Plea challenging remission to 11 Bilkis rapists politically motivated: Convict

Updated on Sep 25, 2022 05:37 AM IST

In an affidavit filed on Saturday, the released convict Radheyshyam Bhagwandas Shah told the court that the petition was filed at the behest of three petitioners — a former parliamentarian, a journalist and an academician — who are complete strangers to the case at hand.

One of the 11 convicts granted remission in Bilkis Bano case told Supreme Court that petition challenging it is politically motivated. (HT File)
One of the 11 convicts granted remission in Bilkis Bano case told Supreme Court that petition challenging it is politically motivated. (HT File)
ByAbraham Thomas, Hindustan Times, New Delhi

One of the 11 convicts granted remission in the Bilkis Bano gang-rape case told the Supreme Court on Saturday that the petition opposing the August 15 remission order of the Gujarat government was “politically motivated” and should not be entertained.

In an affidavit filed on Saturday, the released convict Radheyshyam Bhagwandas Shah told the court that the petition was filed at the behest of three petitioners — a former parliamentarian, a journalist and an academician — who are complete strangers to the case at hand.

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“This court not only on the ground of locus and maintainability but also on the ground of such speculative and politically motivated petition should dismiss the said petition with heavy hand and impose an exemplary cost so that such politically motivated petition by strangers should not be encouraged in future by others,” Shah said in the affidavit filed through his counsel Rishi Malhotra.

“The present petition under Article 32 is nothing but a grossest abuse in as much as on one hand the petitioner pleads that she does not have the copy of the remission order and yet without ascertaining the reasons for grant of remission the said order has been assailed by the writ petition with a further prayer that such order of remission should be quashed,” it added.

The affidavit came in response to a petition — filed by former Lok Saba MP Subhashini Ali, journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma — on which notice was issued on August 25. The matter was heard on September 9 when the bench asked Malhotra, appearing for one of the convicts, to take instructions on behalf of all convicts and file affidavit within two weeks. The matter is listed for hearing on October 18.

The petitioners had approached the court assailing the remission order passed by the state government releasing the 11 convicts serving life sentence under a 1992 remission policy without following the procedure of taking Centre’s consent as the case was investigated by a central agency — the Central Bureau of Investigation (CBI).

They further held the remission to be wrong as the 1992 remission policy was later superseded by a policy brought in 2014 which excluded gang-rape convicts as also those convicted in cases probed by CBI.

As the petitioners did not attach a copy of the remission order, the court directed the Gujarat government to produce all relevant records that went into passing of the final order on August 15 on the occasion of Independence Day.

Taking objection to the petitioners attacking the remission order without specifying what was wrong in it, the affidavit said, “Not a single ground has been alleged in the said petition as to what fundamental wrong is committed in the said remission order which has not been filed before this court.”

The convict further questioned the role of political activists to question the remission order, saying it sets a wrong precedent and goes contrary to the law laid down by the Supreme Court in its past judgments denying any third party to interfere in the process of a criminal case.

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“Interestingly, neither the state nor the victim nor even the complainant has approached this court and thus, it is respectfully submitted if such cases are sought to be entertained by this court, a settled position of law would certainly become an unsettled position of law…,” said the affidavit. “A petition under Article 32 of the Constitution has been filed and that too by a stranger to the prosecution.”

The grant of remission came pursuant to an order passed by the Supreme Court where the same convict — Radheyshyam Bhagwandas Shah — had approached the top court early this year for consideration of his premature release. In a judgment passed on May 13, the top court held that the state government will have the power to grant remission. The same order also directed the convict’s application for remission to be considered in terms of the policy applicable on the date of his conviction and be decided within two months.

The conviction in the Bilkis Bano case happened on January 21, 2008 and at the relevant time, the premature release policy operating in the state was the one dated July 9, 1992.

The convict noted that the present petition has also sought to challenge the May 13 verdict of the top court. Opposing such a move, the affidavit stated that the remedy to challenge a decision of the top court is not by filing a petition under Article 32 but a review petition under Article 137 of the Constitution.

As on the date of release, Shah had undergone 15 years and 7 months in custody. The release of the 11 convicts raised a hue and cry and brought back the horrors of the incident that occurred on March 3, 2002 during the Gujarat riots. Bano was 21 years old and five-month pregnant when she was gang-raped while fleeing the violence. Seven members of her family, including her three-year-old daughter, were killed.

Following the release of her perpetrators, Bano released a statement through her lawyer, stating that the development had shaken her faith in justice. She urged the Gujarat government to “undo this harm” and restore her “right to live without fear and in peace”.

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