Bilkis Bano: Order on remission to convicts obtained through 'misleading court', says SC, pulls up Guj. govt

Holding as nullity the 13 May 2022 judgement by another bench, which had directed the Gujarat government to consider the remission applications of the 11 convicts in the Bilkis Bano gang-rape case and the murder of seven of her family members, the Supreme Court on Monday said it was obtained by "playing fraud on court".

The apex court also held as maintainable the PIL filed by Bilkis Bano — who was gang-raped while seven of her family members were killed during the 2002 communal riots in Gujarat — against the state government's decision to grant remission to 11 convicts in the case.

Accusing the Gujarat government of abusing its power, the Supreme Court on Monday quashed the remission granted to the 11 men convicted in the case. It also said Gujarat's action amounted to "usurpation of power" of the Maharashtra government.

Pronouncing the verdict, the Justice B.V. Nagarathna-led bench said, “On the point of maintenance of the petition filed by the petitioner (Bilkis Bano) under article 32 of the Constitution, we have held — it is clearly maintainable.”

The bench, also comprising Justice Ujjal Bhuyan, said it is not necessary for the apex court to decide the question of maintainability of the public interest litigations (PILs) filed against the Gujarat government's decision to prematurely release 11 convicts under the state's remission policy on 15 August 2022.

“We do not think it necessary to answer the point regarding maintainability of PILs in this case…..Therefore, the question regarding maintainability of PIL challenging orders of remission is kept open to be considered in any other appropriate case,” the top court held.

The bench also said the Gujarat government was not the appropriate government to pass the remission order.

In its 13 May 2022 verdict, a bench comprising justices Ajay Rastogi (now retired) and Vikram Nath had asked the Gujarat government to consider the plea of convict Radheshyam Shah for premature release in terms of its remission policy of 9 July 1992, holding that the government of the state where the offence had taken place has the jurisdiction to decide the application.

On Monday, the top court noted that Shah had initially approached Gujarat High Court in 2019 for a direction to consider his application for remission. "By order dated 17 July 2019 the high court disposed of criminal application by observing that he should approach the appropriate government being the state of Maharashtra. His second such application before the Gujarat High Court was also dismissed in 2020," it said.

The Supreme Court said Shah later moved the SC but did not disclose that he had, within 14 days of the order dated 17 July 2019, approached the Maharashtra government with his application for remission, and that the CBI and the special judge (CBI), Mumbai had given a negative recommendation in his case.

"Thus, by suppressing material aspects and by misleading this court, a direction was sought and issued to the respondent state of Gujarat to consider the premature release or remission of the writ petitioner, i.e., respondent No.3 on the basis of the remission policy," the bench said.

The top court said Shah had, in order to persuade the bench in his favour in 2022, also made a "misleading statement" that a divergence of opinion between the Bombay and Gujarat high courts led to filing of the writ petition.

"At this stage, we may point out that if respondent No.3 (Shah) had felt aggrieved by the order of the Gujarat High Court dated 17.07.2019, it was open to him to have challenged the said order 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 remission application dated 1 August, 2019 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," the bench said.

The apex court said when the opinions were found to be negative, Shah filed a petition before the SC in 2022 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," the bench said.

"We are of the considered view that the writ proceedings before this court is pursuant to suppression and misleading of this court and a result of suppressio veri suggestio falsi (the suppression of truth is the suggestion of falsehood). Hence, in our view, the said order was obtained by fraud played on this court and hence, is a nullity and non est in law," the bench said.

The 11 convicts released prematurely were: Bakabhai Vohania, Bipin Chandra Joshi, Kesarbhai Vohania, Govind Nai, Jaswant Nai, Mitesh Bhatt, Pradeep Mordhiya, Radheshyam Shah, Rajubhai Soni, Ramesh Chandana and Shailesh Bhatt.

Besides the petition filed by Bilkis Bano contesting the remission, several other PILs, including one by CPI(M) leader Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma, challenged the relief. TMC leader Mahua Moitra also filed a PIL against the remission and the premature release of the convicts.

Bilkis Bano was 21 and five months pregnant when she was raped while fleeing the horror of 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 15 August 2022.