Bilkis Bano Case : Supreme Court Asks How Convict's Earlier Writ Petition Could Have Been Admitted By Court

While hearing the Bilkis Bano case on Tuesday, the Supreme Court questioned the maintainability of the writ petition filed by one of the convicts in 2022, in which the Court had passed an order allowing the State of Gujarat to decide on the premature release of the life-convicts.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 state government. During the hearing, Justice Nagarathna called into question the maintainability of the writ petition filed by one of the convicts – Radheshyam Shah – in which the Supreme Court observed that the remission policy of the state in which a crime is committed would be applicable, even when the trial is transferred to another state. This May 2022 judgment eventually led to the remission process being fast-tracked and all 11 convicts being released on Independence Day of the same year. The judge, however, asked how this petition was admitted and entertained since Shah had already approached the Gujarat High Court before this in another writ petition, which had ruled that the appropriate government for the purposes of remission would be the State of Maharashtra, and the convict had filed an application before the Maharashtra government pursuant to the high court’s direction. The judge expressed wonder at a writ petition under Article 32 being filed in the Supreme Court, when the Gujarat High Court had already rejected his petition.When the convicts' lawyer Senior Advocate Rishi Malhotra interjected, saying that the bench could not, in a writ petition, sit in appeal over a judgment of a coordinate bench, Justice Nagarathna told him:“How was that writ petition maintainable against the order of the Gujarat High Court? How was it admitted and entertained by this court? Without a challenge to this order of the high court, how did the Supreme Court set it aside? You first tell us that. And not now. Please sit down. Answer these questions when it is your turn.”It may be noted that the Supreme Court, in May 2022, had not only allowed the writ petition filed by Radheshyam Shah but also set aside the Gujarat High Court's order even while exercising the jurisdiction under Article 32 of the Constitution. Bilkis Bano later filed a review petition against the judgment. One among the several grounds urged in the review petition was that Article 32 remedy was not available against a judicial order. In December 2022, the bench comprising Justices Ajay Rastogi and Vikram Nath dismissed the review petition.Social impact not considered, Bilkis's lawyerThe government did not consider the societal impact of prematurely releasing Bilkis Bano’s rapists, nor did it consider a host of other relevant factors that they were required to under law, Advocate Shobha Gupta told the Supreme Court on Tuesday. “The Supreme Court has held in a number of cases that imposition of appropriate punishment is in the interest of justice,” Gupta told the bench today. Justice Nagarathna interjected. “This is the doctrine of jus deserts. But we are no longer in the stage of sentencing.” Gupta explained: “Even for the purposes of remission, all the factors that were considered while convicting the accused cannot be given a go-bye. The crime test, the criminal test, the impact on society, society’s cry, abhorrence…The principles of penology must be kept in mind…Immediately after the remission, there were agitations across the country. I have placed documents on record.” Justice Bhuyan stopped her. “Those will not affect our judicial decision-making,” he said. The counsel explained, “This is important because the court says that before granting remission, public outcry must be considered.” She added, the Supreme Court in a catena of judgments like Epuru and Laxman Naskar held that the impact on the public at large would have to be considered for the purposes of remission. “We will consider only legal submissions,” Justice Nagarathna said firmly, when Gupta tried to bring to the court’s attention the specific details of the outrage that was triggered by the remission of the 11 convicts. The judge also explained the rationale for not putting a premium on public outrage. “Suppose there was no public outcry. Are we just supposed to uphold the remission order? As a corollary, just because there is a public outcry, does it mean it is a wrong order?” Although the bench expressed its disinclination to examine the factual aspects relating to the protests and agitations prompted by the premature release of Bilkis’ rapists, it did not object to Gupta’s submission regarding the factors that ought ...

Bilkis Bano Case : Supreme Court Asks How Convict's Earlier Writ Petition Could Have Been Admitted By Court

Awstika Das

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