Terming Bilkis Bano's gangrape and murder of her family members during the 2002 Godhra riots as a "horrendous" act, the Supreme Court on Monday asked the Gujarat government whether uniform standards, as followed in other cases of murder, were applied while granting remission to 11 convicts in the Bilkis case.
The top court, which at the same time clarified that it would not be overwhelmed by emotions in the case and would only go by the law, also directed the Gujarat government to present all the relevant documents on April 18, the next date of hearing.
Bano had moved the apex court on November 30 last year challenging the “premature” release of 11 lifers by the state government, saying it has “shaken the conscience of society”.
The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 last year, after the Gujarat government allowed their release under its remission policy.
They had completed more than 15 years in jail.
A bench of Justices KM Joseph and BV Nagarathna issued notice to the Centre, Gujarat government and the convicts on the plea filed by Bano and asked the parties to complete the pleadings by the next date of hearing.
"It is a very horrendous act. We have an experience of people coming to this court saying they have been languishing in jails for ordinary cases of murder and their remission is not being considered. So is this a case where the standards have been adopted uniformly as in other cases? the bench remarked orally.
As the hearing commenced, the bench said there is a gamut of issues involved and it needed to hear the matter in detail.
"What is the broad line of submission that you will take? Since power under section 432 (remission) of CrPC has been exercised by State of Gujarat, was there a direction by this court directing Gujarat to take a decision? We would like to know before hand what is the gamut of issues and the framework within which you will operate because I am retiring on June 17. I need time to understand the matter," Justice Joseph observed.
Advocate Shobha Gupta, appearing for Bano, submitted that the state where the trial is held is to decide the remission application and Gujarat did not have jurisdiction to grant remission to the convicts.
She also stated that the impact of the crime on the society is to be taken into consideration while granting remission.
"The jurisdiction with the state here was Maharashtra and not Gujarat. Here please look at the impact of the crime on society," she said.
Advocate Vrinda Grover, appearing for one of the PIL petitioners, said the presiding judge of the trial court in Mumbai where the case was transferred had categorically stated that this is not a fit case for remission.
She said even the CBI also said that remission should not be given to convicts.
Grover contended that while on parole, one of the convicts, molested a woman which has been completely ignored by the authorities.
Advocate Rishi Malhotra, representing one of the convicts, submitted that as per the judgment of the apex court, the policy of the government existing at the time of the commission of offence must be considered and therefore the Gujarat government was justified in deciding the remission applications under the 1992 policy.
Questioning the locus of the PIL petitioners, Malhotra said social activists have filed the plea challenging the remission and as per the apex court judgment PILs under Article 32 cannot be entertained in criminal matters.
Referring to the top court's May 2022 order, he said the apex court had held the State of Gujarat to be the "appropriate government" to decide the remission.
The bench then remarked," What about the State of Gujarat exercising the power without having the jurisdiction to do so."
Malhotra said the convicts have served over 15 years in jail and 14 years is the requirement for the remission policy.
"No one raised a hue and cry when they were in jail. And they served the entire sentence. This is more of an emotional plea than a legal plea. They say that death sentence should be given."
Justice Joseph then said," We are not going to be overwhelmed by emotions. That is the last thing we are going to do. Ultimately law and only law. We know what we are going to say is going to have an effect on the fate of prisoners. We have to maintain a balance between liberty proportionality etc."
As the hearing drew towards a conclusion, senior advocate AM Singhvi, appearing for one of the PIL petitioners, said the post-release conduct of the convicts saw them give death threats to the victim, which has been brushed aside by the prosecution.
Senior advocate Kapil Sibal, appearing for another PIL petitioner, submitted that this court has to now lay down the broad contours of granting remission.
All the 11 convicts in the Bilkis case were granted remission by the Gujarat government and released on August 15 last year.
The top court is seized of PILs filed by Communist Party of India-Marxist leader Subhashini Ali, Revati Laul, an independent journalist, Roop Rekha Verma, who is a former vice chancellor of the Lucknow University, and Trinamool Congress MP Mahua Moitra against the release of the convicts.
Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident.
Her three-year-old daughter was among the seven family members killed.
