Bilkis Bano Case: Rejection of Bano's review sans precedents and the law

New Delhi: In its rejection of Bilkis Bano's review petition on December 13 in a hearing in chambers without presence of lawyers or reporters though she had urged an open hearing, the Supreme Court's reassertion that the Gujarat government has jurisdiction to decide the remission despite the binding precedents she had quoted and also contrary to Section 432(7)(a) of the Criminal Procedure Code (CrPC).

The 2-page order has neither a discussion nor reasons as the Bench of Justices Ajay Rastogi and Vikram Nath observed that there was "no error apparent on the record" to review the May 13 judgment. Manu Sebastian, the managing editor of LiveLaw portal, says the Supreme Court has committed grave illegality by not assigning any reason for rejecting the review pettion.

In her review petition, Bilkis had argued that the Gujarat government had the jurisdiction to decide the remission application as the trial was held in Maharashtra. Her review petition argued that the jdugment was contrary to the plain language of Section 432(7) (a) of CrPC which reads that the "appropriate government" to decide remission is "the government of the state within which the offender is sentenced." All 11 convicts were sentenced to life by a court in Mumbai.

Also there is several precedents quoted by Bilkis Bano that hold that the government of state where the trial is held is the "appropriate government" for remission, instead of the state where the offence was committed.

In State of Madhya Pradesh vs Ratan Singh (1976) 3 SCC 470, the respondent was convicted in Madhya Pradesh though he was transferred to a prison in Punjab at his request. Here the Supreme Court held that the appropriate government to decide the remission was Madhya Pradesh and not Punjab. "The appropriate Government which is empowered to grant remission is the Government of the State where the prisoner had been convicted and sentenced, i.e. the transferor state and not the transferee stgate where the prisoner may have been transferred.

In Hanumant Das vs Vinay Kumar (1982) 2 SCC 177, the Supreme Court observed: "According to this section (432), the appropriate government is the government of the state of conviction and not the government of the state where the offence was committed.

Again, in Govt of AP vs Mt Khan (2004) 1 SCC 616, the pointed issue was where a particular state government can grant remission of sentence to the convicts who were lodged in prisons of that state, though they were sengtence in a trial held in another state. Following the principle laid down in Ratan Singh, the court held that only the government of state where the conviction was ordered can remit the sentence.

The judgment delivered by a Constitution Bench of the Supreme Court in Union of India v. V. Sriharan alias Murugan & Ors. (2016) 7 SCC 1 also discussed this aspect. In the judgment authored by Justice U U Lalit, it was observed: "Even if an offence is commited in state A, but if trial takes place and the sentence is passed in state B, it is the later state which shall be he appropriate government." Although Justice Lalit dissented from teh majority on other aspects, bit pm tjos ossie relating to Section 432, there was no dissent.

In the main judgment on May 13, 2022, the court had distinguished Sriharan by saying that in this case, the trial was transferred from Gujarat "for exceptional reasons." This cannot qualify as the logical explanation for ignoring the precedents quoted by Bilkis and the statute. Section 432(7)(a) does not provide for any relaxation if the trial from one state was transferred for "exceptional reasons." The legislative intention behind this provision appears to be to ensure the remission is decided by the outside state free of political compulsions.

Therefore, there is no basis for the Court to invent an artificial ground of "exceptional reasons" for not following the statute and the binding precedents. If the court had any diagreement with the precedents, it should have referred the matter to a larger bench.

Also, it is well settled that when the language of the statute is clear and unambiguous, the Court has to follow it, instead of resorting to any interpretative exercise.

Another curious aspect about the May 13 judgment is that it has been given on a writ petition filed by the convict under Article 32 of teh Constitution. He did not file a special leave petition under Article 136 to challenge the judgment of the Gujarat High Court, dismissing his petition seeking to direct the Gujarat government to decide the remission.

However, the Supreme Court set aside the Gujarat High Court's judgment while allowing the writ petition. This is a patently egregious course of action as it is well settled that a judgment of the court cannot be challenged under Article 32 of the Constitution.