New Delhi:

The Supreme Court on Friday dismissed interim bail petitions filed by two men – Radheyshyam Bhagwandas and Rajubhai Babulal – who had been convicted of raping Bilkis Bano and killing her family during the 2002 riots in Gujarat’s Godhra.

Bhagwandas and Babualal had sought temporary release till the top court ruled on a fresh remission plea. They have filed a challenge to the court’s January verdict that cancelled their release by the Gujarat government on Independence Day in 2022.

Bilkis Bano Convicts’ Appeal

In March, Bhagwandas and Babulal moved the court contending the January verdict contravened a 2002 order by the Constitution bench and asked that the issue – of their remission by the Gujarat government being cancelled – be referred to a larger bench.

They claimed an “anomalous” situation had arisen; i.e., two different benches of the Supreme Court, both of same strength, had taken diametrically opposite views on the state government’s policy of early release of prisoners.

According to the plea today, in May 2022 one bench directed the state to consider Bhagwandas’ plea for early release. However, the bench that delivered the verdict said it was the Maharashtra, and not Gujarat, that was competent to grant remission.

READ | 2 Bilkis Bano Case Convicts Ask For “Final” Order On Remission

“… if this is permitted then it would lead not only to judicial impropriety but to uncertainty and chaos as to which precedence (sic) of law has to be applied in future,” the plea argued, warning that the January 8 verdict could be used as legal precedence.

The plea sought a direction to the centre to consider the case for premature release and clarify which judgement – May 13, 2022, or January 8, 2024, – will be applicable.

“My lords… now with two court decisions… if I can be allowed to approach the authority,” advocate Rishi Malhotra, who filed the plea for Bhagwandas and Babulal, said.

What Supreme Court Said

“What is this plea… how is it even maintainable? Absolutely misconceived… How can we sit on appeal in PIL (public interest litigation),” Justice Sanjiv Khanna declared.

“There are two judgments… earlier judgment (the May ruling) was considered in the second (the January verdict) … under Article 32 (which gives every individual the right to move the Supreme Court for enforcement of fundamental rights) …” he said.

“We are not sitting in appeal…” the court ruled.

Court’s Bilkis Bano January Verdict

In the January judgment, the court had been extremely critical of its May 2022 ruling, delivered by Justice Ajay Rastogi (now retired), and said the Gujarat government should have sought its review.

READ | “Abuse Of Power By Gujarat”: Bilkis Bano’s Rapists To Return To Jail

It noted the release had been ordered based on a 1992 remission policy that had been superseded by a 2014 law and sent the 11 convicts back to jail.

In August 2022, the 11 convicts – serving life sentences – were granted premature release after the state accepted their remission pleas in keeping with a 1992 policy and cited their “good conduct”.

READ | “… Fraudulent Means”: Supreme Court On Bilkis Bano Case Order

Criticising the Gujarat government, the Supreme Court said it had “usurped” the power of its Maharashtra counterparts to grant remission to the convicts.

Bilkis Bano was 21 years old, and had been pregnant for five months, when she was raped. Her three-year-old daughter was among the seven family members killed.

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New Delhi:

Two of the 11 convicts in the Bilkis Bano case have moved the Supreme Court contending that its January 8 verdict cancelling remission of their sentence was “in teeth of” a 2002 constitution bench order and sought the issue to be referred to a larger bench for “final” adjudication.

Radheyshaym Bhagwandas Shah and Rajubhai Babulal Soni, both lodged in Godhra sub-jail after the Supreme Court verdict, said an “anomalous” situation has arisen wherein two different coordinate benches (benches of same strength) have taken diametrically opposite view on the same issue of premature release as well as on which policy of the state government would be applicable to the petitioners for remission.

The plea, filed through advocate Rishi Malhotra, said while one bench on May 13, 2022 categorically ordered the Gujarat government to consider the application of Radheyshaym Shah for premature release in terms of the state government’s remission policy of July 9, 1992, the bench that pronounced the verdict on January 8, 2024 concluded that it was Maharashtra and not the Gujarat government that was competent to grant remission.

“That with greatest respect the judgement rendered on January 8, 2024 is directly in teeth of the constitution bench decision in Rupa Ashok Hurra’s case of 2002 and the same needs to be set aside, as if the same is permitted then it would lead to not only judicial impropriety but to uncertainty and chaos as to which precedence (sic) of law has to be applied in future. In other words, if any party being not satisfied with the Supreme Court Judgment on an issue, he would be entitled to file a Writ Petition challenging the said Judgement by taking recourse to law laid down in Bilkis Bano case,” the plea said.

Shah has also filed an application for bail.

“In another words, a fundamental issue arises for consideration as to whether a subsequent Co-ordinate Bench can set aside its earlier Judgement rendered by its earlier Co-ordinate Bench and pass contradictory orders/judgments overruling its earlier view or the proper course would have been to refer the matter to a larger bench in case it felt that the earlier Judgment was passed in wrong appreciation of law and facts,” the plea said.

The plea sought a direction to the Centre to consider the case of the petitioners for premature release and clarify which judgement of its coordinate benches- of May 13, 2022 or January 8, 2024- would be applicable to them.

It said since two benches of the Supreme Court of same strength have passed conflicting orders, the matter should be referred to a larger bench for final adjudication.

On Janaury 8, in a massive setback to the Gujarat government, the top court quashed the remission it had granted to 11 convicts in the high-profile gang-rape case of Bilkis Bano and the killing of her seven family members, while slamming the state for being “complicit” with the accused and abusing its discretion.

It ordered all the convicts, who were released prematurely on Independence Day in 2022, back to jail within two weeks.

Excoriating the Gujarat government, the Supreme Court said it “usurped” the power of the Maharashtra government to grant remission to the convicts.

It held as nullity the May 13, 2022 judgement of another bench of the Supreme Court, which had directed the Gujarat government to consider the remission applications of the 11 convicts in the case, saying it was obtained by “playing fraud on court”.

Bilkis Bano was 21 years old and five months pregnant when she was raped while fleeing the horror of the communal riots that broke out after the Godhra train burning incident in February 2002. Her three-year-old daughter was among the seven family members killed. 

(Except for the headline, this story has not been edited by NDTV staff and is published from a syndicated feed.)