Early Release of Bilkis Bano Convicts | Day 7: Petitioners Can Challenge Remission Under Public InterestEarly Release of Bilkis Bano Gangrape Convicts
Today, the Supreme Court heard arguments related to the maintainability of several PILs filed by third parties in the challenge to the premature release of 11 convicts in the Bilkis Bano gang rape case.
Yesterday, Sr. Adv. Sidharth Luthra and Adv. Rishi Malhotra argued that third party petitioners could not involve themselves in a criminal proceeding challenging remission. They contended that the petitioners lacked locus standi i.e. legal standing, because they are not directly related to Bano.
Today, Sr. Adv. Indira Jaising, and Advocates Vrinda Grover, Aparna Bhatt, and Nizam Pasha appeared on behalf of the petitioners and countered several arguments made by Luthra and Malhotra. They even submitted arguments against the merits of the remission order.
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.
Third Party Petitioners Have Locus to Approach the Court Out of Public Interest
Grover argued that the petitioners had rightly approached the Court in the public interest. On the sixth day of hearings, Additional Solicitor General S.V. Raju argued that third party petitioners cannot involve themselves in a criminal proceeding involving the reduction of a sentence. Grover stated that the remission order was an ‘executive action’, where PILs are permissible. She relied on Ashok Kumar Alias Golu v Union of India (1991) which held that remission is a part of the executive domain. She stated that the cases referred to by Luthra and Malhotra in the previous hearings which discouraged third party interferences, only concerned ongoing criminal proceedings.
Jaising fought arguments that her client, Mahua Moitra of the Trinamool Congress could not be a party to this case, as she had political motivations and no personal interest. She argued that Ms. Moitra has approached the Court because she had ‘sworn an oath of allegiance to the Constitution of India’ and is discharging her ‘fundamental duty’ to ‘promote harmony’. She stated that proof of personal or legal injury is not a requirement to approach the Supreme Court in the public interest as per S.P. Gupta v President of India (1981). In Anbazhagan v Superintendent of Police (2003) the Supreme Court held that a third party can approach the top Court in the public interest, even when such an interested party is a ‘political opponent’, as they are the ‘watchdogs of the government in power’. Jaising relied on the decision which said that the petition of a ‘political opponent’ cannot be brushed aside under allegations of a ‘political vendetta’.
Bhat then argued that the Supreme Court had entertained PILs from ‘public spirited’ individuals when the nature of the crime requires a public interest. She drew the Court’s attention to National Commission for Women (NCW) v Bhaskar Lal Sharma where the Court entertained a curative petition by the NCW on behalf of a victim of domestic violence.
Pasha, appearing for the National Federation of Indian Women, pointed out that ‘public interest’ is put on a ‘lower pedestal’ only if it comes in conflict with the right of the accused to a fair trial in criminal proceedings. Therefore, a third party cannot interfere as it will affect the case of the accused. However, the accused loses this right to a fair trial once an order of conviction is passed leaving only a statutory right to apply for remission.
Gujarat Government Granted Remission Without Considering Relevant Factors
Grover pointed out that all 11 convicts had failed to pay a fine amounting to Rs. 34,000—an amount that was to be paid to Bano as compensation. As the convicts never paid their fines, their sentence was incomplete. The remission, therefore, was ‘illegal’. She brought up Sharad Hiru Kolambe v State of Maharashtra (2018), which held that a convict has to face additional imprisonment for non-payment of a fine. She submitted that the convicts have to face an additional 34 years of imprisonment due to default in payment. The steps behind the calculation were unclear from the day’s hearing.
Jaising stated that Bano was not given a right to be heard before granting remission, which is a threat to her fundamental right to liberty. She raised a similar argument made by Adv. Shobha Gupta, that the Gujarat government failed to consider the norms laid down by the Supreme Court when it comes to granting remission. Further, she stated that the convicts had committed a hate crime targeted towards a particular gender and religion in the 2002 Communal Riots, a very important factor to be considered before passing any order for premature release.
The next hearing is expected to take place on August 17th, 2023, at 2:00 PM