The Supreme Court on Monday quashed the order of premature release granted by the State of Gujarat in August 2022 to 11 men sentenced to life imprisonment for the gang rape of Bilkis Bano and murder of her family during the 2002 riots.
The court ordered them to report back to jail in two weeks.
“Courts have to dispense justice and not see that justice is dispensed with,” Justice B.V. Nagarathna, heading a Bench also comprising Justice Ujjal Bhuyan, distinguished.
The court held that the convicts were tried and sentenced in Maharashtra. It was Maharashtra, and not Gujarat, which had to consider and remit their sentence.
‘Gujarat usurped Maharashtra’s power’
Justice Nagarathna, in a detailed pronouncement of the judgment which spanned nearly an hour in open court, said Gujarat “usurped” the power of Maharashtra to pass an order of remission in favour of the convicts.
“We strike down the remission on the ground of usurpation of power. Gujarat had no jurisdiction,” the court held.
Justice Nagarathna said Gujarat was not the “appropriate government” under Section 432(7)(b) of the Code of Criminal Procedure which covered the subject of power to suspend and remit sentence.
The judge said it was clear from Section 432(7)(b) that the government of the State where the incident had occurred or the convicts were imprisoned was not authorised to grant remission. The authority rested solely with Maharashtra, to where the case was transferred and where the convicts were tried and sentenced to life imprisonment.
“The power to grant remission is the discretion of the appropriate government. But they have to act within their powers in accordance with the law, and not in an arbitrary and unreasonable manner or through an improper exercise of discretion,” the court noted.
‘Abuse of discretion’
Justice Nagarathna said the grant of remission to the men by Gujarat was an “abuse of discretion”. It amounted to usurpation of the power of remission when the authority given by law to one authority was exercised by another. The rule of law had been breached as the remission order was passed by an incompetent authority.
Petitioners had argued that both the trial judge in Mumbai and the Central Bureau of Investigation, which was the prosecuting agency, had disagreed with the proposal to release the convicts. The Centre had however endorsed the early release.
The Bench refused to invoke its extraordinary power under Article 142 of the Constitution to let the convicts remain at liberty despite the cancellation of their remission order. The convicts’ lawyers had urged the court to take an empathetic view. They contended that the men had served 14 years of their sentence before their release.
“This will be a transgression of the rule of law. Deprivation of liberty to the convicts is justified… Rule of law does not mean the protection of a fortunate few,” Justice Nagarathna observed. The court noted that they enjoyed spells of “liberal parole” while in prison.
Ordering status quo ante, Justice Nagarathna, speaking for the Bench in the judgment, reasoned that for the convicts to apply for remission again they have to be back in prison first.
Sending the men back to prison was only a “natural consequence” of the striking down of Gujarat’s remission order.
“Having quashed their remission, should they be sent back to prison? Should their liberty be protected? Compassion and sympathy has no place before the rule of law. Rule of law is dispassionate, objective… If the rule of law is violated, the rod of law should descend to punish… Rule of law is the antithesis of arbitrariness,” Justice Nagarathna said.
The Bench nullified a May 2022 order of the Supreme Court which had allowed Gujarat to invoke its remission policy of 1992 to release the men. It said the order was procured through misrepresentation and suppression of facts. The exercise undertaken to get the May 2022 order was “vitiated by fraud”. The respondents had come to the Supreme Court with “unclean hands”.
