Bilkis Bano case | Does Gujarat have uniform policy: SC on release of convicts

Bilkis was gangraped and her three-year-old daughter was among 14 people killed by a mob on March 3, 2002, in Limkheda taluka of Dahod district, during the Gujarat riots. Bilkis was pregnant at the time. The 11 convicts in the case were granted remission by the Gujarat government and released on August 15 last year.

Advocate Rishi Malhotra, who appeared for one of the convicted men, said he agreed with the Bench on prisoners languishing in jails, but added that as far as these 11 men were concerned, the state had “filed a very detailed counter affidavit”.

“…What transpires from it is that the state has an advisory board (jail advisory committee) and majority of the members, which include judges to superintendent of police to social workers, said they (should) be released, and this was further ratified by a District Judge in Gujarat… And they had good behaviour in prison. That’s what the report has found. Fifteen-and-a-half (years) actual (imprisonment) they have undergone. Fourteen years is the (1992 remission) policy… It’s only when they got released pursuant to this court’s direction that all hue and cry happened,” he said.

Malhotra was referring to the May 13, 2022 ruling of the SC when a two-judge Bench said that although the trial took place in Maharashtra, the Gujarat government would be the appropriate authority to decide on the request for premature release, based on the state’s 1992 remission policy.

Advocate Shobha Gupta, appearing for Bilkis, told the Bench, also comprising Justice B V Nagarathna, that Gujarat does not have the jurisdiction. She said the language of the law is clear, that it is the state where the trial is held, which in this case was Maharashtra, which can decide the remission.

She said the victim’s views should also have been sought, and referred to judgments that said the effect of the crime on the society at large must be considered. She said 14 people were killed and there was gangrape too.

Advocate Vrinda Grover, appearing for some of the petitioners, said the judge of the local court in Mumbai, where the trial was transferred by the SC, had said this was not a fit case for remission. The CBI too had opposed it, she said. The central government had merely endorsed the state’s view, she contended. “It was a common order with one line, we agree,” she said.

Grover said a fine of Rs 34,000 was imposed on the convicts, and failure to pay would lead to 34 more years in prison. “It is undisputed that the fine has not been paid to the petitioner (Bilkis). In default, they have to serve 34 years more. That has not been served,” she said.

The Bench asked if the convicts had any prior criminal record, to which the counsel for petitioners said there was a molestation case which was “ignored”. The Bench reiterated that it was asking about their previous criminal record, to which the counsel said “we would not know” and “only the state can say”.

The court is seized of six petitions in the case – besides Bilkis, the others have been filed by CPI(M) leader Subhashini Ali and others. Malhotra said five of the petitions will have to go as they are PILs filed by political leaders, social activists etc, and lack locus standi in the case.

He said the petitioners were making more of an emotional plea than a legal plea. The Bench then responded: “Obviously, we are not going to go by emotions. That’s the last thing we are going to do”.

On the argument that Gujarat had no jurisdiction to decide the remission, Malhotra said: “This was a trial where everything happened in State ‘A’. Only in exceptional circumstances, because of the hue and cry,… it was transferred to State ‘B’, just for disposal. Therefore the two-judge Bench said in the May 13, 2022 order that it was only for special purposes that the trial was transferred to Mumbai…”

Referring to the May 13 order, Justice Joseph asked: “The court, even if it’s the Supreme Court, in a case where palpably it is found that it doesn’t have jurisdiction, we are not saying that is the case here, assume for a moment, then can the court give a direction…whether it will cloak the body with the power.”

Malhotra responded that the solution lay in the Constitution Bench judgment which says that an order of the court cannot be challenged by a writ petition. Stating that even the review petition filed against the May 13 ruling had been dismissed, he said it cannot be recalled or reversed by a writ petition and the only way was to file a curative petition. The petitioners, he said, were however trying to challenge the May 13 order by filing writ petitions.

Responding to a specific query from the Bench, Additional Solicitor General S V Raju, who appeared for the Centre, said the state had sought the Centre’s approval for the release of the convicts.

Senior Advocate A M Singhvi, who appeared for some of the petitioners, said: “Weight has to be given to the opinion of the judge who convicted… but it was not given weight at all”. He said there was also the question of “post-release conduct” of the convicts. “There were death threats which are sought to be brushed aside by the investigative agencies locally,” he said, adding that it is a “serious matter that requires consideration at the earliest”.

Responding to Malhotra’s objection that the other petitioners had no locus standi, Senior Advocate Kapil Sibal, who appeared for some of these petitioners, said: “It is not a criminal prosecution that we are seeking. We are coming in public interest to say that the grounds on the basis of which remission had been granted are alien to the statute, purely discretionary, based on no material, not considered the gravity of the offence and hence a PIL will lie in these circumstances”.

He said the court will have to lay down “what are the contours of discretion in the grant of remission”.

Issuing notice to the Centre, Gujarat government and the convicts, the Bench posted the matter for further hearing on April 18.