'Crime Committed Against Bilkis Bano Part Of Communal Violence Targeting Members Of One Community' : Indira Jaising Tells Supreme Court

“India follows the dual system of international law. A treaty is not binding on India unless it is ratified and domesticated. We have domesticated the International Covenant on Civil and Political Rights or ‘ICCPR’ through the enactment of the Human Rights Act of 1993. This treaty forbids ‘cruel, inhuman and degrading’ treatment and what happened to Bilkis Bano was cruel, inhuman, and degrading. There are also non-derogable norms of international law, which includes crimes against humanity. My submission is that what happened to Bilkis Bano was a crime against humanity because it happened in a situation of widespread communal violence targeting the members of one community…The crime committed against Bilkis Bano cannot be viewed in isolation from the communal and sectarian conflict that broke out in Gujarat.”

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.

Today, along with Jaising, advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, mounted an attack on the legality of the Gujarat government’s decision, besides defending their own right to bring an action in this case.

Jaising, who appeared for Trinamool Congress MP Mahua Moitra and others, submitted that the PIL petitioners were far from ‘uninterested’ parties, being ‘vitally interested’ to prevent – in public interest, and for public good – a public authority from acting capriciously. This was owing to the mandate of the fundamental duties of every citizen, particularly one who has sworn an oath of allegiance. She also added, “It is not true that there cannot be no interference from third parties in criminal matters. I accept that as a general rule the State is dominus litis. But, it’s not an absolute rule.”

On the nature of the crime, Jaising argued that the crime against Bilkis Bano was a part of a ‘widespread’ and ‘systematic’ attack directed against a civilian population, which included murder, rape, and other forms of sexual violence of ‘comparable gravity’. “It is also a part of targeted persecution of a identifiable group based on religion, and in Bilkis’ case, gender, which are crimes against humanity, and universally recognised, prohibited, and punished under international law. These are also issues of gross constitutional violations.”

Jaising, besides highlighting the brutality with which the 11 convicts committed the crimes that led to a court handing them life terms, also urged the court to not look at the multiple murders and gang rapes in isolation from the sectarian and communal violence that had seized the State of Gujarat in February 2002. The senior counsel submitted:

“Look at the cases in which the Supreme Court constituted special investigation team conducted inquiries…Godhra, Sardarpura, Mehsana, Gulberg society where a sitting MLA was burnt to death only because he was a Muslim, Naroda Patiya, Ode Anand district, Naroda Gaon…Imran Dawood was a case where British citizens travelling through Gujarat were killed because they were Muslim…This is the context in which Bilkis Bano was gang raped, at a time when she was pregnant. The number of people killed during the Gujarat riots was beyond anything we have seen in the country before. The context is a relevant factor in deciding whether to grant remission.”

The context in which the crimes were committed, their nature, the motive, or the vulnerability of the victim in its communal context ought to have been taken into consideration by the State, Jaising argued. She further argued that the 1992 policy on the basis of which the 11 convicts were granted remission was “not a policy per se” and only a guide on the procedure to be followed:

“There is a silence on the categories of crime and convicts to be considered for remission. This is policy relating to procedure alone and only tells you who is to be consulted. Therefore, this is not really a policy. We agree with the proposition that the policy at the time of conviction needs to be seen. However, there was no substantive policy. Therefore, the matter is at large. I am not saying that they are not entitled to remission. However, in such a situation, the State is obliged to look at the law laid down by the Supreme Court, the guidelines given by it, and the constitutional philosophy which is binding on the State.”

“Even if there is no policy, there is a right to make an application and to be considered,” Justice Nagarathna pointed out at this juncture.

“I do not deny that these convicts have a statutory and constitutional right to apply for remission,” Jaising responded, “The question is what the norms that would guide a decision regarding the remission of convicts.” She added, “There are no norms laid down in any document of the State of Gujarat. But there are plenty of norms by this court which ought to be followed.”

To aid the submission that the decision to prematurely release the 11 convicts was illegal, Jaising also drew the attention of the court to the observations made by the presiding judge of the convicting court in his adverse opinion on the remission of the convicts. The senior counsel told the bench:

“The judge declined to give his consent to remission being granted after noting that it was a crime against humanity. He said it was targeted and it was based on religion; the nature was horrendous; and the motive was vicious since there was no enmity between the convicts and the victims. The opinion of the trial court judge is not merely a relevant factor but a decisive factor.”

PIL petitioners represent the victims who were not able to approach the Supreme Court: Advocate Vrinda Grover 

Advocate Vrinda Grover pointed out that Bano was not the only victim, but the only one who has approached the Supreme Court. Other victims included the families of the people sexually assaulted and killed by the 11 convicts as well as the society at large, she submitted.

“These men have been convicted of 14 counts of murder and three counts of gang rape. Only one is before this court. The definition of ‘victim’ in the Code of Criminal Procedure includes all those and their families who suffer injuries. The families of the deceased, who have suffered injuries, have not approached this court. These public interest litigations are representing the concerns of not only these victims, but also the society since they are actually crimes against humanity…crimes against society.”

The counsel also told the court that Bilkis Bano admitted in a public statement that the presence of the public interest litigants and their willingness to ‘take on hurdles’ on her behalf imbued her with the courage to approach the Supreme Court herself. “It is not required for such public interest litigants to show private injury in order to be entertained by this court,” Grover insisted.

While speaking about the maintainability of the petitions filed by ‘public-spirited’ individuals, Grover rejected the contention that a remission order fell within the jurisdiction of criminal law. The counsel argued, “Criminal proceedings come to an end. There is a finality. What is challenged here is executive discretion and executive power. All judgments the respondents cited dealt with criminal proceedings. We are in no way in the domain of judicial power being exercised, but executive power, and administrative prerogative.”

On maintainability, Grover further said that the issues agitated in the public interest litigations were not limited to the remission of the 11 convicts in Bilkis Bano’s case but raised larger issues regarding the opacity of the process of granting remissions:

“What is required is there needs to be greater transparency in process of granting remissions. This is one of our prayers...The news of remission reached through media. There is a mandate of the State under the Right to Information Act to upload matters of public importance on their website. This will also require consideration. There are larger issues here.”

Grover also argued that owing to the non-payment of fines by the convicts, their remission was illegal inasmuch as they had not served the default sentence a convict would be required to undergo on failure to pay the fine imposed by the court. She further argued that the wilful refusal to pay fines, even when the Bombay High Court has directed for the money to be paid as compensation to the victim, reflected the convicts’ lack of remorse:

“Not even a penny has been paid by any of the convicts. The Bombay High Court, while confirming their sentence, said that this fine is to be paid as compensation to the victim. A question fell from Your Lordship Justice Bhuyan yesterday on whether they have shown any remorse. This is a very significant factor that needs to be considered while granting remission to convicts who have committed such heinous crimes. The fine remains unpaid…A fine that the high court said must be given to the victim as compensation. Is this a reflection of remorse?”

Supreme Court has in the past entertained PILs in criminal matters: Advocate Aparna Bhat

Advocate Aparna Bhat, appearing for Communist Party of India (Marxist) leader and former parliamentarian Subhashini Ali and others, told the bench that even in criminal cases, public interest litigations had been entertained by the Supreme Court in the past. “If the nature of violence is such that a third party would have to intervene, where the victim is not in a position to come to the court, or where there is a need for this court to monitor and issue directions, public interest litigations may be filed.”

In particular, she referred to a curative petition filed by the National Commission for Women in 2010 challenging the dismissal of a review petition filed by a woman whose complaint under Section 498A of the Indian Penal Code was dismissed by the Supreme Court. The locus standi of the commission was challenged by the respondents on the ground that it was not a party in the proceedings, but this argument did not find favour with the bench, which observed:

“[This objection] is not tenable on account of the fact that we are not dealing in this matter with a statutory right but a constitutional provision, i.e., Article 142 of the Constitution which empowers the Supreme Court to pass appropriate orders to do justice between the parties. Furthermore, the issue involved is not one against the woman alone, but the interpretation of the expression ‘cruelty’ used in Section 498A of the Indian Penal Code…We hold that these curative petitions are maintainable by the National Commission for Women, which has been constituted with certain definite objects in mind.”

Public interest more important than rights of an accused: Advocate Nizam Pasha

Advocate Nizam Pasha, appearing on behalf of the National Federation of Indian Women, emphasised the centrality of ‘public interest’ in the consideration regarding whether convicts deserved to be released prematurely. This was in response to the extensive arguments advanced by the counsel for the respondents on the impermissibility of third-party interference by way of public interest litigations in criminal matters. Public interest, in all the stages from the registration of a first information report (FIR) till the final appeal is disposed of, is deliberately is ‘secondary’ to an accused’s fundamental right to fair trial.

“It has already been said that this is an administrative order…I would add one more facet to that. Until criminal proceeding attains finality, an accused has a fundamental right to fair trial. But the moment this order attains finality, the right to fair trial has lived itself out. There is no further fundamental right through a remission. There is only a statutory right to apply and be considered in accordance to law. At this stage, public interest comes to the forefront.”

“The reintegration of an accused in society is a constitutional right. Remission may not be a fundamental right, but it is a constitutional right because it is recognised under Sections 161, and 72, besides being a statutory right,” Justice Nagarathna pointed out.

“It is a constitutional power and not a right,” Pasha countered, “There is only a right to make an application.”

Public faith in criminal justice system rocked by remission of Bilkis’ rapists: Advocate Pratik R Bombarde

“It is about the public faith in the criminal justice system, which has been shaken by this order,” Advocate Pratik R Bombarde said, as he requested the bench to accept his written submissions.

“Who is the petitioner here?” Justice Nagarathna asked the counsel.

Bombarde replied, “The petitioner here is a social activist and a lawyer hailing from the city of Aurangabad. She works for people from downtrodden communities and religious minorities.”

Supreme Court entertaining Bilkis Bano’s petition deprives convicts of two appellate fora and violates their right to appeal: Senior Advocate S Guru Krishnamar

Senior Advocate S Guru Krishnakumar argued against Bilkis’ petition being entertained by the Supreme Court on the ground that the convicts were deprived of two appellate fora. He clarified that he was not questioning the maintainability of the survivor’s petition, but whether the top court should entertain it or leave it for a high court to decide at the first instance:

“It is more appropriate that the victim approaches the high court. This is for three reasons: First, when an Article 32 petition is entertained directly, in the eventuality of any adverse order against me, the hierarchy of appeals available to me are lost. In Antulay’s case, one of the grounds taken before a seven-judge bench against a five-judge bench’s direction for a single judge of the high court to hear the matter instead of a special court, was that the direction for transfer resulted in the denial of a right of appeal in the hierarchy. This was accepted.”

“In Antulay, the five-judge bench conferred jurisdiction on a court which did not have it. The circumstances are different,” Justice Nagarathna said. Justice Bhuyan also pointed out that one of the convicts – Radheshyam Shah – had himself approached the Supreme Court in a writ petition.

Shah’s writ petition, the senior counsel explained, was filed only after both the Gujarat and Bombay high courts directed the petitioner to file a remission application in the other state. “The situation was different in that both high courts had pointed the finger at the other.”

“Hierarchy of appeal against a sentence and a conviction is different as opposed to one against a simple remission order,” Justice Nagarathna interjected.

“A remission order really tinkers with or alters a sentence, and to that extent, it has effect on the sentence itself. Therefore, the fact that an appellate remedy is lost is a relevant consideration while entertaining this petition,” Guru Krishnakumar said, before adding that the right of appeal has also been recognised as a substantive right.

“An appeal is a statutory remedy but it does not arise inherently,” Justice Nagarathna objected, “Here, we are on the question of constitutional remedy and are not concerned with any statute.”

Guru Krishnakumar also asserted that the writ jurisdiction of the Supreme Court under Article 32 could only be invoked where an order is passed in accordance with a statute that is ultra vires the Constitution of India, without jurisdiction, or in violation of principles of natural justice, or where an order is intra vires a statutory enactment but erroneous on facts. The senior counsel also highlighted the competence of a high court and its jurisdiction to deliver justice in this matter, with reference to the volume of backlog of cases in the Supreme Court. In support of this contention, he read out a paragraph from a 1987 judgment in Kanubhai Brahmbhatt:

“…If the Supreme Court takes upon itself to do everything which even the high courts can do, the Supreme Court will not be able to do what it alone can do under Article 136 of the Constitution of India, and other provisions conferring exclusive jurisdiction on this Court. There is no reason to assume that the concerned high court will not do justice. Or that the Supreme Court alone can do justice…”

After hearing the submissions of the counsel for the PIL petitioners as well as Senior Advocate Guru Krishnakumar’s argument on why the Supreme Court ought to refrain itself from entertaining Bilkis’ petition, the bench adjourned the proceeding till Thursday, August 17. On that day, the respondents’ counsel, including the government law officers representing the State of Gujarat and the Union of India is expected to begin their submissions.

What has happened so far?

Bano’s lawyer, Advocate Shobha Gupta has already concluded her oral arguments. She argued that the punishment imposed on Bilkis Bano 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.

Yesterday, 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’.

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 and connected matters