NEW DELHI: India’s Supreme Court on Monday cancelled the premature release of 11 convicted rapists of Bilkis Bano, saying the Gujarat government does not have the power to grant them liberty.

The court has asked the convicts to surrender back to prison within two weeks.

The Gujarat government under the same Bharatiya Janata Party that was in power during the riots had announced the decision to grant the 11 men premature release on August 15, Independence Day, in 2022.

The Supreme Court division bench of Justices B. V. Nagarathna and Ujjal Bhuyan said that the state of Gujarat “acted in complicity with the convicts” and noted that “it was this very apprehension which led this court to transfer the trial out of the state” to Maharashtra, according to LiveLaw, which live-tweeted the delivery of the order.

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In a scathing judgment, the court also noted that if the convicts can “circumvent the consequences of their conviction, peace and tranquillity in the society will be reduced to a chimaera.”

Another key observation by the court was: “We hold that deprivation of liberty to the respondents (convicts) is justified. They have lost their right to liberty once they were convicted and imprisoned. Also, if they want to seek remission again, it is important that they have to be in jail.”

The apex court has now held that the judgment of May 13, 2022, by a bench of Justices Ajay Rastogi and Vikram Nath, which directed the Gujarat government to consider remission, “a nullity” as it was obtained by “playing fraud on the court” and by suppressing material facts.

“All proceedings taken in furtherance of the judgment are also vitiated and a nullity in law,” the court said.

The bench also said that the government of the state where the offender is sentenced is the appropriate government to grant remission, not the government of the state where the offence took place, LiveLaw tweeted.

Bilkis Bano is one of the several petitioners who challenged the Gujarat government’s remission of the convicts’ sentences. The court held that since Bano’s plea was held maintainable, there was no need to answer whether the other public interest litigations were maintainable too.

Justice Nagarathna said, on the ground that the Gujarat government lacked competence alone, the writ petitions were liable to be allowed and the “orders are liable to be declared as nullity.” But, she said, the matter does not end there as reliance was placed on an earlier judgment which directed the Gujarat government to consider the case.

The earlier judgement “is contrary to the Constitution Bench judgment in the Sriharan case,” the Supreme court said. According to LiveLaw, Justice Nagarathna said that the “power to grant remission is ultimately an exercise of discretion by the authority. The test is whether the authority was acting within the scope of powers and whether it was exercised in accordance with law. There is arbitrariness if there is non-consideration of relevant factors, non-application of mind, acting on dictation, or any usurpation of power.”

Usurpation of power arises when power vested in one authority is exercised by another, the judge said. “Applying the principle in this case, having regard to our answer of “appropriate power”, Gujarat government exercising the power was an instance of usurpation of power.”

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The bench noted that the Gujarat government usurped the powers of the Maharashtra government, acting in furtherance of the judgment dated May 13, 2022. “It was the State of Maharashtra which was the appropriate government to consider the remission,” it said. The bench had concluded hearings in the case on October 12.

Granting remission, the Gujarat government had said that this decision had been arrived at by a panel it had set up, comprising officials and ‘social workers’ — all of whom were BJP members or were connected with it.

At that time, several of the accused had threatened witnesses while on temporary parole. One panel member, a BJP MLA, had said that the convicts deserved to be released because they were “Brahmins with good sanskaars, or values”.

Published in Dawn, January 9th, 2024