Article 142 Can't Be Used In Favour Of Bilkis Bano Case Convicts: Court

Compassion and sympathy have no role to play where rule of law is required to be enforced, the Supreme Court said on Monday while refusing to accept the plea of protection of the liberty of the convicts in the Bilkis Bano case and let them remain out of prison.

The top court said the faith of people in the efficacy of law is the saviour and succour for the sustenance of the rule of law.

Observing that justice is supreme and ought to be beneficial for society, a bench of Justices BV Nagarathna and Ujjal Bhuyan said law courts exist for society and ought to rise to the occasion.

"We say that Article 142 of the Constitution cannot be invoked by us in favour of respondent Nos.3 to 13 (convicts) to allow them to remain out of jail as that would be an instance of this Court's imprimatur to ignore rule of law and instead aid persons who are beneficiaries of orders which in our view, are null and void and therefore non est (do not exist) in the eyes of law," the bench said.

The Supreme Court said in such a situation, arguments with an emotional appeal, while sounding attractive, become hollow and without substance when "placed in juxtaposition with our reasoning on the facts and circumstances of this case".

"Therefore, in complying with the principles of rule of law which encompasses the principle of equal protection of law as enshrined in Article 14 of the Constitution, we hold that 'deprivation of liberty' vis-a-vis respondent Nos.3 to 13 herein is justified," the judges said.

"One cannot lose sight of the fact that the said respondents were all in prison for a little over fourteen years (with liberal paroles and furloughs granted to them from time to time). They had lost their right to liberty once they were convicted and imprisoned. But, they were released pursuant to the impugned remission orders which have been quashed by us. Consequently, the status quo ante must be restored," the bench said.

In a massive setback to the Gujarat government, the Supreme Court on Monday quashed the remission it had granted to 11 convicts in the high-profile gang-rape case of Bilkis Bano and the killing of her seven family members, while slamming the state for being "complicit" with an accused and abusing its discretion.

It ordered all the convicts, who were released prematurely on Independence Day in 2022, to be sent back to jail within two weeks.

The top court said in the event the convicts are inclined to seek remission in accordance with law, they have to be in prison as they cannot seek remission when on bail or outside the jail.

"Therefore, for these reasons we hold that the plea of 'protection of the liberty' of respondent Nos.3 to 13 cannot be accepted by us.

"We wish to emphasise that in the instant case rule of law must prevail. If ultimately rule of law is to prevail and the impugned orders of remission are set-aside by us, then the natural consequences must follow. Therefore, respondent Nos.3 to 13 are directed to report to the concerned jail authorities within two weeks from today," the bench said.

The court said in a democracy where rule of law is its essence, it has to be preserved and enforced, particularly by courts of law.

"Compassion and sympathy have no role to play where rule of law is required to be enforced. If the rule of law has to be preserved as the essence of democracy, it is the duty of the courts to enforce the same without fear or favour, affection or ill-will.

"The manner of functioning of the court in accord with the rule of law has to be dispassionate, objective and analytical. Thus, everyone within the framework of the rule of law must accept the system, render due obedience to orders made and in the event of failure of compliance, the rod of justice must descend down to punish," the bench said.

Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing during 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.

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