The Gujarat government has challenged the January 8 decision of the Supreme Court quashing remission Orders against eleven convicts in the Bilkis Bano gang rape and multiple murder case, stating that it was bound by the mandamus issued by the Supreme Court to decide the remission on the basis of 1992 policy.
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THE Gujarat government has filed a review against the January 8, 2024 Order of the Supreme Court quashing remission granted to eleven convicts in the Bilkis Bano case.
The men have been convicted for gang-raping a pregnant Bano and killing 17 of her family members, including her three-year-old daughter, during the 2002 Gujarat pogrom.
Having spent 14 years in jail, their sentences were remitted citing 'good behaviour'. They were subsequently released on August 15, 2022, as part of Azadi ka Amrit Mahotsav, which translates to 'Grand Celebration of Freedom's Elixir'.
Their remission led to hue and cry and was challenged by people from all walks of life including journalists, civil society activists and Bano herself.
On January 8, a division Bench of Justices B.V. Nagarathna and Ujjal Bhuyan quashed the remission Orders.
The Gujarat Government had granted remission to the convicts based on the May 13, 2022 decision of the Supreme Court.
One of the convicts, Radheshyam, approached the court seeking directions to the Gujarat government to consider his application for remission under the policy of the state government dated July 9, 1992.
The 1992 policy has been replaced by a 2014 policy. The 2014 policy explicitly bars remission for those convicted of rape and murder.
In his writ petition, Radheshyam argued that the 1992 remission policy must be applicable for considering his plea for premature release and not the 2014 policy.
However, Radheshyam neither revealed that he was convicted in connection to the Gujarat riots nor did he make Bano a party to his petition.
In 2019, the Gujarat High Court heard his plea for premature release. Radheshyam had undergone a sentence of more than fifteen years and four months.
On July 17, 2019, the high court dismissed his petition relying on the decision of the Supreme Court Constitution Bench in Union of India versus V. Sriharan alias Murugan and Others (2016). It held that since the trial was concluded in Maharashtra, the application for premature release had to be filed in Maharashtra and not Gujarat.
A Supreme Court Bench of Justices Ajay Rastogi and Vikram Nath quashed the high court's Order and held that the 'appropriate government' under Section 432(7) of Code of Criminal Procedure in the ordinary course remains the government of Gujarat even though the case had been transferred to Maharashtra.
The court reasoned that the case was transferred in exceptional circumstances and only for the limited purpose of trial. After the trial was concluded, the case was transferred to Gujarat where the crime had been committed. The court relied on its judgment in State of Haryana versus Jagdish (2010).
While declaring that Radheshyam had obtained the judgment from the court by fraud, the Bench of Justices Nagarathna and Bhuyan had made certain remarks against the Gujarat government.
These remarks have been challenged by the Gujarat Government.
First, it has challenged the observation made by the Supreme Court, which opined that the "state of Gujarat has acted on the basis of the direction issued by this court but contrary to the letter and spirit of law" by not challenging the May 13, 2022 decision of the Supreme Court through a review petition.
The Supreme Court had thus held that "the state of Gujarat has acted in tandem and was complicit with respondent no. 3."
The Supreme Court had further stated that "complying with the said Order [May 13 judgment] can also be said to be an instance of usurpation of power and abuse of discretion".
The Gujarat government has reasoned that it only acted under the judgment of the Supreme Court, which was in nature of mandamus, to decide the remission of Radheshyam in accordance with the 1992 policy.
It adds that no adverse inference of "usurpation of powers" could be drawn against the state government for not filing a review as it has consistently submitted that the 'appropriate government' to grant remission is the state of Maharashtra.
Further, it has claimed that the May 13 judgment was a result of the suppression of facts by Radheshyam and the Gujarat government had no role in misleading the court.
The Gujarat government has concluded that had Radheshyam not disclosed, there would have been no occasion for the Supreme Court to pass the May 13 Order.
The Gujarat government has stated that despite Radheshyam not challenging the July 17, 2019 decision of the Gujarat High Court, the Supreme Court had set aside in its May 13 Order.
It has added that there is another judgment of the high court dated March 13, 2020 whereby the application of remission was rejected with specific observations that the appropriate government is Maharashtra.
This Order has neither been challenged nor set aside.
The Gujarat government has submitted that Radheshyam deliberately misled the court in not disclosing that the Central Bureau of Investigation (CBI) and the CBI special court, Mumbai had declined to grant premature release to him and the other convicts.
Further, it also pleaded that Radheshyam did not disclose that the 1992 policy stood cancelled vide a circular dated May 8, 2003. Since the court issued mandamus, the state was bound to comply with the directions of the court, the Gujarat government further contends.
It has concluded that the filing of the review petition against the May 13 Order was, therefore, unnecessary considering that the Gujarat government had presented "all correct facts".
Moreover, the Supreme Court had dismissed a review petition filed by Bano against the May 13 Order on December 13, 2022, the Gujarat government submits.
It states: "This shows that no "fraud" as held by this court in judgement under review dated January 8, 2024 has been committed on this court and even otherwise, by no stretch of imagination, the state of Gujarat can be held to have "acted in tandem and complicit with Respondent No.3 [Radheshyam]" in perpetuating the aforesaid so-called fraud, by non-filing of a review petition, which in fact, as a matter was record was heard by this court and dismissed by way of a speaking Order."
During the 2002 Gujarat pogrom, Bano was at her father's home in Randhikpur in Dahod district when the village came under attack from a right-wing Hindu mob.
Bano, who was pregnant with a second child, fled with 17 persons, including her three and a half years old daughter, and her cousins, one of whom was also pregnant.
They travelled from village to village in place of safety. They had to stop at one place, where the pregnant cousin gave birth. But then they continued to move on because the area was not safe.
When they stopped near Pannivel, two vehicles with about twenty-five to thirty people, carrying swords, lathis and sickles in their hands, started shouting "musalmanoko maro" (kill the Muslims) and attacked them.
Bano identified 12 accused persons, all of whom were from her village Randhikpur. One of the convicts, Shailesh pulled Bano's daughter from her arms and ruthlessly smashed her on the ground.
Jaswantbhai attacked Bano with a sword. Then, he along with Govindbhai and others forcibly removed Bano's clothes and raped her. Meanwhile, other accused persons tore the clothes of the other females in the group and committed rape on them and assaulted the male members of the group.
Bano became unconscious. When she regained consciousness, she found herself naked and saw her relatives lying dead, including her cousin's newborn baby.
Bano registered a first information report (FIR) against the 12 accused persons. However, the FIR was not correctly recorded as it was not mentioned that she was raped. The FIR was registered against unknown persons even though Bano had recognised them all.
A case was registered in 2003 at a local police. On March 25, 2003, the police filed a report citing inconsistencies in the testimonies and a lack of evidence. Eventually, the report was accepted by a magistrate and the case was closed.
Bano was shifted to a refugee camp where she met members of the National Human Rights Commission (NHRC). At that time, the NHRC was led by former Chief Justice of India J.S. Verma and also comprised former Supreme Court judge Sujata Manohar. The NHRC intervened and ensured legal assistance to Bano. The NHRC approached the Supreme Court through senior advocate Harish Salve.
Salve urged the court for a fresh investigation by the CBI, and a transfer of the trial from Gujarat to Maharashtra.
In 2003, the Supreme Court transferred the investigation to the CBI and directed the trial to take place in Maharashtra to ensure a free and impartial trial.
Eleven persons were convicted by a CBI court in Mumbai in 2008 for the offences of murder (Section 302), gang-rape and rape of a pregnant woman under Section 376(2)(e)(g) read with Section 149 of the Indian Penal Code. They were awarded rigorous imprisonment for life, along with a fine.
In 2019, the Bombay High Court upheld the conviction and sentencing. Subsequently, in 2019, the Supreme Court upheld the decision of the high court and awarded a compensation of ₹50 lakh to Bano.
However, the convicts were granted remission by the Gujarat government for their 'good behaviour' under the 1992 Gujarat remission policy after serving 14 years in jail. They were given a premature release during the Azadi ka Amrit Mahotsav on August 11, 2022.
One of the members of the panel that granted remission to the 11 convicts, Bharatiya Janata Party (BJP) legislator from Gujarat, C.K. Raulji, said after their release: "I do not know whether they committed any crime or not. But there has to be some intention of committing the crime."
He added: "They are good people, Brahmins. Brahmins are known to have good sanskaar. It might have been someone's ill intention to corner and punish them."
This decision was approved by the Union home ministry.
The convicts were greeted with garlands and sweets by members of the Hindu right-wing organisation Vishwa Hindu Parishad.
The remission led to a public outcry. Bano filed a petition challenging the premature release. Several members of civil society, including journalists, academics and politicians also filed petitions challenging the remission.
On March 22, 2023, the Supreme Court constituted a special Bench to hear Bano's challenge. The Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan heard the matter in detail and reserved the judgment on October 12.