Why Bilkis remission verdict makes crucial legal points

The Supreme Court judgment on Monday scrapped the premature release of 11 convicts, sentenced to life in 2008 for the gang rape of Bilkis Bano and murder of seven of her family members during the 2002 Gujarat communal riots, striking a fine balance between the legal principles and the curious facts of the case even as it came down hard on the Gujarat government.

It regretted that 20 years later, the turn of events and the Gujarat government's conduct justified the original decision to shift the trial outside the state to ensure fairness and justice, while touching upon a raft of key legal issues that will go a long way in criminal law jurisprudence.

The judgment by the bench of justices BV Nagarathna and Ujjal Bhuyan cements some concrete principles of criminal laws that must ascertain justice for the victims of crime and compliance of the State with the rule of law.

Right of a victim to directly move the top court against remission

Bano's writ petition under Article 32 of the Constitution was challenged by several convicts. They argued that her plea should not be entertained by the top court because allowing a victim to challenge remission orders through a writ petition could open floodgates of litigation. The convicts said that she must approach the high court where the alternative remedy of filing a writ petition under Article 226 of the Constitution was available. They also pointed out that the only legal remedy Bano could avail of in the apex court was to file a curative petition against the dismissal of her review petition that had assailed the May 2022 order of the Supreme Court whereby the Gujarat government was asked to take a call on the remission of the convicts.

But the bench shot down all these contentions. Justice Nagarathna, writing the judgment, highlighted that the right to file a petition under Article 32 of the Constitution is also a fundamental right and that Bano has filed her writ petition under Article 32 to enforce her fundamental rights under Article 21 of the Constitution, which speaks of right to life and liberty, and Article 14 which deals with right to equality and equal protection of the laws.