The Supreme Court on January 8 said the grant of remission to 11 men serving life sentence in the Bilkis Bano case was a “classic case” of using a Supreme Court order to violate the law.
The court was referring to its May 2022 decision, delivered by a Bench headed by Justice Ajay Rastogi (now retired), allowing Gujarat to decide the application of one of the convicts, Radheshyam Bhagwandas Shah, for premature release in terms of the State’s remission policy of July 9, 1992. Following this order from the apex court, the other 10 convicts had joined in with their pleas for remission. The Gujarat government had subsequently granted them early release on August 10, 2022.
In its judgment on Monday, a Bench of Justices B.V. Nagarathna and Ujjal Bhuyan said the court was defrauded into delivering its decision on May 13, 2022.
Explained | How did the Bilkis Bano convicts walk free?
The respondents had not divulged a series of facts which would have tilted the Supreme Court’s decision against them.
The judgment pointed out that Shah was told by the Gujarat High Court in 2019 to approach the Maharashtra government with his plea for remission. Following this rebuff, he had moved the Home Department of Maharashtra government. The Department had, in turn, asked the Central Bureau of Investigation, which had prosecuted the Bilkis Bano case. The agency had replied that Shah ought to “serve his sentence fully” and did not deserve any leniency.
Following this, the Special CBI Court in Mumbai, which had tried the case after its transfer from Gujarat, had also given a negative report to his plea for premature release in January 2020.
The Superintendent of Police in Dahod had, in fact, apprehended the commission of “serious crime” against Ms. Bano and her family if the convict was granted an early release. The Collector/District Magistrate of Dahod had seconded the police officer’s negative opinion.
Explained | Bilkis Bano case : Unlawful Remission
Justice Nagarathna said these facts had been suppressed by Shah in the apex court in 2022.
The Monday verdict, directing the released convicts to report back to the jail authorities within two weeks, said the May 2022 decision also suffered from a misrepresentation made by Shah that there was a “divergence in opinion” between the Bombay and Gujarat High Courts. In fact, a Gujarat High Court order of March 13, 2020 refusing remission to Shah and reiterating its 2019 position to approach the Maharashtra government was never challenged or set aside.
“That order still holds the field,” Justice Nagarathna observed.
Justice Nagarathna also drew attention to how the Gujarat government, in the run-up to the May 2022 decision, had in fact agreed in the top court that Maharashtra was indeed the competent authority to consider the grant of remission.
The judge noted how the State had curiously reversed its position and not sought a review of the May 2022 decision.
“The State of Gujarat never sought for the review of the May 13, 2022 order of this court by bringing to the notice of this court that it was contrary to Section 432 (7) and judgments of this court. Instead, the State of Gujarat acted in tandem and was complicit with what the respondent had sought before this court,” Justice Nagarathna said.
Also Read | Some convicts in Bilkis Bano case are ‘Brahmins with good sanskaar’, says Gujarat BJP MLA
The judge added that this conduct of the Gujarat government had been exactly why the Supreme Court transferred the investigation of the case to the CBI and the trial to the Special Court at Mumbai.
