Supreme Court’s landmark ruling in Bilkis Bano case sets higher bar for remission in gruesome cases

The verdict highlights the need to adopt institutional remedies by the apex court to correct its erroneous orders in time.

A slap on the face of the Union and Gujarat governments, the judgement brings long-sought judicial relief for Bilkis Bano and her family. | Photo Credit: Shashi Shekhar Kashyap

The 11 convicts of the Bilkis Yakub Rasool vs Union of India case are set to return to jail, by January 22, after being prematurely released in August 2022. The seizure of their freedom, 16 months after their release, became inevitable thanks to the Supreme Court’s landmark judgement authored by Justice B. V. Nagarathna, who presided over the division bench alongside Justice Ujjal Bhuyan on January 8.

The judgement exposed—in minutest details—every fraudulent tactic the convicts used, as well as how Gujarat’s government acted in tandem with them, in securing their un-merited premature release from prison via reduction of sentences through a sham process of remission, albeit under the erroneous directions from the Supreme Court itself.

In a sense, the court corrected itself by admitting its failure to follow the previous binding decisions by two of its Constitution benches. This failure by another division bench of the court on May 13, 2022, is all the more baffling and points to serious gaps in the justice-delivery system in the apex court, which could leave ordinary litigants, without the assistance of high-profile lawyers, bereft of effective remedies.

It took Bilkis Bano 16 months to persuade the apex court to disown its erroneous orders passed in May 2022 in the case, braving the influential convicts, who had the benefit of both the Union and the State governments backing them to the hilt. Other litigants who have had to suffer such erroneous orders from the Supreme Court might not be as determined as Bilkis Bano to seek justice.

First, my take on why the judgement is a landmark for many reasons. While it avoided answering the question of whether anyone—other than the victims themselves—could challenge, under the Public Interest Litigation (PIL), the remission orders issued by a State government as arbitrary and illegal, it answered the main issue by recognising that petitions under Article 32 could ensure expansion of access to justice which also includes speedy remedy.

Therefore, it does not matter if the victim did not exhaust the High Court remedy first before approaching the court. Apart from Bilkis Bano, a victim, there were several PIL litigants before the apex court, in this case seeking to undo the fraudulent remission granted by the Gujarat government under which the 11 convicts were released. The court refused to examine their locus in this case, as it did not have to, as Bilkis herself was before it.

The fraud exposed

One of the convicts, Radheshyam Bhagwandas Shah (respondent No. 3 in Bilkis Bano case) sought a direction from the Supreme Court in 2022 to the Gujarat government to consider his application for premature release under the 1992 remission policy of the State of Gujarat. This policy was cancelled given the adoption of another remission policy by the State government in 2014, which made Shah and other convicts in the case ineligible for remission due to the gravity of their offences. Both Shah and the Gujarat government concealed this fact from the Supreme Court in order to obtain a direction to remit the sentences of the 11 convicts.

But it is not just this non-disclosure to the court which was an issue. The Gujarat High Court had held on July 17, 2019, that the “appropriate Government” to remit sentences, in this case, was Maharashtra and not Gujarat, as the trial of the case was shifted to Maharashtra under the directions of the apex court because it doubted the impartiality of the Gujarat government.

Social activists take part in a protest rally against the release of men convicted of gang-raping Bilkis Bano during the 2002 Gujarat riots, in Kolkata in August 2022. | Photo Credit: INDRANIL MUKHERJEE / AFP

But this order was not appealed by Shah before the Supreme Court. Instead, Shah complied with it by requesting the Maharashtra government to remit his sentence under its remission policy. Shah concealed also this fact from the Supreme Court resulting in the erroneous order passed on May 13, 2022.

Ironically, the Supreme Court set aside the Gujarat High Court’s order even in the absence of any prayer for the same.

Grant of remission

While the Maharashtra government was processing Shah’s application for remission, the presiding Judge of the court which had convicted him and the remaining 10 convicts, the Director-CBI as well as the Director General and the Inspector General of Police, State of Maharashtra were all unanimous in their opinion against grant of remission to the convict. Shah also concealed this fact from the Supreme Court, which resulted in the May 13, 2022 order favouring him. Misrepresenting and suppressing relevant facts amounted to playing fraud on this court, the bench held on January 8.

The Gujarat government conceded during the hearing of Shah’s petition by the Supreme Court that it was not the appropriate government to grant remission, as legally the Maharashtra government was competent to do so under its remission policy. The Supreme Court order in this case on May 13, 2022 directing it to consider the petitioner’s case for remission under the 1992 policy, therefore, must have resulted in the Gujarat government filing a review petition before the apex court, highlighting the factual errors and omissions on record. But it didn’t. Instead, the Gujarat government misunderstood the direction as if it was a command or a direction to grant remission within a period of two months.

The landmark judgement

The January 8 judgment is significant because it described this failure to file a review petition by the State government before the Supreme Court—a procedural irregularity or a lapse to many—as a serious infirmity amounting to usurpation of power by the State government, in pursuit of its hidden agenda in this case.

The court gracefully admitted its failure to notice binding judgments delivered by two Constitution benches of the Court earlier, but didn’t answer the question of whether it requires any institutional remedies to avoid the repetition of such erroneous directions from itself. For it is easy to blame stakeholders for their failure to point out the Court’s errors and omissions, but given the huge stakes in every case, should the Court not evolve its own remedies for timely self-correction?

In Union of India vs V. Sriharan @ Murugan & Others (2015) a judgment of a Constitution bench of the Supreme Court, it was held that the barring cases falling under Section 432(7)(a), in all other cases where the offender is sentenced or the sentence or order is passed within the territorial jurisdiction of the State concerned, that State government would be the appropriate government. As the convicts in the Bilkis Bano case were found guilty and sentenced by the High Court in Maharashtra, the appropriate government to remit their sentences is the Maharashtra government.

In Naresh Shridhar Mirajkar And Ors vs State Of Maharashtra And Anr (1966), a Constitution bench had held that judicial orders passed by the High Courts in or concerning proceedings pending before the High Courts are not amenable to be corrected by the Supreme Court under Article 32. This being the law of the land, it is binding on all the courts including benches of lesser coram of this court, the bench observed on January 8.

Rectifying erroneous orders

The May 13, 2022 order from the Supreme Court was obtained because of misleading remarks and information given to the court and hence, is a nullity and non est in law. All proceedings pursuant to the said order are vitiated. It is also perincurium because it violated two binding judgments of the Supreme Court in the V. Sriharan and Naresh Shridhar Mirajkar cases. A decision per incurium is not binding.

The January 8 judgement found the remission order a non-speaking one reflecting ‘complete non-application of mind’. All orders dated August 10, 2022 are stereotyped and cyclostyled orders, pointing to non-application of mind by the authorities while remitting sentences of 11 convicts after supposedly reviewing their eligibility for remission individually.

“The State of Gujarat acted in tandem and was complicit with what the petitioner-respondent No.3 herein had sought before the Supreme Court. This was exactly what the Supreme 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 bench held on January 8.

In an earlier case, (Laxman Naskar vs State of West Bengal, 2000), the Supreme Court laid down certain tests to determine eligibility for remission. Foremost among them is to answer whether the offence is an individual act of crime without affecting society at large. By this yardstick, the 11 convicts found guilty in the case may not be eligible for remission at all, as their crime is rightly described as one against humanity.

V. Venkatesan is an independent legal journalist based in New Delhi. Formerly Senior Associate Editor with Frontline, he has been reporting and commenting on legal issues for news portals.