Gujarat had no jurisdiction to release Bilkis rapists: SC

The Gujarat government had no jurisdiction to entertain the applications for remission of sentences awarded to 11 convicts in the case of gang-rape of Bilkis Bano and murder of seven of her family members during the 2002 communal riots in the state, the Supreme Court held on Monday.

The top court said only the government of the state where the offenders were sentenced was competent to consider an application for remission and pass an order.

Observing that Maharashtra and not Gujarat had the jurisdiction to consider the applications, a bench of Justices B V Nagarathna and Ujjal Bhuyan said the place of occurrence of the incident or the place of imprisonment of the convicts were not relevant considerations.

"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.

"When an authority does not have the jurisdiction to deal with a matter or it is not within the powers of the authority i.e. the State of Gujarat in the instant case, to be the appropriate Government to pass orders of remission under Section 432 of the CrPC, the orders of remission would have no legs to stand," it added.

Accusing the Gujarat government of abusing its power, the Supreme Court on Monday quashed the remission granted to the 11 men convicted in the case. It also said Gujarat's action amounted to "usurpation of power" of the Maharashtra government.

After Bilkis Bano had voiced apprehension over tampering with evidence and risk to witnesses, the Gujarat High Court had transferred the trial in the case from Ahemadad to Mumbai.

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, while quashing the Gujarat government's decision to grant remission, said the state's orders were "stereotyped" and passed without application of mind. It asked the convicts to surrender before the prison authorities and undergo further imprisonment.

The 11 convicts released prematurely were: Bakabhai Vohania, Bipin Chandra Joshi, Kesarbhai Vohania, Govind Nai, Jaswant Nai, Mitesh Bhatt, Pradeep Mordhiya, Radheshyam Shah, Rajubhai Soni, Ramesh Chandana and Shailesh Bhatt.

Besides the petition filed by Bilkis Bano which contested the remission granted to them by the Gujarat government, 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. TMC leader Mahua Moitra had also filed a PIL against the remission and their premature release.

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. Her three-year-old daughter was among the seven family members killed in the riots.

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