Bilkis Bano case: No third party can have a say in remission of sentence, Gujarat govt tells SC

However, the Supreme Court remarked that the question of whether it can entertain the PILs filed against the early release of convicts in the Bilkis Bano case may be decided on whether the administrative policy of their remission affects the public at large.

"If a policy affects the public at large, a PIL against such a policy can be entertained. You have to apply that test of who can challenge an administrative order," Justice B V Nagarathna, leading the bench of the Supreme Court, today observed during the hearing.

The apex court made these observations after hearing the arguments from the Gujarat government through its Additional Solicitor General (ASG) and senior lawyer, S V Raju, who pleaded that no third party can have a say in the reduction of sentence and these PILs should be dismissed by the SC.

"Remission is nothing but a reduction of sentence and there can be no PILs (Public Interest Litigation) challenging a sentence. No third party can have a say in the reduction of sentence, it is between the court, the accused, and the prosecution," Raju told the top court.

The bench noted that if an administrative policy governing remission of the convicts affects the public, a PIL against the same can be entertained or not, and would be adjudicated upon by the court later.

The court observed Wednesday that the matter was not a criminal law issue, but a matter of administrative law.

"Here they are only challenging an administrative order, not the conviction and sentence," Justice Nagarathna observed while addressing advocate Rishi Malhotra, the counsel for a convict, Radheyshyam.

The court was hearing a batch of pleas, including certain pleas filed by third parties, challenging the decision of the Gujarat government to grant remission to 11 convicts who had gang-raped Bilkis Bano and murdered her family members during the 2002 Gujarat riots.

Malhotra questioned that at least two of the PIL-petitioners were politicians, who were trying to put an accused back in jail.

He said that there has to be fundamental rights violations of the petitioners for the pleas to be maintainable or else it would open floodgates.

Senior Advocate Sidharth Luthra, appearing for some of the convicts, stressed that remission is a statutory exercise in which multiple factors are taken into consideration.

"They will rely on the 'society's cry for justice' test. That test and chapter were over once the sentence was imposed. Now we cannot have third-party elements," he said.

The hearing will continue on Thursday.

The Gujarat government awarded remission to all her 11 convicts and freed them on Aug 15, last year. Bano has filed a writ petition in the Top Court challenging the remission granted to 11 convicts.

The 11 convicts who were set free are Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.