Bilkis Bano filed a petition last year against the premature release of 11 persons convicted of gang-raping her and murdering seven of her family members, including her three-year-old daughter, during the 2002 Gujarat pogrom. Today, the Supreme Court set August 7 as the date for the final disposal of the case.
—
TODAY, a division Bench of the Supreme Court comprising Justices B.V. Nagarathna and Ujjal Bhuyan heard Bilkis Bano’s plea challenging the premature release from prison of 11 persons convicted of gangraping her and murdering her family during the 2002 Gujarat pogrom.
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.
The convicts were granted remission by the Gujarat government on August 15 last year on account of their “good behaviour” after 14 years of imprisonment.
The plea filed by Bilkis argues that the premature release of the convicts is bad in law as some of the most heinous crimes were committed by them during the communal riots.
In the previous hearing, a Supreme Court Bench listed the matter to July 17 as some of the counsels appearing for the respondents (the convicts) had claimed that they were not served with court notices. The court directed that fresh notices be issued to the respondents.
Today, the court recorded that notices have now been served to all convicts. The matter is listed on August 7 for final disposal.
Earlier this year, when the matter came before a Bench of Justices K.M. Joseph (now retired) and Nagarathna, Justice Joseph orally remarked that the continuous objections raised by the respondents including that the convicts have not been served summons were an obvious attempt to ensure that the matter is not heard by that Bench.
Background
The 11 convicts are Jaswantbhai Chaturbhai Nai, Govindbhai Akhambhai Nai, Shailesh Chimanlal Bhatt, Bipinchandra Kaniyalal Joshi, Kesharbhai Khimabhai Vohaniya, Pradip Ramanabhai Modhiya, Bakabhai Khimabhai Vohaniya, Rajubhai Babulal Soni, Mithesh Chimanlal Bhatt, Rameshbhai Rupabhai Chandana and Radheshyam Bhagawandas Shah.
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 Gujarat High Court on the grounds that the trial was concluded in Maharashtra.
Last year on May 13, a Supreme Court division Bench comprising Justices Ajay 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.
The court 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), 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 directed the Central Bureau of Investigation (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.
The May 13’s judgment was considered to have violated the binding precedent of the five-judge Constitution Bench of the Supreme Court in Union of India versus V. Sriharan @ Murugan & Ors (2015).
In the judgment, the court had stated that the test to find the appropriate government permitted to grand remission under Sections 432 (power to suspend or remit sentences) and 433 (power to commute sentence) of the Criminal Procedure Code, 1973, (CrPC) is to locate the state in which the accused was convicted and sentenced, and the government of that state would be the appropriate government.
Bano had filed a review petition against the Supreme Court’s judgment in Radheshyam Bhagwandas Shah@ Lala Vakil. However, a 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.
About the premature release
The premature release of the convicts led to a public outcry. Several petitions by civil society members, politicians, academicians, retired bureaucrats, journalists, activists and Bano herself were filed, challenging the remission as many considered it to be bad in law.
It was contended that the decision on premature release goes against the circular issued by the Ministry of Home Affairs as a part of the celebration of ‘Azadi ka Amrit Mahotsav’, an initiative of the government of India to “celebrate and commemorate 75 years of independence”.
The circular provides for special remission to all prisoners except for certain categories of prisoners including rape convicts.
On October 18, 2022, the Supreme Court agreed to hear the petitions challenging the remission.
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 Ministry of Home Affairs on July 11, 2022, as per an affidavit filed by the Gujarat government.
In contrast, Nandkumar Nair, the superintendent of police, special crime branch, CBI, Mumbai, opposed the grant of premature release calling the crime committed by the convicts as heinous, serious and grave.
Anand L. Yawalkar, a special CBI judge at city civil and sessions court, Greater Bombay also opposed the premature release of the convicts.
In his opinion, judge Yawalkar 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.”
This year, on March 22, a Supreme Court Bench of the Chief Justice of India Dr D.Y. Chandrachud and Justices P.S. Narasimha and J.B. Pardiwala agreed to constitute a special Bench to hear the plea challenging remission.
On March 27, a division Bench comprising Justices K.M. Joseph and B.V. Nagarathna issued a notice to the Gujarat government and the Union home ministry directing them to bring files dealing with the premature release of 11 convicts for the court’s perusal.
However, the Union home ministry and the Gujarat government showed their reluctance to share the files and submitted that they may seek a review against the Order.
On April 18, when the Union home ministry and the Gujarat government sought privilege over the remission document, the Bench of Justices Joseph and Nagarathna that was hearing the matter remarked that the authorities were in contempt of the court’s March 27 Order because they did not disclose the files as directed by the court.
Justice Joseph questioned the grounds on which the remission had been granted. He asked if there had been an application of mind before reaching the decision.
Justice Joseph remarked, “Today it is [Bilkis Bano], tomorrow it can be me or you… What were the standards you applied for remission?”
