Will hear Bilkis plea on release of 11 convicts: SC

Justice Ajay Rastogi, heading a two-judge bench, observed that the issue of locus (legal standing) of petitioners in approaching the court by filing PILs may not arise after Bano has filed a petition against the grant of remission.

New Delhi The public interest litigations (PILs) challenging the Gujarat government’s decision to grant remission to 11 people convicted for gang-raping Bilkis Bano and murdering her family members during the 2002 Gujarat riots cannot be rejected at the threshold on the grounds of maintainability after the victim herself approached the court, the Supreme Court said on Wednesday.

Justice Bela M Trivedi, who recused herself from the case when it was last taken up on December 15, 2022, again expressed her indisposition to hear the matter. The issue will now be taken up by a different combination of justice Rastogi and one other judge. (PTI)

Justice Ajay Rastogi, heading a two-judge bench, observed that the issue of locus (legal standing) of petitioners in approaching the court by filing PILs may not arise after Bano has filed a petition against the grant of remission.

“Once there is a plea by the victim, then point of locus goes,” said justice Rastogi, after a lawyer for some of the convicts raised objections to the maintainability of PILs in a criminal case.

The other judge on the bench, justice Bela M Trivedi, who recused herself from the case when it was last taken up on December 15, 2022, again expressed her indisposition to hear the matter. The issue will now be taken up by a different combination of justice Rastogi and one other judge.

The bench was hearing PILs filed by former CPI MP Subhashini Ali, journalist Revati Laul, professor Roop Rekha Verma, and TMC MP Mahua Moitra, among others, when the convicts’ lawyer contended that the petitioners had no locus in this criminal case since they were neither victims nor complainants, or even witnesses.

Responding, senior counsel Abhishek Manu Singhvi and advocates Vrinda Grover and Aparna Bhat, appearing for some of the petitioners, submitted that much water has flown down the bridge since the court issued notice in August, and that the convicts cannot demand dismissal of the petitions on such a technical ground. They pointed out that after the Gujarat government and convicts have filed their counter-affidavits and the petitioners have also responded, a fixed date should be assigned for finally hearing the matter.

To this, the convicts’ lawyer replied: “These petitions have to go.”

But justice Rastogi retorted: “Why should it go? All the petitions can be heard with the main petition filed by the complainant... Address us on merits.”

Justice Rastogi asked the lawyers if Bano’s petition was also listed along with the other pleas. “Now that the victim is here, we will take that at as the lead matter in this batch,” added the judge.

Bano’s lawyer, Shobha Gupta, pointed out that her petition is not listed before the bench since the other member on the bench, justice Trivedi, had on December 15 recused from hearing this matter. At this point, justice Trivedi conveyed her indisposition to hear the present batch of PILs as well.

Justice Rastogi then said that since the fellow judge has recused from hearing the matter, it would have to come up before a different combination. “Since my sister wants to recuse, we cannot pass a tagging order. When a different bench will sit, then address us on this and we will tag it.” The case was then adjourned with a brief order for listing it before a bench of which justice Trivedi is not a part.

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 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. By an order in May, a bench led by justice Rastogi, directed the state government to consider the convicts’ plea for premature release in accordance with the 1992 policy – the one prevalent on the date of their conviction. While the existing remission policy of 2014 of the Gujarat government prohibits early release of rape convicts, no such restrictions were there in the 1992 policy.

Subsequently, a batch of PILs led by Ali was moved before the top court, emphasising that the crime was horrific and the convicts should have never been entitled to premature release in the public interest.

Replying to these petitions, the Gujarat government filed its affidavit on October 17, and disclosed that the Union ministry of home affairs had also approved the early release of the convicts while the state took into account their “good behaviour” as a key reason to grant remission.

The affidavit revealed that remission was granted in August despite objections from the trial court judge who convicted the 11 men, and the Central Bureau of Investigation, which investigated and prosecuted the case in Mumbai following the 2004 apex court order shifting the trial outside Gujarat.

Later, in the last week of November, Bano approached the Supreme Court against the Gujarat government’s decision to allow the 11 men, sentenced to life in 2008, to walk out of jail.

Through two separate petitions, Bano also sought a review of the Supreme Court’s May order asking the state government to consider the convicts’ plea for premature release in accordance with the 1992 policy.

While Bano’s challenge to the grant of remission remains pending, the review petition was rejected by a bench comprising justices Rastogi and Vikram Nath on December 15. “In our opinion, there appears no error apparent on the face of record, which may call for review of the judgment dated May 13, 2022,” the bench said in its order.