Bilkis Bano convicts remission case: Union and Gujarat governments seek privilege to not disclose files to Supreme Court, likely to file review soon

Even when the court remarked that the Union and Gujarat governments are in contempt of its decision to disclose the files that led to the premature release of the convicts, the governments sought immunity and will soon file a review petition against the order of the Supreme Court. The final hearing will take place on May 2.

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YESTERDAY, Additional Solicitor General of India S.V. Raju told a Supreme Court division Bench comprising Justices K.M. Joseph and B.V. Nagarathna that he had instructions from the Union and Gujarat governments to file a review petition against a March 27 order of the court instructing the Union and Gujarat governments to disclose the files that led to the convicts' premature release.

On March 22, the Supreme Court had agreed to constitute a special Bench to hear a plea by Bilkis Bano challenging the premature release from prison of 11 persons convicted of gangraping her. The convicts had also gang-raped four other family members of Bano, and then murdered them and three other family members of her, including her three-year-old daughter.

Subsequently, on March 27, the court had ordered the Union and Gujarat governments to disclose the files that led to the convicts' premature release.

Justice Joseph reprimanded the governments for delaying the disclosure and said, "[Y]ou want a review of this also?"

Justice Nagarathna remarked that the files would anyway have to be disclosed to make a case for the review petition.

Justice Joseph questioned Raju if there was an application of mind to reach the decision of premature release of the convicts and remarked, "Today it is [Bilkis Bano], tomorrow it can be me or you… What were the standards you applied for remission?"

He said that the reasons behind the remission should be disclosed considering the grievous nature of the offence committed by the convicts. If the government could not show reasons, the court would have to draw its own conclusion, he warned.

Raju stated that the governments had applied their mind, but they seek the privilege to not disclose the files.

Justice Joseph shot back, "[Y]ou are in contempt… What is the reason for not showing [the files] to the court?"

On March 27, the division Bench comprising Justices Joseph and Nagarathna had issued notice to the Union government, the Government of Gujarat and the 11 convicts on a petition filed by Bano seeking to cancel the premature release of the convicts; a decision taken by the Gujarat government in consultation with the Union Ministry of Home Affairs. The Bench also issued notice on a fresh public interest litigation challenging the decision of the Gujarat government to set the convicts free.

The Gujarat government had granted premature release to the convicts on August 15 last year. On October 18, the Gujarat government had told the Supreme Court that the convicts had been released based on their "good behaviour" after spending 14 years in jail. Bano had subsequently challenged their release.

The decision to constitute a special Bench to hear the plea was taken by a Supreme Court Bench headed by Chief Justice of India Dr D.Y. Chandrachud and comprising Justices P.S. Narasimha and J.B. Pardiwala on March 22.

About the premature release 

The premature release of convicts is considered bad in law and led to a public outcry. Several petitions were filed challenging the remission, which the Supreme Court had agreed to hear last year.

The petition by Bano was originally to be heard by a division Bench of Justices Ajay Rastogi and Bela M. Trivedi, but in December last year Justice Trivedi recused herself from hearing it, citing no reason.

Last year in May, a Supreme Court division Bench of Justices 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 and that the same should be decided in accordance with the state government's July 1992 policy, which was applicable when the trial of the 11 convicts concluded in 2008. This paved the way for the remission of the convicts.

One of the convicts, Radheshyam Bhagwandas Shah alias Lala Vakil, had filed a petition against the dismissal of his plea for premature release by the High Court of Gujarat on the grounds that the trial was concluded in Maharashtra.

In 2004, the Supreme Court had directed the Central Bureau of Investigation (CBI) to investigate Bano's case and subsequently, the trial was held in Maharashtra to ensure a fair trial. In 2008, a Mumbai sessions court convicted the 11 persons under Sections 302 (punishment for murder), 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. They were awarded rigorous imprisonment for life with fine.

This was upheld by a division Bench of the Bombay High Court, and then the Supreme Court.

As the CBI had investigated the case, the law required the concurrence of the Union government for granting remission to the convicts, which was given by the Union Ministry of Home Affairs on July 11, 2022, as per an affidavit filed by the Gujarat government.

Bano had also filed a review petition against the Supreme Court's judgment in Radheshyam Bhagwandas Shah@ Lala Vakil. The Bench of Justices Rastogi and Nath, which had given the judgment, dismissed Bano's review petition on December 13 last year, by passing an order in the chambers.