While hearing arguments against the petitions challenging the premature release of 11 convicts in the Bilkis Bano case, the Supreme Court was told by counsel for one of the convicts that remission was not “charity” and that her client had “earned it”.
—
TODAY, the Supreme Court heard arguments by two of the 11 persons convicted of gangraping Bilkis Bano and murdering her family during the 2002 Gujarat pogrom.
All 11 convicts were ordered to be imprisoned for life.
Advocate Sonia Mathur, appearing for one of the convicts, told the court that whatever her client did during the period of incarceration led to the authorities passing an Order of remission.
“It was not given to me as a bounty, or charity,” she said. By serving 14 years of sentence, her client “had earned it”, it was contended.
Mathur stated further that if there were violations of procedure established by law in remitting the convicts, then “it is for the State to answer”.
A division Bench of the Supreme Court comprising Justices B.V. Nagarathna and Ujjal Bhuyan are in the process of hearing a batch of petitions against the Gujarat government’s August 2022 decision to remit the sentences of the 11 convicts.
This batch of petitions includes Bano’s own, along with those filed by member of Parliament (MP), Mahua Moitra; former MP, Subhashini Ali; National Federation of Indian Women, the women’s wing of the Communist Party of India; and two others.
Today, senior advocate Rishi Malhotra, appearing for convict Radheshyam Shah, also contended that his client had served 14 years, shown “good conduct” and “correctional behaviour” while incarcerated “as required by [Gujarat’s] remission policy”.
At one point in the hearing, Justice Nagarathna asked Malhotra to take a look at the Gujarat High Court’s Order that dismissed Shah’s application seeking the consideration of his remission by the Gujarat government.
The high court had dismissed Shah’s petition, observing that remission could only be considered by the Maharashtra government.
At this stage, senior advocate Indira Jaising asked the court to note that Shah had approached the Supreme Court by filing a writ petition under Article 32 and not a special leave petition (SLP) under Article 136 of the Indian Constitution.
“The procedure established by law is that you come by way of an SLP. An Article 32 petition does not lie against a judgment of the high court,” Jaising contended.
Justice Bhuyan then asked Malhotra, “In your petition [before the Supreme Court], did you mention the Gujarat High Court’s dismissal Order?”
To this, Malhotra replied that the high court’s Order was indeed annexed, but added that the Gujarat and Bombay high courts “pointed to the other and said go there”.
“You did not challenge the July 2019 Order of the Gujarat High Court?” Justice Nagarathna asked.
“That was an error,” Malhotra said, admitting that his client had moved the Supreme Court seeking a direction to the Gujarat government to consider his application for premature release as per the 1992 policy without first challenging the high court’s Order.
On May 13 last year, a division Bench of former Justices Ajay Rastogi and Vikram Nath had held that the application for remission of the 11 convicts shall be considered by the Gujarat government since the crimes they were convicted of were committed in Gujarat and the case had been transferred to Maharashtra for the limited purpose of trial and disposal.
The court also directed the Gujarat government to consider the application as per the state’s remission policy of July 1992, which was applicable when the trial of the 11 convicts concluded in 2008.
The 1992 policy allowed prisoners who had served a minimum of 14 years to apply for early release.
In a previous hearing of the case, Malhotra had stated that if remission Orders are allowed to be challenged in courts, that too by third parties, “it would set a dangerous precedent… Floodgates will open… A Pandora’s box will open”.
