The Supreme Court of India allowed a petition by Bilkis Bano on Monday against the premature release of convicts involved in the 2002 Gujarat communal riots. The 11 individuals were charged with the gangrape and murder of Bano family members and convicted in 2008.

The court concluded that the writ petition filed under Article 32 of the Indian Constitution by Bano is maintainable. Hence, Bano was not obligated to file a writ petition under Article 226 before the Gujarat State High Court. However, the court has kept open whether other writ petitions filed as public interest litigation (PIL) challenging the remission orders are maintainable for future appropriate cases. Public Interest Litigation is a legal action filed in the Supreme Court to address issues affecting the public or societal interests rather than individual concerns.

The remission orders issued by the State of Gujarat on August 10, 2022, were deemed flawed for several reasons. Firstly, the State of Gujarat exceeded its jurisdiction by encroaching upon the powers of the State of Maharashtra. The court determined that the Government of the State of Gujarat did not have the jurisdiction to grant remission to the convicts as the convicts were convicted in Maharashtra. Secondly, the remission policy of the State of Gujarat, dated July 9, 1992, was considered irrelevant in the case of the convicts. Lastly, the relevant authorities failed to consider that convicts had not fulfilled the requirement of settling the fine imposed by the Special Court in Mumbai. Consequently, the remission orders in favour of the convicted individuals are deemed illegal and quashed.

Furthermore, the court declared its own judgment from May 2022 as null and void, asserting that it was obtained by suppressing and misrepresenting material facts, thus fraudulently misleading the court. The court also clarified that the previous judgement was per incuriam (bad in law) as it contradicted previous larger bench judgements and hence was not a precedent. The judgement from May 2022 directed the State of Gujarat to consider the application of the convicts for premature release. The common law’s precedent system, referred to as stare decisis, requires courts to adhere to decisions from higher courts, including those from larger benches or earlier instances of the same court.

However, the court, after quashing the remission orders, turned to whether the individuals should be sent back to prison. The court emphasized the paramount importance of personal liberty under Article 21 of the Constitution but also stressed the need for adherence to the rule of law. The court observed that justice must be in line with the rule of law and considered whether the liberty granted, though obtained through an incompetent authority, should be protected. Ultimately, the court concluded that the rule of law should prevail, and the convicts were directed to report to the concerned jail authorities within two weeks.

Bano, who was pregnant at the time, survived a brutal gangrape and witnessed the murder of her family members during the 2002 Gujarat communal riots. Her case gained significant attention due to the severity of the crimes committed and the political overtone it took in the long course. In 2008, the Bombay High Court convicted several individuals involved in the case, including police officers and doctors who had tampered with evidence. However, the convicts were prematurely released in 2022 based on a remission order by the state government of Gujarat.

Many political leaders, especially from the opposition, expressed their support and welcomed the judgement. Following the pronouncement of the judgement, there were celebrations outside Bano’s house in Gujarat. Earlier in 2019, Bano was also granted compensation by the Supreme Court.