Bilkis Bano Case | Convicts Argue That Remission Can Be Challenged Only Before High Courts; Supreme Court Expresses Doubts

In the Bilkis Bano case, Senior Advocate V Chitambaresh, appearing for the released convicts, told the Supreme Court on Wednesday (September 20) that a remission order can be challenged only in a high court, and not in the Supreme Court. Pointing out that Article 226 of the Constitution, which conferred on high courts the power to issue writs was wider than Article 32, the senior counsel argued –“An order granting remission can only be challenged under Article 226, and not under Article 32. We have come across orders declining remission being challenged under Article 32 because there is an infringement of a fundamental right guaranteed under Part III of the Constitution. A remission order is open to judicial review only under Article 226, and not under Article 32.”A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the Gujarat government.In response to Chitambaresh’s argument that the Supreme Court had no jurisdiction to entertain the current batch of petitions over the remission of the convicts, Justice Nagarathna pointed out that one of the convicts had filed a petition under Article 32 seeking remission. The Supreme Court’s decision designating the State of Gujarat as the ‘appropriate government’ eventually led to the state government approving the remission applications of all 11 convicts. “One of the convicts filed an Article 32 petition. Do not be ignorant of that,” Justice Nagarathna told the senior counsel.“That was before the remission was granted. Once there is an order of remission, judicial review is permissible only under Article 226, and not under Article 32,” Chitambaresh replied.Justice Nagarathna expressed her reservations over this . “We do not know if that is the law.”The senior counsel continued, “Only if remission is declined, a convict, who is under incarceration, may approach the Supreme Court arguing that their fundamental rights have been infringed. But, in a case where remission has been granted, judicial review is permissible only under Article 226, and no other provision.”On the scope of Article 226 in contrast with Article 32, Justice Nagarathna admitted, “The power under Article 226 is wider than under Article 32. It covers not only violations of fundamental rights, but violations of any other legal rights.”“Yes exactly,” Chitambaresh exclaimed, “Under Article 226, the limit is sky-high.”Alluding to the Supreme Court invoking its writ jurisdiction last year to grant relief to one of the convicts who sought to be prematurely released, Justice Bhuyan asked at this juncture, “Is the right to seek remission a fundamental right? Would a petition under Article 32 petition lie?”“No.” Chitambaresh accepted that the right to seek remission was not a fundamental right.Another counsel also challenged the Supreme Court’s competence to set aside the remission order, saying that “a fundamental right cannot be invoked against another fundamental right”. He said -“Once remission was granted by the competent authority in terms of the relevant policy, a right to life and liberty has accrued in my favour. Just as the rights of the victim, the rights of the convicts should also be safeguarded. They have been out of jail for a long time and have the right to be reintegrated into society. Balance of convenience, in fact, tilts more towards the convicts since they have already undergone 15 years of their sentence. If granted under the relevant rules, and after following the procedure, the remission order should not be disturbed.”“Who is to say that the remission has been granted after following the rules,” Justice Nagarathna asked the counsel.If at all, only the high court can sit in judicial review over the remission orders, the counsel responded.The respondents wrapped up their oral arguments on Wednesday, prompting the bench to adjourn the proceedings until October 4. On that day, the petitioners are anticipated to present their counterarguments.What has happened so far?Bano’s lawyer, Advocate Shobha Gupta argued that the punishment imposed on Bilkis’ rapists ought to be proportional to the nature and seriousness of the crime they had committed – which included 14 murders and three gang rapes. Highlighting the brutality of the crimes and the religious hatred motivating it, Gupta asked the Supreme Court bench if the convicts deserved the leniency they had been accorded:“…Bilkis saw her first child’s head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or ...

Bilkis Bano Case | Convicts Argue That Remission Can Be Challenged Only Before High Courts; Supreme Court Expresses Doubts

Awstika Das

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