Article 141 of the Constitution of India states that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Does it bind the Supreme Court itself ? In Bengal Immunity Company Limited vs State of Bihar [1955] 2 SCR 603, the Supreme Court held that it is not bound by its earlier judgments. Later in Union of India vs. Raghubir Singh 1989 SCR (3) 316, the Supreme Court clarified this proposition: A Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court.
The core issue in Bilkis Bano Case was the interpretation of the term ‘Appropriate Government’ in Section 432(7)(b) of the Code of Criminal Procedure. The provision itself defines it as“the Government of the State within which the offender is sentenced or the said order is passed.” Obviously, it is only a Court which can sentence a person after finding him guilty and convicting him. When a court in Maharashtra sentences a person, it is clear that he is sentenced in the State of Maharashtra and that this sentence order is passed in the State of Maharashtra. So there is no ambiguity in the provision itself. Even if the offence took place in Gujarat, and the trial was transferred to a Court in Maharashtra which sentenced the accused, this position does not change. The place where offence takes place is irrelevant as far as the definition of Appropriate Government is concerned.
In Union of India vs Sriharan (2016) 7 SCC 1 , the Constitution Bench made this position very clear: Under Section 432(7) (b) barring cases falling under 432(7)(a) in all other cases, where the offender is sentenced or the sentence order is passed within the territorial jurisdiction of the concerned State, then alone the Appropriate Government would be the State. This is made further clear in the dissenting opinion: “According to this provision, even if an offence is committed in State A but if the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate Government.”
In Hanumant Dass vs. Vinay Kumar, (1982) 2 SCC 177, the Supreme Court observed that the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed. The same position was taken in State of M.P. vs. Ratan Singh, (1976) 3 SCC 470, Government of A.P. vs. M.T. Khan, (2004) 1 SCC 616.
Despite all this, the Supreme Court in Radheshyam Bhagwandas Shah vs. State of Gujarat 2022 INSC 574, held that the convict sentenced by a court in Maharashtra can file remission application before the Gujarat Government, where the crime was committed. By invoking its writ jurisdiction under Article 32 of the Constitution, it even set aside the Gujarat High Court judgment that followed the Constitution Bench dictum in Sriharan. By doing so, the court violated the law laid down in nine-Judge Constitution Bench decision in Naresh Shridhar Mirajkar vs. State of Maharashtra, AIR 1967 SC 1, that an order of a High Court cannot be set aside in a proceeding under Article 32 of the Constitution.
All this was done even after the Gujarat Government pointed out that it was not the ‘appropriate Government’ to consider the remission plea in this case. The court distinguished Sriharan by observing thus: The crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra) by an order dated 06th August, 2004 but after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committed remain the appropriate Government for the purpose of Section 432(7) CrPC.”
Now, in Bilkis Yakub Rasool vs Union of India 2024 INSC 24 , another bench of the Supreme Court held that its judgment in Radheshyam is not binding on it because it was per incuriam. The bench which passed the judgment in Radheshyam was obviously not ignorant about Section 432(7) CrPC or the law laid down in Sriharan judgment. It had even dismissed the review petition saying that there is no error apparent on the face of the record. So can it be said that it held what it held due to ignorance? Further, in Bilkis Bano, the Court said that the judgment in Radheshyam was obtained by fraud. It even blamed the Gujarat Government for being ‘complicit’ in this matter. It is quite clear that the Gujarat Government had done its duty by pointing out that it is not the appropriate Government in view of the Constitution Bench dictum. In my view, the Supreme Court should blame itself for not respecting its own precedents. Thus moral of this Bilkis Banos Case is that the Supreme Court should respect its own precedents.
[Ashok Kini is an Advocate Practising In High Court of Kerala. Views are personal.]