Enforcing Rule of Law : Supreme Court Walks The Talk In Bilkis Bano Case

Bilkis Bano's poignant expression, "This is what justice feels like," encapsulates the feeling that several Indians felt about the Supreme Court's judgment. “I thank the honourable Supreme Court of India for giving me, my children, and women everywhere, this vindication and hope in the promise of equal justice for all”- she said in response to the Supreme Court's judgment which sent back to jail eleven convicts who gangraped her and murdered 14 of her family members during the 2002 Gujarat riots. The life convicts were given 'freedom' by the Gujarat Government on the independence day of 2022, in a brazen mockery to basic principles of justice and humanity. In a resounding verdict, the Supreme Court set aside the premature release of the convicts, condemning the Gujarat Government's decision as an “usurpation of jurisdiction and abuse of discretion”.

Beyond being a relief for Bilkis Bano, the judgment assumes a broader significance at a crucial juncture when public confidence in the judiciary is waning. The Supreme Court is grappling with an existential crisis regarding its role as a guardian of fundamental rights, amidst concerns about its independence and a pattern of evasion and inaction in various substantial issues. The executive is enjoying virtually a free pass, facing little questioning or pushback from the judiciary. Above this, the Court has also developed a deeply troubling 'illegal but permissible' jurisprudence, whereby it declares the position of law correctly, but cowers from enforcing it.

Delivered by Justices BV Nagarathna and Ujjal Bhuyan, the Bilkis case judgment marks a departure from a troubling trend. It sends a clear message – the rule of law is non-negotiable, and the courts will enforce it regardless of the consequences.

Justice Nagarathna's powerful assertion in the judgment highlights the court's commitment: "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."

It seems that the Supreme Court was making certain notes to itself and responding to some of the public sentiments regarding the judiciary through its observations made in the judgment about the importance of enforcing the rule of law. The observations underline the judiciary's responsibility in upholding the rule of law, ensuring that justice is dispensed and not merely acknowledged. The faith of the people in the efficacy of law becomes the bedrock for sustaining the rule of law, emphasizing the court's duty to correct arbitrary orders promptly and maintain public confidence.

Some observations are worthy of being quoted :

“It is only through the courts that the rule of law unfolds its contours and establishes its concept. The concept of rule of law is closely intertwined with adjudication by courts of law and also with the consequences of decisions taken by courts. Therefore, the judiciary has to carry out its obligations effectively and true to the spirit with which it is sacredly entrusted the task and always in favour of rule of law.”

“This Court must be a beacon in upholding rule of law failing which it would give rise to an impression that this Court is not serious about rule of law and, therefore, all Courts in the country could apply it selectively and thereby lead to a situation where the judiciary is unmindful of rule of law. This would result in a dangerous state of affairs in our democracy and democratic polity.”

“It is mainly through the power of judicial review conferred on an independent institutional authority such as the High Court or the Supreme Court that the rule of law is maintained and every organ of the State is kept within the limits of the law. Thus, those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by it”

“Courts have to be mindful of not only the spelling of the word “justice” but also the content of the concept. Courts have to dispense justice and not justice being dispensed with. In fact, the strength and authority of courts in India are because they are involved in dispensing justice. It should be their life aim.”

“The faith of the people in the efficacy of law is the saviour and succour for the sustenance of the rule of law...The faith of the people is the source to invigorate justice intertwined with the efficacy of law. Therefore, it is the primary duty and the highest responsibility of this Court to correct arbitrary orders at the earliest and maintain the confidence of the litigant public in the purity of the fountain of justice and thereby respect rule of law”.

In asserting its stance on the Bilkis Bano case, the Supreme Court exemplified a commitment to action over mere words. The Court also sent a strong message that it will not yield to manipulative subterfuges and pressure tactics, which the course of the case witnessed many. The rejection of a previous judgment tainted by fraud, ignorance of precedents, and statutory mandates further emphasizes the court's dedication to upholding legal integrity.

The previous judgment, which directed the Gujarat Government to decide the remission, was found to have been obtained by one of the convicts by “playing fraud” on the Court, based on suppression of material facts and misleading facts. The Court refused to give any precedential value to the previous judgment, not only because it was vitiated by fraud, but also because it was bad in law, since it was rendered in ignorance of binding precedents and statutory mandate. In a strong indictment of the Gujarat Government, the Court said that it acted in “tandem and complicity” with a convict and recalled it was this very apprehension which led to the transfer of the trial to Maharashtra.

Certain dishonorable attempts were also made to block the hearing of the present case before Justice KM Joseph, who had offered to convene vacation sittings to hear the matter expeditiously. Last year in May, on the date when the matter was posted for final hearing, there were efforts to delay the hearing, so that Justice Joseph, who was retiring the next month, will not decide the matter. The judge called out the ploy and expressed anguish :

“It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter. But, this is not fair to me. We had made it absolutely clear that the matter will be heard for disposal. You are officers of the court. Do not forget that role. You may win a case, or lose one. But, do not forget your duty to this court."

Overcoming all odds, Bilkis Bano emerged victorious, and the Supreme Court reasserted its relevance, providing a glimmer of hope and restoring confidence in the judiciary during challenging times in contemporary India. Such moments are to be cherished and celebrated, for they are far too few in the new India.

(Manu Sebastian is the Managing Editor of LiveLaw. He tweets @manuvichar. He may be reached at manu@livelaw.in)