In an article in The Hindu (August 20, 2022), I had characterised the grant of remission to the 11 gang-rape and murder convicts in the Bilkis Bano case as an ‘injustice of exceptionalism’. The exceptional nature of this injustice is only exemplified by the Supreme Court of India’s judgment in the case delivered by Justices B.V. Nagarathna and Ujjal Bhuyan. As the decision notes, not only did one of the petitioners commit “fraud” by misleading an earlier Bench of the Court in getting a favourable order, leading ultimately to the release orders, but the Government of Gujarat was equally complicit.
Despite the law being amply clear in a Constitution Bench decision in Union of India vs V. Sriharan (2015) that the appropriate government to decide a remission application is the State where the convicts are sentenced, the Court notes that the Gujarat government “usurped” power from the Government of Maharashtra.
Consequently, the Court declared the earlier two judge Bench decision of the Supreme Court holding the Gujarat government as the appropriate government to grant remission in this case as illegal (per incuriam). In effect, the remission orders for the 11 convicts stand cancelled and the men have been directed to go back to the prison within two weeks’ time.
