Bilkis Bano case: Is right to seek remission a fundamental right, SC asks convicts

New Delhi [India], September 20 : The Supreme Court on Wednesday while hearing pleas against the pre-mature release of 11 convicts who had gang-raped Bilkis Bano and murdered her family members during the 2002 Godhra riots, asked whether the right of a convict to seek remission of his sentence of imprisonment comes under any of the fundamental rights in the Constitution.
A bench of Justices BV Nagarathna and Ujjal Bhuyan questioned whether an Article 32 petition (filed in the Supreme Court for the enforcement of fundamental rights) could be filed by convicts seeking remission.
The bench asked the counsel appearing for convicts, “Is the right to seek remission a fundamental right (of the convicts)? Will a petition lie under Article 32 of the Constitution?”
Senior advocate V Chitambaresh, appearing for one of the convicts, replied in negative saying, “No, it is not a fundamental right of the convicts.”
The victim and others also do not have the right to move the Supreme Court directly by filing a petition under Article 32 as no fundamental right of theirs has been infringed either, the lawyer said, adding that the victims have other statutory rights to challenge the grant of remission.
He further said that such a petition could not be filed by the petitioners who have challenged the grant of remission as well since their fundamental rights have not been breached.
He argued that only Article 226 petitions (which have to be filed before High Courts) are maintainable to challenge the grant or rejection of remission by the competent authority.
Article 226 of the Constitution says the High Court “Shall have powers to issue orders or writs including habeas corpus..., to any person or any government for the enforcement of fundamental rights and for other purposes.”
The arguments on behalf of the convicts concluded on Wednesday and now the apex court will hear rejoinder submissions of Bilkis Bano's counsel and others on October 4 at 2 pm.
The apex court was hearing a plea filed by Bilkis Bano and others challenging the premature release of 11 convicts.
Earlier, the apex court questioned the Gujarat and Central governments about the selective application of the pre-mature release policy for the remission of convicts who are serving jail terms.
It observed that the opportunity to reform and reintegrate into society should be given to every eligible convict.
Gujarat government in its affidavit had defended remission granted to convicts saying they completed 14 years of sentence in prison and their “behaviour was found to be good”.
The State government had said it has considered the cases of all 11 convicts as per the policy of 1992 and remission was granted on August 10, 2022, and the Central government also approved the release of convicts.
It is pertinent to note that the remission was not granted under the circular governing grant of remission to prisoners as part of the celebration of "Azadi Ka Amrit Mahotsav”, it had said.
The affidavit stated, “State government considered all the opinions and decided to release 11 prisoners since they have completed 14 years and above in prisons and their behaviour was found to be good.”
The pleas in the apex court said they have challenged the order of competent authority of the government of Gujarat by way of which 11 persons who were accused in a set of heinous offences committed in Gujarat were allowed to walk free on August 15, 2022, pursuant to remission being extended to them.
The remission in this heinous case would be entirely against public interest and would shock the collective public conscience, as also be entirely against the interests of the victim (whose family has publicly made statements worrying for her safety), pleas stated.
The Gujarat government released the 11 convicts, who were sentenced to life imprisonment, on August 15, 2022. All the 11 life-term convicts in the case were released as per the remission policy prevalent in Gujarat at the time of their conviction in 2008.
In March 2002 during the post-Godhra riots, Bano was allegedly gang-raped and left to die with 14 members of her family, including her three-year-old daughter. She was five months pregnant when rioters attacked her family in Vadodara.