The premature release of 11 convicts by the Gujarat government in the Bilkis Bano gang rape case is likely to come under critical scrutiny before the Supreme Court, with Bano challenging the basis of that decision.
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ON Thursday, Bilkis Bano released a brief statement, explaining why and how she decided to approach the Supreme Court through a review petition, after initially expressing her reluctance to pursue the legal remedies available to her, following the premature release of 11 convicts in the gang rape case.
She stated:
"The decision to once again stand up and knock on the doors of justice was not easy for me. For a long time, after the men who destroyed my entire family and my life were released, I was simply numb. I was paralysed with shock and with fear for my children, my daughters, and above all, paralysed by loss of hope.
But, the spaces of my silence were filled with other voices; voices of support from different parts of the country that have given me hope in the face of unimaginable despair; and made me feel less alone in my pain. I cannot express in words that this support has meant to me. And how much it has helped rekindle my faith in humanity, renewed my courage and allowed me to believe yet again in the idea of justice.
So, I will stand and fight again, against what is wrong and for what is right. I do this today for myself, for my children, and for women everywhere".
The Gujarat government's decision was based on the Supreme Court's order of May 13 allowing the petition of one of the convicts, to direct the state government to consider his premature release as per the 1992 policy of the state government and to declare that the Gujarat Government is the appropriate authority and not the Maharashtra government where the trial and conviction had taken place.
Bano, being the victim of the violence, has the locus to seek a review of the Supreme Court's order of May 13. She could have done so within the stipulated period of one month from the date of the order. But she could not because she was not made a party to the writ petition on which the Supreme Court passed the May 13 judgment.
Explaining the delay in approaching the Supreme Court, Bano has stated that it took enormous efforts and time for her to collect courage and regroup herself to decide to hold the baton once again, after just getting over the extremely excruciating 17 years-long drawn legal battle in ensuring that the culprits are punished for the egregious crime they had committed.
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She also stated that she had applied for relevant documents concerning the premature release of the convicts, but she had not been supplied with them. It was only on October 18 she got access to the relevant documents which were filed with the counter affidavit filed by the Gujarat Government in the Supreme Court in response to a PIL challenging the remission granted to 11 convicts.
Seeking a review of the judgment, Bano through her advocate Shobha Gupta has alleged that the convict Radheshyam Bhagwandas Shah alias Lala Vakil concealed the relevant material facts from the court in order to obtain the judgment under challenge. The review petition asserts that the entire writ petition filed by Lala Vakil was absolutely silent on and concealed the egregious nature of the crime for which the writ petitioner and his co-accused were convicted by the Trial Court, and later confirmed by the High Court and the Supreme Court. This, according to her, is nothing less than deliberately playing fraud upon the Supreme Court with the intention to mislead the Court to procure a favourable order.
Bano has alleged that the convict hid the fact from the court that it was the Supreme Court that had re-opened the criminal case against her perpetrators after being closed by the State Investigating Agency and the trial court concerned on the ground that the accused were not traceable. It was the Supreme Court that then directed the Central Bureau of Investigation (CBI) to conduct the investigation afresh.
Bano has alleged that the convict, in his writ petition before the Supreme Court seeking remission, very cleverly concealed her name which is still alive in larger public memory as a synonym for victim of the Gujarat riots and who suffered extreme level of inhuman brutality and violence by him and the co-convicts, when she was only 20 years of age and was five months pregnant then.
Pertinently, Bano has contended that the direction of the Supreme Court in the May 13 order that Gujarat is the appropriate government and not the State of Maharashtra is per incuriam in light of a series of decisions of the Supreme Court in State of Madhya Pradesh versus Ratan Singh (two Judges Bench), State of Andhra Pradesh & Ors. versus M. T. Khan (two Judges Bench), Hanumant Dass versus Vinay Kumar (two Judges Bench) and V. Sriharan versus UOI (five Judge bench) [2016]. In all these cases, the Court has consistently taken a view that the test to determine the appropriate government is to locate the State where the accused was convicted and sentenced and not the State where the crime was committed or the accused belongs too.
Bano has contended that the Supreme Court could not have set aside the Gujarat High Court holding that since the trial had been concluded in the State of Maharashtra, the application for premature release had to be filed in Maharashtra and not in Gujarat. She has submitted that it is a settled principle of law that no writ petition under Article 32 of the Constitution of India would lie against a judicial order, as held by the nine judges' bench of the Supreme Court in 'Naresh Shridhar Mirajkar (1966) case.
On October 18, the Gujarat Government told the Supreme Court that its decision to grant premature release to 11 convicts who gang-raped Bilkis Bano, had the approval of the Union Home Ministry. An affidavit filed to this effect reveals that the MHA on July 11 this year had accorded its concurrence to the Gujarat Government under Section 435 of the Code of Criminal Procedure (CrPC). Since the CBI investigated this case, the law required the concurrence of the Union Government to grant premature release or remission.
In contrast, the Superintendent of Police (SP), Special Crime Branch Central Bureau of Investigation(CBI), Mumbai Nandkumar Nair, opposed the grant of premature release calling the crime committed by the convicts as heinous, serious, and grave. Anand L. Yawalkar, the Special Judge(CBI) at City Civil & Sessions Court, Greater Bombay also opposed the premature release of the convicts.
In his opinion, Judge Yawalkar said that in this case, all convicted accused were found guilty of rape and murder of innocent people. Besides, the accused had no enmity or any relation with the victim, he said. 'The crime was committed only on the ground that the victims belong to a particular religion… even minor children and a pregnant woman were not spared. This is the worst form of hate crime and crime against humanity', Judge Yawalkar opined.
Justifying its decision, the Gujarat Government told the Supreme Court that convicts were released on account of good behaviour after spending 14 years in jail. It also stated that the government had taken the decision as per the policy dated July 9, 1992, as directed by the Supreme Court, and not under the circular issued by the MHA as part of the celebration of 'Azadi Ka Amrit Mahotsav'.
The premature release of 11 convicts in the Bilkis Bano case by the Gujarat Government had sent shock waves across the country. Bilkis is a victim of the 2002 Gujarat pogrom. She was 21 years old and pregnant when she was gang raped. She lost all the members of her family in the communal carnage. Her three-and-a-half-year-old daughter was butchered to death before her eyes. The Central Bureau of Investigation (CBI), on the direction of the Supreme Court, investigated the matter, and the trial was held in Maharashtra on the direction of the Supreme Court to ensure an impartial investigation and fair trial.
In 2008, the Mumbai Session court convicted the accused persons guilty of offence under Section 302, 376(2)(e)(g) read with Section 149 of the Indian Penal Code (IPC), and awarded them rigorous imprisonment for life and fine. In May 2017, a division bench of the Bombay High Court upheld the conviction and sentence awarded by the trial court. The findings recorded by the trial court as well as the Bombay High Court were also upheld by the Supreme Court.
Put in this context, the Supreme Court's decision to hear Bano's review petition assumes enormous significance, raising hopes that the unjust order remitting the sentences of the 11 convicts would be duly reviewed, and justice done to Bano expeditiously.