Bilkis case convict challenges plea against remission: ‘petitioners have no ties to case’

He said that to entertain such petitions “would” therefore “not only unsettle the settled position of law but would also open flood gates and would be an open invitation for any member of the public to jump in any criminal matter before any court of law”.

Shah was among 11 convicts in the Bilkis Bano case of gangrape and murder who were released by the Gujarat government on August 15 under its 1992 remission and premature release policy for life-term convicts after he moved the Supreme Court. Deciding his plea, the Supreme Court had ruled that although the trial in the case took place in Maharashtra, the Gujarat government would be the appropriate authority to grant remission based on the 1992 policy.

Since their release, the Supreme Court has issued notices on two petitions — one filed by CPI(M) leader Subhashini Ali, journalist Revati Laul and academician Roop Rekha Verma, and another by TMC MP Mahua Moitra — challenging their release. Shah’s petition referred to the plea by Ali and others.

Bilkis was gangraped and her three-year-old daughter Saleha was among 14 killed by a mob on March 3, 2002, in Limkheda taluka of Dahod district, during the post-Godhra riots. Bilkis was pregnant at the time. The Gujarat government cited a “unanimous” recommendation of the Jail Advisory Committee (JAC) to grant remission to the convicts on grounds of “good behaviour”.

In his affidavit, Shah referred to another case and pointed out that similar questions had been raised when the conviction of some accused under the TADA Act was sought to be challenged under Article 32 of the Constitution by Akali Dal (M) president Simranjit Singh Mann.

The Supreme Court, however, held that a petition under Article 32 of the Constitution can only be made for enforcing a fundamental right. “The Supreme Court rightly addressed the issue that the writ petitioner therein did not seek to enforce any of his fundamental rights nor did he complain that any of his fundamental rights is violated,” Shah’s petition stated.

Similarly, the petition stated, in the 2013 ruling in Subramanian Swamy vs Raju matter, the Supreme Court “further reiterated the settled position of law that the jurisprudence that has evolved over the decades has assigned the primary role and responsibility at both stages to the State though…in certain exceptional situations there is a recognition of limited right in a victim or his family members to take part in the process, particularly, at the stage of the trial”.

“…the law, however, frowns upon and prohibits any abdication by the State of its role at each of the stages and, in fact, does not recognise the right of a third party/ stranger to participate or even to come to the aid of the State at any of the stages,” the petition said.

In this matter, the Supreme Court had dismissed Swamy’s appeal against a Delhi High Court order rejecting his prayer to be made a party before the Juvenile Justice Board in proceedings against the minor accused in the Nirbhaya gangrape case.

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Referring to his release under the 1992 policy, Shah’s affidavit pointed out that the Supreme Court had in a 2010 decision stated that the policy that will apply for remission is the one applicable at the time of conviction by the trial court and not a subsequent policy at the time of consideration.

It submitted that in 2010, the “Court went a step further and held that in case there were two policies for premature release existing at the time of consideration, a policy which can be construed liberally in favour of a convict be applied in a case of convict”.