Justices BV Nagarathna and Ujjal Bhuyan in paragraph 62 of their judgment in Bilkis Bano’s case against the remission of the sentences of the eleven convicts remind the people of the foundational principle of this Republic.
The judges opined, "Rule of law means that wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law.”
That is precisely what the judges did in holding that the persons who were convicted of horrific crimes against Bilkis Bano would have to go back to jail within a fortnight and apply to the State of Maharashtra for the remission of their sentences.
It is noteworthy that the Court only took Bilkis Bano’s petition into consideration. It left the right of public interest petitioners open for consideration in another case.
Bilkis’ Plea Captured Nation’s Sentiments
In an interview with an Indian National Daily, after the judgment, Bilkis Bano said “Even as I absorb the full meaning of this verdict for my own life and for my children’s lives, the dua that emerges from my heart today is simple – the rule of law and above all else equality before law for all."
Through these words, Bilkis Bano has echoed the cry of crores of people who inhabit India, now the world’s most populous country.
She has also echoed what the father of our nation and Gurudas Rabindranath Tagore wanted for India: it should be a land that is for everyone, irrespective of their faiths and customs; that all are treated equally and are able to live freely, without fear and with their heads held high.
What the SC Order Stated
The details of the Bilkis case are not unknown. The Gujarat government banking on a Supreme Court judgment of 2022 remitted the sentences of the 11 convicts in August 2022. The government of India endorsed the Gujarat government’s decision.
On their release, the convicts were felicitated by their well-wishers. All this caused great outrage among a substantial section of the people. Bilkis Bano publicly said that she feared for her life. She showed great courage and tenacity in approaching the SC against the remissions.
In taking their decision, Justices Nagarathna and Bhuyan have held that the 2022 judgment of the SC was "a nullity" because it was based on "fraud" on the Court's part.
They stated that the appellant withheld material facts which would have led to a different decision. Once this bench wiped away the previous judgment then the very basis on which the Gujarat government with the endorsement of the Centre had acted falls.
Options for the BJP Government
The Nagarathna and Bhuyan judgment has placed the Gujarat government, the Central government and if this judgment stands, then the Maharashtra government, in a great quandary.
This is especially so in an election year.
An indication of the dilemma caused by the SC's decision is that till now the senior leadership of the BJP, the Gujarat government or the Central government representatives have made no comment on the judgment even after twenty-four hours.
What can be envisaged is that the BJP has really one of two routes that it can follow:
The Gujarat government can either challenge the present judgment and seek that while further judicial action is under consideration the eleven convicts be allowed to remain free.
Or, it accepts the judgment and makes its Maharashtra alliance government act with great speed to ensure that the convicts’ sentences are remitted before the election. It is, of course, possible for the party to take the high moral ground and state that it had earlier acted pursuant to a judgment and it will do so now as well. It remains to be seen what course the BJP will eventually take.
SC’s Stand To Stir Up Mixed Reactions
There is one other aspect which will perhaps weigh on the mind of the party. It would not want any controversies, howsoever slight, to mar the consecration of the Ram Janmabhoomi temple on 22 January. That is the Central government and the party’s current preoccupation.
Hence, while taking a decision on its next steps, they will certainly factor this in their calculations. Certainly, this judgment has not come at the most opportune time for the Central government and the BJP.
Many SC judgments generate controversies as they deal with sensitive social and political issues. This judgment is bound to do so too.
It is laudable though Nagarathna and Bhuyan have acted conservatively eschewing polemics and rooting themselves entirely in the law. They have pointed out that the earlier SC judgment was obtained through withholding facts.
That is why, they stated, that it was reduced to a nullity. Indeed, the Court must separately consider that if a judgment is obtained through such means, then the action that should be taken against those who acted so.
Legal Actions Need To Be Effected Against Fraudulent Judgments
The judicial system works to a large degree on trust. If the premise of trust breaks, especially regarding affidavits which are sworn statements then the administration of justice would become difficult.
Indeed, trust is a most important component in the legislative and executive branches functioning too.
In this case, it would be appropriate for the senior law officers of the government and the legal fraternity in general to ponder what actions need to be taken to prevent judgments to be obtained through fraud.
The last word has not been said in this matter and future developments would be most interesting to observe.
The BJP and other parties will certainly take note of this significant judgment and political positions will be taken with an eye on the coming elections. What the political class needs to pay special attention is to Bilkis Bano’s prayers for peace and social harmony. This can only come from a person of nobility. It is incredible for one who has suffered so much should raise her hands in such a dua.
(The writer is a former Secretary [West], Ministry of External Affairs. He can be reached @VivekKatju. This is an opinion piece, and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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