Bilkis Bano case: The Supreme court on Monday issued notice to Centre, Gujarat government on a plea filed by gange-rape victim Bilkis Bano. The development comes after the top court heared a batch of pleas challenging the remission of sentence of 11 convicts in the Bilkis Bano gang-rape case, including the the killing of seven members of her family during the 2002 Gujarat riots. A bench of justices KM Joseph and BV Nagarathna heared the pleas filed by several political and civil rights activists, and a writ petition filed by Bano.
While posting the matter for hearing on April 18, a bench of Justices K M Joseph and B V Nagarathna said there is a gamut of issues involved and it needs to hear the matter in detail. It also directed the Gujarat government to be ready with the relevant files granting remission to the parties on the next date of the hearing.
During the hearing, the bench observed that it would not be overwhelmed by emotions in the case and would only go by the law.
SC asks if uniform standards were applied while granting remission
Terming Bilkis Bano's gangrape and murder of her family members during the 2002 Godhra riots as a "horrendous" act, the Supreme Court asked the Gujarat government whether uniform standards, as followed in other cases of murder, were applied while granting remission to 11 convicts in the Bilkis case.
"It is a very horrendous act. We have an experience of people coming to this court saying they have been languishing in jails for ordinary cases of murder and their remission is not being considered. So is this a case where the standards have been adopted uniformly as in other cases? the bench remarked orally. As the hearing commenced, the bench said there is a gamut of issues involved and it needed to hear the matter in detail.
"What is the broad line of submission that you will take? Since power under section 432 (remission) of CrPC has been exercised by State of Gujarat, was there a direction by this court directing Gujarat to take a decision? We would like to know before hand what is the gamut of issues and the framework within which you will operate because I am retiring on June 17. I need time to understand the matter," Justice Joseph observed.
Advocate Shobha Gupta, appearing for Bano, submitted that the State where the trial is held is to decide the remission application and Gujarat did not have jurisdiction to grant remission to the convicts. She also stated that the impact of the crime on the society is to be taken into consideration while granting remission. "The jurisdiction with the State here was Maharashtra and not Gujarat. Here please look at the impact of the crime on society," she said.
Advocate Vrinda Grover, appearing for one of the PIL petitioners, said the Presiding Judge of the trial court in Mumbai where the case was transferred had categorically stated that this is not a fit case for remission. She said even the CBI also said that remission should not be given to convicts. Grover contended that while on parole, one of the convicts, molested a woman which has been completely ignored by the authorities.
Advocate Rishi Malhotra, representing one of the convicts, submitted that as per the judgment of the apex court, the policy of the government existing at the time of the commission of offence must be considered and therefore the Gujarat government was justified in deciding the remission applications under the 1992 policy.
Questioning the locus of the PIL petitioners, Malhotra said social activists have filed the plea challenging the remission and as per the apex court judgment PILs under Article 32 cannot be entertained in criminal matters.
Referring to the top court's May 2022 order, he said the apex court had held the State of Gujarat to be the "appropriate government" to decide the remission.
The bench then remarked," What about the State of Gujarat exercising the power without having the jurisdiction to do so." Malhotra said the convicts have served over 15 years in jail and 14 years is the requirement for the remission policy.
"No one raised a hue and cry when they were in jail. And they served the entire sentence. This is more of an emotional plea than a legal plea. They say that death sentence should be given." Justice Joseph then said," We are not going to be overwhelmed by emotions. That is the last thing we are going to do. Ultimately law and only law. We know what we are going to say is going to have an effect on the fate of prisoners. We have to maintain a balance between liberty proportionality etc."
As the hearing drew towards a conclusion, senior advocate A M Singhvi, appearing for one of the PIL petitioners, said the post-release conduct of the convicts saw them give death threats to the victim, which has been brushed aside by the prosecution. Senior advocate Kapil Sibal, appearing for another PIL petitioner, submitted that this court has to now lay down the broad contours of granting remission.
On January 4, a bench comprising Justices Ajay Rastogi and Bela M Trivedi took up the petition filed by Bano and other pleas. However, Justice Trivedi recused from hearing the case without citing any reason.
Bano had moved the apex court on November 30 last year challenging the “premature” release of 11 lifers by the state government, saying it has “shaken the conscience of society”.
Besides the plea challenging the release of the convicts, the gang-rape survivor had also filed a separate petition seeking a review of the apex court's May 13, 2022, order on a plea by a convict.
The review plea was later dismissed in December last year.
On March 22, Chief Justice DY Chandrachud had directed the matter for urgent listing and had agreed to constitute a new bench to hear the batch of pleas. On January 4, a bench comprising justices Ajay Rastogi and Bela M Trivedi took up the petition filed by Bano and the other pleas. However, Justice Trivedi recused from hearing the case without citing any reason.
Convicts granted premature release
Bano had moved the apex court on November 30 last year challenging the "premature" release of 11 lifers by the state government, saying it has "shaken the conscience of society". Besides the plea challenging the release of the convicts, the gang-rape survivor had also filed a separate petition seeking a review of the apex court's May 13, 2022, order on a plea by a convict. The review plea was later dismissed in December last year.
All 11 convicts were granted remission by the Gujarat government and released on August 15 last year. The victim, in her pending writ petition, has said the state government passed a "mechanical order" completely ignoring the requirement of law as laid down by the Supreme Court. "The en-masse premature release of the convicts in the much talked about case of Bilkis Bano has shaken the conscience of the society and resulted in a number of agitations across the country," she has said.
Referring to past verdicts, the plea said en-masse remissions are not permissible and, moreover, such a relief cannot be sought or granted as a matter of right without examining the case of each convict individually based on their peculiar facts and role played by them in the crime. "The present writ petition challenging the decision of the state/central government granting remission to all the 11 convicts and releasing them prematurely in one of the most gruesome crimes of extreme inhuman violence and brutality," it said.
The plea, which gave minute details of the crime, said Bano and her grown-up daughters were 'shell-shocked with this sudden development'. "When the nation was celebrating its 76th Independence Day, all the convicts were released prematurely and were garlanded and felicitated in full public glare and sweets were circulated," it said. The top court is seized of PILs filed by CPI(M) leader Subhashini Ali, Revati Laul, an independent journalist, Roop Rekha Verma, who is a former vice chancellor of the Lucknow University, and TMC MP Mahua Moitra against the release of the convicts.
What is the case?
Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed. The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court. A special CBI court in Mumbai had on January 21, 2008 sentenced the 11 to life imprisonment on charges of gang-rape of Bano and murder of seven members of her family.
Their conviction was later upheld by the Bombay High Court and the Supreme Court. The 11 men convicted in the case walked out of the Godhra sub-jail on August 15, last year, after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.
(With inputs from PTI)
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