New Delhi The Supreme Court on Monday scrapped the remission granted to 11 men convicted in the Bilkis Bano gang rape case and directed them to surrender in two weeks, holding that the Gujarat government was complicit with the prisoners and wrongly exercised its power to order their premature release.

The court said Gujarat usurped the power of Maharashtra, where the original trial of the convicts happened, to grant remission, and nullified a 2022 judgment by another bench of the top court, which had directed Gujarat to consider the remission applications of the 11 convicts, 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 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.

“Justice is supreme and justice ought to be beneficial for the society. Law courts exist for the society and ought to rise to the occasion to do the needful in the matter.”

The judgment draws the curtains on a controversial epilogue of one of the most high-profile incidents in the 2002 Gujarat riots and one that was part of a raft of cases where the apex court shifted the trial out of Gujarat. The release of the men and their public felicitation just months ahead of the Gujarat elections in 2022 sparked widespread condemnation.

In a statement, Bilkis Bano thanked the top court. “Today is truly the New Year for me…I have smiled for the first time in over a year and half… It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again,” she said. “This is what justice feels like.”

Bano had challenged the August 15, 2022 decision of the Gujarat government permitting the premature release of the 11 convicts, who were serving a life term, under a 1992 remission policy. The men were convicted for the rape and murder of 14 people, including seven members of her family, in 2002.

In December 2003, the top court transferred the probe to the Central Bureau of Investigation (CBI) and the next year, shifted the trial to Mumbai. The convicts were sentenced to life imprisonment by the Mumbai court in 2008 and the Bombay high court upheld their conviction and sentence in 2017.

In 2019, convict Radheshyam Shah approached the Gujarat high court seeking remission. In July 2019, the Gujarat HC directed him to approach the Maharashtra government. In August 2019, he applied to Maharashtra but the plea was dismissed by a trial court in Mumbai and police authorities in Maharashtra and Gujarat.

But Monday’s verdict found that these facts were not disclosed to the top court by either the convict or the state. “The government of Gujarat had usurped the powers of the state of Maharashtra which only could have considered the applications seeking remission. Consequently, the policy (of remission) dated July 9, 1992 of the state of Gujarat was not applicable to the case of respondents,” the judges held.

Advocate Rishi Malhotra who appeared for Shah in the top court doubted the findings of the Court to set aside another decision of the top court that too was decided by a coordinate bench of two judges. “It is legally impermissible for a coordinate bench of two judges to overrule another judgment by a two-judge bench. Once the SC in its judgment of May 13, 2022 held that appropriate govt was Gujarat, a subsequent judgment cannot set it aside under writ jurisdiction,” Malhotra said. He further added, “no fraud was played with the Court as portrayed by the judgment. Even if the 2022 decision was erroneous, the remedy was to refer it to a larger bench. A review petition filed by Bilkis on similar grounds has already been dismissed by the top court.”

The order came on a petition filed by Bano in November 2022 along with a clutch of public interest litigations Left leader Subhashini Ali, Trinamool Congress leader Mahua Moitra, and activist Revati Laul, among others.

In a 251-page verdict, the top court came down heavily on Gujarat and the convicts, saying both suppressed crucial facts.

“The state of Gujarat has acted in tandem and was complicit with what the petitioner (Shah) had sought before this court. This is exactly what this court had apprehended at the previous stages of this case and had intervened on three earlier occasions in the interest of truth and justice by transferring the investigation of the case to the CBI and the trial to the special court at Mumbai.”

The judges also questioned the conduct of the Gujarat government. “If really the state of Gujarat had in mind the provisions of law and the judgments of this court, and had adhered to the rule of law, it would have filed a review petition before this court by contending that it was not the appropriate government. By failing to do so, not only are the earlier orders of this court in the matter have been vindicated but more importantly, rule of law has been breached in usurping power not vested in it and thereby aiding respondent Nos.3 to 13 (convicts),” the verdict said.

The court noted that rule of law must prevail for which courts must rise to the occasion. “The faith of the people is the source to invigorate justice intertwined with the efficacy of law. It is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law,” it said.

The court held that Shah “misrepresented” when he argued an apparent “difference of opinion” by referring to a 2013 Bombay high court order allowing another convict to approach the Gujarat high court. The judgment found that the 2013 decision dealt with the transfer of prisoners from Maharashtra to Gujarat, and did not deal with remission.

“We have held that order of this court dated May 13, 2022 to be a nullity and non est in the eye of law. Consequently, exercise of discretion by the state of Gujarat is nothing but an instance of usurpation of jurisdiction and an instance of abuse of discretion.”

The court noted that rule of law must prevail, for which courts must rise to the occasion. “The faith of the people is the source to invigorate justice intertwined with the efficacy of law. It is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law.”

Various opposition parties welcomed the order and attacked the Bharatiya Janata Party (BJP) government in Gujarat for “facilitating” the release of the 11 convicts.

“The tendency to ‘kill justice’ for electoral gains is dangerous for the democratic system. Today the Supreme Court’s decision once again told the country who is the ‘patron of criminals’,” senior Congress leader Rahul Gandhi said in a post in Hindi on X, formerly twitter. “Bilkis Bano’s tireless struggle is a symbol of the victory of justice against the arrogant BJP government.”

West Bengal chief minister and Trinamool Congress chief Mamata Banerjee also hailed the court order. “The Supreme Court has passed the right verdict. The rapists were roaming scot-free. It cannot be allowed. I admire them [SC] for taking a strong judgment,” she said.

The Communist Party of India (Marxist) also welcomed the court verdict “nailing down the Gujarat government’s illegal action” of granting remission to the 11 convicts who were sentenced to life in the case, and praised Bilkis Bano’s “strength and courage”. CPI(M) politburo member Brinda Karat said: “We welcome the Supreme Court judgment in the Bilkis Bano case, upholding the arguments made by Bilkis in her petition. Though it has taken one-and-a-half years, it is a very welcome step forward.”