Bilkis Bano Case : One Convict Untraceable, Say Petitioners; Supreme Court Directs Publication Of Notice In Newspaper

A bench of Justices KM Joseph, BV Nagarathna, and Ahsanuddin Amanullah was hearing a batch of petitions challenging the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and the gangrape 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.

On the last day, the bench was compelled to adjourn the hearing to July, when the top court will reopen after its annual summer vacation. The hearing could not move forward since the counsel for two of the convicts alleged that there were discrepancies in Bano’s affidavit on service of notice. They accused Bano of playing 'fraud' with the court, claiming that she had indicated in her affidavit that the respondents had refused to accept the notice, even though they were allegedly out of town. This, the counsel for the petitioners said, was nothing but delay tactics to 'interrupt' justice. "We understand you do not want this bench to hear the matter," Justice Joseph plainly stated, referring to his imminent retirement on June 16. The Supreme Court judge is set to demit office in June, but his last working day will be on Friday, May 19. Nevertheless, the bench agreed to direct the matter to be posted to be heard after the summer break. 

On Tuesday, the batch of petitioners was taken up only to ascertain service of notice, as indicated by the bench on the last date. The apex court was informed that Pradip Ramanlal Modhia, one of the 11 convicts who were released last year and a resident of Gujarat's Dahod district, could not be traced and served with the notice in the petition filed by Bilkis Bano herself. Advocate Shobha Gupta vigorously asserted that the service of notice should be deemed to be complete, as against the missing respondent. 

"Gujarat police cooperated fully. Service was supposed to be done at his house. His house was locked and his phone was switched off. He picked up a call once but then the phone was switched off. A copy of the notice was sent on WhatsApp, and another was pasted visibly on the main door of his house. This was his ordinary place of residence. His brother and nephew refused to accept the notice, saying that they did not know anything about the convict. Despite the best efforts of the Gujarat police, service could not be completed. The whole world knows this case is going on."

"This conduct is worrying," said Gupta, "If tomorrow, the remission is set aside and they are directed to be sent back to jail? Will the convict be available then?" She urged the court to direct the convicts to report to the concerned police station every week. For the purpose of service of notice, she requested the bench to invoke Order 53 Rule 1 of the Supreme Court Rules, which allows the top court to direct the issuance of an arrest warrant to compel the appearance of an accused in criminal proceedings.

"Which is the other method?" asked Justice Joseph. Answering the question, Gupta pointed out that in response to a situation like the present, the court could also direct a public notice to be issued. The bench also inquired whether the counsel who appeared for the said respondent in the connected petitions was present in court. When advocate-on-record Vishnu Kant stepped up to the podium, Justice Joseph asked him, "Will you be able to accept the notice?"

The counsel replied, "We communicate through the local counsel, who is currently in America. I have no instructions, either from the counsel, or from the client. The client's phone is switched off."

"So you do not intend to file a counter-affidavit?" Justice Joseph asked. "I will take instructions from the local counsel," the advocate-on-record answered. Justice Joseph exclaimed, "The entirety of the proceedings is being held up because of your client."

Gupta interjected, "This court has come down heavily on lawyers appearing as name lenders...Not taking any responsibility for the proceedings, nor their clients." When the respondent is before this court in a connected matter, through the counsel, how can the counsel then say he is not representing his client, Gupta asked. "We cannot compel the counsel to accept notice," Justice Joseph said, firmly. Interestingly, in this context, Justice Nagarathna posed the question as to whether an AoR could appear in one matter for a client, and in another for the same client, take a different view. "We want to be enlightened as to what the role of an AoR is," the judge said.

Even Solicitor-General Tushar Mehta pointed out that under Section 65 of the Code of Criminal Procedure, affixing the notice at the ordinary residence would be 'sufficient notice'. "We are going here and there unnecessarily because this is covered by Section 65. This is my understanding," the law officer said.

After the counsel for the petitioners made various suggestions on how to escape this legal quagmire, Justice Joseph said, "We know that we have a power under Article 142."

Mehta chimed in: "Your Lordships do not need to trace the root of your jurisdictions. This court's jurisdiction under Article 32 is wide enough. Procedures cannot defeat that. You can direct paper publication, whatever. In principle, this court's jurisdiction cannot be defeated on such grounds of procedure. On merits, I am opposing Ms Gupta, this is only on the issue of the procedure to be applied."

Justice Joseph emphasised that the procedural requirements would have to be met so that no injustice was either done or claimed to have been done to the convicts. Justice Amanullah also said, "We have to be very careful with the technicalities. Otherwise, the main issue will be sidelined and we will be bogged down with this."

The bench also asked senior advocate Sidharth Luthra what his suggestion was. Justice Joseph asked, "What do you say as an officer of this court?"

"The capacity of an officer of the court is the only one I assist Your Lordships in," Luthra replied. He said,  "So far as that one person is concerned, follow the rules, or do paper publication. Keep this matter in July and let it be heard. Whichever way the decision has to go, it will go."

Ultimately, the bench agreed to direct steps to be taken for fresh service on unserved respondents, as well as the publication of a notice in two daily Gujarati newspapers having adequate circulation in the area where the missing respondent lives. "If you do not follow the procedure, you will just be giving them an opportunity. Why should you give them the opportunity?" Justice Joseph told the petitioners. If done correctly, the decision of this court will have to be accepted without claiming an infringement of any legal right, the judge explained.

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, 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.”

Notably, on the last date of the hearing, after initially expressing their reluctance to share information pertaining to the remission of the 11 life convicts, the Centre and the Gujarat government both did a volte-face and agreed to place the original records before the Supreme Court of India. This development came after Justice Joseph made his displeasure known over the reluctance of the union and state governments to share the files, despite the bench categorically instructing them to be ready with them. Last week, Solicitor-General Tushar Mehta informed the top court that neither government would be claiming privilege over the information.

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 alleged that even though two of the respondents were out of town, an affidavit had been 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."

Case Title

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

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