'Send The Convicts Back To Jail, I'm Beseeching This Court; They Don't Deserve Mercy' : Bilkis Bano's Lawyer Tells Supreme Court

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 Gujarat government.

The court today began hearing the petitioners' rebuttal to the respondents' arguments. Advocate Shobha Gupta, appearing for Bilkis, rejected the contention that the convicts' premature release was legal inasmuch as it had been granted in accordance with the relevant remission policy and after considering all relevant factors, pointing to the factors outlined by the Supreme Court in a catena of cases. The factors vital to the consideration, she said, include the nature of crime, its impact on the society at large, and the precedence value it sets. "There are not even whispers about these three vital factors stated by the Supreme Court in the consideration," Gupta argued.

Justice Nagarathna, however, pointed out that the opposing counsel had provided a compilation of judgments that highlighted the theory of reformation. "They have given us judgments in which it is said that a man should be given a chance to reform and be reintegrated into society. So we have to balance the interests of both sides."

"It's not a gunshot injury or a simple murder case," Gupta countered even as she accepted the principle of remission, before graphically describing the crimes committed by the 11 convicts -

"Eight minors killed, including Bilkis' three-and-a-half-year-old child, whose head was smashed into a rock. A pregnant woman was gang-raped. A woman who had recently delivered a child was raped and murdered. 14 counts of murder in total. It's heartwrenching to read about the condition in which the bodies were discovered, which the high court has detailed. These crimes were brutal, barbaric, and gruesome. Convicts have a right to be considered for remission on completion of a certain period of sentence. My issue here is the factors that the government has neglected to consider. This is not a case in which remission should be granted. What would be the impact on society if people like these come out or what precedence value would it set? Considerations at the time of conviction cannot be completely ignored."

Referring to a coordinate bench's furious rebuke over the Gujarat government's delay in deciding remission applications despite the court's earlier orders, Gupta said, "The court asked the Gujarat government why it was not disposing of the applications despite its instructions. So, it's not that in all cases the Gujarat government allows the applications liberally and without opposition. But here they have done that, despite the nature of the crimes."

To illustrate her contention about differential treatments and outcomes, Gupta also stressed that the convicts in the Bilkis Bano case were liberally released on parole and furlough. She told the bench, "The convicts were treated with kid gloves. They got favoured treatment throughout. They were a privileged lot. The relevant factors were not examined when considering their request for remission. They were mostly out on furlough or parole after the completion of 14 years - coming out and going back. They were not like other convicts and prisoners."

Gupta also pointed out that the two constitutional courts - the Bombay High Court and the Supreme Court - have taken judicial notice of the 'shocking' nature of the crime. "'A rare massacre manifesting ugly animosity and hostility' is what the high court called the incident. The Supreme Court, while directing compensation to be paid to Bilkis, observed that this case would have to be dealt with differently as the loss and suffering surpass normal cases," the counsel said. Once again, she insisted that the crimes were not committed in the spur of the moment, but as part of a vengeful machination to hunt down and kill Muslims. "Bilkis and the others were miles away from their village, constantly moving from place to place during the riots. The convicts were bloodthirsty and were searching for them. It's not a spur-of-the-moment incident."

This barbaric crime has left an indelible mark on Bilkis, Gupta exclaimed. "Therefore," she added, "This is not a case where the convicts deserve mercy. They should be sent back. I'm beseeching this court with folded hands to send them back where they have come from."

Apart from this, Gupta also disagreed with the respondents' contention regarding the maintainability of the current batch of petitions, pointing out, among other things that a right to appeal would not be lost as had been suggested because no statutory or substantive right to appeal existed in this regard. Not only did Gupta accuse the Gujarat government of not taking into account relevant considerations, but also alleged procedural non-compliance with provisions such as Section 432(2) of the Code of Criminal Procedure mandating the opinion of a presiding judge of a convicting or confirming court. Another ground on which she sought to establish that the entire process has been 'vitiated' is the official respondents belatedly adducing new evidence during the hearing without any reference to such evidence in their counter-affidavit. "This is a case of fill-in-the-blanks. Whenever necessary, they brought in more documents," Gupta argued.

On the vexed question of the implication of the non-payment of fines at the time of remission, Gupta insisted that such non-payment, as on the day of the conviction, would disentitle a convict from being considered.

Notably, Gupta also argued that Radheyshyam Shah had obtained the Supreme Court's decree designating the State of Gujarat as the appropriate authority to consider his remission application by 'playing fraud' on the court. Gupta said, "No mention of the 14 murders, or that this was a Gujarat riots case. There was nothing in this petition about the nature of the crime."

To this, Justice Bhuyan replied, "Any petition must disclose material facts."

Gupta agreed. "Absolutely," she said. 

The hearing has been adjourned until tomorrow when the counsel for the other petitioners will make their rejoinder arguments.

What has happened so far?

Bano’s lawyer, Advocate Shobha Gupta argued that the punishment imposed on Bilkis’ 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. 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’.

Senior Advocate Indira Jaising, and advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, have resisted the challenge to the maintainability of the PIL petitions. Besides defending the petitioners’ right to bring an action in the case, the counsel have also mounted an attack on the legality of the Gujarat government’s decision.

Leading the charge for the respondents, Additional Solicitor-General SV Raju, appearing for the State of Gujarat, argued that the state government was bound by the specific mandamus issued by the Supreme Court asking it to consider the remission applications of the convicts under the policy that was in force at the time of the conviction. Accordingly, it has considered the applications with respect to the guidelines prescribed by the Gujarat remission policy in force in 1992, which was only superseded in 2014, and allowed the convicts’ requests for premature release after taking into account all relevant factors as prescribed under this policy.

Not only did the Gujarat government argue that the remission was legal and was granted after taking into consideration all factors required to be examined under the law, but it also cited the reformative theory of punishment to argue that even those convicted of heinous crimes deserved an opportunity to reform themselves and be reintegrated into society, on showing contrition and after serving their time.

In response to this, Justice Nagarathna posed an important query about remissions being selectively applied across the country. She asked –

“How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?”

Notably, the Supreme Court also questioned whether a convict should be granted the license to practice law, highlighting the profession’s nobility. This was in response to Senior Advocate Rishi Malhotra informing the bench of his client’s rehabilitation efforts in jail, and post-conviction legal practice in an effort to drive home the point that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. In a similar vein, Advocate Sonia Mathur argued last month that remission was earned, and not granted as a matter of ‘charity’. Additional Solicitor General SV Raju, representing the Union of India this time, made a limited submission relating to the absence of any negative opinion from the Central Bureau of Investigation, which had taken over the probe from the state police.

Importantly, the bench also rejected the ‘judicial propriety’ argument of the respondents asking it to ‘not sit in judgment over a coordinate bench’s ruling’, categorically stating that its 2022 judgment holding Gujarat government as the competent government to deal with the convicts’ application for premature release would not bar a judicial review of the remission orders now.

Senior Advocate Sidharth Luthra, representing one of the convicts, emphasised that neither the trial court, nor the Bombay High Court had sentenced Bilkis’ rapists to death or given them fixed-term sentences. The life sentence simpliciter meant that the convicting and confirming courts had not judicially excluded the possibility of remission, which in turn meant that the possibility of reformation could not be precluded, especially since it was the primary objective of the criminal justice administration.

Luthra also insisted that no legal consequences would flow from the non-payment of the fines, since any consequent default sentence would be subsumed within the life terms handed down to the convicts. The Supreme Court, in response, asked if the non-payment of fines by the convicts would be an important consideration when examining their conduct in jail. On another occasion, Justice Bhuyan had asked the petitioners if the convicts have displayed any remorse, to which Bilkis’ lawyer had said: None of the convicts had bothered to pay the fines that were imposed on them, which the Bombay High Court categorically said would go towards compensating the gang rape survivor. This wilful and deliberate non-payment of fine, the petitioners argued, demonstrated the convicts’ lack of remorse.

On the last occasion, Senior Advocate V Chitambaresh, representing another convict, argued that remission orders can only be challenged in high courts, not the Supreme Court, contrasting the scope of Article 226 with that of Article 32.

Another lawyer challenged the Supreme Court’s authority to overturn the remission order on the grounds that “a fundamental right cannot be invoked against another fundamental right”. He emphasized that once remission is granted by the competent authority following relevant policies, the right to life and liberty accrued in favour of the convicts. He stressed the importance of safeguarding the rights of both victims and convicts, especially in view of the convicts completing 15 years of their sentences. Accordingly, he strongly insisted that once remission is granted in accordance with the applicable rules and procedures, the order should not be disrupted.

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