New Delhi: Two of convicts in the Bilkis Bano case have moved the Supreme Court against the apex court’s verdict on January 8 cancelling their release from the prison.
Radheshyam Bhagwandas Shah and Rajubhai Babulal Soni in the plea filed through advocate Rishi Malhotra said an anomalous situation has arisen in the instant matter wherein two different coordinate benches sitting in same combination of two-judge bench have taken diametrically opposite views on the issue of premature release of the petitioner as well as which policy of the state government would be applicable.
“The judgment rendered on January 8 is directly in teeth of the constitution bench decision in Rupa Ashok Hurra’s (case) and the same needs to be set aside, as if the same is permitted then it would lead to not only judicial impropriety but to uncertainty and chaos as to which precedence of law has to be applied in future”, said the plea.
The plea contended that the judgment in Bilkis Bano case, where it was held that the appropriate government would be state of Maharashtra and not the state of Gujarat on that count also, would be per-incuriam the constitution bench decision in Sriharan’s case (2016).
“A fundamental issue arises for consideration as to whether a subsequent co-ordinate bench can set aside its earlier judgment rendered by its earlier co-ordinate bench and pass contradictory orders/judgments overruling its earlier view or the proper course would have been to refer the matter to a larger bench in case it felt that the earlier Judgment was passed in wrong appreciation of law and facts”, said the plea.
The plea argued that if any party was not satisfied with the Supreme Court judgment on an issue, he would be entitled to file a writ petition challenging the said judgment by taking recourse to law laid down in Bilkis Bano case. The plea stressed that it is the policy of remission which is in vogue at the time of conviction by the trial court which would be applicable and not a subsequent policy.
"What this court in Bilkis' case has held is that the 9.7.92 Policy of the State of Gujarat which was applicable was subsequently cancelled by a policy of 2014 and therefore, 9.7.92 Policy will have no applicability whatsoever. This was a completely erroneous approach," said the plea.
On January 8, a bench comprising justices B V Nagarathna and Ujjal Bhuyan cancelled the remission of 11 life term convicts in the Bilkis Bano gang rape case and the murder of her family members in 2002. The apex court had declared a previous judgment by Justice Ajay Rastogi (since retired) and Vikram Nath of May 13, 2022, which directed the Gujarat government to decide remission as per 1992 policy, as "per incuriam and not a binding precedent".
The Gujarat government, in February, filed a review petition for reconsideration of January 8, 2024 judgment for making "highly unwarranted" and "extreme observations" in quashing premature release of convicts.
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