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Bilkis convicts’ release case reaches top court
Bilkis Bano was 21 years old, and five months pregnant when she was gang-raped while fleeing the violence during the 2002 riots, and her three-year-old daughter was one of the seven people killed.
The Supreme Court on Tuesday agreed to consider urgently hearing a petition demanding the immediate re-arrest of 11 convicts, who were sentenced in 2008 to a life term for the Bilkis Bano gang-rape and murder of seven members of the survivor’s family, but walked out of jail last week after the Gujarat government cleared their early release under the state’s 1992 remission policy.
“We will look into the matter and list it,” Chief Justice of India NV Ramana told senior counsel Kapil Sibal and advocate Aparna Bhat, who sought hearing of the plea that challenges the validity of the Gujarat government’s decision and exercise of discretion in favour of convicts in a “gruesome” and “heinous” case.
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Bhat requested the CJI to list the petition on Wednesday. To this, CJI Ramana asked if the convicts were granted remission by virtue of a Supreme Court order. Sibal replied that the Supreme Court merely directed the state to consider their application in accordance with the law.
“The Supreme Court gave a direction to the government to consider it. The bench was of Justice Ajay Rastogi. We are challenging the remission, not the court order,” added Sibal, following which the CJI agreed to consider urgently list the matter.
The petition, questioning the remission granted to the 11 convicts, has been filed jointly by former CPI MP Subhashini Ali, journalist Revati Laul and professor Roop Rekha Verma.
TMC MP Mahua Moitra has also separately filed a petition in the top court against the remission , saying their release completely fails to bolster either social or human justice and does not constitute a valid exercise of the guided discretionary power of the state. This plea, however, is yet to be mentioned for urgent listing.
The 11 men were released on August 15 after one of them, Radheshyam Shah, approached the Supreme Court in April seeking remission, arguing that they had spent over 15 years in prison in the case. In May, the top court directed the state government to consider their plea in accordance with the 1992 policy – the one which was prevalent on the date of their conviction. While the latest remission policy of 2014 prohibits early release of rape convicts, no such restrictions were there in the 1992 policy.
Bano was 21 years old, and five months pregnant when she was gang-raped while fleeing the violence during the 2002 riots, and her three-year-old daughter was one of the seven people killed.
Two days after their release, Bano released a statement through her lawyer, saying the latest development has shaken her faith in justice. She urged the Gujarat government to “undo this harm” and give her back the “right to live without fear and in peace”.
The petition, attacking the legality of the remission order, pointed out that since the case was investigated by a central agency, CBI, it was imperative for the state government to consult and take approval of the Union government before deciding in favor of the early release of the convicts.
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“The grant of remission solely by the competent authority of State of Gujarat, without any consultation with the Central Government, is impermissible in terms of the mandate of Section 435 of the Code of Criminal Procedure, 1973,” argued the plea, filed through Bhat.
Section 435 of CrPC lays down that a state government can exercise its power of remission in cases investigated by CBI only after consultation with the Centre. In Union of India Vs Sriharan @ Murugan & Ors (2015), the Supreme Court ruled that “the opinion of the central government must have a decisive status” in cases investigated and prosecuted by CBI.
“In cases where the investigation was conducted by the CBI or any such central investigating agency, the central government would be better equipped and likely to be more correct in its view. Considering the context of the provision (Section 435), in our view, comparatively greater weight ought to be attached to the opinion of the central government, which through CBI or other central investigating agency was in-charge of the investigation and had complete carriage of the proceedings,” the 2015 judgment held.
The petition further highlighted the special remission policy announced by the Union home ministry in June to decongest jails as part of the Azadi Ka Amrit Mahotsav (75 years of Independence) celebrations, highlighting that it excludes rape convicts and those sentenced to imprisonment for life from the benefit of pre-mature release.
“Accordingly, it would appear that the Respondent No.2 (MHA) endorses a policy decision qua non-grant of remission to persons similarly situated as the 11 convicts, and therefore it would not have granted permission to the State of Gujarat to remit the sentences of the 11 convicts, had it been consulted in the present matter,” contended the plea.
It is not clear whether the home ministry was approached by the Gujarat government before the release.
Citing the “gruesome” facts recorded by the trial court and the Bombay high court while sentencing the convicts, the plea said that “it would be entirely against public interest and would shock the collective public conscience, as also be entirely against the interests of the victim (whose family has publicly made statements worrying for her safety) to grant remission in such a case.”
It added that in a case of such a grave nature, no right-thinking authority, under any extant policy, could consider it fit to grant remission to the convicts.
“It is further submitted that it would appear that the constitution of members of the competent authority of the Gujarat government also bore allegiance to a political party, and also were sitting MLAs. As such, it would appear that the competent authority was not an authority that was entirely independent, and one that could independently apply its mind to the facts at hand,” stated the plea, questioning the composition of the board to consider remission.
“The petitioners have preferred the present petition under Article 32 of the Constitution of India, seeking production of the order granting remission, setting aside of such order, and directing immediate re-arrest of the convicts so released,” it pleaded.
A special CBI (Central Bureau of Investigation) court in Mumbai had on January 21, 2008, sentenced the 11 accused to life imprisonment on the charges of gang rape and murder of seven members of Bilkis Bano’s family. Their conviction was later upheld by the Bombay High Court in 2017.
