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Synopsis

A division bench of the Supreme Court today quashed the Gujarat Government's order granting remission to 11 convicts who had gangraped Bilkis Bano in Gujarat in 2002.

"We fail to understand why the state of Gujarat did not file a review petition against the direction of this court asking it to consider the remission applications, when the appropriate government was in fact the State of Maharashtra.", said a bench of Justices BV Nagarathna and Ujjal Bhuyan.

Court further called the impugned orders to be a usurpation of power by the state of Gujarat.

Furthermore, the bench has refused to accept the plea of liberty made by the 11 convicts and directed them to report to the concerned jails within two weeks.

In October last year, Supreme Court had reserved its judgment in the pleas filed by Bilkis Bano and different PIL petitioners challenging the remission granted to 11 convicts who had gangraped Bano in Gujarat in 2002.

While making rejoinder submissions on behalf of Bano, Advocate Shobha Gupta, had submitted that the government while granting remission did not consider the precedent that its decision would set.

"A child was smashed on a stone, a pregnant woman gangraped, her mother gangraped, it is a gruesome barbaric act..this is not a case where remission should be granted..I plead on facts that this is not a case for remission..government has been completely negligent of the impact on the society, what precedent value it would set...", she had said. Court was further told that the incident was not a spur of the moment thing.

One of the private respondents/convicts in the case had while concluding their submissions in favour of the remission granted to them by the State of Gujarat had told the bench that a case where remission was granted, the only judicial review available was under Article 226 of Constitution of India. "An erroneous order cannot be challenged under Article 32, only an illegal order can be challenged..", the counsel had added.

In August, Gupta had told the Supreme Court that convicts had chased Bano with a "bloodthirsty approach" to hunt Muslims and kill them. Top Court was further told that the CBI had opposed premature release of the convicts submitting that the crime was of such a nature that it could not be pardoned.

In July, the court had started hearing the final arguments in all pleas filed against the remission granted to 11 convicts. On July 17, it had recorded that a publication had been effected on June 1, 2023 to intimate all the respondents and an affidavit in that regard has been submitted.

Earlier, the Supreme Court had constituted a bench of Justices KM Joseph and BV Nagarathna to hear the petition filed by rape survivor Bano, but due to Justice Joseph's retirement, the bench's composition changed.

In December last year Justice Bela M. Trivedi of the Supreme Court had recused from hearing the petition by Bano, and the bench also comprising Justice Ajay Rastogi had therefore adjourned the case by Bano seeking a review against the judgment of the Supreme Court delivered in May 2022 which held that Gujarat Government has the jurisdiction to decide the remission plea of the convicts, although the trial was held in Maharashtra.

In her petition, Bano stated that she was not even made party respondent by the accused persons in the writ petition concerning remission and that this was the reason that she had absolutely no information of the filing or pendency of the said writ petition or the order passed therein by the Top Court till the writ petitioner and other 10 co-convicts/prisoners were prematurely released on 15.08.2022.

She submitted that the accused persons concealed important documents/ material from the Supreme Court which are very necessary for proper adjudication of the review petition and issue in hand, the present petitioner would therefore be filing an application seeking permission to bring on record additional facts and documents.

Case Title: Bilkis Yakub Rasool vs. Union of India & Ors.