Bilkis Bano Case | Supreme Court Reserves Judgment on Pleas Challenging Premature Release of 11 Convicts; Asks Centre, Gujarat To Produce Records

After an 11-day-long hearing that began in August, a bench of Justices BV Nagarathna and Ujjal Bhuyan reserved its judgment today. Besides this, the court directed the Gujarat and union governments to submit original records available with them. It pronounced -

"We have heard learned senior counsel and learned counsel for petitioners insofar as reply arguments are concerned. We have asked learned counsel for the State of Gujarat to submit the original records. It is submitted that original records are in Gujarati. Therefore, English translations would also be furnished along with original records by Monday. The Union of India is also to submit original records on Monday. Judgment reserved."

Advocate Shobha Gupta appeared for Bilkis, the rape survivor, while Senior Advocates Indira Jaising, and advocates Vrinda Grover, Aparna Bhat, Nizamuddin Pasha, and Pratik R Bombarde represented various public interest litigants. Additional Solicitor-General SV Raju appeared for both the State of Gujarat and the Union of India. The now-released convicts were represented by Senior advocates Sidharth Luthra, Rishi Malhotra, S Guru Krishnakumar, Advocate Sonia Mathur, and others.

What did Bilkis Bano and other petitioners say about premature release of the 11 convicts?

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?”

Besides this, Gupta 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. Flagging the 'leniency' the Gujarat government demonstrated towards the convicts, yesterday while delivering a rejoinder, Gupta said, "This barbaric crime has left an indelible mark on Bilkis. Therefore, this is not a case where the convicts deserve mercy. The convicts should be sent back. I'm beseeching this court with folded hands to send them back where they have come from."

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 challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. The respondents argued that the grant of remission fell within the domain of criminal law, which did not countenance ‘unnecessary interference’ by third-party ‘interlopers’.

Jaising, Bhat, Grover, and Pasha resisted the challenge to the maintainability of the PIL petitions, defending the petitioners’ right to bring an action in the case. On multiple grounds, they also mounted an attack on the legality of the Gujarat government’s decision. Besides pointing to the heinous, barbaric, and communally-motivated nature of the offences committed by the 11 men, the lawyers, inter alia, cited the proportionality of crime and punishment, the state government's failure to consider relevant factors and to comply with constitutional principles dealing with remission, an 'arbitrary', 'mala fide' and 'partisan' exercise of the remission-granting power by the state government, an unserved penalty sentence resulting out of the non-payment of fines, and the lack of remorse demonstrated by the convicts. Urging the court to set aside the remission orders, Jaising told the court today, "The conscience of nation is reflected in the three organs of the State, and therefore, the judgment this court will render will be a reflection of the conscience of the nation."

What did the union and Gujarat governments and the convicts say to defend the premature release of the convicts?

Leading the charge for the respondents, ASG Raju, while representing 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?”

On behalf of the union government, the additional solicitor general 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.

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. The senior counsel 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.

Other than this, the Supreme Court questioned whether a convict should be granted the license to practice law, after Malhotra apprised 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. 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.

Emphasing the tenet of reformation underpinning our criminal justice system, Mathur argued that remission was earned, and not granted as a matter of ‘charity’. 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.

Reports of the hearing

Do Men Who Committed 3 Gangrapes & Murdered 14 People Including Kids Deserve Leniency? Bilkis Bano's Lawyer To Supreme Court (Day 1)

Bilkis Bano Case | 'What Is Wrong With Garlanding A Family Member Who Comes Out Of Jail?' : Centre's Law Officer Asks During Supreme Court Hearing (Day 2)

Bilkis Bano Case : Supreme Court Asks How Convict's Earlier Writ Petition Could Have Been Admitted By Court (Day 2)

Bilkis Bano Case Hearing | Remission Is Administrative Order; Precedents Against Third Party Action In Criminal Matters May Not Apply : Supreme Court (Day 3)

'Crime Committed Against Bilkis Bano Part Of Communal Violence Targeting Members Of One Community' : Indira Jaising Tells Supreme Court (Day 4)

Bilkis Bano Case | Gujarat Govt Says Convicts Deserve Chance of Reformation; Supreme Court Asks, ‘Why Is Remission Policy Being Selectively Applied?’ (Day 5)

Bilkis Bano Case | ‘Can He Be Allowed to Practise Law?', Supreme Court Asks On Being Told About One Convict Working As Lawyer (Day 6)

Bilkis Bano Case | Earlier SC Judgment Won’t Bar Review Of Remission Order : Supreme Court (Day 6)

Bilkis Bano Case | Does Non-Deposit Of Fines By Convicts Have Bearing On Remission? Supreme Court Asks (Day 7)

Bilkis Bano Case | Supreme Court Refers To 'Privilege' Of Convicts In Getting Parole For Hundreds Of Days Unlike Many Other Convicts (Day 8)

Bilkis Bano Case | Convicts Argue That Remission Can Be Challenged Only Before High Courts; Supreme Court Expresses Doubts (Day 9)

'Send The Convicts Back To Jail, I'm Beseeching This Court; They Don't Deserve Mercy' : Bilkis Bano's Lawyer Tells Supreme Court (Day 10)

Case Title

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