Early Release of Bilkis Bano Convicts | Day 6: Respondents Argue that PILs Filed Lack Legal StandingEarly Release of Bilkis Bano Gangrape Convicts
Today, the Supreme Court continued hearing arguments in the challenge to the early release of the convicts in the Bilkis Bano gang rape case.
Senior Advocate Sidharth Luthra and Advocate Rishi Malhotra, appearing on behalf of the convicts, argued that several Public Interest Litigations (PILs) in the case were not maintainable. They claimed that these PILs were filed by third parties who had no locus standi i.e legal standing in the case to address the Court as they are not directly related to the victim, Bilkis Bano.
These petitioners include Trinamool Congress Party MP Mahua Moitra, Communist Party of India (Marxist) member Subhashini Ali, Professor Roop Rekha Verma, and Journalist Revati Laul.
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.
Advocate Rishi Malhotra: Allowing Third-Party PILs Will Set a Dangerous Precedent
Malhotra challenged the petitioner’s PILs on the grounds of locus. He stated that these PILs were ‘speculative’ and based on ‘media reports and not on the actual copy of the remission order. Allowing these petitions, Malhotra argues would set a ‘dangerous precedent’ and open a ‘pandoras box’ as any politician or third party could approach the Supreme Court.
Malhotra relied on Simranjit Singh Mann v Union of India (1992), which held that third parties cannot file a PIL in criminal proceedings that deal with the conviction of an accused. Justice B.V. Nagarathna was quick to point out that the circumstances of Simranjit Mann differ from the present case. That case dealt with the conviction of an accused and not remission.
In response, Malhotra claimed that this is a ‘minor difference’. Justice Nagarathna seemed unconvinced. She retorted that the entire ‘realm’ of both cases was completely different, and asked Malhotra to cite a different case which had similar facts. Malhotra quickly cited Janata Dal v H.S. Chowdhary and Ors (1992) which held that third party litigants could not challenge proceedings under the ‘garb of public interest litigations’.
Additional Solicitor General S.V. Raju, appearing through video conference, pitched in to favour Malhotra. He pointed out that ‘remission is a reduction of sentence without changing its character’ i.e. the guilt of the accused is not affected, it is only the punishment which is impacted. ASG Raju submitted that no third party could have a say in the reduction of a sentence. He relied on State v Prem Raj (2003) to support his argument.
Senior Advocate Sidharth Luthra: Third-Party Interference is Impermissible
Luthra argued that the petitioners could not bring a case against the convicts. He pointed out the concept of a ‘penal couple’. A ‘couple’ in a crime included the criminal and the victim only. Therefore, only the victim has a right to engage their own private lawyer, to assist the state-appointed public prosecutor.
He drew the Court’s attention to Shiv Kumar v Hukam Chand (1999) which held that the private lawyer must act as per the instructions of the public prosecutor. He referred to Sundeep Kumar Bafna v State Of Maharashtra (2014) and Mallikarjun Kodagali v. State of Karnataka (2018) which held that a public prosecutor must conduct a trial, without any third party interference.
Luthra appeared to suggest that a case regarding the reduction of a sentence belongs in the domain of the prosecution i.e. the State Government. In the current case, it is the state government—the government of Gujarat, which has granted remission to the convicts. So, Luthra modified the concept of ‘penal couple’ to a ‘penal trio’ to include the victim, the convict and the State, without any third party interference.
Luthra then relied on Janata Dal, which held that only a person with sufficient interest in a proceeding can file a PIL, without any ‘personal gain’, ‘private profit’ or ‘political motive’. He pointed out that two of the petitioners ‘happen to be politicians’.
The petitioners will respond to today’s arguments at 2:30 PM tomorrow.