Bilkis Bano Case Hearing | Remission Is Administrative Order; Precedents Against Third Party Action In Criminal Matters May Not Apply : Supreme Court

Allowing third parties to challenge remission orders in a public interest litigation would set a ‘dangerous precedent’ by opening a ‘floodgate of litigation’, Senior Advocate Rishi Malhotra told the Supreme Court on Wednesday, raising a preliminary objection over the maintainability of the public interest litigation (PIL) petitions filed against the premature release of Bilkis Bano’s rapists. 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. Before Bano herself approached the top court, a number of petitions had been filed in public interest, challenging the Gujarat government’s decision. The list of petitioners include Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. However, the government, as well as the convicts have challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. Senior Advocate Rishi Malhotra, appearing for convict Radheshyam Shah, tried to convince the bench to dismiss the PILs right at the outset by arguing that allowing third parties to challenge remission orders would be a ‘dangerous precedent’ leading to the opening of a ‘floodgate of litigations’: “They want the remission order to be quashed and the convicts to be sent back to jail. If this is permitted, then it will open a floodgate of litigation. I understand the victim herself approaching the court. I am not disputing her right. But, politicians, journalists jumping in…This defies logic. Every now and then someone will come up and challenge remission orders granted by any state. This will be a dangerous precedent.” Besides this, he also pointed out that the ‘public interest’ litigants had approached the court without going through the remission order which they, in their petition, criticised as ‘arbitrary’ and devoid of any ‘application of mind’. “They asked for the remission order to be quashed without placing it on record. They admitted to not having a copy of the remission order and approached the court on the basis of media reports. The grounds are completely speculative. The language used – ‘arbitrary’, ‘non-application of mind’. It appears to them, without even seeing the order of remission, that there is something fallacious in it and as such, liable to be set aside. They did not even annex the remission order.” Malhotra also relied on a 1992 judgment in which the Supreme Court disallowed a petition filed by Akali Dal leader Simranjit Singh Mann challenging its decision to confirm the death sentence awarded to two assassins of former army chief General AS Vaidhya. Mann had approached the top court claiming that his rights under Articles 14, 21, and 22 have been violated, but a bench headed by Justice AM Ahmadi (as he then was) turned him away on the ground of the absence of locus standi. “There is one difference,” Justice Nagarathna said, before elaborating: “Whereas in Simranjit Mann, there was a challenge to a conviction and a sentence, here the PIL petitioners have challenged the remission order, which is essentially an administrative order. Of course, conviction cannot be challenged by third parties. As the former chief justice has rightly said, if a third party challenges a conviction, one party may ask for the death penalty, while another party asks for an acquittal. The whole process will crumble if this were the case.” Malhotra attempted, “The facts are a little different I understand…” Justice Nagarathna stopped him. “The facts are vitally different. We are in an entirely different realm here. We are in the realm of administrative law.” “This is not a criminal matter anymore,” Justice Bhuyan also added, “The simple question is whether the order of remission is good or bad and whether it is in public interest. This judgment is not applicable.” There has to be an infringement of a fundamental right for the Supreme Court’s writ jurisdiction under Article 32 to be invoked, the senior counsel argued next. “What fundamental right of the petitioners has been violated? They have not even alleged that their fundamental rights have been violated.” “In public interest litigations, the petitioners’ fundamental right is not in question because it has been filed in public interest, not private interest,” Justice Nagarathna countered, before explaining that...

Bilkis Bano Case Hearing | Remission Is Administrative Order; Precedents Against Third Party Action In Criminal Matters May Not Apply : Supreme Court

Awstika Das

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