Bilkis Bano Case |Earlier SC Judgment Won’t Bar Review Of Remission Order : Supreme Court

We are not sitting in judgment over a coordinate bench’s ruling, the Supreme Court said on Thursday, refusing to accept a ‘judicial propriety’ argument in the Bilkis Bano case.The Court said that the 2021 ruling, which allowed the Gujarat Government to consider the remission applications, will not bar the judicial review of the remission orders subsequently passed. 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. On behalf of the convicts, and earlier by Additional Solicitor-General SV Raju appearing for the state government, it has been argued that the remission of Bilkis Bano’s rapists followed an earlier decision of the Supreme Court asking the State of Gujarat to dispose of their applications for premature release, thus, disentitling the court from now reconsidering any issues relating to the jurisdiction of the state government - “This issue was resolved by this court. Your Lordships cannot and should not sit in judgment over a coordinate bench’s decision,” Senior Advocate Rishi Malhotra told the bench today, opposing the pleas against the convicts’ premature release. His argument was that the remission orders were beyond question in a proceeding before a coordinate bench inasmuch as they had already attained finality. However, this contention did not find favour with the judges. Justice Nagarathna explained that the petitioners were not prevented from challenging the orders only because they only had as their ‘starting point’ an earlier judgment of the Supreme Court – “The decision of this court was the starting point to that(remission). A review was filed and dismissed, but that is different from a challenge against remission orders. The two causes of action are different. One is the convicts’ cause of action to seek a mandamus for consideration of remission applications. The other cause of action is theirs to challenge these remission orders. You cannot say that these remission orders cannot be questioned by anybody because of last year’s decision. That was the starting point. But this is the end point.” Citing the Supreme Court’s judgment on the doctrine of stare decisis in Rupa Ashok Hurra (202), the senior counsel repeated, “But you cannot sit in judgment over coordinate bench’s ruling. This is what was held in Rupa Ashok Hurra.” Justice Bhuyan chimed in at this point. Our examination is confined to remission order, the judge clarified. “We are not sitting in judgment over a coordinate bench’s ruling. This is on remission order. The cause of action is different. This is very clear to us,” Justice Nagarathna added. Malhotra persisted in his efforts to convince the bench, by pointing to the similarities between the grounds on which Bano relied in her petition seeking a review of the May 2022 judgment – which was subsequently dismissed by the Supreme Court – and the recent petition challenging the 11 convicts’ remission. He argued, “Look at the grounds in the two petitions. They are all the same. This is unacceptable.” Maybe, Justice Nagarathna said about the similarities in the grounds cited, “But what ultimately matters is what they argue. You may have a hundred different grounds, but press only two or three in court.” Apart from this, Malhotra also supported the Gujarat government’s decision, arguing that it had complied with the top court’s order and granted remission in accordance with the remission policy in force at the time of the convictions. Relying on a 2010 ruling in State of Haryana v. Jagdish, the senior counsel contended – “Two things are very clear: one, the date of conviction would be relevant to decide which policy of remission is applied, and second, if there is a liberal provision in the subsequent policy, its benefit would be given to the convict, but not the other way round. The legal scheme is based on the reformative theory. Besides, Jagdish was followed by a series of orders of this court which asked the State to consider remission requests in terms of the policy in force on the conviction date. This cannot be in dispute now.” Convicts have earned this remission through good behaviour; only State would be answerable for any flaws in process: Advocate Sonia Mathur Advocate Sonia Mathur, appearing for another convict Vipin Joshi questioned whether Bano could bring the current action, given the settled principle against appeals by survivors to enhance the sentence imposed. Not just Bano, but none of the litigants had the standing to approach the court against the...

Bilkis Bano Case |Earlier SC Judgment Won’t Bar Review Of Remission Order : Supreme Court

Awstika Das

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