Early Release of Bilkis Bano Convicts | Day 14: Bench reserves judgementEarly Release of Bilkis Bano Gangrape Convicts
The Supreme Court concluded hearing arguments in the challenge to the early release granted to Bilkis Bano gang rape convicts today.
The initial hearings were plagued with several procedural issues such as delays in written and oral submissions, accusations regarding improper service of notice and unsuccessful attempts to track down one of the convicts. Retired Justice K.M. Joseph described these issues as “delaying tactics” to shift the matter before a new bench in light of his retirement.
On the last day of hearings, Senior Advocates Indira Jaising and Vrindra Grover, with Advocates Aparna Bhat and Nizam Pasha concluded their rejoinder arguments against the premature release of the 11 convicts. Visible on the Court’s video conferencing screen, on this 14th day of hearings, was Bilkis Bano herself.
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.
Jaising: Motive of crime and dignity, life, and liberty are constitutional norms for deciding remission
Jaising argued that the 1992 Gujarat Remission Policy should not be regarded as a comprehensive “policy” but rather as a basic “procedure.” The Gujarat government in the “1992 document” did not incorporate established remission principles that had evolved over time through Supreme Court precedents, she said. These principles include deterrent aspects of punishment, which are integral to criminal law. Her argument aimed to counter the respondents’ argument that the remission order should be based on the convicts’ “reformation.”
Jaising proceeded to assert that the “motive of crime” and the preservation of the “dignity, life, and liberty” of women in cases of sexual violence during conflicts, especially those influenced by the communal or ethnic identity of the victim, represent crucial “constitutional norms”. These norms should serve as guiding principles when evaluating the remission of the convicts. She underscored that the “motive behind the crime was very clearly a communal motive.”
On a technical front, Jaising argued that the Supreme Court made an error on 13 May 2022 when it directed the Gujarat Government to consider the remission of the 11 convicts. She stated that convict Radhe Shyam’s petition was rejected in both the Gujarat High Court and the Bombay High Court. The Gujarat High Court rejected his petition by stating that the appropriate government would be Maharashtra. Similarly, the Bombay High Court rejected his petition as well. According to Jaising, the Supreme Court set aside the Gujarat High Court order in “complete ignorance” of Naresh Shridhar Mirajkar v State Of Maharashtra (1966) which held that a judgement cannot be set aside through an Article 32 petition. “You cannot argue that a judgement violates a fundamental right,” stated Jaising.
Closing her arguments, Jaising highlighted that Radhe Shyam committed “fraud” by giving the “impression” that the orders of the Gujarat High Court and the Bombay High Court were in conflict with each other. She informed the Court that the petition in the Bombay High Court was in relation to whether the petitioners should serve a sentence in Maharashtra or Gujarat.
Grover: Petitioners are not contesting the opportunity to reform
Grover argued that the remission was “mala fide” and “arbitrary” because the Gujarat government released convicts who had not yet paid their fines. In her previous argument, Grover had claimed that the remission was illegal due to the non-payment of fines. However, the convicts deposited their fines within three weeks of Grover making the argument before the Court. Grover argued that this prompt payment of fines indicated that the convicts lacked remorse. The penalty for non-payment of a fine is additional imprisonment, which can be reduced by paying the fine. Grover stated that the convicts paid the fine a year after their release, effectively resulting in one year of illegal release
Grover then argued that the opinion of the presiding judge in Maharashtra was a “mere procedural paper formality” which had no consequential effect on the remission order. The opinion of the Maharashtra judge was against premature release. Grover relied on Ram Chander v State of Chattisgarh (2022) which directed that the final remission order should be guided by the opinion of the presiding judge. She then relied on Laxman Naskar v Union of India (2000) and Eupuru Sudhakar v Government of Andhra Pradesh (2006) which gave special importance to the nature of crime and public welfare when considering remission.
Justice B.V. Nagarathna pointed out that the petitioners and respondents are arguing on two extremities of a “pendulum”. The extremities are the nature of crime and the opportunity to reform. She stated that the petitioners wish to close the door of reformation for persons convicted of heinous crimes. Grover responded that the petitioners were not challenging the concept of remission and reformation but the “mala fide” manner in which the remission was granted to the convicts. She argued that the convicts should be sent back to prison on grounds of “legality” of remission. This would give them a fresh opportunity to apply for remission again, before the appropriate government. Their remission should be considered by keeping in mind factors such as the nature of the crime, public welfare, opinion of the presiding judge, and other such substantial considerations.
Bhat: “No application of mind” while granting remission
Bhat also argued that the remission was a “mala fide” action on the part of the Gujarat government. The Gujarat government made “no application of mind” and “ignored” important aspects such as a pending molestation case against a convict, late returns from paroles, and negative opinions of the Central Bureau of Investigation and the presiding judge in Maharashtra, she said.
She concluded that “remission is an opportunity”, but the “reformation” aspect of remission has to be demonstrated.
Pasha: No mention of the nature of crime in the remission order
Pasha argued that the positive opinions which favoured the remission have not touched upon the “heinous nature” and “gravity” of the crime. To illustrate, he relied on a remission order of a convict in another murder case where the nature of the crime was discussed at each stage of consideration. He stated that there are “glaring gaps” and “omissions” in the remission order of the 11 convicts.
Pasha was the last counsel to argue. The Bench reserved the judgement in the case after 14 days of hearings.