In the petitions challenging the remission granted by the Gujarat government to 11 convicts in the Bilkis Bano gang rape and murder case, a division Bench of the Supreme Court is scheduled to hear arguments on whether public interest litigants should be permitted to intervene in the matter.
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THE Supreme Court has scheduled tomorrow 3 p.m. to decide the locus standi of other parties in the Bilkis Bano gang rape and murder case.
The petition was filed by Bilkis Bano against the premature release from prison of 11 persons convicted of gangraping her and murdering her family during the 2002 Gujarat pogrom.
“We have heard counsel for the parties. The other writ petitions are in the nature of public interest litigation (PILs). A preliminary objection has been raised with respect to the maintainability of the PILs.
“In order to hear the preliminary objection, list the matter tomorrow at 3 p.m.,” Justice Nagarathna said while dictating the Order.
Bano was 21 years old and pregnant when she was gangraped. Seven of her family members, including her three-year-old daughter, were murdered by the 11 convicts who were serving rigorous imprisonment for life for the crimes.
A division Bench of the court comprising Justices B.V. Nagarathna and Ujjal Bhuyan are in the process of hearing Bano’s petition, 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.
Senior advocate Sidharth Luthra, appearing for one of convicts, told the Bench that since the victim herself is being represented in court, other parties may not have the locus to file PILs.
On the merits of the case, advocate Shobha Gupta, appearing for Bano, asked the court to take note of the fact that the presiding judge who convicted the said persons had also provided a negative opinion on their premature release.
According to Gupta, the opinion of the judge was not considered by the Gujarat government while granting remission.
Gupta also submitted that the Central Bureau of Investigation (CBI), which had investigated the case, had also given a negative opinion on granting remission to the convicts.
In yesterday’s hearing, Gupta had submitted that even 21 years after the incident, Bano “is scared to face men, and cannot be in crowds or around strangers. She has not recovered from the trauma. We thought this was over, but then (the remission) happened.”
“Appropriate government”
Today, Gupta submitted that, in the present case, the Maharashtra government is the “appropriate government” according to the law laid down by the Supreme Court.
Last year on May 13, a division Bench of the Supreme Court, 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.
The court had also observed that the remission should be decided within two months in accordance with the state government’s July 1992 policy, which was applicable when the trial of the 11 convicts concluded in 2008.
The 11 convicts were convicted by a sessions court in Mumbai in 2008 under Sections 302 (punishment for murder) and 376(2)(e) and (g) (committing rape when the woman is pregnant and gang rape, in the then unamended version of Section 376), read with Section 149 (unlawful assembly) of the Indian Penal Code, 1860.
The trial was shifted from Gujarat to Maharashtra pursuant to the Supreme Court’s direction, issued in 2004.
The court had also directed the CBI to investigate Bano’s case and shift the trial to Maharashtra to ensure a fair trial.
The conviction was subsequently upheld by the Bombay High Court and, later, by the Supreme Court.
However, the 11 convicts in the Bilkis Bano case were granted remission for “good behaviour” by the Gujarat government on August 15 last year, which resulted in their release after 15 years of imprisonment that involved multiple paroles and furloughs.
Gupta submitted that the May 13 judgment of the court was not in line with the binding precedent of the five-judge Constitution Bench of the Supreme Court in Union of India versus V. Sriharan @ Murugan & Ors (2015).
In Sriharan, the court had interpreted Sections 432 (power to suspend or remit sentences) and 433 (power to commute sentence) of the Criminal Procedure Code, 1973.
The court had held, “[E]ven if an offence is committed in state A but the trial takes place and the sentence is passed in state B, it is the latter state which shall be the appropriate government.”
Today, Justice Nagarathna sought to know whether the Sriharan judgment had been placed before the Bench which had passed the Order holding Gujarat government to be the “appropriate government” in the case.
In response, Gupta said that the judgment was placed before the Bench, to which the Bench had stated that it was not applicable in the present case.
