Supreme Court Ignored Binding Precedents While Dismissing Bilkis Bano's Review Petition

The Supreme Court has dismissed the petition filed by Bilkis Bano seeking review of the judgment which allowed the Gujarat Government to decide the remission of eleven convicts who were sentenced to life for gangrape and murder of her family members during the 2002 communal riots.

In a two-page order having no discussion or reasons, a bench comprising Justices Ajay Rastogi and Vikram Nath observed that there was "no error apparent on the record" so as to review the judgment. The main argument raised by Bilkis Bano in her review petition was that the Court erred in holding that the Gujarat Government had the jurisdiction to decide the remission applications, as the trial of the case was held in the State of Maharashtra.  She argued that the judgment was contrary to the plain language of Section 432(7)(a) of the Code of Criminal Procedure, as per which the "appropriate government" to decide remission is "the Government of the State within which the offender is sentenced".

Based on this provision, there are several precedents which 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 v. Ratan Singh & Ors. (1976) 3 SCC 470, the respondent was convicted in the State of Madhya Pradesh, but 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 the Government of Madhya Pradesh and not the Government of Punjab. "The appropriate Government which is empowered to grant remission is the Government of the State where the prisoner had been convicted and sentenced, that is, the transferor State and not the transferee State where the prisoner may have been transferred", the Court observed.

Following this judgment, in Hanumant Dass v. Vinay Kumar & Ors. (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".

In Govt. of A.P. & Ors. v. M.T. Khan (2004) 1 SCC 616, the pointed issue was whether a particular State Government is entitled to grant remission of sentence to convicts who are lodged in prisons of that State though they were sentenced in a trial held in another state. Following the principle laid down in Ratan Singh, the Court held that only the government of the 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 UU Lalit in that case, it was observed as under :

"According to this provision, even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government".(Paragraph 23 of Justice Lalit's judgment in Sriharan case). Although Justice Lalit dissented from the majority on other aspects, on this issue relating to Section 432, there was no dissent.

Bilkis had relied on these judgments to seek review of the judgment. However, the Supreme Court summarily rejected her argument by saying "as regards the judgments on which the reliance has been placed, none of the judgments are of any assistance to the review petitioner".  It is puzzling that there is no explanation why these judgments do not apply to the present case.

In the main judgment delivered on May 13, 2022, the Court sought to distinguish Sriharan by saying that in this case, the trial was transferred from Gujarat "for exceptional reasons". This cannot qualify as a logical explanation for ignoring the precedent and the statute. Section 432(7)(a) does not provide for any relaxation if the trial was transferred for "exceptional reasons". The trial from one state will be transferred to another state only in exceptional and extraordinary circumstances. Also, there appears to be a sound logic behind this provision. Because, if free and fair trial is not possible in one state due to various factors, then the government of that State is also unlikely to take an independent decision regarding remission. So, the legislative intention behind this provision appears to be to ensure that 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 disagreement with the precedents, the appropriate course would have been to refer 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 2022 judgment is that it has been rendered in a writ petition filed by the convict under Article 32 of the Constitution. He did not file a special leave petition under Article 136 of the Constitution to challenge the judgment of the Gujarat High Court, which dismissed 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 Constitution.

So the above aspects make the judgment per incurium. In ordinary course, ignoring the clear language of the statute and the binding precedent, and also following a grossly improper procedural course (using Article 32 to set aside a High Court judgment) will amount to "apparent errors on the record of the judgment", justifying a review. By refusing to review the judgment, that too by not assigning any reasons, the Supreme Court has committed grave illegality.

(Manu Sebastian is the Managing Editor of LiveLaw. He may be contacted at manu@livelaw.in. He tweets @manuvichar)

Also watch : Interview of Senior Advocate Rebecca John criticising the Supreme Court's May 2022 judgment regarding remission of Bilkis Bano case convicts