No ‘vested interest’ in ordering early release of Bilkis case convicts: Gujarat

Each of the 11 convicts was held guilty by a trial court in Mumbai in January 2008 for three gang-rapes.

NEW DELHI: The Gujarat government told the Supreme Court on Thursday that it had no vested interest in ordering the early release of 11 life convicts in the Bilkis Bano gang-rape case last year, even as the petitioners argued that the release was “illegal” as it ignored a trial court order directing the convicts to undergo a default sentence of two years for not paying a fine of ₹2,000.

Supreme Court has dismissed a review petition filed by the 2002 Gujarat riots survivor Bilkis Bano, seeking a review of its May 2022 order (AP Photo)

Each of the 11 convicts was held guilty by a trial court in Mumbai in January 2008 for three gang-rapes, including that of Bilkis, and 14 murders committed by them during the 2002 Gujarat riots. With none of the convicts having deposited the requisite fine, admitted even in the state’s checklist prepared at the time of remission, the petitioners said there was no way they could come out without serving the default sentence of 34 years (two years each for 17 crimes) and termed the state’s decision to be “direct interference with a judicial order”.

The petitioners comprising Trinamool Congress MP Mahua Moitra and former CPI MP Subhashini Ali, among others, questioned the release claiming that the crime was of such a nature that the convicts deserved no leniency. They stated that this was not a criminal matter but an executive order under challenge and the convicts could not object to the PILs (public interest litigation) as the fundamental right to a fair trial would not be available to them once the conviction has attained finality.

The bench said, “There may not be any fundamental right but there exists a constitutional right and a statutory right. The purpose is to see that the convict reintegrates into society.”

Advocate Nizam Pasha, appearing for a woman rights body, argued that the state government has been “consistently favouring” the convicts, to which the bench said that the occasion did not arise as the trial of the case was shifted out of the state to Mumbai. Pasha said, “The case was rightly transferred out as there was total failure of the state to grant justice to the victims. With the initiation and grant of remission, the matter has travelled back to the same state which has consistently favoured the convicts.”

The state represented by advocate Swati Ghildiyal objected by saying, “We have no vested interest in this case. It came to be decided after a bench headed by justice Ajay Rastogi (since retired) directed us to do so.” She referred to a decision of May 13, 2022 by a bench of justices Rastogi and Vikram Nath directing the state to decide the remission plea of a convict – Radheshyam Bhagwandas Shah – in the Bilkis case. This decision later became the reason for the state to consider remission for the other 10 convicts as well under a 1992 policy that was in force on the date of their conviction.

Arguing for another PIL petitioner, advocate Vrinda Grover said, “The entire remission is ex-facie illegal as they had to serve 34 years in default sentence. The state government had to see if they have completed the sentence as this amounts to direct interference with a judicial order.”

In a case of life sentence, the court asked at what point of time is the default sentence to operate. Grover cited judicial decisions to show a remission order does not operate against the default sentence and in case of life convicts, the default sentence will arise when they become eligible for premature release on completion of 14 years of jail term.

In the present case, Grover said the checklist prepared by the jail advisory committee recorded the fact that none of the 11 convicts had paid the fine but wrongly calculated the period of default sentence as six years. This fine was directed to be paid to the victim Bilkis Bano by the Bombay high court while deciding the appeals against conviction in 2017.

Senior advocate Indira Jaising, appearing for Moitra, said the state government has a mandate to preserve the rule of law by protecting the rights of women and children. In a case of this nature where the crimes took place in an environment of sectarian and communal violence, Jaising said that the remission ought to have been considered in this context.

The bench told the petitioners that it had already heard the victim (Bilkis) on the issue of remission and wondered why the PILs should be entertained on the same issue. Advocate Aparna Bhatt, appearing for Ali, reminded the court that the Gujarat riots were a sensitive matter where the court monitored the trials and directed a probe by a special investigation team on a petition filed by the national human rights commission.

Jaising told the court that the Constitution casts a fundamental duty on every citizen to renounce practices derogatory of women and promote communal harmony. She said, “A public authority has acted capriciously and I am here to uphold the rule of law.”