The Gujarat government told the Supreme Court on Wednesday that its order releasing 11 convicts in the Bilkis Bano rape case could not be questioned by a third party as grant of remission is an order reducing the quantum of sentence and no public interest litigation (PIL) on the aspect of a prisoner’s sentencing can stand.
The state represented by additional solicitor general (ASG) SV Raju said, “Remission is nothing but reduction of sentence and on sentencing, there cannot be a public interest litigation.”
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The state had objected to the maintainability of a slew of petitions filed in public interest challenging the release of the 11 convicts who were convicted and sentenced to life imprisonment for committing gangrape of three women, including Bilkis, and murder of 14 persons as they were trying to escape during the 2002 Gujarat riots.
The bench of justices BV Nagarathna and Ujjal Bhuyan said, “This is not a criminal matter. It is an administrative order. We are on the ambit of administrative law whether an order of remission is good, bad or in public interest. Show us where an administrative order cannot be challenged in a PIL?”
The law officer replied, “Reduction of sentence stands on a different footing, even if by an administrative order. On quantum of sentence, a third party can never have a say.”
{{/usCountry}}The law officer replied, “Reduction of sentence stands on a different footing, even if by an administrative order. On quantum of sentence, a third party can never have a say.”
{{/usCountry}}Senior advocate Siddharth Luthra appearing for one of the accused supplemented the state’s argument by saying, “Though it is an administrative order, the exercise of power to grant remission is under Section 432 or 433 of the Code of Criminal Procedure (CrPC).”
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Opposing a right of hearing to the PIL litigants comprising Trinamool Congress MP Mahua Moitra, former CPI member MP Subhashini Ali and others, Luthra said, “Once punishment has attained finality, can we have a third party coming to court challenging my liberty to be set free as against the obligation to remain in custody.”
Appearing for another accused, advocate Rishi Malhotra said that allowing PILs to question an order of remission being done fairly will open the floodgates of litigation.
“This sets a very dangerous precedent as everyday remission orders are passed by states. Anybody can jump in and challenge it in court. These petitioners do not say their fundamental rights have been violated,” Malhotra said.
The bench replied, “In these PILs, they have not said their rights are violated. Here it is not private interest but public interest.”
The court said, as an example, if the government grants a licence to an industry in a village which affects the environment, land, or water of the villagers and if a public-spirited person challenges it in court, can it be thrown out saying that their private interest is not violated.
Senior advocate Indira Jaising representing one of the PIL petitioners told the court that none of the petitions were seeking enhancement of the sentence for the convicts. The court allowed her to make submissions on Thursday.
As both the state and the accused sought a preliminary view from the court on the maintainability of these petitions, the bench said, “We cannot disclose maintainability at this stage.”
The court allowed Jaising and other advocates including Vrinda Grover, Aparna Bhat and Nizam Pasha to make their entire submissions in the case, including the aspect of maintainability of their petitions. The court had on Tuesday concluded hearing the victim, Bilkis Bano, represented by advocate Shobha Gupta who pointed out the nature of the crime and gravity of the offence was given the go-by in allowing premature release of the 11 convicts who stepped out of jail on August 15 last year.