Many Murder Case Convicts Languish Without Remission For Years; Have Uniform Standards Been Applied In Bilkis Bano Case? Supreme Court Asks

While deciding to hear the petitions challenging the remission granted in the Bilkis Bano case, the Supreme Court on Monday asked if uniform standards as in other murder cases have been followed while allowing the premature release of 11 convicts who were sentenced to life for multiple murders and gang-rapes during the 2002 Gujarat riots. 

Terming the crime "horrendous", a bench comprising Justices KM Joseph and BV Nagarathna issued notice in the petition filed by Bilkis Bano herself challenging the premature release of the convicts in the case. At the request of the Counsel appearing for Bilkis Bano, her petition has now been made the lead case. 

The Bench asked the parties to complete pleadings by the next date of hearing. The State Government was directed to be ready with the relevant files granting remission to the parties. 

The Bench was hearing a bunch of PILs filed by activists along with the petition filed by Bano herself. In the brief hearing today, the Bench asked the parties to give a broad outline of the arguments which they will be raising.

Advocate Shobha Gupta appearing for Bilkis Bano submitted that the language of the provisions of the Cr.P.C. was clear that the State where the trial is held is to decide the remission application. She argued that the impact of the crime on the society is to be take into consideration while granting remission. 

Advocate Vrinda Grover appearing on behalf of PIL petitioners’ pointed out, “The Presiding Judge of the Trial Court said no remission should be granted. The CBI also said that remission should not be given. Substantive sentence is on 14 counts of murder and 3 counts of gang-rape. Fine of total 34,000 rupees and in default 34 years. It is undisputed that fine is not paid. So default sentence will come, that has not been served."

Grover also told the Court that one of the convicts, while he was on parole, molested a woman and a case is pending against him. This aspect was completely ignored by the authorities.

Highlighting the gravity of the offence, Ms. Grover emphasised "Gangrape and multiple murders including murder of a 3-month old child. Even a pregnant woman was gangraped.” She added that both the policies of the State of Gujarat and that of the Union Government bar remission under such circumstances. 

Advocate Rishi Malhotra appearing for the convicts submitted that as per judgments of the Apex Court, the policy of the Government prevalent at the time of commission of offence must be considered and therefore the Gujarat Government was justified in considering the remission applications under the 1992 policy.

Malhotra also assailed the locus standi of the petitioners in the PIL. Referring to judgments of the Apex Court, he argued that PILs under Article 32 of the Constitution of India at the best of third parties, in criminal matters, is not maintainable. 

Justice Joseph indicated that now the victim herself has filed a petition.

Malhotra also pointed out that in May 2022, the Supreme Court had held the State of Gujarat to be the "appropriate government" to decide the remission. The review petition against that judgment was also dismissed. Hence, a challenge to the decision on the ground that State lacks jurisdiction is unsustainable, contended the lawyer.

At this juncture, Justice Joseph asked if a judgment of a Court can clothe an authority with jurisdiction, if it inherently lacks jurisdiction. He said that Antulay case has held that a direction of the Court cannot confer jurisdiction on an authority. He pointed out that the writ petitions were not filed against the judgment of the Apex Court, but challenging the decision of the State Government. 

Malhotra responded that the challenge was in effect a challenge to the Supreme Court judgment.

Justice Joseph reckoned, “It is a horrendous crime."

Agreeing to the same, Mr. Malhotra submitted, "15 & a half years they have spent. 14 years is the requirement for the policy. No one raised a hue and cry when they were in jail. And they served the entire sentence. Emotional plea is not a legal plea."

Justice Joseph assured the Counsel, "We are not going to be overwhelmed by emotions...We have to put in a balance". Justice Justice also observed : "We have before us many murder cases where convicts are languishing in jails for remission without years. Is this a case where standards have been applied uniformly as in other cases too?".

Appearing for another petitioner, Senior Advocate AM Singhvi submitted that the Presiding Judge of the trial court had opined that no remission is to be granted. He also apprised the Bench about the post-release conduct, i.e., the convicts are issuing death threats to the victim.

Senior Advocate Kapil Sibal objected to the submission of the Counsel appearing for the convicts in relation to the lack of locus standing of the PIL petitioners, "The objection on the basis of public interest...this is not a criminal prosecution..we are against the remission granted without application of mind...against the law..what are the contours of discretion..PIL will lie.

He added - 

"Order granting remission violates each of the parameters of discretion. Kindly see the irony. The matter was shifted from Gujarat to Maharashtra. Why was the matter shifted? Because they had no faith in Gujarat police and the same police grants remission."

The matter has been listed after being mentioned five times before the Supreme Court of India by Bano's lawyer Advocate Shobha Gupta. When the matter was mentioned last week before a Bench led by CJI DY Chandrachud, it had assured Gupta that a Special Bench would be constituted to hear the petition.

In May 2022, a bench led by Justice Rastogi had ruled that the Gujarat Government had the jurisdiction to consider the remission request as the offence took place in Gujarat. The review petition filed by Bilkis Bano seeking review of this decision was dismissed by the Supreme Court in December 2022.

All the eleven convicts were released on August 15, 2022 after the State Government allowed their remission applications. Visuals of the released convicts getting heroic welcome became viral in social media, leading to outcry among several sections. In this background, a bunch of PILs were filed in the Supreme Court questioning the relief granted to the convicts. Bilkis has also challenged the premature release of the convicts.

The Gujarat Government has told the Supreme Court in an affidavit that the decision was taken after the approval of the Central Government, considering the good behaviour of the convicts and the completion of 14 years sentence by them. The State's affidavit revealed that the CBI and the Presiding Judge of the Trial Court (Special CBI Court at Mumbai) objected to the release of the convicts on the ground that the offence was grave and heinous.

[Case Title: Subhashini Ali And Ors. v. State of Gujarat And Anr. WP(Crl) No. 319/2022]