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

Chambers of Ishaan Garg

Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054

+91 8851742417, +91 8800386163

The Supreme Court on Monday (January 8), while setting aside the premature release of eleven life convicts in the Bilkis Bano case, declared its May 2022 judgement - which directed the Gujarat Government to consider the remission applications of the convicts- as a nullity since the petitioner (one of the convicts) was found to have "played fraud" by suppressing material facts and making misleading statements.

The May 2022 judgment delivered by a bench comprising Justices Ajay Rastogi and Vikram Nath, which held that the government of the State where the offence took place had the jurisdiction to decide the remission, was also found to be per incuriam (bad in law) for ignoring precedents and the statutory mandate.

In the judgment pronounced today, the bench of Justices BV Nagarathna and Ujjal Bhuyan noted that the May 2022 direction was issued in a writ petition filed by one of the convicts, Radheshyam Shah, who had suppressed material facts like an earlier decision of the Gujarat High Court and the opinion of the presiding judge and made misleading statements. During the hearing that spanned several months, the two-judge bench was informed that Shah had first approached the Gujarat High Court for a direction to the State of Gujarat to consider his remission plea. The high court had disposed of his petition by observing that he should approach the appropriate government, i.e., the State of Maharashtra. A second application was also dismissed by the Gujarat High 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 -

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."

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."

Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022 (2024 SC)