Bilkis Bano case: SC asks if rapists have fundamental right to seek remission

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Supreme Court of India.

New Delhi: The Supreme Court has asked whether convicts have a fundamental right to seek remission, as it heard petitions challenging the premature release of 11 rapists in the Bilkis Bano gangrape case and murder of seven of her family members during the 2002 Gujarat violence.

“Is the right to seek remission a fundamental right (of the convicts). Will a petition lie under Article 32 (that deals with citizens’ right to move SC directly if their fundamental rights are infringed) of the Constitution,” a bench of justices BV Nagarathna and Ujjal Bhuyan asked a lawyer appearing for one of the 11 convicts, as per PTI.

“No, it is not a fundamental right of the convicts,” the lawyer responded.

The victim and others also do not have the right to move the apex court directly by filing a petition under Article 32 as no fundamental right of theirs has been infringed either, he said. The lawyer said the victims have other statutory rights to challenge the grant of remission.

Another senior lawyer representing a convict said the grant of remission by the competent authority is open to judicial review before high courts under Article 226 of the Constitution.

Article 226 of the Constitution says the high court “shall have powers to issue orders or writs including habeas corpus…, to any person or any government for the enforcement of fundamental rights and for other purposes.” “Who is to say that remission has been granted after following the rules?” the bench wondered.

The lawyer responded, saying if at all this is a question, then remission has to be challenged in the high court and not directly in the top court under Article 32.

During the hearing, the bench objected to a lawyer’s submission that after an accused has been convicted, “right or wrong”, by a court including the Supreme Court, and served the sentence before being granted remission, it was not open to challenge.

“What is this – right or wrong? You have been rightly convicted,” the bench told the lawyer sternly.

Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the horror of the violence that broke out after the Godhra train-burning incident. Her three-year-old daughter was among the seven family members killed in the violence.

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