A Supreme Court bench composed of Justices Ajay Rastogi and Vikram Nath rejected on December 13, just three days before the court closed, a sound review petition filed by Bilkis Bano. The review petition made out a case, in that Bilkis was never heard and there was a sufficient body of judicial opinion that held that an application for remission is to be made to the appropriate Government within whose jurisdiction the conviction had occurred. Following this line of case law, the convicts’ application for remission ought to have been made to the State of Maharashtra, which was not done, instead, it was made to the State of Gujarat. The very reason why the trial was transferred from Gujarat to Maharashtra was because in the perception of the court and having regard to the mass hysteria prevailing in Gujarat against the minority community, justice would be better served outside the State of Gujarat. The review petition, filed much earlier, was rejected only after the results of the Gujarat elections were announced. The very party which was in power when the atrocity against Bilkis Bano took place in 2002, was also in power when the remission was granted to the eleven convicts.
The ruling of the Supreme Court that the Gujarat Government was the appropriate Government not only flies in the face of binding precedent but makes a mockery of the transfer of the trial from Gujarat to Maharashtra. The court, while holding that the Gujarat Government was the appropriate Government, flew in the face of Section 432(7) of the Criminal Procedure Code which holds that the trial was transferred to Maharashtra under ‘exceptional circumstance’. This turns the law on its head, since the only reasons for transferring the trial out of the State are exceptional, making the transferee State the appropriate Government to decide on the remission.
While there is a writ petition pending, we believe that a curative petition, where the court cures the injustice before proceeding to do justice is a must. Reason and logic demand that a curative petition is filed, heard and disposed of before or along with the writ petition, which has been filed challenging the release of the eleven convicts on remission. This brings us to the tenure of chief justice Dr. Chandrachud, who has been in office for over a month now. For reasons best known to him, he has announced that there will be no vacation sitting of the Supreme Court. Sooner, if not later, the entire court will have to meet the challenge of protecting the independence of the judiciary at judicial and non-judicial fora. While it is true that under Article 122, the conduct of a judge cannot be discussed in the public or Parliament except for impeachment. Debates on the system of appointment will not fall within the purview of Article 122. Our courts do not need dog whistles or advice on sub judice matters. When it suits the Government to not answer the questions, they conveniently say, “No comment, the matter is sub-judice”. At other times, culture is invoked against the Constitution. History will record whether our courts will allow culture to trump the Constitution. The burden is on the shoulders of the legal profession to protect the judiciary against all attacks from a powerful majoritarian Government.