Some convicts more privileged than others: Supreme Court on Bilkis Bano case
The court emphasised that the real issue before the court was whether the power to grant remission was exercised correctly by the Gujarat government
New Delhi Every convict is not the same and some are more privileged than the others, the Supreme Court observed on Thursday as it heard a challenge to the remission granted to 11 men sentenced to life term for gang-raping Bilkis Bano and murdering members of her family during the 2002 Gujarat riots.
A bench of justices BV Nagarathna and Ujjal Bhuyan emphasised that the real issue before the court was whether the power to grant remission was exercised correctly by the Gujarat government, after taking into account all the relevant factors.
As it continued hearing the arguments in the matter, the bench, at one point, highlighted that the convicts in the Bilkis Bano case cannot seek parity with those life-term convicts who were not let out on parole or furlough during their sentence.
Senior advocate Sidharth Luthra, appearing for one of the convicts, sought to make a point about long incarceration of convicts and the endless wait for their families outside while stressing on the significance of remission policy that he said was guided by the theory of reformation.
“Life behind bars is very difficult. They (the convicts in the case) have been lodged for at least 15 years. Their families have been waiting for them outside. They have been waiting for these many years to come out and lead a reformed life. Reformation is the key,” said Luthra.
Responding, the bench said: “But, in this case, they had the privilege to come out for several days, several times. They were not languishing all this while. There are some convicts who are more privileged as opposed to others. That’s the point we are trying to make.”
When Luthra said that there is a specific point that he is trying to make about a convict, the bench interjected to say that “every convict is not the same”.
According to the records placed before the bench, some of the convicts in the case were out on parole for over 1,100 days as they served the sentence.
It further told the senior counsel that nobody before the court in the bundle of petitions was questioning the validity of the remission policy or doubting its purpose. “Nobody is questioning the correctness of the remission policy. The question is the exercise of this power and how this policy was implemented,” the bench remarked.
During his submissions, Luthra underscored that remission is not undoing a court judgment but is an exercise of an executive authority under a laid down procedure that propagates the reformative theory of punishment.
“These people have suffered. They were lodged for 15 years. It is not the overturning of the judgment but the exercise of an executive power to abridge the jail term. Remission does not interfere with a court order on jail term but allows a prisoner to walk free after spending at least 14 years behind bars if his conduct has been good and there are chances of his reformation,” added the senior lawyer.
Concluding his arguments on the day, Luthra said that remission cannot be approached through a punitive attitude because the concept of executive discretion comes in only after a convict has already spent 14 years behind bars and then there are relevant factors supporting his premature release. The court will hear the arguments on behalf of some other convicts on September 20.
Bilkis Bano was 21, and five months’ pregnant when she was gang-raped while fleeing the violence during the 2002 riots, and her three-year-old daughter was one of the seven people killed.
The release of the 11 men convicted of the crimes against her and her family in August last year sparked public outrage and several PILs came to be filed in the Supreme Court by Trinamool Congress MP Mahua Moitra, former CPI member MP Subhashini Ali, among others, in August 2022. Later, in November 2022, Bano also approached the Supreme Court against the Gujarat government’s decision to allow the 11 men to walk out of jail.
Read here: Will delay in paying fine not affect remission, SC asks Bilkis case convicts
The decision has been challenged on the grounds that the convicts were released despite adverse opinions of the trial judge and the Central Bureau of Investigation (CBI), besides ignoring the heinous nature of the crime.
The Gujarat government has already completed submissions in the matter, claiming that they followed the May 2022 judgment of the top court to follow the procedure under the 1992 remission policy, which placed no bar on eligibility of rapists to be considered for premature release unlike a subsequent policy of 2014 adopted by the state which prohibits such premature release.
