Bilkis Bano Case | Union & Gujarat Govt Agree to Share Files On Remission Of 11 Life Convicts After Initially Expressing Reluctance

A bench of Justices KM Joseph and BV Nagarathna was hearing a batch of petitions challenging the decision of the Gujarat government to prematurely release the 11 convicts who had been sentenced to life imprisonment for multiple murders and the gangrape of Bilkis Bano 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 state government.

This development comes after Justice Joseph made his displeasure known over the reluctance of the union and state governments to share the files of the remission of the convicts, despite the bench categorically instructing them to be ready with the said files. This direction was passed while issuing notice earlier this year. By the March 27 order, the bench headed by Justice Joseph had directed:

“The first respondent, i.e., Union of India as also the second respondent, i.e., State of Gujarat will be ready with the relevant files regarding the grant of remission to the party respondents on the next date of hearing. This is besides filing of the pleadings as they are advised to file.”

However, last month, additional solicitor-general SV Raju told the court that a review application seeking a reconsideration of the aforesaid order might be filed, much to the consternation of the bench. Justice Joseph explained that the crucial question in the matter was whether, while granting remission, the state government had asked the ‘right’ questions and ‘applied its mind’ before approving the remission applications of the convicts, notwithstanding any consultation with or concurrence of the government. He categorically stated that if the governments failed to provide a reason for allowing the convicts’ premature release, the court would be forced to draw its own conclusions.

The Supreme Court judge said:

“What was the material that formed the basis of this decision? Did the government ask the right questions and was it guided by the right factors? Did it apply its mind?” The law is very clear. The state government cannot abdicate its responsibility to apply its mind to consider relevant facts, eschew irrelevant facts, see whether there are any mala fides involved, and meet other requirements under the Wednesbury principle, notwithstanding any consultation with the union government or its concurrence. We are interested in examining whether the government exercised the power of granting remissions within the parameters of the law as laid down and in a bona fide manner. That is all. If you do not give us a reason, we will be forced to draw our own conclusions.”

Yesterday, in a significant development, Solicitor-General for India Tushar Mehta told the bench that the records would be produced, and no review would be sought with respect to the top court’s order as earlier indicated.

However, despite this important concession by the governments, the hearing could not move forward owing to the counsel of two of the convicts pointing out alleged discrepancies in Bano’s affidavit on service of notice. It was submitted that even though two of the respondents were out of town, an affidavit had been allegedly filed by the gangrape survivor indicating that they had refused to accept the notice. The counsel furiously accused Bano of ‘playing fraud’ with the court. However, the petitioners’ counsel objected to this, saying that these were nothing but machinations by the other side to ‘interrupt’ justice on flimsy, procedural grounds.

During the proceedings, Justice Joseph expressed his anguish at the hearing getting delayed on procedural grounds. Addressing the respondents’ lawyers, Justice Joseph said:

“It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter. But this is not fair to me. We had made it absolutely clear that the matter will be heard for disposal. You are officers of the court. Do not forget that role. You may win a case, or lose one. But, do not forget your duty to this court.”

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 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, causing a great furore. Not only Bano herself, but also other activists have filed public interest litigation (PIL) petitions challenging this controversial decision before the top court.

Before adjourning the hearing on a previous day, Justice Joseph emphasised that there needed to be objective standards that could be used to determine such applications as were preferred by the life convicts in this case. Urging the government to provide reasons for prematurely releasing the convicts, he said, “Today it is Bilkis Bano. Tomorrow, it can be you or me. There must be objective standards. If you do not give us a reason, we will have to draw our own conclusions.”

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

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