A top court questioning its own order is a rare instance in India’s legal history. But then, the Bilkis Bano case isn’t any other record in the country’s judicial files. More than 20 years have passed, but reading or recollecting that ghastly episode needs courage.
Bilkis was 21 years old and five months pregnant when she was gang-raped in Gujarat’s Dahod district during the post-Godhra communal riots. The Change.org reports, “As Bilkis lay on the floor bleeding, her arm broken by the rapists, the men then lunged at her three-year-old daughter Saleha and smashed her head with a stone. They also gang-raped Bilkis’s two sisters. Bilkis and her husband Yakub fought 17 years – and changed 20 homes along the way – to secure justice.”
The Supreme Court has now questioned the maintainability of the writ petition filed by one of the convicts in 2022, in which the Court had passed an order allowing Gujarat to decide on the premature release of the life convicts.
A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing the pleas against the decision of the Gujarat government to grant remission to the 11 convicts, sentenced to life imprisonment. On Independence Day last year, the convicts walked free after the state government approved their application for remission of the sentence.
Now, according to reports, Justice Nagarathna questioned the maintainability of the writ petition filed by one of the convicts, Radheshyam Shah.
The top court not only admitted his writ petition but also directed the Gujarat government to decide his remission plea, the bench observed.
“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?” the court asked.
Further, it questioned the Gujarat government’s lawyer whether 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, another report highlighted.
Following the Supreme Court order in May, Shah and the 10 other convicts moved for premature release. The Gujarat government freed the 11 men, convicted of gang rape and murdering Bilkis’s family.
The court asked how a petition evidently challenging a High Court order could meet Supreme Court’s approval as a writ petition.
“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, who represented Gujarat.
Advocate Shobha Gupta, who appeared for Bilkis, argued, “Judicial order cannot be knocked off in an Article 32 petition. 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.”
Gupta held that public outcry should also be a consideration for the court to consider the validity of a remission order. The case saw protests on a large scale. But the bench cleared its stance. It said, “Public outcry will not impact our judicial conscience. We will consider only legal submissions.”