Bilkis Bano Case | Supreme Court Refers To 'Privilege' Of Convicts In Getting Parole For Hundreds Of Days Unlike Many Other Convicts

A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the Gujarat government.

Advocates Shobha Gupta and Vrinda Grover had previously raised concerns about the convicts’ failure to pay their fines, arguing that their release on remission was unlawful because they had not served their default sentences. Grover specifically contended that their deliberate refusal to pay the fines, even after the Bombay High Court ordered the money to be compensated to the victim, demonstrated their lack of remorse.

On the other hand, Senior Advocate Sidharth Luthra argued that no legal consequences would flow from the non-payment of the fines, since any consequent default sentence would be subsumed within the life terms handed down to the convicts. At the same time, on the last occasion, he informed the court that the convicts had recently submitted the outstanding amounts to the convicting court in Mumbai. On behalf of the Gujarat government as well as the private respondents, it was strongly argued that the remission was legal inasmuch as the convicts were prematurely released only after taking into consideration the requisite factors in terms of the relevant policy, which included their conduct in jail. The move was also justified by invoking the theory of reformation and pointing to the trial court sentencing the convicts to life imprisonment simpliciter, instead of imposing a fixed-term sentence or the death penalty.

During today’s hearing, Luthra again highlighted the trial court’s judicial determination in these cases, deeming life imprisonment sentences, which were the lowest of the three categories, adequate. The hope for reformation remains and it cannot be precluded only on the sole basis of the heinousness of the crime, the senior counsel insisted. He also reiterated that non-payment of the fines would have no legal consequences on the remission orders under challenge –

“Non-payment of fines is not a relevant consideration here. The other side argued that non-payment of fines was fatal. My submission that it’s not fatal to the remission orders because it is a reduction of the substantive sentence. The sentence in default of fine is not the subject matter of remission and it stands on a different footing. There’s no occasion to seek or get remission with respect to the default sentence. Therefore, the fact that the amount was not paid, or that it was paid while this matter is sub judice, will have no impact on the merits or the legality of the remission orders. ”

Justice Bhuyan stopped the senior counsel at this juncture, to ask –

“Will it not come within the meaning of the convicts’ conduct? This non-payment of penalty or fine? Will this not be relevant consideration?”

Along the same lines, last month, Justice Bhuyan had asked whether any of the convicts had expressed repentance or remorse. In response, Bilkis’ lawyer had pointed out, “They have not even bothered to pay the fines that they were asked to.”

“There has to be an ability to make the payment,” Luthra countered to the question that the judge posed today, “In 15 years of custody, most family bonds are gone. I had the opportunity to visit a jail yesterday. It’s a completely cut off life. You are away, you are reduced to labour, and you have no sources…”

Justice Nagarathna interjected - 

“In this case, the convicts had the privilege of coming out for several hundreds of days. There are some convicts who are privileged, no? As opposed to others. That is the point we want to make.”

Recently, another bench of the Supreme Court, while directing a prisoner to be released on parole, pulled up the Gujarat government for a one-year delay in deciding a convict’s application for premature release, in contravention to an earlier order of the court.

Luthra attempted, “The point I seek to clarify is every convict…”

“…is not the same,” Justice Nagarathna finished the sentence, smiling.

“Your Ladyship has taken the words right out of my mouth,” Luthra promptly riposted, “Every convict is not the same and therefore, the individual circumstances of every convict must be looked at through the lens of reformation. We cannot take the same brush to every one of them. I bow before this proposition.

After underscoring the value of liberty and the importance of reformation, Luthra said –

“This is not a case where people have gotten off scot-free. The law has taken its course. The most important question here is, should these people be deprived of liberty on the basis of considerations not germane to the particular executive arrangement?”

Bilkis Bano Case| Does Non-Deposit Of Fines By Convicts Have Bearing On Remission? Supreme Court Asks

Larger Philosophical Debate Surrounding Remission Not under Challenge, But Application of Policy in These Cases: Supreme Court

Notably, the court clarified in the course of the hearing today that the larger philosophical question surrounding reformation and remission were not raised by the petitioners, but the application of the remission policy to the instant case –

“The petitioners are not challenging the concept of remission or that there may be remission policies. They have not raised the larger philosophical question, but have only questioned the application with regard to these cases. We understand the concept of remission and it is well-accepted in law. The petitioners are only questioning the remission granted in this case.”

Justice Nagarathna also pointed out that it was very rare for a grant of remission to be assailed. “Is there any judgment of this court where the grant of remission has been challenged?”

“I think there may be,” Luthra replied.

“Nothing is brought to our notice,” the judge told him.

“I will find something and place it before the bench. If not a judgment of the Supreme Court, but one of the high court,” the senior counsel assured the bench.

“Not in the context of the territoriality, but on the merits,” Justice Nagarathna clarified.

“Yes, on the merits. I will try to locate something and send it across. The law has to be settled. It’s important that this court gets the best assistance,” Luthra said.

After hearing the objections raised against the batch of petitions by Luthra, the bench adjourned the hearing until Wednesday, September 20. The respondents’ counsel are expected to finish their oral submissions on the next date of hearing.

What has happened so far?

Bano’s lawyer, Advocate Shobha Gupta argued that the punishment imposed on Bilkis’ rapists ought to be proportional to the nature and seriousness of the crime they were had committed – which included 14 murders and three gang-rapes. Highlighting the brutality of the crimes and the religious hatred motivating it, Gupta asked the Supreme Court bench if the convicts deserved the leniency they have been accorded:

“…Bilkis saw her first child’s head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or her family no mercy…Are these people – the perpetrators who have been found guilty of committing these crimes – deserving of the leniency shown to them?”

Among other things, Gupta also contended that the government did not consider the societal impact of prematurely releasing Bilkis Bano’s rapists, nor did it consider a host of other relevant factors that they were required to under the law.

Before Bilkis Bano herself approached the top court, a number of petitions had been filed in public interest, challenging the Gujarat government’s decision. The list of petitioners include Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. However, the government, as well as the convicts have challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. The respondents’ counsel, including senior advocates Rishi Malhotra, and Sidharth Luthra, and Additional Solicitor-General SV Raju argued that the grant of remission fell within the domain of criminal law, which did not countenance ‘unnecessary interference’ by third-party ‘interlopers’.

Senior Advocate Indira Jaising, and advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, have resisted the challenge to the maintainability of the PIL petitions. Besides defending the petitioners’ right to bring an action in the case, the counsel have also mounted an attack on the legality of the Gujarat government’s decision.

Leading the charge for the respondents, Additional Solicitor-General SV Raju, appearing for the State of Gujarat, argued that the state government was bound by the specific mandamus issued by the Supreme Court asking it to consider the remission applications of the convicts under the policy that was in force at the time of the conviction. Accordingly, it has considered the applications with respect to the guidelines prescribed by the Gujarat remission policy in force in 1992, which was only superseded in 2014, and allowed the convicts’ requests for premature release after taking into account all relevant factors as prescribed under this policy.

Not only did the Gujarat government argue that the remission was legal and was granted after taking into consideration all factors required to be examined under the law, but it also cited the reformative theory of punishment to argue that even those convicted of heinous crimes deserved an opportunity to reform themselves and be reintegrated into society, on showing contrition and after serving their time.

In response to this, Justice Nagarathna posed an important query about remissions being selectively applied across the country. She asked –

“How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?”

Notably, the Supreme Court also questioned whether a convict should be granted the license to practice law, highlighting the profession’s nobility. This was in response to Senior Advocate Rishi Malhotra informing the bench of his client’s rehabilitation efforts in jail, and post-conviction legal practice in an effort to drive home the point that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. In a similar vein, Advocate Sonia Mathur argued last month that remission was earned, and not granted as a matter of ‘charity’. Additional Solicitor General SV Raju, representing the Union of India this time, made a limited submission relating to the absence of any negative opinion from the Central Bureau of Investigation, which had taken over the probe from the state police.

Importantly, the bench also rejected the ‘judicial propriety’ argument asking it to ‘not sit in judgment over a coordinate bench’s ruling’, categorically stating that its 2022 judgment holding Gujarat government as the competent government to deal with the convicts’ application for premature release would not bar a judicial review of the remission orders now.

On the last occasion, Senior Advocate Sidharth Luthra, representing another convict, emphasised that neither the trial court, nor the Bombay High Court had sentenced Bilkis’ rapists to death or given them fixed-term sentences. The life sentence simpliciter meant that the convicting and confirming courts had not judicially excluded the possibility of remission, which in turn meant that the possibility of reformation could not be precluded, especially since it was the primary objective of the criminal justice administration.

Background

On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.

In a notable development, after almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on the ground of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to ‘exceptional circumstances’, only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts’ applications for remission.

Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government last year, provoking widespread outrage and protest. It also led to a batch of petitions being filed before the top court, challenging the decision of the Gujarat government to grant the convicts premature release. Among the petitioners are Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. The top court issued notice in the first set of pleas on August 25 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9.

Bilkis Bano approached the Supreme Court in a writ petition challenging the premature release of the 11 convicts. She also sought a review petition against the top court’s judgment allowing the Gujarat Government to make a decision on the remission of the convicts, which was dismissed by the bench of Justices Ajay Rastogi and Vikram Nath.

Case Title

Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022