We live in extraordinary times, when extraordinary solutions are to be found. Hence it is that the Supreme Court of India has given an extraordinary judgment in the Bilkis Bano case, declaring its own previous decision a nullity, something that has happened perhaps only once before. The Court held that the state of Gujarat “usurped” a power which it did not possess to grant remission to the 11 convicted persons for the rape of Bilkis Bano during a period of communal violence.
There is a difference between “usurpation of power” and “abuse of power”. Opinions may differ on whether power was abused in a particular case and the Court may leave it to the decision-maker to take a call on a borderline case. But the very absence of power renders the decision void.
These men were all convicted for life, which means for the rest of their natural life. There is, however, the power of the state government within whose jurisdiction the trial takes place to grant a remission after completion of 14 years for good conduct or for other good reasons. Since the trial took place in the state of Maharashtra, it was Maharashtra alone that had the jurisdiction to grant remission, if at all it was to be given. Standing in the way of deciding the case was a previous decision of two judges of the Supreme Court itself, that took the view that the appropriate government is the state of Gujarat. This judgment was clearly per incuriam since a larger bench of the Supreme Court had held that remission can only be granted by the state in which the trial took place. If that judgment held the field, the Bilkis petition could not be allowed.
It is here that the Court declared that its judgment was to be set aside since it was procured by fraud on the part of the petitioners. Bilkis Bano was not made a party to the previous petition. The petitioners suppressed the fact from the Court that prior to the grant of its judgment, a bench of the Gujarat High Court had held that the appropriate government was the state of Maharashtra. They also suppressed the fact that they had already appealed to the state of Maharashtra and that the trial court had recommended rejecting the grant of remission, on the ground that what had happened was a crime against humanity. The CBI, which was the investigating agency, was consulted and had recommended against remission.
Gangrape is a crime against humanity. This crime was perpetrated against a Muslim family in Gujarat in 2002 during widespread violence targeting the community. The Statute of the International Criminal Court prescribes a sentence of 30 years for crimes against humanity with no remission.
On conclusion of arguments, the Court deals with the plea of the convicts not to be sent back to prison since liberty is precious. To this the judges respond by saying liberty is precious when it is obtained by due process law. I might add, it is also precious when it is taken away without due process of law, as we see happening all too often these days. To a plea that the court should exercise its extraordinary power under Article 142, the court holds that it is the power to do justice and justice is the rule of law, hence there is no question of allowing the convicts to remain out of prison anymore. The status quo ante has to be restored if justice is to be done.
In recent judgments of the court, we have noticed a tendency that even when the declaration of law is in favour of the petitioners, the final order is not. This has happened, for instance, in the case relating to the disqualification of an MLA in Maharashtra and in the Article 370 case. It is not my purpose here to discuss the merits of the two cases but rather to insist that the court respect its own decisions. I do not wish to sit in judgment over the outcome of the SC’s decision, there is a time and place for that. However, we have seen in recent times an abdication of the power of judicial review of the Supreme Court. In contrast, this judgment by BV Nagarathna and Ujjal Bhuyan is a reassertion of the SC’s lost power. All right-minded citizens must welcome the Court coming back to itself.
The Court also held that the state of Gujarat had contended that it was the appropriate government and yet they did not file a review against the previous decision. In that, they were “complicit” with the petitioners.
I started by saying that we live in extraordinary times. It is a time in which power is being “usurped” by decision-makers. What does this mean for us? It means that power is being exercised extra-constitutionally by those who govern us, under cover of leaving the law to “take its own course”.
In the final analysis, this is the triumph of the will of Bilkis Bano to fight for justice and the collective contribution of the women’s movement which has worked tirelessly in supporting her and articulating their vision of justice.
Indira Jaising is a former Additional Solicitor General of India. She appeared in this case on behalf Mahua Moitra
This is the triumph of the will of Bilkis Bano to fight for justice and the collective contribution of the women’s movement
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08.01.2024
We live in extraordinary times, when extraordinary solutions are to be found. Hence it is that the Supreme Court of India has given an extraordinary judgment in the Bilkis Bano case, declaring its own previous decision a nullity, something that has happened perhaps only once before. The Court held that the state of Gujarat “usurped” a power which it did not possess to grant remission to the 11 convicted persons for the rape of Bilkis Bano during a period of communal violence.
There is a difference between “usurpation of power” and “abuse of power”. Opinions may differ on whether power was abused in a particular case and the Court may leave it to the decision-maker to take a call on a borderline case. But the very absence of power renders the decision void.
These men were all convicted for life, which means for the rest of their natural life. There is, however, the power of the state government within whose jurisdiction the trial takes place to grant a remission after completion of 14 years for good conduct or for other good reasons. Since the trial took place in the state of Maharashtra, it was Maharashtra alone that had the jurisdiction to grant remission, if at all it was to be given. Standing in........
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