, the convicts should not be sent back to jail and should be allowed to remain outside as free persons.
However, the court did not agree. It emphasised on the “rule of law”, and observed, “Courts have to be mindful of not only the spelling of the word ‘justice’ but also the content of the concept.” It asserted that “rule of law must prevail”, and observed, “If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow.”
It also said that arguments with an “emotional appeal” — as made by the convicts— “though may sound attractive become hollow and without substance when placed in juxtaposition with our reasoning on the facts and circumstances of this case.”
Also read: Is remission policy applied fairly to all, asks SC as Gujarat govt defends Bilkis convicts’ release
Why the convicts were released
The accused in the case were sentenced to life imprisonment by a trial court in Mumbai in 2008. This was upheld by the Bombay High Court in May 2017. In April 2019, the Supreme Court also directed the Gujarat government to give Rs 50 lakh compensation, a job and accommodation to Bano.
However, one of the convicts, Radheshyam Bhagwandas Shah, aka Lala Vakil, approached the Supreme Court in March 2022, seeking a direction to the Gujarat government to consider his application for premature release. In a judgment passed in May 2022, the Supreme Court ruled that since the crime in this case was committed in Gujarat and ordinarily, the trial would’ve been conducted in Gujarat, it is the Gujarat government that should consider the application of the convicts. The trial had been transferred from Gujarat to Mumbai in 2004 on an application filed by Bano, alleging that she and her family members were being threatened.
The court also said that their application would be considered under the state government’s 1992 policy for state remission and premature release of prisoners — an older policy. This faced widespread criticism because the convicts were not eligible for remission of sentence under the Gujarat government’s latest 2014 policy, but were released under the old 1992 policy instead.
However, the Supreme Court has now ruled that the Maharashtra government was the appropriate government to decide on the remission applications of the convicts.
‘Compassion & sympathy have no role to play’
In its order, the court asserted that “a woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to”. It then asked, “Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty?”
In answering this question, the court observed that the most important constitutional value is personal liberty which is a fundamental right enshrined in Article 21 of our Constitution. It said that this is an inalienable right of man and can be taken away only in accordance with law.
Conversely, the court said that a person is entitled to protection of his liberty only in accordance with law. It then asked, “When a person’s liberty cannot be violated in breach of a law, can a person’s liberty be protected even in the face of a breach or violation of law?”
“Further, should this Court weigh in favor of a person’s freedom and liberty even when it has been established that the same was granted in violation of law?” it further asked.
The court asserted that rule of law means that “no one, howsoever high or low, is above the law”. It then said that rule of law has to be preserved and enforced particularly by courts of law, and that “compassion and sympathy have no role to play where rule of law is required to be enforced.”
“The manner of functioning of the court in accord with the rule of law has to be dispassionate, objective and analytical,” the court further explained.
‘Fraud on the court’
The court also said that it cannot be unmindful of the conduct of the respondents, particularly one of the convicts — Radheshyam Bhagwandas Shah. It was on Shah’s petition in 2022, that the Supreme Court, in May 2022, directed the Gujarat government to consider their remission applications.
Before approaching the Supreme Court, Shah had initially approached the Gujarat HC in 2019, for a direction to consider his remission application by the State of Gujarat. The high court rejected his application in July 2019, observing that he should approach the Maharashtra government instead. His second similar application before the Gujarat high court was also dismissed in March 2020.
However, the court now noted that while approaching the apex court, Shah had not disclosed several facts. He didn’t disclose that within 14 days of the July 2019 HC order, Shah had approached the Maharashtra government with a remission application on 1 August 2019. The CBI had then given a negative recommendation to the state government on his application on 14 August 2019. The Special CBI Judge had also given a negative recommendation on 3 January 2020, and the Superintendent of Police, Dahod, Gujarat had also given a negative recommendation to the state government on 3 February 2020. Similarly, the district magistrate, Dahod, Gujarat had also given a negative recommendation on the application on 19 February 2020.
The court noted that among other things, Shah had not disclosed all of these facts before the Supreme Court. It, therefore, held that the May 2022 order of the Supreme court “was obtained by fraud played on this Court and hence, is a nullity and non est in law”.
While deciding what order should be passed now, the Supreme Court asserted that it cannot ignore the fact that Shah “has abused the process of law and the court in obtaining remission”
The court also opined that it cannot invoke Article 142 of the Constitution to allow the convicts to remain out of jail, as this “would be an instance of this Court’s imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which in our view, are null and void and therefore non est in the eye of law.”
The court, therefore, directed the convicts to report to the concerned jail authorities within two weeks.
(Edited by Zinnia Ray Chaudhuri)
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Very pleased to see justice being delivered. The shamelessness with which certain BJP politicians went about felicitating the criminals was appalling. How about a statement from these people as well? Do they even have a conscience?