Supreme Court judge decries bid to delay Bilkis Bano case verdict

Lamenting an endeavour to stop him from deciding the case before retirement, Supreme Court judge, justice KM Joseph, on Tuesday left it for some other bench to hear Bilkis Bano’s petition against the remission granted to 11 men convicted of gangrape and murdering her family, observing that incessant attempts to derail the proceedings were “unfair” to him.

As several lawyers for the convicts, one after the other, raised questions over the receipt of formal notice in the matter and sought more time to file their affidavits, justice Joseph remarked that he could clearly see a pattern that the parties did not want him to be on the bench for deciding the matter.

Read here: ‘Delaying tactic’: Mahua Moitra on remission of convicts in Bilkis Bano case

Justice Joseph retires on June 16 when the Supreme Court is on its summer break. His last working day in court will be May 19, after which the vacation starts.

“It’s obvious that they don’t want me to hear the matter. It’s very, very clear...we issued the notice on the first day this matter came to us. That’s the best and the maximum we could do. But is this the way the matter can proceed?” asked the judge, sharing the bench with justice BV Nagarathna.

“We can clearly see the pattern. Even after we put this matter after a week, someone will come and will say either they have not been served or they will ask for more time to file reply,” justice Joseph added.

On the last date of hearing in April, the bench had told the Union government that it wants to see if there was a valid exercise of power and application of mind in granting remission to the 11 men, questioning the reluctance by the Centre and the Gujarat government to produce the original files behind the controversial decision.

Justice Joseph, on that day, further observed that the crime -- the rape of Bano and murder of seven people during the 2002 Gujarat riots -- was horrendous and that a massacre could not be compared to a single murder.

“Here a pregnant woman, who was gangraped and several members of her family were killed...This was murder of 14 innocent persons and a case in which trial had to be shifted outside state (to Mumbai). How can it be compared with any other rape and murder case? There are larger considerations for granting remission. What is the message you are sending?” the judge had asked the counsel for the Centre and Gujarat on April 18.

On Tuesday, advocate Shobha Gupta, appearing for Bano, requested justice Joseph to expeditiously decide the matter before his retirement as she accused the convicts of intentionally delaying the case on administrative grounds. Senior advocate Indira Jaising, representing one of the public interest litigation petitioners, added that the court must not let such tactics succeed and the judges should not recuse just because a party wants it.

Read here: Why is govt fighting shy of showing Bilkis case files: Supreme Court

Justice Joseph, however, replied: “We are not recusing. We have no difficulties hearing it, but the fact is that I am retiring on June 16 and May 19 is the last day in the court before the vacation. We cannot compel anybody to argue a case during the vacation...Had this matter come to us earlier, it might have taken a different turn. I have done everything in my power but there is no time now.”

The judge added that it cannot ignore the procedure that requires serving of a formal notice on the parties and giving time to them to respond. “We have to see the service is complete. There is some procedure that has to be followed. How do we proceed with the matter without all getting served? You know criminal law. We never said on any day that we don’t want to hear it but there is paucity of time,” justice Joseph told Gupta after she said the bench may proceed with the matter with respect to the convicts who received formal notices.

At one point, a lawyer appearing for one of the convicts raised objections against the idea of concluding the arguments in the matter before May 19, prompting justice Joseph to retort: “I have kept quiet till now on what you are trying to do. But don’t make me say things. It’s unfair to me. You may be appearing for a client, but you are also an officer of the court. Don’t forget your dual roles.”

In its order, the bench recorded the names of the convicts who have been served notices, saying it would want to keep things clear for the next bench that will take up the matter.

Solicitor general Tushar Mehta, representing the Union and Gujarat governments, also recorded his statement that they have no problem in adducing the documents relating to the remission of the convicts and that they are not pressing a claim of privilege with respect to such records. “The S-G adds that they are not interested in filing a review against the previous order asking for the production of such records at the time of hearing,” said the bench in its order.

Justice Joseph fixed the next hearing on May 9 only for the purpose of administrative directions, adding he would fix the hearing of the matter in July so that a new bench could take it up.

Bano was 21, and five months’ pregnant when she was gangraped while fleeing the violence during the 2002 riots, and her three-year-old daughter was one of the seven people killed.

The 11 men convicted of the crimes against her and her family were released on August 15 after one of them, Radheshyam Shah, approached the Supreme Court in April seeking remission, arguing that he had spent over 15 years in prison.

Read here: Set to walk free, Anand Mohan cites release of Bilkis Bano’s convicts as BJP raises heat

By an order in May 2022, a bench led by justice Rastogi directed the state government to consider the convicts’ plea for premature release in accordance with the 1992 policy – the one prevalent on the date of their conviction. While the existing remission policy of 2014 of the Gujarat government prohibits early release of rape convicts, no such restrictions were part of the 1992 policy.