Bilkis Bano case: SC sends 11 convicts released by Gujarat back to jail

New Delhi/Dahod: Holding that a “complicit” Gujarat government had abused its power, the Supreme Court on Monday overturned the remission given to 11 men convicted of raping Bilkis Bano and murdering seven members of her family during the 2002 riots and ordered that they be sent back to jail within two weeks.

"We strike down the remission orders on the ground of usurpation of power by Gujarat government," a bench of Justices B V Nagarathna and Ujjal Bhuyan said in a massive win for Bilkis Bano whose relatives celebrated with firecrackers in their hometown Devgadh Baria in Gujarat’s Dahod district.

In its 251-page judgment on the case that has long horrified the country with its details, the apex court said the remission order was without application of mind and asked whether "heinous crimes against women permit remission" whatever faith she may follow or creed she may belong to.

The much-anticipated ruling, which extensively quoted Greek philosopher Plato, was welcomed by several political leaders, including West Bengal Chief Minister Mamata Banerjee, Congress’ Rahul Gandhi and AIMIM’s Asaduddin Owaisi.

Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing the riots that broke out after the Godhra train burning incident in February 2002. Her three-year-old daughter was among those killed.

All 11 convicts were granted remission by the Gujarat government and released on August 15, 2022.

The Supreme Court said 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.

"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 nullified its May 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 fraud on the court" and by suppressing material facts. "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 (SC) seeking enforcement of other fundamental rights recognised by the Constitution." Quoting Plato, 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 penalty to medicine administered for the sake of the good of one being chastised.

Thus, she said, 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.

"This postulate lies at the heart of the policy of remission," she said.

Observing that the victim's rights 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 against women permit remission? These are the issues which arise," she said.

The reactions came swift and fast.

Senior advocate Vrinda Grover, who appeared for retired IPS officer Meeran Chadha Borwankar and others, said the judgment “upheld the rule of law and the faith of the people of this country, particularly women, in the legal system, the courts...” In Devgadh Baria, some of Bilkis Bano’s relatives burst firecrackers as news of the Supreme Court verdict flashed on their television screens.

"I am one of the witnesses in the case. These 11 convicts were handed the punishment by a Maharashtra court. The Gujarat government's decision to release them was wrong. That is why we challenged it in court.

"I am happy that the SC has quashed the Gujarat government's decision and asked the convicts to surrender. I feel that we have received justice today," Abdul Razaq Mansuri, a relative and one of the witnesses, told reporters.

Many opposition leaders spoke up.

In former Congress chief Rahul Gandhi’s view, "Bilkis Bano's tireless struggle symbolises the victory of justice against the arrogant BJP government." "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'," he said in a post in Hindi on X.

Trinamool Congress chief Mamata Banerjee said she was grateful to the Supreme Court for the “strong and bold judgement”.

Hyderabad MP Owaisi said the Central and Gujarat governments should apologise to Bilkis Bano and expressed the hope that the judgment acts as a precedent against all the rapists in the future.

Two BJP MLAs, he said, had endorsed the release of the convicts with one of them terming them “sanskari”.

BRS leader K Kavitha said on X, "I welcome Hon’ble Supreme Court's reversal of the acquittal ruling for the convicts of Bilkis Bano. While her pain is unparalleled, this verdict sends a powerful message: the unwavering commitment to women's integrity. Justice prevails, every such verdict sets a crucial precedent that our Nation stands with Women." And in NC president Farooq Abdullah’s view, the Supreme Court had taken a very good decision and needed to be congratulated.

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 the judgement, 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 TMC leader Mahua Moitra, challenged the remission of the convicts and their premature release from jail.