Top court seeks files on Bilkis convicts’ release

The Supreme Court on Monday termed the gang-rape of Bilkis Bano and murder of her family members during the 2002 Gujarat riots a “horrendous” crime, directing the Centre and the Gujarat government to produce files regarding the grant of remission to 11 people convicted and sentenced to a life term in the case.

A bench of justices KM Joseph and BV Nagarathna also asked if the Gujarat government applied the same standards in respect of other prisoners when it granted remission to the 11 convicts, even as it observed that the adjudication of the matter will be strictly on “legality and law”.

“This is a horrendous offence... no doubt about it. Now, we have a stream of murder case convicts who are languishing in jails without remission. So, is this a case where the standards have been adopted uniformly in other cases too?” asked the bench as it heard a bunch of six petitions challenging the remission — while one of these petitions was moved by Bano, others were filed as public interest litigations (PILs) in the wake of the outcry over the premature release of the convicts last August.

Setting down the matter for April 18 for an extensive hearing, the bench directed the Centre and the state government to produce the relevant files relating to the grant of remission to the convicts.

“We will not be going by emotions. That’s the last thing we will do. We are only on legal and law and nothing to do with emotions. We understand whatever we are going to say will affect the conditions of prisoners in this country. We have to put in a balance... liberty and freedom are some of the considerations,” remarked the bench. These observations came when advocate Rishi Malhotra, appearing for some of the convicts, complained that PIL petitioners cannot question the remission granted in a criminal case and that emotional arguments were being pressed to dispel the requirement of law and maintainability.

The bench, while issuing a notice on Bano’s petition, clarified that it would examine a gamut of issues, including the applicability of the remission policy, definition of “appropriate government” for the purposes of remission, and the considerations made by the authorities concerned.

During the hearing, the court further indicated that it would hear the parties on the point if the Gujarat government was the appropriate government to grant remission under Section 433 and 433A of the Criminal Procedure Code (CrPC) after the lawyers for Bano and other petitioners said that Maharashtra government should have dealt with the convicts’ remission plea since the trial was conducted in Mumbai as per the 2004 apex court order.

Malhotra, on his part, countered this submission, citing an order of the Supreme Court in May 2022 passed by another bench, which directed the Gujarat government could consider the remission plea.

The bench, however, told Malhotra: “Will this court order clothe a state, which does not have jurisdiction, with the jurisdiction? Even if there is a Supreme Court order, if it is found that there was palpably no jurisdiction, whether this court can clothe someone with that jurisdiction? You cannot simply cite the order of this court but argue this independently.”

During the proceedings, senior counsel Kapil Sibal and Abhishek Singhvi, and advocates Vrinda Grover and Aparna Bhat appeared for the PIL petitioners, which included former CPI MP Subhashini Ali, journalist Revati Laul, professor Roop Rekha Verma, and TMC MP Mahua Moitra. Bano was represented through advocate Shobha Gupta.

Bano was 21 years old 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 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 in the case. By an order in May, 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 a part of the 1992 policy.

Subsequently, a batch of PILs were filed, challenging the premature release of Bano’s convicts. These petitions stressed that the crime was horrific and the convicts should have never been entitled to premature release in the public interest.

A bench led by then CJI NV Ramana issued notices to the Gujarat government and the convicts in August 2022. As this bench also included justices Rastogi and Vikram Nath, the matter was listed before justice Rastogi’s bench after justice Ramana’s retirement.

Replying to these petitions, the Gujarat government filed its affidavit on October 17, and disclosed that the Union ministry of home affairs had approved the early release of the convicts while the state took into account their “good behaviour” as a key reason to grant remission.

The affidavit revealed that remission was granted in August despite objections from the trial court judge who convicted the 11 men, and the Central Bureau of Investigation (CBI), which investigated and prosecuted the case in Mumbai following the 2004 apex court order shifting the trial outside Gujarat.

Later, in the last week of November, Bano approached the Supreme Court against the Gujarat government’s decision to allow the 11 men, sentenced to life in 2008, to walk out of jail.

She stated in her writ petition that the gravity of the crime would itself disentitle the convicts from getting benefit of an early release. Explaining the delay in approaching the court, she said, “The petitioner was completely shattered with the early release of all the convicts and could not regroup herself to be able to take a decision to challenge their release the earliest, more so when there was not even a piece of information of the basis or the grounds on which they were collectively granted such clemency.”

Through a separate petition, Bano also sought a review of the Supreme Court’s May order asking the state government to consider the convicts’ plea for premature release in accordance with the 1992 policy.

While Bano’s challenge to the grant of remission remains pending, the review petition was rejected by a bench comprising justices Rastogi and Nath on December 13. “In our opinion, there appears no error apparent on the face of record, which may call for review of the judgment dated May 13, 2022,” the bench said in its order.

The case, however, could not be heard since December as justice Rastogi’s bench included justice Bela M Trivedi, who recused from hearing the matter twice — on December 15 and on January 4. After repeated requests by Bano’s lawyer, Shobha Gupta, Chief Justice of India Dhananjaya Y Chandrachud last week agreed to set up a new bench, and the matter was thus listed before the justice Joseph-led bench.