With today’s hearing, the submissions by the remitted convicts has concluded. The Bench is scheduled to hear rejoinder submissions by the petitioners on October 4.
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TODAY, the Supreme Court continued hearing arguments on behalf of persons convicted of gangraping Bilkis Bano and murdering her family during the 2002 Gujarat pogrom.
The counsel for one of the 11 convicted persons argued before the court that upon being granted remission, a legal right to“reintegrate into the society” had accrued in his favour.
A division Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan is hearing a batch of petitions against the Gujarat government’s August 2022 decision to remit the sentences of the 11 convicts.
Appearing for one of the convicts, senior advocate V. Chitambaresh argued that judicial review of an Order granting remission is only possible under Article 226 (Power of High Courts to issue certain writs) of the Constitution and not Article 32 (Remedies for enforcement of rights conferred by Part III).
In his argument regarding the limited scope of Article 32, Chitambaresh cited the Supreme Court’s judgment in Andhra Industrial Works versus Chief Controller of Imports and Others (1974).
In Andhra Industrial Works, the court had stated that a petition will not be entitled to relief under Article 32 unless they establish that their fundamental right has been violated or is imminently threatened.
Justice Nagarathna pointed out that the power of judicial review is wider under Article 226, under which a high court can adjudicate on “not only violations of fundamental rights, but violation of any other legal right”.
Chitambaresh, agreeing with Justice Nagarathna, said, “Certainly, ladyship. That is exactly my point.”
There is another fetter on the invocation of Article 32, he said. “Only an illegal Order can be challenged in the Supreme Court, and not an erroneous Order,” which according to him can only be challenged in a high court.
Concluding his submissions, he averred that “no purpose” would be served by incarcerating his client any further, especially in light of the State’s reformative approach to sentencing.
An advocate for another convict contended that once the state government granted him remission protecting his right to liberty, that right cannot be taken away through an Article 32 petition.
The said advocate presented his case as one of State granting liberty to a person through an executive Order which would not be appropriate to reverse.
Appearing for another convict, an advocate stressed that even after remission, the conviction still holds, as only the execution of the sentence had been altered.
His argument, in essence, was that the State might have remitted his client’s sentence, but the stigma of conviction remains.
In a previous hearing, one of the convicts had told the court that the authorities had passed an Order of remission on the basis of his behaviour during the period of incarceration.
“It was not given to me as a bounty, or charity,” the counsel for the convict had said. By serving 14 years of sentence, their client “had earned it”, it was contended.
With today’s hearing, the submissions by the remitted convicts has concluded.
The Bench is scheduled to hear rejoinder submissions by the petitioners on October 4.
