New Delhi:

In a big blow to the Gujarat government, the Supreme Court on Thursday refused to remove comments made in its order related to the release of convicts in the Bilkis Bano case.

The state requested removal of certain remarks against it when the top court overruled the premature release of 11 men convicted of raping Bilkis Bano and killing her family during the 2002 Gujarat riots.

The Gujarat government petition also flagged the court’s comment that it had “acted in collusion and colluded with the convicts”. The state government argued the comment was inappropriate and against the record of the case, and also biased against the petitioner.

However, a bench of Justice BV Nagarathna and Justice Ujjal Bhuyan disagreed.

“Having carefully gone through the Review Petitions, the order under challenge and the papers annexed therewith, we are satisfied that there is no error apparent on the face of the record or any merit in the Review Petitions, warranting reconsideration of the order impugned…”

The top court, in July, had dismissed interim bail petitions filed by two convicts – Radheyshyam Bhagwandas and Rajubhai Babulal. They claimed an “anomalous” situation had arisen; i.e., two different benches of the top court had taken opposite views on the state’s early release policy.

READ | “What Is This…”: Top Court Junks Bilkis Bano Convicts’ Bail Pleas

The court, though, junked that plea.

In January the Supreme Court said the 11 men – who were released by the Gujarat government for “good behaviour” – had to return to jail. The state government was not competent to release the men, the top court said in a landmark order on a decision that had triggered public fury.

“The exemption order lacks competence,” the Supreme Court said, berating the Gujarat government for passing such an order “without application of mind”.

READ | “Abuse Of Power By Gujarat”: Bilkis Bano’s Rapists To Return To Jail

The court also noted convicts could only be released by the state that tried them in the first place; in this case, that state was Maharashtra. “The exercise of power by the state of Gujarat is an instance of usurpation of power and abuse of power,” the court had said.

In passing this order the court also came down heavily on its judgment of May 2022, delivered by Justice Ajay Rastogi (retired), which allowed the convicts to appeal to the Gujarat government for their early remission. The convicts got the order “through fraudulent means”, the judges said. They also noted that the Gujarat government should have sought a review of the 2022 order.

The convicts were released by Gujarat on the basis of an obsolete 1992 remission policy, which has since been superseded by a law in 2014 that bars the release of convicts in cases of capital offence.

The convicts were given a hero’s welcome, with garlands and sweets, and they were seen sharing stage with a BJP MP and an MLA. Convict Radheshyam Shah even started practising law, the Supreme Court was told during an 11-day hearing last year of petitions, including one by Bilkis Bano.

Bilkis Bano was 21 and five months’ pregnant when she was gang-raped while fleeing during the communal riots that broke out after the fire in Sabarmati Express in which 59 kar sevaks were killed. Her three-year-old daughter was among the seven family members slaughtered in the riots.

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New Delhi:

The Supreme Court on Friday dismissed interim bail petitions filed by two men – Radheyshyam Bhagwandas and Rajubhai Babulal – who had been convicted of raping Bilkis Bano and killing her family during the 2002 riots in Gujarat’s Godhra.

Bhagwandas and Babualal had sought temporary release till the top court ruled on a fresh remission plea. They have filed a challenge to the court’s January verdict that cancelled their release by the Gujarat government on Independence Day in 2022.

Bilkis Bano Convicts’ Appeal

In March, Bhagwandas and Babulal moved the court contending the January verdict contravened a 2002 order by the Constitution bench and asked that the issue – of their remission by the Gujarat government being cancelled – be referred to a larger bench.

They claimed an “anomalous” situation had arisen; i.e., two different benches of the Supreme Court, both of same strength, had taken diametrically opposite views on the state government’s policy of early release of prisoners.

According to the plea today, in May 2022 one bench directed the state to consider Bhagwandas’ plea for early release. However, the bench that delivered the verdict said it was the Maharashtra, and not Gujarat, that was competent to grant remission.

READ | 2 Bilkis Bano Case Convicts Ask For “Final” Order On Remission

“… if this is permitted then it would lead not only to judicial impropriety but to uncertainty and chaos as to which precedence (sic) of law has to be applied in future,” the plea argued, warning that the January 8 verdict could be used as legal precedence.

The plea sought a direction to the centre to consider the case for premature release and clarify which judgement – May 13, 2022, or January 8, 2024, – will be applicable.

“My lords… now with two court decisions… if I can be allowed to approach the authority,” advocate Rishi Malhotra, who filed the plea for Bhagwandas and Babulal, said.

What Supreme Court Said

“What is this plea… how is it even maintainable? Absolutely misconceived… How can we sit on appeal in PIL (public interest litigation),” Justice Sanjiv Khanna declared.

“There are two judgments… earlier judgment (the May ruling) was considered in the second (the January verdict) … under Article 32 (which gives every individual the right to move the Supreme Court for enforcement of fundamental rights) …” he said.

“We are not sitting in appeal…” the court ruled.

Court’s Bilkis Bano January Verdict

In the January judgment, the court had been extremely critical of its May 2022 ruling, delivered by Justice Ajay Rastogi (now retired), and said the Gujarat government should have sought its review.

READ | “Abuse Of Power By Gujarat”: Bilkis Bano’s Rapists To Return To Jail

It noted the release had been ordered based on a 1992 remission policy that had been superseded by a 2014 law and sent the 11 convicts back to jail.

In August 2022, the 11 convicts – serving life sentences – were granted premature release after the state accepted their remission pleas in keeping with a 1992 policy and cited their “good conduct”.

READ | “… Fraudulent Means”: Supreme Court On Bilkis Bano Case Order

Criticising the Gujarat government, the Supreme Court said it had “usurped” the power of its Maharashtra counterparts to grant remission to the convicts.

Bilkis Bano was 21 years old, and had been pregnant for five months, when she was raped. Her three-year-old daughter was among the seven family members killed.

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