In a breakthrough in Bilkis Bano‘s long battle for justice, the Supreme Court today cancelled the early release of the 11 men convicted of raping her and killing her family during the 2002 Gujarat riots. The convicts will return to jail and have to surrender within two weeks.
The Gujarat government was not competent to release the men in 2022, the Supreme Court said in its landmark order on a decision that triggered waves of condemnation and outrage from the civil society, activists and opposition politicians.
“The exemption order lacks competence,” the Supreme Court said, berating the Gujarat government for passing such an order “without application of mind”. Criminals can be released only by the state where they are tried, which is Maharashtra in this case.
“The exercise of power by the state of Gujarat is an instance of usurpation of power and abuse of power,” said the court.
Dwelling on the question of whether the convicts must go back to jail in the context of their right to personal liberty, the top court decided that allowing them to remain out of prison would amount to validating “invalid orders”.
“The rule of law must be preserved unmindful of the ripples of the consequences,” said the judges.
The Supreme Court came down heavily on its own 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were released by the Gujarat government on the basis of an obsolete 1992 remission policy, which has since been superseded by a law in 2014 that bars the release of convicts in cases of capital offence.
After the Supreme Court asked Gujarat to take a call on the remission petition of one of the convicts, Radheshyam Shah, the state government consulted a panel that included men linked to the state’s ruling BJP. The panel justified approving the release of the convicts saying they were “sanskari (cultured) Brahmins” who had already served 14 years in prison and had displayed good behaviour.
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 had even started practising law, the Supreme Court was told during an 11-day hearing last year of petitions challenging the release, including one by Bilkis Bano.
Petitioners against the convicts’ release included Trinamool Congress’ Mahua Moitra, CPM Politburo member Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma, among others.
The Supreme Court had asked tough questions and had commented that the Gujarat government was on “thin ice” over its decision. Justices BV Nagarathna and Ujjal Bhuyan had asked the Centre and the Gujarat government to submit the original records related to the remission.
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.
