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

The Supreme Court on Tuesday 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 11 men convicted in the Bilkis Bano case, and that not producing the original files behind the controversial decision would amount to contempt.

A bench of justices KM Joseph and BV Nagarathna also told the Centre that the crime -- the rape and murder of seven people during the 2002 Gujarat riots -- was horrendous, and that a massacre could not be compared to a single murder.

“Why are you fighting shy of showing the files to us? By showing it, you will be better placed. The court is interested to see if there is valid exercise of power. If you say, we will not show you the reasons, then we will be free to draw our own conclusions,” the bench remarked.

“The real question is whether the government applied its mind and what material formed the basis of its decision to grant remission in the facts and circumstances of the case,” the bench said, adding, “Today it is this lady (Bilkis) but tomorrow it can be anyone. It may be you or me.”

The bench was responding to a submission by additional solicitor general SV Raju, who represented the Centre and the Gujarat government, who said that the government may file a plea seeking a review of the court’s March 27 order asking for the original files. Raju said he had to seek instructions by April 24 but as per his current instructions, the Centre and the state may file a review plea. The bench said all the respondents shall file their replies by May 1 and posted the matter for further hearing on May 2.

“If you intended to file the review, you should have done it earlier,” the judges said. “You are in contempt for not producing it. If you do not produce the file and argue from it, in absence of records, how do we decide?”

Bilkis Bano had challenged the August 15 decision of the Gujarat government permitting the premature release of the 11 convicts, who were serving a life term, under a 1992 remission policy. The men had been convicted for the rape and murder of 14 people, including seven members of her family, in 2002. The state government said its decision relied on a Supreme Court decision last year that allowed it to consider the remission plea of one of the convicts as per the policy existing during the date of conviction. The state now has a more stringent remission policy, which came into effect on 2014, but it wasn’t in effect when the convicts were sentenced on January 21, 2008. The decision to remit the sentences kicked up a political storm, with Opposition parties saying the government had violated rules to release the 11 men.

In its hearing on Tuesday, the court, too, remarked on the gruesome nature of the crime and the lengthy paroles granted to some of the convicts.

“Here a pregnant woman, who was gang-raped and several members of her family were killed. Crimes are generally committed against society and the community. Unequals cannot be treated equally...So when you give remission... You cannot compare the victim’s plight with standard 302 (murder) cases,” the bench said.

“Fourteen lives were lost in one go. How do you compare apples and oranges? 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 rape and murder case? There are larger considerations for granting remission. What is the message you are sending?”

The state government has claimed privilege, a rule of evidence that allows the holder of the privilege to refuse to disclose information. The bench referred to a 2006 decision in the Epuru Sudhakar case, where the contours of granting pardon by the state governor under Article 161 of the Constitution was laid down by the top court. Citing the findings in that judgment, the bench remarked: “When the state releases a man, the order of remission brings the curtains down on the life of a person in prison. You cannot run away from showing us that your exercise of power is for public good, particularly in a matter of this nature as any crime is said to be committed against society.”

Appearing for some convicts, senior advocate Sidharth Luthra pointed out that while the crime may be gruesome, one cannot lose sight of the fact that the convicts suffered punishment by remaining in jail for long periods extending up to 15 years.

But the court was not impressed.

“The way the crime was committed was horrendous, and they get over 1,100 days parole, virtually over three years,” the bench remarked. “Will an ordinary prisoner get this?”

The victim represented by advocate Shobha Gupta, and other petitioners led by senior advocates Kapil Sibal and Abhishek Manu Singhvi, among others, said that while in custody, the accused enjoyed parole extending to 1,100 to 1,500 days, making their actual sentence undergone to be much lower.

The court also touched upon another aspect of the debate -- whether the state was right in granting remission under its 1992 policy, when the policy was changed in 2014 to bar gang rape convicts from eligibility. “There must be cumulative consideration of facts. Having put a policy in place under Section 432 of Code of Criminal Procedure (under which the 11 convicts were granted remission by Gujarat), the policy at the higher pedestal should prevail,” the bench observed.