On Justice B.V. Nagarathna pointing out the submission of the convicts that they should be given a chance to reform, Gupta highlighted the "barbarity" of acts of the convicts that involved brutally killing and gangraping Bano and her family members, including minor children.
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TODAY, the Supreme Court heard reply arguments on behalf of the petitioners challenging the premature release from prison of 11 persons convicted of gangraping Bilkis Bano and murdering her family during the 2002 Gujarat pogrom.
A division Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan is seized of a batch of petitions against the Gujarat government's August 2022 decision to remit the sentences of the 11 convicts.
On September 20, appearing for one of the convicts, senior advocate V. Chitambaresh had argued that judicial review of an Order granting remission is only possible under Article 226 (Power of High Courts to issue certain writs) of the Constitution and not Article 32 (Remedies for enforcement of rights conferred by Part III).
Today, in reply to this contention of Chitambresh on the maintainability of the petition, advocate Shobha Gupta, appearing for Bano, sought to rely on previous judgments of the Supreme Court.
In particular, Gupta sought to rely on the judgment in Mohammed Ishaq versus S. Kazam Pasha and another (2009), where petitions challenging the grant of remissions were allowed under Article 32 of the Constitution.
Further, Gupta addressed the purported delay in the filing of the petition challenging the remission Order.
Gupta explained that although the convicts had been granted remission by the Gujarat government on August 15 last year, Bano came to know about the remission only when pictures of the convicts being felicitated began to be circulated in the media.
Gupta submitted that despite Bano filing requests under the Right to Information Act, 2005 with the appropriate authorities, she was not provided with any documents pertaining to the proceedings that transpired in the grant of remission.
It was only after the filing of a counter affidavit by the state government in October last year that Bano was able to file the writ petition challenging the grant of remission in November last year, Gupta stated.
Gupta referred to a petition filed by one of the convicts, Radheshyam Bhagwandas Shah alias Lala Vakil, against the dismissal of his plea for premature release by the Gujarat High Court on the grounds that the trial was concluded in Maharashtra.
Last year, on May 13, a Supreme Court division Bench comprising Justices Ajay Rastogi and Vikram Nath, in Radheshyam Bhagwandas Shah @ Lala Vakil versus State of Gujarat & Anr, decided that the Gujarat government was the "appropriate government" for deciding the request of the convicts for their premature release.
Gupta submitted that the appropriate government would be the state of Maharashtra and its remission policy should be applicable for the remission.
Gupta referred to Section 432(2) of the Code of Criminal Procedure, 1973 (CrPC), which states that when an application is made to the appropriate government for the suspension or remission of a sentence, such government may require the presiding judge of the court which passed the Order of conviction to state his opinion and reasons as to whether the application should be granted or refused.
According to Gupta, the Gujarat government gave weightage to the opinion of the district judge at Godhra, which favoured the premature release of the convicts, over the adverse opinion of the trial court judge in Maharashtra.
The Bench remarked that the opinion of the judge at Godhra is part of the advisory committee and does not fall under Section 432(2) of the CrPC.
This approach of the state government is "erroneous" and "vitiates the process", Shobha submitted.
Gupta referred to the submission of the convicts that the remission that persists on the date of conviction will be applicable, which is not disputed by the petitioners.
The convicts had applied for remission under the 1992 Gujarat remission policy.
Gupta submitted that the Maharashtra remission policy, dated April 11, 2008, that is relied upon by the trial court judge in Maharashtra in denying remission, is subsequent to the date of conviction, on January 21, 2008.
According to Gupta, the policy, however, is relevant in the present case since it has remained broadly the same since 1978. Thus, the legality of the opinion of the trial court judge in Maharashtra cannot be questioned on the basis of the policy, Gupta said.
Gupta raised the contention that the documents that were subsequently brought on record by the state government are "completely foreign" to its counter affidavit and its consideration on granting remission claimed to be relied upon by the government.
This vitiates the process of granting remission to the convicts, Shobha said.
Gupta referred to judgments such as Laxman Naskar versus Union of India and Others (2000) and Union of India versus V. Sriharan @ Murugan & Ors (2015) that laid down guidelines to be followed in the grant of remission, which includes the nature of crime, the impact on society and the precedent that the grant of remission sets.
It was submitted by Gupta that none of these three vital factors, as laid down by the Supreme Court, were referred to by the state government in their considerations of the applications for remission.
On Justice Nagarathna pointing out the submission of the convicts that they should be given a chance to reform, Gupta highlighted the "barbarity" of acts of the convicts that involved brutally killing and gangraping Bano and her family members, including minor children.
According to Gupta, the state government has been completely negligent of these factors in considering the convicts' plea for remission.
"They [the convicts] were a privileged or a favoured lot," Gupta stated.
Opposing the contention of the convicts that the offences were committed "in a spur of the moment", Gupta referred to previous judicial Orders and contended that following the Godhra train-burning incident, the members of the Muslim community were deliberately sought and targeted by the convicts.
Concluding her arguments, Gupta prayed that on account of the nature of the crime of the convicts, they do not deserve mercy and that their early release should be withdrawn.
The Bench will continue hearing the reply of the petitioners tomorrow, that is, October 12.