Bilkis Bano Case | Union & Gujarat Govt Express Reluctance to Share Files on Remission of 11 Life Convicts, Might Seek Review of SC’s Order

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 applications for remission of their sentences were approved by the state government.

Earlier this year, while issuing notice on Bano’s plea, 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.”

Senior advocate and additional solicitor-general SV Raju told the court today that a review application seeking a reconsideration of the top court’s March 27 order might be filed. “Are you appearing for the union or the state?” Justice Joseph asked. “Both,” the law officer replied. On being asked about a potential conflict of interest, Raju said that there was none. “By Monday, we will take a call on whether to file the review applications. Both wish to file,” he assured the bench.

Justice Joseph expressed his surprise, saying, “We have only asked you to be ready with the files. That also you want us to review.”

Both the state and the centre visibly demonstrated their reluctance to produce their files on the remission granted to the now-released convicts. 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. “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?”

“There was an application of mind,” Raju responded.

Justice Joseph countered, “Then show us the file. We have asked you to be ready with it.”

“We have the files. In fact, I have brought them along to court. But I have instructions that we might seek a review of this court’s order. We are also claiming privilege,” the senior counsel informed the bench.

“The law is very clear. No state government can escape the contours of the law or 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” Justice Joseph said, as he pointed out that notwithstanding any consultation with the union government or its concurrence, state governments were required to independently assess remission applications. “Now you are saying that you are going to refuse to produce the files.”

“Subject to the decision taken by this court on the review application and the governments’ right to privilege,” Raju replied.

“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.” Justice Joseph added.

“I am not saying that. I will put the information on an affidavit if required. Let me apply my mind. I will come back next week,” the additional solicitor-general requested.

During the course of the hearing, senior advocate Kapil Sibal also suggested that the centre and the state may be allowed to produce the relevant documents in a sealed cover. It may be remembered that earlier this month, in a significant development, the top court held that the sealed cover procedure infringed the principles of natural justice and open justice. While allowing Malayalam news channel MediaOne’s plea against a telecast ban imposed on it by the central government, a bench of Chief Justice DY Chandrachud and Justice Hima Kohli devised an alternative to producing confidential documents to the courts in sealed covers. Notably, the bench held that even in cases where the non-disclosure of information was justifiable on grounds of national security, the courts must adopt a less restrictive measure. In this context, the Supreme Court devised a ‘public interest immunity claim procedure’, which would balance the interests of transparency with the need for confidentiality of certain information.

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.

The state government has told the Supreme Court in an affidavit that the decision was taken after the centre’s approval, taking into consideration the ‘good behaviour’ of the convicts who had been under incarceration for 14 years. Among other things, the state’s affidavit revealed that the presiding judge of the special CBI court in Mumbai objected to the release of the convicts on the ground that the offence was grave and heinous. Advocate Shobha Gupta, appearing on behalf of Bano, has also vehemently opposed the government’s decision saying that the gangrape survivor has suffered egregious violence upon her person and her immediate family members.

Case Title

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

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