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Supreme Court questions own order in Bilkis Bano case
Soon after the Supreme Court order in May 2022, 11 convicts moved for premature release and the Gujarat government freed them all.
The Supreme Court on Tuesday raised doubts over its own order of May 13, 2022, which directed the Gujarat government to consider the premature release plea of one of the convicts in the Bilkis Bano gang-rape case, and wondered if the convict’s petition was legally maintainable at all.
A bench of justices BV Nagarathna and Ujjal Bhuyan made pointed queries on how a writ petition was entertained by the Supreme Court at the instance of the convict, Radheyshyam Bhagwandas Shah, after the Gujarat high court turned down his prayer for directing the Gujarat government to decide his remission plea.
Also Read: Convicts in Bilkis case driven by ‘blood thirsty’ approach, SC told
According to the bench, after the Gujarat high court’s refusal in July 2019, Shah was required under the law to challenge the impugned order in appeal before the Supreme Court, instead of filing a writ petition. However, the top court not only admitted his writ petition but also directed the Gujarat government to decide his remission plea, noted the bench.
“Is there any challenge to the Gujarat high court order? If not, then how did this court get jurisdiction to set aside the July 2019 order?” asked the court, as it heard Bano’s petition challenging the remission granted to 11 convicts in by the Gujarat government in August last year.
It also questioned the Gujarat government’s lawyer if the issue of maintainability of Shah’s petition was raised by the state before the apex court before an order was passed in May, allowing the Gujarat government to consider the remission plea of the convicts under the 1992 policy.
Soon after the Supreme Court order in May, Shah and 10 other convicts moved for premature release and the Gujarat government freed the 11 men, convicted of gang-rape and murdering Bano’s family during the 2002 communal riots in the state.
Also Read: SC rejects Bilkis plea seeking review of its earlier order
The court’s bewilderment arose from the fact that the May 2022 order became the basis for the Gujarat government to release all the 11 convicts but there were no answers coming to the fore as to how a petition evidently challenging a high court order was entertained by the Supreme Court as a writ petition.
It further pointed out that Shah, following the Gujarat high court order in July 2019, approached the Maharashtra government too with his remission plea since the trial was conducted in that state. The trial of this sensitive case was shifted by the Supreme Court to a Mumbai court, which convicted all 11 persons and sentenced them to life imprisonment in January 2008.
But even before the Maharashtra government could take a call on it, the bench noted, Shah approached the Supreme Court by filing a writ petition and got an order that the Gujarat government could instead decide his remission plea under the 1992 policy – the one prevalent on the date of the conviction. While the existing remission policy of 2014 of the Gujarat government prohibits early release of rape convicts, no such restrictions were part of the 1992 policy.
“Did you oppose this writ petition. He had gone to the Gujarat high court and acted upon the order of the high court by filing for premature release in Maharashtra on August 1, 2019. How was his writ petition entertained by this court? Did not the Gujarat government mention that his writ is not maintainable as he has already accepted remedy under Article 226 (high court’s writ jurisdiction)?” the bench asked additional solicitor general (ASG) SV Raju, representing Gujarat.
It further the ASG that why the state chose not to file a review petition against the Supreme Court’s May 2022 order when its stand before the Gujarat high court had been that the Maharashtra government was the appropriate authority to consider the remission pleas since the trial was conducted there. Raju, on his part, said that he would make an endeavour to answer the court’s queries in his turn to argue.
However, advocate Shobha Gupta, who appeared for Bano, concurred with the court, saying Shah’s only remedy under the law was to file a special leave petition against the Gujarat high court order. “Judicial order cannot be knocked off in an Article 32 petition (Supreme Court’s writ jurisdiction). The only remedy was to file a special leave petition. I have gone through Shah’s petition. He did not challenge the Gujarat high court order. Yet, the final judgment has been set aside,” she complained.
At one point, Gupta submitted that “public outcry” should also be a consideration for the court to consider validity of a remission order as this case saw massive protests in the country. But the bench retorted: “Public outcry will not impact our judicial conscience. We will consider only legal submissions.”
Bano was 21, and five months’ pregnant when she was gang-raped while fleeing the violence during the 2002 riots, and her three-year-old daughter was one of the seven people killed.
The 11 men convicted of the crimes against her and her family were released on August 15, 2022, after one of them, Shah, approached the Supreme Court in April 2022 seeking remission, arguing that he had spent over 15 years in prison. By an order in May 2022, a bench led by justice Ajay Rastogi (since retired) directed the Gujarat government to consider the convicts’ plea for premature release in accordance with the 1992 policy.
As their release sparked public outrage, several PILs were filed in the Supreme Court by Trinamool Congress MP Mahua Moitra, former CPI member MP Subhashini Ali, among others, in August 2022. Later, in November 2022, Bano also approached the Supreme Court against the Gujarat government’s decision to allow the 11 men to walk out of jail.
