A division Bench of the Supreme Court has directed the Union and state governments to submit original documents, some of which are in Gujarati, on record.
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TODAY, the Supreme Court concluded hearing arguments and reserved judgment in respect of petitions challenging the premature release from prison of 11 persons convicted of gangraping Bilkis Bano and murdering her family during the 2002 Gujarat pogrom.
The court directed the Union and state governments to submit original documents on record.
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.
Deterrence is the goal of justice
Senior advocate Indira Jaising, appearing on behalf of the member of Parliament, Mahua Moitra, responded to the respondents’ contention on the possibility of reformation of the convicts.
Jaising submitted that besides reformation, the previous judgments of the Supreme Court state deterrence as one of the principles of penology.
On guidelines to decide a case of the present nature that relates to sexual violence and conflict based on the ethnicity of the victim, Jaising contended that as per judicial decisions, the principles of criminal law and constitutional norms of protecting the dignity and life of women should be relied upon.
According to Jaising, the conscience of the nation should be considered in granting remission, which is reflected in the three organs of the State, including the judiciary.
Thus, the judgment of the present Bench will reflect the conscience of the nation, Jaising avered.
Jaising stated that although not binding on the court, guidance can be found in international law, particularly the Rome Statute which says that 30 years imprisonment is the norm in situations of sectarian violence.
On the issue of the appropriate government in granting remission, Jaising relied on the principle of per incuriam, an exception to the rule of stare decisis.
According to Jaising, the Bench is entitled to ignore the judgment by a Supreme Court division Bench comprising Justices Ajay Rastogi and Vikram Nath, in Radheshyam Bhagwandas Shah @ Lala Vakil versus State of Gujarat & Anr, which decided that the Gujarat government was the “appropriate government” for deciding the request of the convicts for their premature release.
Jaising relied upon the judgment of the three-judge Bench of the Supreme Court in Indore Development Authority versus Manoharlal and Others (2020) that held that the decision of another Supreme Court Bench comprising the same number of judges was per incuriam.
Claiming that the convict Radheshyam committed “fraud on the court”, Jaising drew the court’s attention to the decision of the Bombay High Court of August 5, 2013, which solely pertained to the transfer of the convicts from Maharashtra to Gujarat.
According to Jaising, however, one of the convicts, Radheshyam Bhagwandas Shah alias Lala Vakil had filed the case under Article 32 of the Constitution on the grounds that the Bombay High Court had observed that the Gujarat government was the “appropriate government” under Section 432(2) of the Code of Criminal Procedure, 1973.
Placing emphasis on the motive of the crime, Jaising stated that the crime committed by the convicts was premeditated, causing motive to play a major role in the sentence and remission.
Jaising argued that the judgment of the court will reflect the conscience of the nation, the constitution and the judiciary.
Illegality of fine
Senior advocate Vrinda Grover, appearing on behalf of the petitioners, argued that the release Order of the Gujarat government dated August 10, 2022, is ex facie illegal as the convicts did not serve a sentence of imprisonment for default in payment of the fine.
Grover referred to Section 64 of the Indian Penal Code (IPC) which provides for a sentence for imposition of fines and Section 68 of the IPC says that when a convict is undergoing a sentence in default for payment of a fine, the sentence shall end when the fine is paid.
Grover emphasised that the law is well-settled on the point that convicts are not permitted to pay the fine at a belated date, after an “illegal release” from prison.
According to Grover, the malafide and arbitrary exercise of power by the State is evident from the fact that the convicts enjoyed illegal premature release from August 10 last year to the date that they paid the fine.
Justice Nagarathna reiterated the right of reform of the convicts under Article 21 of the Constitution, as claimed by the respondents.
To this, agreeing that the reform exists for the convicts, Grover highlighted that the state government had exercised power arbitrarily by not accounting for vital criteria, as stated above, before granting remission
She further submitted that while the convicts were allowed remission, several remission applications are pending to be considered by the Gujarat government.
Further, on Justice Nagarathna’s enquiry on the solution to the issue since the convicts are already enjoying liberty, Grover vehemently submitted that in view of the illegality of their release, the convicts should be sent back to prison.
Grover argued that the convicts could be allowed to apply for remission again to the appropriate government by following the necessary procedure.
“The public confidence is at stake,” Grover added.
Grover also raised a larger issue of framing guidelines for the composition of the jail advisory committee.
It was claimed by Grover that the two members of the jail advisory committee that granted remission to the convicts belonged to the ruling political party, where the caste and the religion of the convicts were factored in their consideration for remission.
Pending remission applications
At the outset, advocate Aparna Bhat, appearing on behalf of the petitioners, addressed the submission of the Gujarat government that it has applied the remission policy routinely where the remission application of every convict who completes 14 years is considered a matter of policy.
Bhat pointed to the data of the National Crime Records Bureau that remission applications of over 300 convicts, including women, are yet to be considered by the Gujarat government.
By allowing remission to all 11 convicts in a single circular, according to Bhat, the State has violated Article 14 of the Constitution by not being partisan in granting remissions, causing the remission Order to fail.
Bhat submitted that remission is not a right, and the State has to apply its mind in a judicious manner and ensure justice for the release of the convicts.
Finally, on the point of reformation, Bhat claimed that it is not a right but an opportunity, which needs to be proved by the convicts.
