Two of the convicts in the Bilkis Bano gang rape case have moved the Supreme Court against its order cancelling the remission granted to them and sought that the issue be referred to a larger bench for a final adjudication.

Radheyshaym Bhagwandas Shah and Rajubhai Babulal Soni, two of the 11 convicts in the case, said in their petition that an “anomalous” situation has arisen as two different top court benches of same strength have taken opposite view on the same issue of premature release and on which policy of the state government would be applicable to the petitioners for remission.

The plea, filed through advocate Rishi Malhotra, said that while one bench on May 13, 2022 ordered the Gujarat government to consider the application of Shah for premature release in connection with terms of the state government’s remission policy , the bench that pronounced the verdict on January 8, 2024 concluded that it was Maharashtra and not the Gujarat government that was competent to grant remission.

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“An anomalous situation has arisen in the instant matter wherein two different co-ordinate benches sitting in same combination of two judges bench have taken diametrically opposite views on the very same issue of premature release of the petitioner as well as which policy of the State Government would be applicable,” it said.

On January 8, the Supreme Court scrapped the remission granted to the 11 men convicted in the case and directed them to surrender in two weeks, holding that the Gujarat government was complicit with the prisoners and wrongly exercised its power to order their premature release.

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In their latest petition, Shah and Soni said that court order was contrary to law and judicial propriety. It said that Bilkis had already filed a review petition against the May 2022 order that was rejected. He stated that the only remedy available to the victim was to file a curative petition and not file a writ petition questioning the earlier order of May 13. This was held by a Constitution bench decision in Rupa Ashok Hurra case (2002).

“The Judgment rendered on January 8 is directly in teeth of the Constitution Bench decision in Rupa Ashok Hurra case and the same needs to be set aside, as if the same is permitted then it would lead to not only judicial impropriety but to uncertainty and chaos as to which precedence of law has to be applied in future,” the petition said.