In a massive setback to the Gujarat Government, the Supreme Court on Monday quashed the remission it had granted to 11 convicts in the high-profile gang-rape case of Bilkis Bano and the killing of her seven family members, while slamming the state for being “complicit” with an accused and abusing its discretion. It ordered all the convicts, who were released prematurely on Independence Day in 2022, to be sent back to jail within two weeks.

Excoriating the Gujarat Government, the apex court said it “usurped” the power of the Maharashtra Government to grant remission to the convicts.

It held as nullity the May 13, 2022 judgment of another bench of the apex court, which had directed the Gujarat Government to consider the remission applications of the 11 convicts in the case, saying it was obtained by “playing fraud on court”.

“This is a classic case where the order of this court dated May 13, 2022, has been used for violating the rule of law while passing orders of remission in favour of respondent nos 3 to 13 (convicts) in the absence of any jurisdiction by the State of Gujarat. Therefore, without going into the manner in which the power of remission has been exercised, we strike down the orders of remission on the ground of usurpation of powers by the State of Gujarat not vested in it. The orders of remission are hence quashed,” a bench of Justices BV Nagarathna and Ujjal Bhuyan said.

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

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

In its 251-page judgment, the Supreme Court said the Gujarat Government had no jurisdiction to entertain the applications for remission of sentences and only the government of the State where the offenders were sentenced was competent to consider an application for remission and pass an order.

“Government of State of Gujarat (respondent No. 1 herein) had no jurisdiction to entertain the applications for remission or pass the orders of remission on August 10, 2022 in favour of respondent No. 3 to 13 (convicts) herein as it was not the appropriate government within the meaning of sub-section (7) of Section 432 of the CrPC,” the bench said.

The Supreme Court said just as an order passed by a court without jurisdiction is a nullity, in the same vein, an order passed or action taken by an authority lacking in jurisdiction is a nullity and is non est (does not exist) in the eye of law.

“On that short ground alone the orders of remission have to be quashed. This aspect of competency of the Government of State of Gujarat to pass the impugned orders of remission goes to the root of the matter and the impugned orders of remission are lacking in competency and hence a nullity. The writ petition filed by the victim would have to succeed on this reasoning,” the bench said.

The top court said if the Gujarat Government really had in mind the provisions of law and had adhered to the rule of law, it would have filed a review petition against the May 13, 2022 judgment of another bench of the apex court by contending that it was not the appropriate government.

While holding as nullity the May 13, 2022 judgment of the apex court, which had directed the Gujarat Government to consider the remission applications of the 11 convicts, the Supreme Court said on Monday it was obtained by “playing fraud on court”.

In its previous verdict, a bench comprising Justices Ajay Rastogi (now retired) and Vikram Nath had asked the Gujarat Government to consider the plea of convict Radheshyam Shah for premature release in terms of its remission policy of July 9, 1992, holding that the Government of the State where the offence had taken place has the jurisdiction to decide the application.

On Monday, the top court noted that Shah had initially approached the Gujarat High Court in 2019 for a direction to consider his application for remission.

“By order dated July 17, 2019 the High Court disposed of Criminal Application by observing that he should approach the appropriate Government being the State of Maharashtra. His second such application before the Gujarat High Court was also dismissed in 2020,” it said.

The Supreme Court said Shah later moved the SC but did not disclose that he had, within 14 days of the order dated July 17, 2019, approached the Maharashtra government with his application for remission, and that the CBI and the Special Judge (CBI), Mumbai had given a negative recommendation in his case.

The apex court said when the opinions were found to be negative, Shah filed a petition before the SC in 2022 seeking a direction to the state of Gujarat to consider his remission application suppressing the above material facts.

“This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this court,” the bench said.

“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.

Reacting to the verdict, senior advocate Vrinda Grover, who appeared for retired IPS officer of Maharashtra cadre Meeran Chadha Borwankar and others, termed it a very good judgment.

“... (it) has upheld the rule of law and the faith of the people of this country, particularly women, in the legal system, the courts, and that there is an assurance for justice,” Grover told reporters.

Celebrations erupted in Devgadh Baria town in Gujarat’s Dahod district, with relatives of Bilkis Bano bursting firecrackers.

“I am happy the Supreme Court has quashed the Gujarat government’s decision and asked the convicts to surrender. I feel we have received justice today,” a witness in the case and Bilkis Bano’s uncle Abdul Rasaq Mansuri told reporters in Devgadh Baria.

The SC refused to accept the plea of “protection of the liberty” of the convicts.

“One cannot lose sight of the fact that the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and were imprisoned.

“But, they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored. We say so for another reason in the event convicts are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail,” the bench said.

Besides the petition filed by Bilkis Bano contesting the remission, 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, had challenged the relief to the convicts. TMC leader Mahua Moitra had also filed a PIL against the remission and premature release of the convicts.