4 min readNew DelhiSep 15, 2023 04:51 AM IST
First published on: Sep 14, 2023 at 08:24 PM IST
There are some convicts who are “privileged as opposed to others”, the Supreme Court said on Thursday while hearing pleas challenging the grant of remissions to 11 convicts in the Bilkis Bano gangrape case.
“…in this case they (Bilkis Bano case convicts) had the privilege of coming out for days together. Several days, several times,” Justice B V Nagarathna, who was presiding over a two-judge Bench hearing the appeals, said.
The Bench, also comprising Justice Ujjal Bhuyan, was hearing arguments by senior advocate Siddharth Luthra who appeared for one of the convicts.
The court’s observation came as Luthra pointed out that life in jail is a “completely cut-off” one. “It’s a completely cut-off life. You are away… you have no sources.”
The senior counsel said the time granted out of jail was during the Covid-19 pandemic period. “It was Covid time. I will show that,” said Luthra.
“There are some convicts who are privileged as opposed to others, that’s the point we want to make,” said Justice Nagarathna.
Advocate Luthra said, “But the point I seek to clarify is that every convict…”. Before he could complete, Justice Nagarathna added, “…is not the same”.
“Every convict is not the same and every convict must be looked at with the outlook of reformation, with a liberal approach. Therefore, the individual circumstances of the convicts need to be looked at. We can’t just tar them with the same brush,” submitted Luthra.
The petitioners had argued that the convicts had not paid the fine imposed on them before being granted remission and this should be read against them.
Luthra, however, said “the question of when the fine was paid is not a consideration because the other side of argument is they should have undergone the complete period of sentence before something could have been done for them. That is to say non-payment of fine is fatal”.
He said, “My submission is not fatal to the remission order because what is being reduced is the substantive sentence. The sentence in default of fine is not the subject matter of remission. It cannot be because it stands on a different footing.”
“Therefore, the fact that it was not paid or was paid when the matter was sub judice will have no impact on the merit or legality of the order which has been passed reducing the sentence,” Luthra said.
Justice Bhuyan asked whether the convict not paying the fine will not come within the meaning of conduct of the convict.
Luthra explained that after 15 years in custody, there has to be an inability to pay it. “It’s not a short time. In 15 years of custody… your family bonds are gone.”
The senior counsel submitted that it is not a case where people have gone scot-free. “The law has taken its course… the question is when will the punishment at all end… Should the executive not have the power (to grant remission)… or should these people be deprived of liberty on considerations which are not germane to the executive arrangement that existed at that time,” he asked.
The hearing will resume on September 20.
Bano was gangraped and her three-year-old daughter was among 14 people killed by a mob on March 3, 2002, during riots in Limkheda taluka of Gujarat’s Dahod district. Bilkis was pregnant at the time. All 11 convicts in the case were granted remission by Gujarat government and released on August 15, 2022.
Bilkis Bano with her husband Yakub Rasool. (Express Photo by Prem Nath Pandey) 
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