Early Release of Bilkis Bano Convicts | Day 9: Opinion of presiding judge of convicting court non-mandatory for remission, Union argues
Early Release of Bilkis Bano Gangrape ConvictsJudges: B.V. Nagarathna J, Ujjal Bhuyan J
Today, the Union and the Gujarat government concluded arguments in favour of remitting the life sentence of the convicts in the Bilkis Bano gang rape case. Additional Solicitor General S.V. Raju argued for a short while on behalf of the Union. Last week, he had completed arguments on behalf of the Gujarat government.
Advocate Rishi Malhotra and Senior Advocate Sonia Mathur appeared on behalf of the convicts Radhe Shyam and Vipin Joshi respectively.
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.
Raju: Gujarat government complied with Supreme Court’s mandamus
Raju continued his arguments from last week and reiterated that the Gujarat government had reviewed the remission in accordance with the 1992 Gujarat Remission Policy, as specifically instructed by the Supreme Court on 13 May 2022.
Following this, Raju highlighted that the Gujarat government had adhered to Section 435 of the Criminal Procedure Code (CrPC), which mandates that a state government must “consult” the Union government if the case had been probed by a central agency like the Central Bureau of Investigation (CBI). Raju underscored that the Gujarat government had sought the Union government’s opinion, which had subsequently turned to the CBI. The CBI had given “no negative opinion” and “left it to the Central government.” Following this, the Union granted consent to the Gujarat government to remit the sentences.
Malhotra: Challenge against remission order cannot be entertained after mandamus
Malhotra argued that the challenge was inadmissible because the Bench cannot hear a case against a ruling made by a coordinate bench. He pointed out that the “entire process” of remission started after the Supreme Court issued the writ of mandamus which is currently under scrutiny. Justice Nagarathna pointed out that the writ was a mere “starting point” for the process of remission, and that the current challenge was concerned with the final remission order. She highlighted that the two are distinct aspects. In previous hearings, Justice Nagarthana had stressed that a remission order belongs to the realm of administrative law, which can be challenged in court.
Malhotra’s next argument was that the remission granted to Radhe Shyam was valid as per the 1992 Gujarat Policy. He countered the petitioners’ claim that the input of the presiding judge of the convicting court was compulsory. The relevant provision in the CrPC used the word “may”, he argued, which meant that the consultation process was not mandatory.
At this point, the proceedings took an interesting turn. Malhotra confidently stated that, despite the opinion not being mandatory, the presiding judge of the Maharashtra court had been consulted following the mandamus order. This contradicted Raju’s submission that the Maharashtra judge wasn’t consulted post-mandamus. Justices Nagarathna and Ujjal Bhuyan promptly highlighted this discrepancy. A counsel from the Gujarat government admitted that they were unaware of any such consultation. Justice Nagarathna ensured that this discrepancy was recorded by the Court.
Concluding his arguments, Malhotra emphasised that Shyam had served his full sentence and resided 35 kilometres away from Bilkis Bano, so there shouldn’t be any concerns about her safety. He highlighted that Shyam was a lawyer. Justice Bhuyan inquired whether Shyam was eligible to practice law, given his conviction. Malhotra indicated that barring convicts from working could lead to their social isolation.
Mathur: Third party petitioners cannot involve themselves in the remission process
Senior Advocate Sonia Mathur argued that remission constitutes a “shortening of sentence” as per Smt. Shireen v State of U.P. (2022). Her primary argument was that the third party petitioners cannot involve themselves in a process that involves the reduction of a sentence. Justice Nagarathna reiterated that, while remission shortens a sentence, it is done through an administrative procedure that can be challenged in court.
Mathur then echoed a point made by Malhotra, contending that a coordinate bench could not adopt a contradictory view. She reiterated that the opinion of the presiding judge of the convicting court isn’t mandatory. In another attempt to clear up the confusion, Justice Nagarathna inquired whether the presiding judge whose opinion was taken was from the Maharashtra court or the Gujarat court. Mathur clarified that the opinion was sought from the judge in Maharashtra.
Interestingly, Mathur noted that Vipin Joshi had paid a fine of Rs. 6000 even though the Gujarat government’s affidavit mentioned that the convicts hadn’t paid their fines. On the basis of this affidavit, Senior Advocate Vrindra Grover had earlier submitted that the “remission was illegal” due to non-payment of the fine.
Mathur then contended that the Supreme Court has consistently supported remission. She highlighted that Joshi had served a 14-year sentence and “earned” his remission. In her final argument, she submitted that Joshi had spent about a year outside of prison and this status could not be undone.
Senior Advocate Sidharth Luthra, appearing for one of the convicts, is expected to argue on 31 August 2023.