Was Gujarat Government Complicit As Observed By Supreme Court In Bilkis Bano Judgment?
In its judgment allowing Bilkis Bano’s plea against grant of remission to 11 rape and murder convicts, the Supreme Court held that its judgment in Radheshyam Bhagwandas Shah vs. State of Gujarat, (2022) 8 SCC 552 is per incuriam and was obtained by fraud. While holding thus, the bench of Justice BV Nagarathna and Justice Ujjal Bhuyan remarked that the State of Gujarat ‘acted in tandem’ and was complicit with what one of the convicts (Radheshyam) had sought in a writ petition which led to the judgment in Radheshyam. To say this, the Court points out that the State of Gujarat never sought for a review of the order in Radheshyam by bringing to the notice of this Court that it was contrary to Section 432(7) and judgments of the Court.
This piece examines the stand taken by the Gujarat Government in this matter from its inception.
Gujarat Govt opposed remission plea before Gujarat HC
Radheshyam, one of the 11 convicts in this case, first approached the Gujarat High Court by filing a writ petition. It is evident from the order passed by the High Court that the State opposed the plea and this made the Court pass an order relegating Radheshyam to pursue the remedy with the State of Maharashtra.
Gujarat Govt cited Sriharan judgment and opposed Writ Petition before Supreme Court
Thereafter, Radheshyam approached the Apex Court by filing a writ petition. He sought a direction in the nature of Mandamus to the State of Gujarat to consider his application for premature release under the policy dated 9th July, 1992 which was existing at the time of his conviction.
The judgment passed by the bench comprising Justice Ajay Rastogi and Justice Vikram Nath recorded the contention raised by the respondents (Union of India and State of Gujarat) that since the trial has been concluded in the State of Maharashtra, the expression ‘appropriate Government’ as referred to under Section 433 CrPC would be the State of Maharashtra and accordingly no error has been committed by the High Court in the order impugned. Reliance was placed on the Constitution Bench judgment in Union of India Vs. V. Sriharan.
But the bench rejected this contention and distinguished V. Sriharan judgment, and stated thus in Para 11 of the judgment: “In our considered view, the submission made by learned counsel for the respondents is not sustainable for the reason that the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 06th August, 2004 but after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committed remain the appropriate Government for the purpose of Section 432(7) CrPC.”
This means that the State of Gujarat had brought to the notice of the Court the law laid down in V. Sriharan. But the Supreme Court proceeded to grant relief to Radheshyam. The Court also noted an order of the Bombay High Court that declined a co-convict’s plea to consider the application for premature release and left the application to be examined according to the policy applicable in the State of Gujarat by the concerned authorities. The Court therefore directed the Gujarat Government to consider Radheshyam’s application for premature release in terms of its policy dated 9th July, 1992 which is applicable on the date of conviction. Thereafter, Bilkis Bano approached the Apex Court challenging this judgment by filing a review petition. The Court dismissed it, observing that there is no error apparent on the face of the record.
So, it is clear that the Gujarat Government had opposed the remission plea by Radheshyam both before the Gujarat High Court and the Apex Court. It is true that the State did not file a review petition, but it would not have made any difference because the legal contention raised by it was explicitly rejected by the Court and a review petition raising the same contention again would obviously not give different results.
It is also important to note that in response to writ petition filed by Bilkis Bano, the Gujarat Government did not seriously contest the legal issue raised regarding interpretation of 'Appropriate Government'. It obviously supported the remission order passed by it saying that it was acting as directed by the Supreme Court. Most of the submissions made by it was on the issue of locus of PILs filed by many individuals and politicians unconnected to this case.
Therefore, the observation in the Supreme Court's latest judgment that the Gujarat Government was complicit in this matter, in my view, was unwarranted. It appeared like a political statement which should not have been made by a Constitutional Court.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]