NEW DELHI: Two convicts in the Bilkis Bano case have approached the Supreme Court questioning the validity of the two-judge bench judgment, which, while taking a diametrically opposite view, set aside a previous co-ordinate bench judgment to quash their premature release.
"With greatest respect the judgment rendered on January 8, is directly in teeth of the constitution bench decision in Rupa Ashok Hurras case 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 of law has to be applied in future, they said.
They also contended in view of conflicting judgments and anomalous situation, the matter should be referred to a larger bench for final adjudication and proper determination on law and merits of the case.
In a writ petition, the petitioners Radheshyam Bhagwandas Shah alias Lala Vakil and Rajubhai Babulal Soni contended it is the policy of remission which is in vogue at the time of conviction by the trial court which would be applicable and not a subsequent Policy.
"What this court in Bilkis case has held that the 9.7.92 Policy of the State of Gujarat which was applicable was subsequently cancelled by a policy of 2014 and therefore, 9.7.92 Policy will have no applicability whatsoever. This was a completely erroneous approach," their plea said.
The plea filed by advocate Rishi Malhotra raised a question of law whether judicial proprietary envisaged under the Constitution as well as settled by a Constitution Bench decision in 'Rupa Ashok Hurra Vs Ashok Hurra' (2002) would have required for a subsequent co-ordinate bench of equal strength if at all they were to disagree with the finding arrived at by the previous co-ordinate bench of equal number, so as to refer the matter to a larger bench for reconsideration of its earlier judgment.
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On January 8, 2024, a bench of Justices B V Nagarathna and Ujjal Bhuyan quashed remission of 11 life term convicts in 2002 case. The court had then declared a previous judgment by Justice Ajay Rastogi (since retired) and Vikram Nath of May 13, 2022, which directed the Gujarat government to decide remission as per 1992 policy, as "per incuriam and not a binding precedent".
A fundamental issue arises for consideration as to whether a subsequent co-ordinate bench can set aside its earlier judgment 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, their plea said.
In February, the Gujarat government filed a review petition for reconsideration of January 8, 2024 judgement for making "highly unwarranted" and "extreme observations" in quashing premature release of convicts.
In its plea, the state government also referred to several errors on the face of record.
The January 8 judgment was rendered on a writ petition filed by Bilkis Bano, the victim of gang rape during the 2002 Gujarat riots, against the state government's decision.
