Bilkis Bano Case | Supreme Court to Begin Hearing Challenge Against Remission Of 11 Convicts From August 7

After the retirement of Justice KM Joseph, a bench headed by Justice BV Nagarathna will now begin hearing from the first Monday of August, the challenge 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, Justice Nagarathna sat alongside recently appointed Supreme Court judge Ujjal Bhuyan, and the division bench, after ascertaining that service had been completed against all the respondents, pronounced:

“The counsel for Bilkis Bano submitted that newspaper publication as directed by this court was effected on June 1, 2023 and an affidavit with that regard was filed on June 7. Similarly, in other cases, notices on the respondent are stated to be served either directly or by newspaper publication. This fact is not disputed by Solicitor-General for India Tushar Mehta appearing for both the Union of India and the State of Gujarat, as well as other counsel appearing for the private respondents. Therefore, the service on all respondents is held to be complete.”

After the counsel for one of the private respondents sought four weeks’ time to file a vakalatnama as well as a response in Bano’s petition, the bench agreed to list the matter on Monday, August 7. When Advocate Shobha Gupta, appearing for the survivor, protested and asked for a ‘shorter date’, Justice Nagarathna replied, “Let them have the time to file their responses.”

Why the top court has pinned its focus on completion of service?

Before the summer break, the Supreme Court bench, which was then headed by former judge KM Joseph, had to adjourn the hearing since service of notice could not be completed with respect to one of the now-released convicts, Pradip Ramanlal Modhia. The court was informed that despite the full cooperation of the Gujarat police, the missing respondent could not be served with the notice of Bilkis Bano’s own plea against the remission of the 11 convicts being taken on board by the Supreme Court. When Bano moved the top court in November of last year, a bunch of public interest litigation (PIL) petitions questioning the relief granted to the convicts was already being heard and notice had been issued in these pleas, to all the respondents. Nevertheless, the bench, which was then led by Justice Joseph, had to grant an adjournment when the advocate-on-record engaged by Modhia in the connected matters refused to accept notice on the respondent’s behalf with respect to Bano’s petition, saying that he had neither been able to communicate with his client recently, nor was he given any instruction to accept notice.

The petitioners cried foul, arguing that this was an obvious attempt by the respondents to wait out the tenure of Justice Joseph, which was set to come to an end during the vacation. It was nothing but a machination to ‘interrupt’ justice on flimsy, procedural grounds, they insisted. Even Justice Joseph told the counsel that he saw through the ploy. “It is obvious you do not want this bench to hear the matter,” the judge said. However, he emphasised that all procedural requirements would have to be met so that no injustice was done to any of the parties, or even later claimed to have been done.

Ultimately, the Supreme Court directed that steps be taken for fresh service on the unserved respondent, as well as the publication of a notice in two daily Gujarati newspapers having adequate circulation in the area where the missing respondent lived. Today, the division bench was told by the counsel for the petitioners that service had been completed and an affidavit had been submitted.

“We have to take it on record and accept the newspaper publication,” Justice Nagarathna said on the last date of hearing, before directing the registry to list the matter for directions on Monday, July 17.

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, 2022 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9, 2022.

Case Title

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

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