Bilkis Bano Case | Judgment Directing Gujarat Govt To Decide Remission Was Obtained By Fraud; It's Also Bad In Law : Supreme Court

When Shah invoked the writ jurisdiction of the Supreme Court under Article 32 of the Constitution two years ago, he not only failed to mention the Gujarat High Court's orders relating to his remission plea, but also did not disclose his application before the Maharashtra government, the negative opinions by the Central Bureau of Investigation to which the investigation had been transferred and the Mumbai special court that had handed out the convictions and sentences, and Dahod police superintendent's and district judge's adverse opinion on the question of remission. 

The convict, to persuade the bench led by the now-retired Justice Ajay Rastogi to rule in his favour, had also made a 'misleading statement' that a divergence of opinion between the Bombay and Gujarat high courts had necessitated his writ petition. The Bombay High Court's order, passed in 2013, dealt only with the transfer of the convicts in the Maharashtra jail to their parent state, i.e., the State of Gujarat. "In 2013, the issue of remission had not arisen at all. But the writ petitioner projected as if the two high courts had contracted themselves in their orders and therefore, he was constrained to file a writ petition invoking the jurisdiction of this court under Article 32 of the Constitution," the petitioners challenging the remission orders had submitted. Accepting this contention, the bench today held -

"The pleadings in the writ petition did not indicate that the State of Gujarat had no jurisdiction to consider his application for remission. There was no pleading that he had filed an application before the Government of Gujarat. Thirdly, there is no mention that the 1992 remission policy had been cancelled. Moreover, the policy was not at all applicable since the writ petitioner was convicted in Maharashtra and therefore, Gujarat government was not the appropriate government. On this basis, this court passed the order on May 13, 2022...If he had felt aggrieved by the order of the Gujarat High Court, it was open to him to have challenged it before this court by filing a special leave petition, but he did not do so. Rather, he complied with the order of the Gujarat High Court by filing a remission application before the Government of Maharashtra where, not only the process for consideration of the remission prayer was initiated, but opinions of various authorities were also obtained. When the opinions were found to be negative, [the convict] filed a writ petition before this court seeking a direction to the State of Gujarat to consider his remission application suppressing the above material facts. This he could not have done, thereby misrepresenting and suppressing relevant facts, thus playing fraud on this Court."

Neither the 2019 order of the Gujarat High Court could have been challenged in a writ petition invoking Article 32 of the Constitution, nor could it have been set aside in writ proceedings, the Supreme Court clarified, pointing to the decision of a nine-judge bench in Naresh Shridhar Mirajkar (1967). 

The writ proceedings and the order obtained as a result of that, the court concluded, was pursuant to suppression of material facts and misleading statements. The petitioner-convict being guilty of suppressio veri suggestio falsi, the May 2022 order was a 'nullity' and 'non-est' in the eyes of law. Referring to a catena of Supreme Court judgments on the consequences of fraudulent conduct by parties in judicial proceedings, the bench held -

"We hold that consequently the order(of May 2022) is hit by fraud and is a nullity and non est in the eye of law and therefore cannot be given effect to and hence, all proceedings pursuant to the said order are vitiated...It is trite that fraud vitiates everything. It is a settled proposition of law that fraud avoids all judicial acts...Any litigant who is guilty of inhibition before the court should not bear the fruit and benefit of the court's orders."

May 2022 judgment per incuriam

Apart from this, the Justice Nagarathna-led bench also found the May 2022 order to be hit by the doctrine of per incuriam. By holding that the Gujarat government was competent to decide the remission pleas of the 11 convicts, the court had gone against the plain letter of the statute as well as binding precedents, it said. In this connection, the latest judgment, which was pronounced today, touched upon the consequences of finding that an earlier decision was delivered per incuriam or subsilentio, concluding that such a decision could not be said to bind any of the parties to the litigation -

"One of the contentions raised in the present case was that since this court had directed that the State of Gujarat was the appropriate Government, the same was binding on the parties even though it may be contrary to the earlier decisions. We cannot accept such a submission having regard to what has been observed above in the case of Synthetics and Chemicals, which was also with regard to the application of the same doctrine between the very same inasmuch as when a judgment has been delivered per incuriam or passed subsilentio, the same cannot bind either the parties to the judgment or be a binding precedent for the future even between the same parties. Therefore, for this reason also, the May 2022 order would not bind the parties thereto and particularly, to [Bilkis Bano] who was in any case not a party to the said writ proceeding."

Notably, the Supreme Court also slammed the Gujarat government for 'acting in tandem' with the convict who had moved the top court seeking a direction for the consideration of his premature release application, noting a conspicuous absence of any application by the Gujarat government seeking a review of this order -

"What is interesting is that the Gujarat government had submitted before this court that the appropriate government was the State of Maharashtra, in accordance with the definition of 'appropriate government' in Section 432 of the Code of Criminal Procedure. This contention was rejected by this court, contrary to several binding precedents, including one by a constitution bench in V Sriharan. The State of Gujarat, however, failed to file a review petition seeking a correction of this court's order. Had the State of Gujarat filed an application seeking a review of the said order and impressed upon this court that it was not the appropriate government but the State of Maharashtra was, ensuing litigation would not have arisen at all. On the other hand, in the absence of any review petition, the State of Gujarat has usurped State of Maharashtra's power and passed the remission orders."

It may be noted that the review petition filed by Bilkis Bano against the May 2022 judgment was dismissed in December 2022.

Then, turning to the case of the other convicts who had neither approached the Supreme Court or any high court for a similar relief as Radheshyam Shah, the bench remarked, "None of the other convicts had approached this court or any high court seeking such a relief. Therefore, in so far these respondents are concerned, there was no direction of this court or any court to the State of Gujarat to consider their premature release."

After an 11-day-long hearing that began in August, a division bench of Justices BV Nagarathna and Ujjal Bhuyan had reserved its judgment in this case on October 12. Advocate Shobha Gupta appeared for Bilkis, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.

The Supreme Court on Monday morning directed the 11 convicts to report to the concerned jail authorities within two weeks and surrender. "Rule of law must prevail. Since the remission orders are set aside, the natural consequences must follow."

Other reports about the judgment can be read here.

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