Early Release of Bilkis Bano Convicts | Day 13: Convicts received “favoured treatment”, argued Bilkis Bano’s counsel
Early Release of Bilkis Bano Gangrape ConvictsJudges: B.V. Nagarathna J, Ujjal Bhuyan J
Today, Advocate Shobha Gupta, appearing for Bilkis Bano, concluded her rejoinder arguments against the remission granted to the 11 gang rape convicts. It was a poignant moment, because it’s been two decades since Bilkis Bano first approached the Supreme Court to request a CBI investigation into her case. In her concluding arguments, Gupta emphatically declared that the convicts “don’t deserve any mercy” and requested the Court—with “folding hands”—to send them back to prison “where they belong.”
Background
During the Gujarat riots in March 2002, Ms. Bano and her family were fleeing from their home in Radhikpur village to Chapparwad village. However, before reaching they were ambushed by a group of men who gangraped Ms. Bano and murdered 14 of her family members including her infant daughter.
Ms. Bano approached the Supreme Court and in December 2003 the Court order the Central Bureau of Investigation (CBI) to investigate her allegations. The case was transferred to a special CBI Court in Bombay and in 2008 the Court imposed life sentences on 11 of the accused.
In May 2022, the SC Ordered the Gujarat State government to consider a request for remission made by one of the 11 convicts, under the 1992 remission policy. In August 2022, the Gujarat government granted the early release of all 11 convicts under the 1992 policy and publicly stated that they were released on ‘good behaviour’. However, this claim has been widely contested. Many allegations have been made claiming that many of the convicts violated their parole, made death sentences against Ms. Bano and her family, and had pending criminal cases against them for crimes committed while they were out on parole.
Ms. Bano and a host of other petitioners challenged the early release of the 11 convicts. They claimed that the Gujarat government should never have released them under the 1992 policy. The gravity of the offence should preclude any early release and further, none of the convicts had served the minimum sentence required to be considered under the 1992 policy.
Petition under Article 32 is permitted
Gupta argued that a petition under Article 32 is an appropriate remedy to challenge remission. Previously, counsel appearing for the convicts had argued that the petitioners should have approached the Gujarat High Court under Article 226. To make her case, Gupta relied on Mohammad Ishaq v S. Kazam Pasha (2009), where the apex court observed that a person can approach the Court under Article 32 even if there is an alternate remedy available under Article 226. In Mohammad Ishaq, the Supreme Court set aside a commutation of life sentence order after the victim invoked the Court’s jurisdiction under Article 32. To buttress her point that the Supreme Court has been “magnanimous” when it comes to entertaining petitions under Article 32, Gupta pointed out that a “single counsel”, whom she did not wish to name, had filed 328 writ petitions under Article 32 to challenge remission orders.
Gupta also pointed out that the convict Radhe Shyam himself had approached the Supreme Court under an Article 32 petition to be considered for remission. This was carried out “despite an order of rejection” from the High Court of Gujarat, she contended. She relied on Rupa Ashok Hurra v Ashok Hurra (2002), where the Supreme Court held that a judicial order cannot be challenged under Article 32. Further, she asserted that Radhe Shyam “cleverly” refrained from informing the Court that the High Court of Gujarat had rejected his petition.
Bilkis Bano was not made aware of the remission
According to Gupta, Bano found out about the release when she saw the viral pictures of the convicts being garlanded and felicitated with sweets. Further, a copy of the remission order was not made available to her even after she filed a Right to Information (RTI) application. “Not a single piece of paper” had the remission order, she contended. Gupta stated that all the information was made available to Bano only after the Supreme Court directed the Gujarat Government.
Opinion of presiding judge of convicting court is compulsory
Gupta then stated that the opinion of the presiding judge of the convicting court is a mandatory requirement under Section 432 of the Code of Criminal Procedure (CrPC) as per V. Sriharan v Union of India (2015), Sangeet v State of Haryana (2012), and Ram Chander v State of Chattisgarh (2022). According to Section 432, a state government “may” take the opinion of the presiding judge before granting remission. Previously, the convicts and the Gujarat government had argued that the word “may” implies that opinion is not compulsory.
Gupta stated that seeking the opinion of the presiding judge in Godhra was an “erroneous” approach. She argued that the Godhra judge should have acted in the capacity of a member of the Jail Advisory Committee, and not as a presiding judge of the convicting court. In the past, Gupta has argued that the appropriate judge would be a presiding judge in Maharashtra since the 11 perpetrators were convicted by a special court in that state.
Justice Nagarathna pointed out that the Gujarat government “complied” with the requirement by taking the opinion of a judge in Maharashtra. At this point, Gupta emphasised that the Maharashtra judge had given a negative opinion against the premature release. She contended that the Gujarat government “cannot ignore the opinion,” Further, there was “no whisper” as to why the opinion of the Maharashtra judge had not been considered.
Nature of crime was not considered
Gupta argued that Laxman Naskar v State of West Bengal (2000), V. Sriharan, and Epuru Sudhakar v Government of Andhra Pradesh (2006) have precedential value as they laid down factors such as nature of crime and the impact on society at large when it came to considering remission. She contended that none of the factors suggested by these cases were considered in the present instance.
She reminded the Court that the 11 convicts had murdered 14 people, and gang-raped a pregnant Bilkis Bano. Gupta described the convicts as a “privileged lot” who received “favoured treatment” as they were let out on parole or furlough immediately “from the date of completion of their 14 years.”
The remaining petitioners will argue on 12 October 2023.