A Supreme Court judgement holding that the Gujarat government had the power to decide on remission for the convicts in the Bilkis Bano case was erroneous, senior advocate Rebecca John told Live Law on Saturday.

John was referring to a Supreme Court verdict from May 13, which had ruled that the Gujarat government had the jurisdiction to decide on remission for the 11 convicts in the case. The convicts were released from a Godhra jail on Monday after the Gujarat government approved their application to reduce their sentences.

The Supreme Court had said that the case was transferred to Maharashtra under “exceptional circumstances” and that the trial would have ordinarily taken place in Gujarat. The court then directed the Gujarat government to decide on remission based on a policy it had framed in 1992.

John, however, told Live Law that the Supreme Court’s conclusion was based on a “misreading of a law” and said that a review petition should be filed. She said that the appropriate government to decide on remission was the one in Maharashtra, as per Section 432 (7) of the Code of Criminal Procedure.

“It does not matter where the offence was committed,” the senior advocate said.

Section 432(7) of the CrPC states that the government of the state within which an offender is sentenced is the appropriate government to decide on remission.

John also referred to a report by Scroll.in that the Gujarat government went against the opinion of the Mumbai trial court that had sentenced the convicts to life imprisonment on whether to grant remission.

The lawyer said that if this was the case, then the decision was not legal. “If the opinion was sought and was disregarded, then there must be adequate reasons for disregarding,” John said. “It does not appear that there were any such reason.”

The advocate said that the requirement on seeking the opinion of the trial judge exists as the judge would have seen the evidence on record, and also seen the conduct of the accused persons during the proceedings.

“Failure to take into account the opinion of the convicting judge, which as per media reports was a negative opinion, then I think it is a breach of law that can be challenged,” John said. “It is an illegality.”

The senior advocate added that as per Section 435 of the Code of Criminal Procedure, the state government needed to consult the Centre while deciding on remission if the case had been investigated by the Central Bureau of Investigation. However, in the Bilkis Bano case, there was nothing in the public domain that could show whether such an opinion had been sought, she said.

Bilkis Bano was gangraped on March 3, 2002, during the riots in Gujarat. She was 19 and pregnant at the time. Fourteen members of her family, including her three-year-old daughter, were murdered by the rioters near Ahmedabad. One of the men snatched the girl from her mother’s arms and smashed her head on a rock.

More than 1,000 people, mostly Muslims, died in the carnage.

Direct Centre to withdraw remission, 3 MLAs urge president

Meanwhile, three Congress MLAs from Gujarat on Saturday wrote to President Droupadi Murmu, urging her to direct the Centre to withdraw the decision to release the convicts, PTI reported.

Gyasuddin Shaikh, Imran Khedawala and Javed Pirzada wrote the letter. They described the Gujarat government’s decision as “shameful” and “insensitive”.

“Even though the Central Government has a clear guideline that rape convicts serving life imprisonment should not be released under the policy of pardon, the BJP government of Gujarat has shown its insensitivity by pardoning 11 convicts in the Bilkis Bano gang rape case,” the letter stated. “This is a disappointing decision for those struggling to get justice.”

The MLAs appeared to have been referring to a letter written by the Centre to states and Union Territories detailing the process by which prisoners could be selected for special remission, under which they would be released on Independence Day.

Section 5 (vi) of the guidelines on granting such special remission states that such a relaxation cannot be given to those convicted of rape, among other crimes. Section 5 (ii) of the guidelines also states that special remission should not be granted to those sentenced to life imprisonment.

However, the convicts in the Bilkis Bano case were released under the Gujarat government’s policy from 1992 in accordance with the Supreme Court order.

In a statement on Wednesday, Bano had urged the Gujarat government to “undo this harm” and give her back the right to live without fear and in peace. “How can justice for any woman end like this?” she asked. “I trusted the highest courts in our land. I trusted the system, and I was learning slowly to live with my trauma. The release of these convicts has taken from me my peace and shaken my faith in justice.”