The Supreme Court on Friday quashed the release of the 11 life convicts in the Bilkis Bano gang-rape-and-murder case, ruling the Gujarat government lacked the power to decide on their remission, that the process leading to their release was “vitiated” by “fraud”, and that the state government had been “complicit” with one of the convicts.

The bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan directed the 11 convicts to surrender within two weeks to the Gujarat jail authorities.

Bilkis, in a statement issued through her lawyer Shobha Gupta, thanked the top court and said “this is what justice feels like” and “today is truly the New Year for me”, PTI reported.

•The bench ruled that the government of Maharashtra, where the case had been tried on an apex court directive, had sole power to decide on the remissions.

• It said the Gujarat government, which lacked the jurisdiction to release the convicts, had “usurped” the powers of the Maharashtra government.

• It said one of the convicts had earlier obtained a favourable apex court order on May 13, 2022 — which paved the way for the remissions by Gujarat — by “playing fraud on this court” and “suppressing facts”.

• It said the Gujarat government was “complicit and acted in tandem” with this convict.

• It asked whether “heinous crimes against women permit remission” irrespective of the faith she may follow or creed she may belong to, PTI added.

• The convicts can apply for release before the Maharashtra government.

The Gujarat government had on August 10, 2022, ordered the release of the 11 lifers. They were freed on August 15, 2022, triggering national outrage, the anger exacerbated by the occasion — Independence Day — and the convicts’ being garlanded and feted following their release.

The 11 men had been convicted of gang-raping a pregnant Bilkis and two other women, and murdering 12 members of her family including her baby daughter, during the Gujarat riots of 2002.

Bilkis challenged the remissions, as did several others including former woman IPS officer Meeran Chadha Borwankar, CPI leader Subhashini Ali, Trinamul politician Mahua Moitra, the National Federation of Indian Women, and lawyer Asma Shafique Shaikh.

“I have wept tears of relief. I have smiled for the first time in over a year and a half. I have hugged my children. It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again,” PTI quoted Bilkis as saying.

“This is what justice feels like. I thank the honourable Supreme Court of India for giving me, my children and women everywhere this vindication and hope in the promise of equal justice for all.”

Justice Nagarathna, who authored the 251-page judgment, said: “In our view, on a plain reading of Sub-section (7) of Section 432 of the CrPC and considering the judgments of this Court, it is the State of Maharashtra, which had the jurisdiction to consider the application for remission vis-à-vis respondent Nos 3 to 13 herein as they were sentenced by the Special Court, Mumbai.”

Therefore, the remission orders had “no legs to stand”, the judgment said.

‘Fraud’

The apex court declared “per incuriam” (decided on wrong facts) the May 13, 2022, judgment passed by another two-judge Supreme Court bench on a plea from one of the 11 convicts, Radheshyam Shah, to the Gujarat government to consider his application for release.

The bench of Justice Ajay Rastogi (now retired) and Justice Vikram Nath had on May 13, 2022, directed the Gujarat government to consider Shah’s plea, which triggered the events leading to the release of the 11 convicts.

Monday’s judgment said the ground of Gujarat’s lack of jurisdiction was enough for quashing the remission orders, “but the matter does not rest at that”.

“…The said order (of May 2022) was obtained by fraud played on this court and hence, is a nullity and non est in law (no legal effect),” it said.

It said the May 2022 order was also “per incuriam for the reason that it fails to follow the earlier binding judgments of this court including that of the constitution bench in V. Sriharan….”

That five-judge constitution bench had ruled, in a matter relating to Rajiv Gandhi’s assassins, that only the state government where the convicts had been tried and sentenced had the power to decide on their remissions.

Monday’s judgment noted that Shah (respondent No. 3) had initially approached Gujarat High Court seeking a direction to the Gujarat government to consider his remission plea. On July 17, 2019, the high court said he should approach the State of Maharashtra where the trial had taken place.

His second, similar application before Gujarat High Court was dismissed on March 13, 2020. Yet Shah moved an appeal before the apex court in 2022 without revealing that:

(i) Within 14 days of the July 17, 2019, order he had approached the Maharashtra government for remission. (The August 1, 2019, application is still pending.)

(ii) Negative recommendations against his release were given by the CBI, the special CBI judge, Mumbai, and the SP and DM of Dahod, Gujarat.

The apex court said the suppression of these facts amounted to "playing fraud on this court". It noted that "taking advantage of May 13, 2022 order of this court, other convicts also filed remission applications".

The convicts being welcomed as they come out of the Godhra sub-jail in Gujarat on August 15, 2022. PTI file picture

Gujarat ‘complicit’

“If really State of Gujarat had in mind the provisions of law and the judgments of this Court, and had adhered to the rule of law, it would have filed a review petition (against the May 2022 order)… and impressed upon this Court that it was not the 'appropriate Government' but the State of Maharashtra was the 'appropriate Government'…,” the judgment said.

It added: "Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case... transferring the investigation... to the CBI and the trial to the Special Court at Mumbai.

"…This Court was misled to issue directions contrary to law and on the basis of suppression and misstatements made by respondent No.3…. Consequently, exercise of discretion by the State of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion."

The bench noted that the convicts were released under a policy of the Gujarat government dated July 9, 1992. "It was not brought to the notice of this Court by any party that the said policy had been cancelled and had been substituted by another policy in the year 2014," it said.