Bilkis Bano Case | ‘Can He Be Allowed to Practise Law?', Supreme Court Asks On Being Told About One Convict Working As Lawyer

Not only this, the judge also posed a critical query about the effect of conviction on an advocate’s enrolment at a state bar council, namely, whether a convict could be given the license to practise law even after his conviction.

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 state government.

Senior Advocate Rishi Malhotra, appearing for convict Radheshyam Shah, strongly argued today that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. To illustrate this contention, Malhotra took the court through a report on the convict’s conduct in jail –

“He has participated in reform and correctional programmes in jail and received an appreciation certificate. He has completed Master’s courses in arts, science, and rural development through open learning. He was also working in the jail office. He is a graduate from before his conviction.”

Not only this, but Shah also worked as a para-legal volunteer inside the jail and helped prisoners seeking legal assistance, the senior counsel told the court. “In fact, he happened to be a motor vehicle accident claim lawyer in lower courts,” Malhotra added.

He continued –

“He has served 15 and a half years of actual sentence, where the policy stipulates 14 stipulates. The remission policy also said that the convict should demonstrate good conduct while in jail. The underlying principle is one of reformation and rehabilitation so that a criminal may be reintegrated into society. The jail authorities have said that he has undergone correctional programmes, and acquired knowledge. Today, almost one year has elapsed. There are no cases against him. He is a motor vehicle accident claims lawyer…”

“So he is practising now?” Justice Nagarathna promptly asked.

“Yes,” Malhotra replied, “He has started practising again. He was a lawyer [before conviction] and he has now continued to practise. He has to earn his bread.”

“Can a license to practise law be given after conviction?” Justice Bhuyan asked, “Law is supposed to be a noble profession.”

Even the Parliament is supposed to be noble, but everyday parliamentarians are convicted, Malhotra retorted.

“That is not the issue here,” Justice Bhuyan said, before asking –

“The bar council has to say, no? Whether a convict can be allowed to practise law? He is a convict. There is no doubt about it.”

Malhotra replied that Shah had undergone his ‘entire’ sentence. At this juncture, Justice Nagarathna pointed out that he had not completed his entire sentence. “The conviction remains, and only the sentence is cut short. That is what Mr SV Raju (Additional Solicitor General for India, appearing for the State of Gujarat) told us the other day.”

“Can he be allowed to practise law?” Justice Bhuyan asked again.

The whole scheme of reformation and rehabilitation would then ‘go for a toss’ otherwise, Malhotra exclaimed. “If he is not given any chance to be reintegrated into society, he would be a secluded person. It would just be like a jail for him.”

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 supreme 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