Early Release of Bilkis Bano Convicts | Day 12: Remission order cannot be challenged in the Supreme Court, argue respondentsEarly Release of Bilkis Bano Gangrape Convicts
Today, private counsels appearing for individual convicts concluded their arguments in favour of the premature release. For 25 minutes, three counsels argued against the maintainability of petitions that challenged the remission granted to the convicts in the Bilkis Bano gang rape case on 15 August 2022.
During the Gujarat riots in March 2002, Ms. Bano and her family were fleeing from their home in Radhikpur village to Chapparwad village. However, before reaching they were ambushed by a group of men who gangraped Ms. Bano and murdered 14 of her family members including her infant daughter.
Ms. Bano approached the Supreme Court and in December 2003 the Court order the Central Bureau of Investigation (CBI) to investigate her allegations. The case was transferred to a special CBI Court in Bombay and in 2008 the Court imposed life sentences on 11 of the accused.
In May 2022, the SC Ordered the Gujarat State government to consider a request for remission made by one of the 11 convicts, under the 1992 remission policy. In August 2022, the Gujarat government granted the early release of all 11 convicts under the 1992 policy and publicly stated that they were released on ‘good behaviour’. However, this claim has been widely contested. Many allegations have been made claiming that many of the convicts violated their parole, made death sentences against Ms. Bano and her family, and had pending criminal cases against them for crimes committed while they were out on parole.
Ms. Bano and a host of other petitioners challenged the early release of the 11 convicts. They claimed that the Gujarat government should never have released them under the 1992 policy. The gravity of the offence should preclude any early release and further, none of the convicts had served the minimum sentence required to be considered under the 1992 policy.
Senior Advocate V. Chitambaresh: Remission order can only be challenged in a High Court
Chitambaresh argued that the petitioners cannot challenge a remission order in the Supreme Court because there was no direct violation of a fundamental right. He relied on Andhra Industrial Works v Chief Controller Of Imports (1974) and Ramdas Athawale v Union Of India (2010) where the top court held that a petition under Article 32 is not maintainable unless a petitioner demonstrates that her fundamental right was violated. He submitted that the correct recourse would be under Article 226 as it encompasses both fundamental rights and legal rights, making the Gujarat High Court the appropriate authority to consider the challenge.
Justice Nagarathna: “If the victim cannot approach, then who can approach?”
A subsequent counsel argued that a victim’s right to challenge remission “ceases to exist” once an accused is convicted. The Criminal Procedure Code does not have any provisions allowing such a right, he stated. Further, he contended that the petition challenging the remission order curtailed the convict’s right to life and liberty, which he had enjoyed for the last year. Justice Nagarathna asked, “If the victim cannot approach, then who can approach?”
Justice Nagarathna referred to a compilation of judgments submitted by Senior Advocate Siddharth Luthra, where remission orders were set aside by the Supreme Court. At this point, Justice Bhuyan told the respondent counsel: “You’re arguing against yourself.” Luthra has been appearing on behalf of respondent Ramesh Chandana. The counsel submitted that he was unaware of the judgements compiled by Luthra. (Luthra had been instructed by the Bench to submit a compilation of these judgements on Day 11 of the arguments.)
The final counsel for the respondents argued that one of the convicts, a 70-year-old agricultural labourer without an “influential background”, met all the necessary requirements for remission and had enjoyed “liberty” for the past year since his release. He contended that the “balance of convenience” between the rights of the convict and the victim tilted in favour of the convict after he has “undergone a sentence awarded by the court.”
The counsel further asserted that a victim could not challenge the release on the grounds of the crime’s heinous nature. Justice Nagarathna asked again, “Who can challenge then?” The counsel responded that a remission order “should not be disturbed” if it was granted after following due procedure. Like Chitambaresh, he clarified that the victim could approach a High Court under Article 226 to challenge the remission order.
Petitioners will continue with their rejoinder arguments on 4 October 2023 at 2pm.