SC to deliver verdict on Bilkis plea on remission to convicts tomorrow

The Supreme Court on Monday will deliver judgment on petitions challenging the Gujarat government’s decision to prematurely release 11 convicts serving life in prison for the gang rape of Bilkis Bano and various other heinous crimes committed during the 2002 riots.

A bench of justices BV Nagarathna and Ujjal Bhuyan will pronounce its decision after it had reserved orders on petitions filed by Bano and others on October 12. The court had directed the Centre and state government to submit the original files containing the decision-making process that freed the convicts in August 2022.

Bano was 21 and five months pregnant when she was gang raped as she tried to flee with her family to safety during the 2002 Gujarat riots. The 11 convicts also killed seven members of her family, including her three-year old daughter. The trial of the case was shifted from Gujarat to Mumbai and the Central Bureau of Investigation (CBI) investigated the case. In 2008, a special court in Mumbai sentenced the 11 to life imprisonment. This decision was upheld by a division bench of the Bombay high court in 2017.

The top court had in March last year issued notice on a public interest litigation filed by former Communist Party of India MP Subhashini Ali and others, and later other petitioners, including Trinamool Congress MP Mahua Moitra, challenged the remission. The Gujarat government objected to the right to bring an action to court of the petitioners to question the remission. This was rendered moot when Bano approached the top court in November 2022 against the remission.

The petitions raised a legal challenge to the grant of remission by alleging that the Gujarat government wrongly considered the premature release of the 11 convicts under a 1992 remission policy. This policy was later revised by the state government and the latest policy did not entitle gang rape convicts for remission. Further, the petitions argued that since the trial shifted to Mumbai, the state government, while deciding remission under Section 432 of the Code of Criminal Procedure, had to consider the opinion of the presiding judge of Mumbai court.

They also pointed out that the grave and heinous nature of the offences was not considered by the state-appointed advisory committee that recommended their release. It was also argued that being an offence investigated by CBI, the state government was required to take the Centre’s consent.

The state government and the convicts rebutted the arguments by pointing out to a May 2022 judgment by the Supreme Court, which directed the Gujarat government to decide the remission of one of the convicts, Radheshyam Bhagwandas Shah, under the 1992 remission plea within two months. This triggered action by the state government to consider the release of all convicts under the 1992 policy, the state submitted.

The state took the opinion of the presiding judge of Godhra court on June 3, 2022, and formed a jail advisory committee, which considered the opinion of the local police, jail superintendent and the trial court judge to recommend release of the prisoners on August 10, 2022.

Bano told the court that she was not informed about the remission and came to know of it from the media. She prayed to the court that grave injustice was done to her family and the convicts did not deserve any mercy as they showed no remorse. Other petitioners also highlighted the fact that the trial court sentence against the 11 convicts had imposed fines as part of punishment that stood unpaid at the time of their release. At the fag end of the hearing last year, the convicts deposited the fines with the trial court in Mumbai. The petitioners pointed out that this was an afterthought and an admission on their part that their release was illegal.

During arguments, the court was urged to consider laying down guidelines for consideration of remission. The arguments by the petitioners was led by advocate Shobha Gupta for Bano and senior advocates Indira Jaising, Vrinda Grover, Aparna Bhat, Nizam Pasha among others for the petitioners. They argued that remission cannot ignore the constitutional norm of dignity of women in a case where the accused were driven by communal hatred.

The petitioners further pointed out that the grant of remission was an arbitrary exercise of power even as the Gujarat government led by additional solicitor general SV Raju argued that the remission was routine.

On the part of the convicts it was argued by advocate Sidharth Luthra and Rishi Malhotra, among others, that they do not belong to influential backgrounds and have already been out for a year now. They submitted that criminal justice system is reformative, which seeks to integrate prisoners into society. They further pointed out that they merited remission as they crossed the threshold limit of having undergone a minimum of 14 years in prison and their conduct in jail was material for considering their release rather than nature of their crimes.