Bilkis Bano case: PIL against premature release of convicts may be maintainable if remission affects public, says Supreme Court

The Supreme Court on Wednesday indicated that the question of whether it can entertain the public interest litigation (PILs) pleas filed against the early release of convicts in the Bilkis Bano rape case may hinge on whether the administrative policy governing their remission affects the public at large. [Bilkis Yakub Rasool v. Union of India and ors]..A Bench of Justices BV Nagarathna and Ujjal Bhuyan today concluded hearing arguments of the counsel for the convicts on whether the public interest litigation (PIL) petitions filed against their premature release was maintainable before the top court. The Court observed today that the matter was not a criminal law issue, but a matter of administrative law. ."Here they are only challenging an administrative order, not the conviction and sentence," Justice Nagarathna observed while addressing advocate Rishi Malhotra, the counsel for a convict, Radheyshyam.Justice Bhuyan weighed in saying, "It is not a criminal case at all, but administrative law. Whether the conviction is good or bad.".Justice Nagarathna explained that if a policy affects the public at large, a PIL against such a policy can be entertained."You have to apply that test of who can challenge an administrative order," she remarked. .The Court was considering a batch of pleas challenging the decision of the Gujarat government to grant remission to 11 convicts who had gang-raped Bilkis Bano and murdered her family members during the 2002 Gujarat riots.Some of the petitions against the remission are PILs filed by third parties. The Supreme Court had yesterday questioned how a writ petition under Article 32 filed by one of the convicts could have been entertained by the Supreme Court earlier when the Gujarat High Court had rejected the same relief..Bilkis Bano case: What is wrong in convicts being garlanded by family members? ASG SV Raju in Supreme Court.Today was the third day of the hearing. It is set to continue tomorrow, when advocates Nizam Pasha, Vrinda Grover and Senior Counsel Indira Jaising (for TMC leader, Mahua Moitra), are expected to conclude their arguments..Advocate Malhotra, at today's hearing, pointed out that at least two of the PIL-petitioners were politicians, who were trying to put an accused back in jail.He argued that the PILs would only be maintainable be the fundamental rights of the petitioners have been violated. Entertaining the PILs would otherwise open floodgates, he argued. To this, Justice Nagarathna pointed out that it was a public interest litigation."It is a PIL. Else, it would in be their private interests. In PIL it is public interest, (An Article) 32 plea can be in private interest. See 32 can be 'my license is cancelled etc., that is private interest'. We will give you an example. A private company is given license by the government for an industry. Some villagers' lands would be affected or get submerged. Now if not the villagers but a public-spirited person challenges, will it be thrown out saying your private interests are not affected when it is about the environment," she said.Justice Bhuyan reiterated that it was not a criminal matter anymore. Additional Solicitor General SV Raju argued that remission is nothing but reduction of sentence, and there can be no PILs challenging a sentence. "No third party can have a say in reduction of sentence, it is between the court, the accused and the prosecution," he argued. "But here it was by an administrative order. The consideration was not by a judicial body," Justice Nagarathna replied. The ASG responded by saying that third-parties would still not have a say in such matters..Senior Advocate Sidharth Luthra, appearing for some of the convicts, stressed that remission is a statutory exercise in which multiple factors are taken into consideration. "They will rely on the 'society's cry for justice' test. That test and chapter got over once sentence was imposed. Now we cannot have third party elements," he submitted..The hearing will continue at 2.30 PM tomorrow (August 10)..BackgroundThe Gujarat government had granted remission to the 11 convicts based on the May 2022 judgment of the apex court.The 11 convicts who were set free are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.The convicts, who had been sentenced to life imprisonment, were released by the Gujarat government ahead of the assembly polls in the State.This led to the present batch of pleas before the top court challenging the remission.On August 25 last year, the top court sought the response of the Gujarat government on some of the pleas.The Court had earlier expressed its displeasure at an attempt by the convicts to avoid the Bench headed by Justice KM Joseph (since retired)..Bilkis Bano gang rape: Supreme Court says 'clear attempt' by convicts to avoid present bench from hearing plea against remission