Bilkis Bano case: Gujarat govt asks SC to remove remarks against it
January 8 judgment questioned Gujarat govt's failure to review May 2022 order, citing reliance on this fact by justices Nagarathna and Bhuyan.
The Gujarat government has approached the Supreme Court to remove “highly unwarranted” remarks made against it in the judgment setting aside the remission granted to the 11 convicts in the Bilkis Bano gang-rape case.
Filing a revision petition against the January 8 order which held the state to have “acted in tandem” and being “complicit” with the 11 convicts, the Gujarat government submitted that the remarks were contrary to the record, making it imperative for the court to step in under the review jurisdiction on grounds of “errors apparent on the face of record”.
The state’s review plea said, “The extreme observation made by this court that the state of Gujarat ‘acted in tandem and was complicit with the accused’ is not only highly unwarranted and against the record of the case, but has caused serious prejudice to the state of Gujarat.” Following the judgment, the convicts had sought extension of the two-week period given to them to surrender, which was also turned down by the court on January 19.
The state’s review, the first to be filed in this case, stated that it proceeded with the review petitions based on the judgment passed by the top court on May 13, 2022 in the case of one of the convicts – Radheyshyam Bhagwandas Shah. The review plea said, “It is humbly submitted that the observation holding the state of Gujarat guilty of ‘usurpation of power’ and ‘abuse of discretion’ for complying with the order of this court, whereby another co-ordinate bench of this court held Gujarat to be the appropriate government under section 432(7) of CrPC, and issued a mandamus to decide the remission application of the convict (Radheyshyam) in accordance with the remission policy of 1992....is an error apparent on the face of record.”
It relied on its submissions in the Radheyshyam case where it had argued that since the trial in the Bilkis Bano case was shifted by the Supreme Court from Gujarat to Maharashtra, the appropriate government to grant remission would be Maharashtra’s. But with the May 2022 judgment holding otherwise, the state “being a party to the said proceedings was bound to comply with the aforesaid direction”, it said.
The January 8 judgment by a bench of justices BV Nagarathna and Ujjal Bhuyan had relied on this fact to question the failure of the Gujarat government to file a review against the May 2022 order. This judgment set aside the May 2022 order to be “per incuriam” as it was obtained by the convict Radheyshyam without disclosing full facts to the court.
The judgment said, “The state of Gujarat never sought for the review of the order of this court dated May 13, 2022 by bringing to the notice of this court that it was contrary to Section 432(7) CrPC and judgments of this court. Instead, the state of Gujarat has acted in tandem and was complicit with what the petitioner (Radheyshyam) had sought before this court...the exercise of discretion and the passing of the impugned orders of remission in the case of respondent Nos.3 to 13 (convicts) was an instance of usurpation of power.”
The petition by the state has highlighted six instances to entertain its review plea against the January 8 decision pointing out factual and legal errors in the judgment. For instance, the court held that the district judge at Dahod, Gujarat could not have been consulted by the state before granting remission as he was also part of the jail advisory committee. The state pointed out that the opinion of district and sessions judge of Panchmahals, Godhra was considered, who was part of the jail advisory committee too.
Bano was 21, and five-months pregnant when she was gang-raped as she tried to flee with her family to safety during the 2002 riots in Gujarat. The 11 convicts also killed seven members of her family including her three-year old daughter. The trial of the case took place in Mumbai and the Central Bureau of Investigation (CBI) investigated the case.
