Two convicts in the Bilkis Bano gangrape case have approached the Supreme Court urging it to refer the matter of their pre-mature release from jail to a larger bench, as two different benches passed different orders.
Radheshyam Bhagwandas Shah and Rajubhai Babulal Soni filed petition saying that the apex court's January 8 verdict which led to the cancellation of their remission (early release from prison) and their re-imprisonment was judicially improper.
On January 8, the Supreme Court had struck down the Gujarat government's order granting remission to 11 convicts who had gangraped Bilkis Bano and murdered her family members during the 2002 Godhra riots.
Clash Over Precedence Of Judgments And Judicial Misconduct
In their plea, they have mentioned that two different co-ordinate benches of an equal number of judges have taken a different view of the case.
"Issue direction clarifying and directing which judgment of its co-ordinate bench would be applicable in the facts and circumstances of the case i.e. one which has been delivered in the case," it said.
As per the plea, the January 8 judgment delivered by Justices BV Nagarathna and Ujjal Bhuyan has "not only judicial impropriety but creates uncertainty and chaos as to which precedence of law has to be applied in future."
It was incorrect in law for the two-judge bench led by Justice Nagarathna to overrule a judgment rendered by another two judge-bench of the Supreme Court, namely Justices Ajay Rastogi and Vikram Nath, said the plea.
Dispute Over Remission Applications In Bilkis Bano Case
It is to be noted that the May 13, 2022 judgment rendered by the Justice Rastogi-led bench had held that the State of Gujarat (and not the Maharashtra government) was the appropriate government to decide on remission applications filed by the rape convicts in the Bilkis Bano case.
Thereafter, the Gujarat government decided to allow the remission applications of convicts. The decision was challenged by Bilkis Bano and others in the top court.
The bench led by Justice Nagarathna had found that the May 2022 judgment was secured by Radheshyam after misleading the court and suppressing key facts.
It had held that the judgment of May 13, 2022, by which another bench of the apex court had directed the Gujarat government to consider remission of a convict as per the 1992 policy, was obtained by "playing fraud" on the court and by suppressing material facts.
Varying Views on Competency for Remission Orders
Justice Nagarathna led-bench in January this year had held that Gujarat government was not competent to pass the remission orders but Maharashtra government. It had said the appropriate government to decide the remission was the State (in this case Maharashtra) within whose territorial limits the accused are sentenced and not where the crime is committed or the accused are imprisoned.
"In view of conflicting judgment on the same issue by bench of equal numbers of judges, the matter must be referred to a larger bench for final adjudication and proper determination on law and merits of the case," the plea filed through advocate Rishi Malhotra stated.
