Four days prior to the date of surrender, all eleven convicts of the convicts had moved the Supreme Court and filed applications seeking extension of four to six weeks to surrender before the jail authorities. The reasons cited in these applications vary from marriage of kin, harvesting winter produce, getting surgeries, taking care of old parents and ill health.

On January 19, after considering the applications one by one, the bench dismissed the said applications while holding that the reasons cited by the applicants lacked merit. In the order, the bench stated, “We have heard learned senior counsel and counsel for the applicants and the counsel for the non-applicants also. The reasons cited by applicants to seek postponement of surrender and report back to jail have no merit inasmuch as those reasons in no way prevent them from complying with our directions. Hence the MAs are dismissed. Pending applications if any also stands disposed.”

The filing of the applications:

On January 18, the said applications were filed in the Supreme Court. Pursuant to the filing of the application by the convicts, the Supreme Court bench of Justice Nagarathna agreed to take up the said petitions. As the applications were mentioned before her by Senior Advocate V Chitambaresh, she directed the Registry to get the orders of Chief Justice of India D Y Chandrachud to reconstitute the bench which had heard the case as while the judgment in the Bilkis Bano case had been delivered by bench of Justices Nagarathna and Ujjal Bhuyan, she sits with Justice Sanjay Karol on Thursday.

The aforementioned applications moved by the convicts came as no surprise. Since the pronouncement of judgement, the question whether the convicts, who had been garlanded on their release from jail, will actually surrender or not had loomed in the air. Two days post the pronouncement, multiple print media reports had reported that at least nine out of the eleven convicts in the Bilkis Bano gang rape case were ‘missing’. “You won’t find them now. All of them locked their houses and left” was stated by the local villagers and shopkeeper in regards to the convicts being missing from their houses one day after the judgment, as per a report of Financial Express. These locals also attested to seeing the convicts till the Supreme Court judgement quashing the remission was delivered.

According to a report in the Indian Express, published one day after the judgment, Akhambhai Chaturbhai Raval (aged 87), father of convict Govind Nai (aged 55), had blamed the conviction on “political vendetta of Congress” while informing that Govind had left his house “a week ago”.

A report in the Financial Express also provided that another convict, namely Radheshyam Shah, had not been home “since the last 15 months”. The father of the convict had claimed that he “doesn’t know where Radheshyam is… he went with his wife and son”, even as neighbours and shopkeepers at the village square had attest that nearly all the convicts were publicly seen until Sunday, including Radheshyam.

The reasons behind application for extension of surrender:

A total of eleven applications have been filed before the Supreme Court in view of the impending deadline. It is crucial to note here that these convicts have been out of jail since August 15, giving them a period of 5 months to have made all the necessary arrangements. Even after the pronouncement of judgment quashing the remission and ordering for the surrender, a period of two weeks had been granted to the convicts. The reasons cited behind the demand for extension is as follows:

1. Medical conditions, aged parents, family responsibilities:

Medical ailments and responsibility of family and aged parents was the most common reason cited by the convicts for grant of stay. As per a report of the LiveLaw, convict Govindhbhai Nai has sought an extension of four weeks to surrender before the jail authorities, citing his responsibility as a sole caretaker of aged parents with health issues as well as his two children. He also cited his medical conditions like asthma and haemorrhoids as reasons for the grant of extension to surrender.

Convict Radheshyam Bhagwandas Shah has asked for a grant of six weeks of extension through his application based on his responsibility to look after his aged parents with health issues along with his wife and 21-year-old son and making financial arrangements before surrendering. Notably, it was convict Radheshyam who had moved the Supreme Court through a writ petition in 2022 to demand that the Gujarat government be directed to consider his application for remission of his sentence based on the government’s 1992 remission policy. Justice Nagarathna had rebuked him as well as the Gujarat government for playing “an act of fraud” and having “abused the process of law” in obtaining remission.

Similar reasons to that of convict Radheshyam were also given by convict Rajubhai Babulal Soni while demanding an extension of six weeks. As per the LiveLaw report, Rajubhai’s reasons were that he needs to look after his aged mother with health issues, wife and two sons, and has to make financial arrangements before surrendering.

Convict Bipinchand Kaniyalal Joshi also sought an extension in surrender for six weeks owing to leg surgery which had to lead to partial handicap. He also provided that he looks after his brother and his wife who is battling cancer. Lung surgery was also a reason cited by another convict, namely Pradip Ramanlal Modhiya, for demanding a stay of four weeks. In his application, he also cites the recent death of his wife.

2. Marriage, harvest season:

At least three of the convicts provided their son’s marriage as the reason for request of extension of period of surrender. As per the LiveLaw report, convicts Shaileshbhai Chimanlal Bhatt, Kesharbhai Khimabhai Vohania and Ramesh Rupabhai Chandana had their son’s marriages coming up. Surprisingly, one of the common reasons cited by the convicts is the upcoming harvest season. Ramesh Rupabhai Chandana also cited heart ailment, upcoming harvest season, and looking after aged and ailing mother as his reason for demanding an extension for six weeks. Convict Jaswantbhai Chaturbhai Nai requested an additional six weeks due to the upcoming harvest season. He provided in his application that his entire family is dependent on agricultural income. Following suit, Mitesh Chimanlal Bhatt had urged for an extension by six weeks due to the upcoming harvest season and his son’s surgery.

Did these reasons warrant any extension?

Since the beginning of this case, even after having received a conviction by court in 2008, these eleven convicts have received a VIP treatment. From seamlessly receiving multiple furloughs and paroles during the 14 years of their imprisonment to being granted remission on 2022 Independence Day, these convicts have enjoyed favourable treatment from the state. The applications filed on the basis of the aforementioned reasons by convicted gang rapists and murderers were not only hilarious but also ironical in view of the current repression that the State has employed against mere under trials and political prisoners.

While the eleven convicted continue to waste the courts time, one should not forget the plight of those languishing in jail in matters where trials have not even started. One should not forget Father Stan Swamy, arrested at the age of 83 in 2020 in the Bhima Koregaon violence case while suffering from Parkinson’s disease, who died as an under trial prisoner after spending 270 days in jail. Even after more than 5 years, the trial is yet to start in this case. In the same case, activist Shoma Sen’s regular bail petition remains pending in the Bombay High Court. In December 2023, an urgent medical bail petition had been moved by Sen in the Bombay High Court, which is yet to be heard.

Under trial JNU scholar and activist Umar Khalid, languishing in jail since more than 3 years in connection with the larger conspiracy of Delhi riot 2020 case had only been granted a week’s parole in December 2022 when his sister was getting married.

Only last year, in the month of October, Delhi Police had arrested NewsClick founder and editor-in-chief Prabir Purkayastha, aged 75, and its HR head Amit Chakravarty, who is physically disabled, under its anti-terrorism law. Their regular bail petitions and medical bail petitions remain pending in the Supreme Court.

These eleven convicted, most of whom are in the 50-60 years old category, are citing their old age as the reason for extension of period for surrender while G.N. Saibaba, a 90% physically disabled man who uses a wheelchair and was infected twice with Covid-19, once with swine flu, and diagnosed with severe ailments in his eight years of incarceration in Nagpur central jail, is yet to step out of jail.

These aforementioned few examples show the contrasting situations. Thus, one can say that while their applications and reasons for extension grant no warrant for extension, as was held by Justice Nagarathna, even having their applications filed and heard within one day is a privilege that is not extended to most today. 

Related:

UP government fails to appeal against Hathras gang rape judgment acquitting 3 accused – are we surprised?

Bilkis Bano vindicated!

Justice once more for Bilkis Bano, but what now lies ahead?

Bilkis Bano speaks: First person account, Godhra Relief Camp, March 2002

Bilkis Bano Case: Supreme Court strikes down remission for gang rape and murder convicts, citing flagrant violation of rule of law

The post Bilkis Bano Case: Applications for extension to surrender to jail authorities by eleven convicted dismissed by SC appeared first on SabrangIndia.

In a landmark judgment, the bench of Justice B.V. Nagarathna and Justice Ujjal Bhuyan held that the eleven convicts (who were given remission) have to report back to the jail authorities within two weeks and have to continue to remain in jail. The bench clearly stated that the Gujarat government was not empowered to pass the remission order, since the appropriate government entitled to pass orders of remission was the government of the State where the trial had taken place; in this particular case, it was the Government of Maharashtra and not that of Gujarat, which was the competent authority, to even consider remission

The 251-pages judgment, is bound to have wide ranging repercussions; a key para states, “On competence of Gujarat government to pass remission orders, it is apparent that appropriate government had to take permission of the court before passing remission orders. This means that place of occurrence or place of imprisonment of convicts are not relevant for remission. The definition of appropriate government is otherwise. The intention of the government is that the State under whom the convict was tried and sentenced was the appropriate government. This places emphasis on the place of trial and rather than where the crime took place,”

The judges also came down heavily on the Gujarat Government: stating that it was complicit in the crime for not filing a review plea against the May 2022 judgment and instead acting in tandem with the convicts and usurping the Maharashtra government’s jurisdiction to grant remission to convicts. “It was the State of Maharashtra who could have only passed the remission orders respondent no 3 surreptitiously filed the plea before the Supreme Court. Taking advantage of May 13, 2022 order of this Court, other convicts also filed remission applications and the Gujarat government passed remission orders…Gujarat was complicit and acted in tandem with respondent no. 3 in this case. This Court was misled by suppressing facts. Use of power by Gujarat was only a usurpation of power by the State,”

In great detail, the judgement clearly exposed all the fraudulent tactics the convicts used, as well as how Gujarat’s government acted in tandem with them, in securing their un-merited and premature release from prison via reduction of sentences through a sham process of remission, albeit under the erroneous directions from the Supreme Court itself. The Court also came down strongly on one of the convicts, Radhyesham, for playing fraud upon the Court by suppressing material facts and getting a favourable order from the top court in May 2022 which eventually led to the release of all the eleven convicts. It unequivocally stated that the May 2022 judgment was obtained by fraud and therefore not good in law.

In order to understand a bit of what Bilkis has been going through, it is important to revisit that horrendous tragedy of almost twenty -two years ago. Following the burning of the S-6 compartment and tragic death of 59 persons (mainly ‘kar sevaks’) on 27 February 2002, all hell broke loose, the next day, in several parts of Gujarat. Sensing trouble, a group of seventeen persons fled their native village of Randhikpur in Dahod district. The group consisted of Bilkis, her three-year-old daughter Saleha, her mother and fourteen others. They took refuge in another village Chhaparvad hoping they would be safe there. On March 3, however, they were attacked by about 20-30 people armed with sickles, swords, and sticks. Among the attackers were the eleven accused men (those currently on remission). Bilkis, her mother, and three other women were raped and brutally assaulted. Of the seventeen Muslims, eight were found dead, six were missing. Only Bilkis, a man, and a three-year-old child survived the attack. Bilkis was unconscious for at least three hours; after she regained consciousness, she borrowed some clothes from an Adivasi woman made her way to the Limkheda police station to register a complaint. The Head Constable there, according to the CBI, “suppressed material facts and wrote a distorted and truncated version of Bilkis’ complaint”.

Since then, Bilkis has relived the horror of that tragedy several times, as she unwaveringly, but with great pain, narrates the brutality that she was subject to. She says, “All the 4 men of my family were killed brutally. The women were stripped naked and raped by many men. They caught me top. My 3-year-old daughter, Saleha, was in my arms. They snatched her and threw her into the air with all their might. My heart broke as her little head shattered on the rocks. Four men caught me by the arms and legs and many others entered me one by one. When satisfying their lust, they kicked me and beat my head with a rod. Assuming that I was dead they threw me into the bushes. Four or five hours later I regained my consciousness. I searched for some rags to cover my body, but couldn’t find any. I spent a day and a half on a hilltop without food or water. I longed for death. Finally, I managed to find a tribal colony. Declaring myself as a Hindu I sought shelter there. The men who attacked us used foul language; I can’t repeat it ever. In front of me they killed my mother, sister and 12 other relatives. While raping and killing us, they were shouting sexual abuses. I could not even tell them that I was five months pregnant because their feet were on my mouth and neck. I have known the men who raped me for many years. We sold them milk. They were our customers. If they had any shame, they would not have done this to me. How can I forgive them?”

Any lesser mortal would have given up; but not Bilkis Bano! With her husband Yakub Rasool (who was away from home when home when violence broke out) who has stood by her side, through thick and thin, she has been able to weather all storms! At first, Bilkis could hardly open her mouth. With the help of some concerned citizens, she slowly regained her confidence and realised that she was the key witness in bringing the perpetrators of this heinous crime to book. She plucked up courage and began a painful struggle for truth and justice.  She knew who the murderers and the rapists were, and she courageously identified them. The journey all along was fraught with obstacles and hostilities; threats and intimidation. The Gujarat Government, with Narendra Modi at the helm, was obviously supportive of the criminals who raped her and killed her family members. The FIR was manipulated; the medical reports and post-mortem of the bodies omitted significant details; evidence was destroyed, since all the dead were buried by the police themselves; the body of her three-year-old disappeared. The prosecution sided with the accused; the lower court which heard her case upheld all the falsehood and the lies. The case was finally closed!

Bilkis however, persisted; her pursuit for truth and justice was relentless. The then National Human Rights Commission (a far cry from the NHRC of today, which is totally spineless, which blatantly supports the crimes of the regime) received her petition and conducted its own independent inquiry and totally supported her case. She then appealed to the Supreme Court. In 2004, the case was reopened and referred to the CBI. Twelve of the twenty accused were arrested in 2004 and the trial began in Ahmedabad. However, after Bilkis expressed grave apprehensions that witnesses could be harmed and the evidence collected by the CBI tampered with, the Supreme Court transferred the case to Mumbai. Bilkis was the only direct eye-witness. She was constantly under threat.  For her own safety, she had to move from one place to another. In 2008, the Special Court sentenced eleven accused (one died during the trial) to life imprisonment on the charges of conspiring to rape a pregnant woman, murder and unlawful assembly under the Indian Penal Code. The police and the doctors who were accused of being complicit in fudging reports were exonerated; but in May 2017, on an appeal from the CBI, the Bombay High Court upheld the sentencing and also found the doctors and police guilty. One of the judges, Judge Salvi termed Bilkis’ “courageous deposition as the turning point in the case.” In 2019, the Supreme Court awarded compensation of Rs 50 lakh to Bilkis — the first such order in a case related to the 2002 riots. The bench of the then, Chief Justice of India Ranjan Gogoi, and Justices Deepak Gupta and Sanjiv Khanna stated, “It is very apparent that what should not have happened has happened and the state has to give compensation.” 

Sadly, on Independence Day 2022, the nation was in for a terrible shock when those who were imprisoned were set free by the Gujarat Government! The convicts set free were, Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana. The moment they came out of prison, the rapists and the murderers, were felicitated by the ‘hindutva’ brigade with ladoos and garlands. Significantly, the moment their remission order was received, they were out of the gates of the prison. (For human rights defenders and others illegally incarcerated, even after the release or bail order is received by the jail authorities, it takes hours and even several days, for them to come out of prison!) Besides, the convicts, all seemed to have enjoyed their ‘sentence’ – fatted, well-dressed and groomed. Most prisoners in India are certainly not as privileged as these henchmen of ‘hindutva’. It was back to square one for Bilkis, her kith and kin, for the many victim survivors of the Gujarat Carnage, for human rights defenders and others who have given up so much for these victim survivors) and for the many millions of others.

The world and all citizens who care for truth and justice, were outraged at the fact that the eleven criminals had their sentences remitted. For such a ghastly crime, this ‘remission’ is just not given! Officialdom tried to justify this act: with flimsy and unacceptable reasons. Social media went viral, with people from all walks of life coming together to express condemnation. Leading newspapers (nationally and internationally) had editorials and op-eds clearly taking a stand against this remission. Interestingly, even some of the ‘godified’ electronic media, named the RSS and the VHP in their reportage. Powerful statements of condemnation came in from eminent citizens, intellectuals, politicians, activists and others from across the board. The voice of all was loud and clear: this act is a blatant travesty of justice.

On August 17, 2022, Bilkis stated, “Two days ago on August 15, 2022 the trauma of the past 20 years washed over me again. When I heard that the 11 convicted men who devastated my family and my life, and took from me my 3-year-old daughter, had walked free, I was bereft of words. I am still numb. Today I can only say this- how can justice for any woman end like this? I trusted the highest courts in our land. I trusted the system, and I was learning slowly to live with my trauma. The release of these convicts has taken from me my peace and shaken my faith in justice. My sorrow and my wavering faith is not for myself alone but for every woman who is struggling for justice in courts. No one enquired about my safety and well-being, before taking such a big and unjust decision. I appeal to the Gujarat Government, please undo this harm. Give me back my right to live without fear and in peace. Please ensure that my family and I are kept safe.”

Fortunately, women stalwarts like CPI(M) leader and activist Subhashini Ali, former professor Roop Rekha Verma and journalist Revati Laul who took up cudgels on behalf of Bilkis. They jointly filed a petition in the Supreme Court challenging the Gujarat government’s remission and release order; others like TMC leader Mahua Moitra and former IPS officer Meeran Chadha also joined in. Besides there was a whole battery of committed and brilliant lawyers (mainly women) who were convinced that the cause of truth and justice had to triumph for Bilkis, for the women of India and ultimately, for the future of the country! For more than sixteen months, Bilkis waited patiently, till her vindication, with the path breaking verdict of 8 January 2024!

The convicts have to return to jail as per the Court order! That is clear! According to media reports, most of them have ‘vanished into thin air’; if they are not back in jail in two weeks, the Apex Court may have to charge and imprison those responsible for the remission order (including key people from the Gujarat and Central Governments)! On the question of sending the convicts back to the jail, the Court held that rule of law has to prevail over the liberty of the convicts. The Court stated, “Rule of law does not mean protection to a fortunate few. In ADM Jabalpur, Justice Khanna had said rule of law is the antithesis to arbitrariness. We hold justice cannot be done without adherence to the rule of law,”. Further stating, “We hold that deprivation of liberty to the respondents is justified. They have lost their right to liberty once they were convicted and imprisoned. if they want to seek remission in accordance with law then they have to be in jail. Rule law must prevail. Thus, all respondents are directed to report to jail authorities within two weeks,”

When the judgment was delivered, the Gujarat Government was on the eve of launching its vibrant tamasha at the expense of the tax-payer! MOUs of a mind-boggling amount were signed; the plain truth is that (and everybody knows it!) very little will actually materialise, as past evidence shows! Instead, the Gujarat Government, together with the other criminals in the Central Government, need to hang their heads down in shame! They have reached such abysmal depths that they are unable to stand up for a poor rural woman who has been gang-raped and who has witnessed the rape and murder of her kith and kin! The judgment where the Bilkis Bano case is concerned, is certainly a shot in the arm for all those who believe in truth and justice; it has delivered a body blow to criminals who are part of a fascist regime! Of course, they are certain to make every effort to look for ‘loop-holes’ in the judgment, in order to justify their criminal act and to see how best they can still keep their men out of prison!

In a powerful statement on hearing the path breaking verdict, Bilkis says, “today is truly the New Year for me. I have wept tears of relief. I have smiled for the first time in over a year and half. I have hugged my children. It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again. This is what justice feels like. I thank the honourable Supreme Court of India for giving me, my children and women everywhere, this vindication and hope in the promise of equal justice for all”

At this moment Bilkis Bano and all who believe in truth and justice, stand vindicated! Hopefully, it is new dawn, for we the people of India!

January 17, 2024

(The author is a human rights, justice, reconciliation & peace activist/writer)

The post Bilkis Bano vindicated! appeared first on SabrangIndia.

The January 8 order came on a batch of petitions challenging the release. Along with the writ petition filed by Bilkis Yakub Rasool (Bilkis Bano) in November 2022, several other petitions were also previously filed. These were by senior women politicians’ activists and journalists.

Citing the public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights, these petitions held their ground. The Supreme Court, primarily addressing Bilkis Bano’s petition, chose not to rule specifically on maintainability calling it an “academic” point.

The background

The brutality of communal violence experienced in February 2002 in Gujarat –a widespread and shocking impact for thousands –seminally changed the life of Bilkis Bano. Carrying her three year old daughter, Saleha, as she was fleeing for her life from the small town of Randhikpur where she had been born, a mob –many of whom she recognised – fell upon her and several others from her family including her mother and sister—smashed her child’s head and raped her and others. She was left only because she was unconscious, believed to be dead. Of the total lives lost which were 14, seven were Bilkis’ family alone; three other women were also raped before being killed.

Bilkis was one of the sole survivors and courageously fought—for 22 long years to obtain substantive justice. When the local police closed down her complaint, replete with details and filed an ‘A’ summary report (closure report) and this was shockingly accepted by the local magistrate, she, assisted by a band of activists and lawyers, approached the National Human Rights Commission (NHRC). In 2002, it was former Chief Justice JS Verma, who had led an intrepid investigation into the Gujarat 20002 carnage recommending an investigation by the Central Bureau of Investigation. By 2004, when the Supreme Court finally ordered a transfer of the trial to Mumbai, another for chief justice, Justice AS Anand was chairperson, NHRC.

Finally in 2008, a special CBI Court Judge, Judge UD Salvi convicted 11 persons for the mass targeted crimes, and their conviction was upheld by the Bombay High Court in 2017. Finally in 2019, the Supreme Court of India not only upheld this conviction but directed payment of Rs 50 lakhs in compensation, a suitable home/land to be provided by the state of Gujarat as reparation. She was also directed to be provided employment; however when she requested that her husband be employed instead since she was unlettered this direction remains unfulfilled.

Drama hit this case again in 2022. As the country was being made to “celebrate” Amrit Mahotsav –75 years of Independence from Brtish rule –on August 14, 2022, 11 of these convicts were released in celebratory fanfare by the Gujarat government, still ruled by the supremacist Bharatiya Janata Party (BJP). Ministers in the state government and officials of the ruling party garland and welcome these mass murderers and rapists in their midst.Outrage all over India follows with thousands participating in signature campaigns demanding a withdrawal/cancellation of the remission. By September 2022, that is within a month three prominent women file writ petitions challenging the remission. By November 2022, Bilkis Bando herself, represented by Advocate Shobha Gupta also approaches the Supreme Court. The matter is heard at length, the Solicitor General Tushar Mehta predictably represents the Gujarat government and on January 8, 2024, the Supreme Court delivers this verdict.

How did the remission orders come to be passed?

Having spent 14 year behind the bars, convict Radheshyam Shah, appeals for consideration of remission first with the State of Gujarat where it is ruled that the appropriate government would be the government of Maharashtra. At the time, the Maharashtra government is ruled by the Maharashtra Vikas Aghadi (MVA). Not approaching Maharashtra then, he challenges this finding of jurisdiction and approaches the Supreme Court on the question. During the hearings in April-May 2022, both he as convict and the Gujarat government as respondent conceal material facts from the Supreme Court – for instance the fact that the Judge who had tried the case and convicted these men, Judge UD Salvi had vehemently opposed the remission when duly consulted; the fact that the prosecuting agency, the CBI, too, when approached by on the issue as is due, also had strongly commented against remission. This concealment of facts led to the Supreme Court in May 2022 to deem the Gujarat government/administration as being the jurisdiction to deliver a response on remission. It is this sinister concealment by the Gujarat government before the Supreme Court has led to the present order of January 8, 2024 to state that “a fraud was committed on the Supreme Court” by the Gujarat government.^[1]

In a well -orchestrated move, around the same time, 10 other convicts also furnish remission pleas before the State of Gujarat, ostensibly, in compliance of Section 432 of the Code of Criminal Procedure (CrPC). And then, on August 15, 2022, during Independence Day celebrations, the Gujarat government duly delivers on this after accepting the remission applications for all 11 convicts who were sentenced to life imprisonment. The Gujarat government stated that they were granted early release in accordance with the 1992 policy, citing the ‘good conduct’ of the convicts while imprisoned. The convicts are all granted remission in reliance of the order dated August 10, 2022.

[[Later media investigations reveal –following the nationwide outrage that follows their release that these convicts –serving terms in Gujarat—had been granted obscene number of days of parole by the prison authorities rendering their incarceration a joke. Advocates Shobha Gupta and Vrinda Grover had argued that they had, in fact not served their sentence. ^[2]Also, that in the “Committee” appointed by the Gujarat government to consider the remission applications, three dominant members were office bearers of the ruling BJP! One of the convicts was even booked in 2020 for a gender violence case while on parole! ^[3]]]

Aptly aggrieved by this, Bilkis Yakub Rasool, being an unfortunate victim of the heinous crimes hereinabove narrated, filed the writ petition under Article 32 of the Constitution of India, seeking issuance of a writ, order or direction quashing the Orders dated August 10, 2022 passed by the State of Gujarat by which the convicts in Sessions Case No.634 of 2004, Mumbai were released prematurely.

The issues under discussion

The heart of the matter revolved around the sustainability of petitions, the power vested in the Gujarat government to provide remission, and the fundamental freedom of the convicts. The verdict ruled in favour of the petitioners on all these fronts.

The following points outline the issues in detail:

1. Whether the writ petition filed by the petitioner is maintainable?

Petitioner

• Grant of remission is an administrative function that involves the reduction or cancellation of a punishment. Administrative Orders, which pertain to decisions made by government agencies and officials, are subject to judicial review, allowing courts to assess their legality and fairness. Thus, the petition by Bilkis Bano should have concrete standing.

Respondents

• The remission order flows from a writ of mandamus by the Supreme Court. This writ cannot be challenged by filing a review petition and would require a curative petition.
• One of the learned counsel also highlighted that Bilkis Bano should have first approached the Gujarat High Court availing her right under Article 226 of the Constitution and approaching the Supreme Court should have been a last resort.

Judgement

• Discarding these objections, the Apex Court upheld the maintainability of the petition.
• The petition filed by the cannot be dismissed on the ground of availability of an alternative remedy under Article 226 of the Constitution or on the ground of its maintainability under Article 32 of the Constitution before the Supreme Court.
• One more compelling justification for supporting the viability of the petition was that Radheshyam Shah, one of the offenders, had filed an Article 32 plea with the Supreme Court asking the Gujarat government to review his remission. On May 13, 2022, the Supreme Court instructed the Gujarat government to evaluate remission under the 1992 Gujarat Policy. However, the Gujarat government was incompetent to address the petition given that it falls out of its jurisdiction. Crucial facts were also concealed from the Supreme Court at the time. The maintainability of Bano’s petition also clarifies this.

2. Whether the writ petition filed as a PIL challenging the order of a remission is maintainable?

Petitioner

• Pained by the order of remission, following petitioners

o   In Petition (Crl.) No.352 of 2022, Dr. Meeran Chadha Borwankar, a former woman police officer, an ex-Indian Foreign Service bureaucrat, and an academic seek to set aside the remission Orders.

o   Subhashini Ali, a former parliamentarian, Revati Laul, an independent journalist, and Roop Rekha Verma, former Vice-Chancellor of Lucknow University, collectively file Writ Petition (Crl.) No.319 of 2022 challenging the same Orders.

o   Mahua Moitra, Member of Parliament from Krishnanagar constituency, West Bengal, files Writ Petition (Crl.) No.326 of 2022.

o   Writ Petition (Crl.) No.403 of 2022 is filed by the National Federation of Indian Women (NFIW), a women-centric organization, seeking a mandamus to revoke remission granted to respondent Nos.3 to 13

o   Asma Shafique Shaikh, a lawyer and social activist, files Writ Petition (Crl.) No.422 of 2022 seeking to quash the Orders dated 10.08.2022.

• The claim largely relied on public interest, safety of the society, the future consequences of the remission order, and a protection of women’s rights.

Respondent

• It was also contended that the petitioners who have filed the public interest litigation are interlopers and busybodies and are not persons who are aggrieved.
• Remission is an affair between the state and the convict, hence, there should be no third-party influence and they retain no locus standi.
• Such interferences would unsettle the position of law and open floodgates of litigation involving “un-aggrieved party”

Judgement

• The judgement held that the merits of the remission orders were considered under the petition by Bano. It stated that the maintainability of PILs was an “academic” discussion which need not be answered in the present case.^[4]

3. Whether the Gujarat Government was competent to pass the order of remission?

Petitioner

• Definition of the expression ‘appropriate government’ finds meaning in sub-section 7 of section 432 of CrPC
• The state in which the offender has been sentenced is competent to consider an application of remission. This means that the place of the occurrence of the incident or the place of the imprisonment is irrelevant and similarly they have been excluded from the definition in Section.
• In the present case where there was a transfer of the trial form Gujarat to Maharashtra, the transfer becomes relevant in deciding the State competent to review remission.
• Additionally, the viewpoint of the presiding judge in the convicting court is pivotal when a convict seeks remission. In this case, both the convicting court and its presiding judge were in Maharashtra.
• Reference was made to the precedent set in the case of State of Madhya Pradesh v Ratan Singh (1976), wherein the Supreme Court established that the convicting state of Madhya Pradesh would be deemed the “appropriate government,” irrespective of the fact that the convict was serving the sentence in Punjab. Additionally, reliance was placed on the decision in Union of India v V. Sriharan (2016), where a Constitution Bench reaffirmed the definition of the “appropriate government.”

Respondent

• Vehemently argued that the place appropriate for the consideration of the remission is to be the place where the offence has occurred and which is also the place where the convicts are incarcerated.

Judgement

• State of Maharashtra to have the jurisdiction to consider the application of the remission vis-à-vis R No. 3 to 13 (the convicts) as they were sentenced by the Special Court, Mumbai.
• Given that the order of the remission (of R No. 4 to 13) were passed by the State of Gujarat which had no jurisdiction, the order thus passed has no leg to stand. There seems to be an error of jurisdiction.
• When an authority, which is the Government of State of Gujarat in the instant case, was lacking jurisdiction to consider the applications for remission. Just as an order passed by a Court without jurisdiction is a nullity, in the same vein, an order passed, or action taken by an authority lacking in jurisdiction is a nullity and is non est in the eye of law.
• Therefore, the Order of remission passed holds no ground simply on this reasoning
• Additionally, the court establishes that the May 2022 of the Supreme Court which grants the State of Gujarat to decide the request of remission is per incuriam which is to say that it is not based on law or fact and goes against V Sriharan (Union of India vs V. Sriharan @ Murugan & Ors. (Writ Petition (Crl.) No.185/2014).
• Radheshyam, the petitioner in the May 2022 case, intentionally left out crucial details when approaching the Supreme Court. Following the dismissal of his plea by the Gujarat High Court, he sought remission from the Maharashtra government. However, his application faced adverse recommendations from both the Central Bureau of Investigation and the Special Judge, Mumbai – who was also presiding over his case. The Superintendent of Police and District Magistrate of Dahod were also against his release.
• Radheshyam’s claim about a conflicting stance between the Gujarat High Court and Bombay High Court on his remission petition was disproved; as it turns out, this related to a different matter altogether – specifically involving transfer of convicts from Maharashtra to Gujarat.
• The judgment clarified that the remission proceedings initiated solely through Radheshyam did not extend to considering the remission of other convicts. With the nullification of the May 2022 Order, all subsequent actions were annulled, rendering the Gujarat government’s remission order, a direct consequence of the May 2022 order, null and void.

4. Whether the order of remission was in accordance with law?

Petitioner

• All orders dated August 10, 2022 are a stereotyped and cyclostyled orders.
• The Gujarat Government did not factor in key considerations under its 1992 Policy which was replaced by a stringent 2014 Remission Policy.
• Moreover, the consent of the presiding judge was neglected while accumulation the views on the remission of the convicts.

Respondent

• Firmly believing that the remission is within the jurisdiction of State of Gujarat, the learned counsels impose reliance on the 1992 policy stating that it should considered given that at the time of the conviction, the 1992 policy was enforceable and not the more stringent 2014 one.
• Additionally, the counsels argue that the section uses the word “may” while asking for the opinion of the “presiding officer of the court”. The opinion therefore is not a mandate but a mere suggestion.

Judgement

• The judgement underscores and usurpation of power and an instance of abuse of discretion on the part of Gujarat’s government.
• “The State of Gujarat has acted in tandem and was complicit.”   In Radheshyam’s petition, the Gujarat government had taken a different stance and argued that the Maharashtra government was the “appropriate government” to consider remission. However, it did not file a review petition to correct the May 2022 order of the Supreme Court.
• This judgement claims that “ensuing litigation would not have arisen at all” if the Gujarat government had informed the Supreme Court of this error.  Further, as no such review petition was filed, the Gujarat government usurped the power of the Maharashtra government. Subsequently, other convicts who were not involved in the petitions also filed remission applications relying on the May 2022 Order.
• This duplicity of the Gujarat government led to an arbitrary and mechanical delivery of remission order without a proper consideration of the material facts and lacking complete reliance on the law.
• Lastly, it was also established that the “appropriate government seeking the opinion of the Presiding Officer” is not a suggestive part of the section rather a mandatory action to have a bona fide remission.

5. What follows?

The central question following the quashing of the remission order that arose before the Division Bench came to be, “whether the personal liberty of the convicts under Article 21 should be protected i.e. should they be allowed to continue their freedom?”

Petitioner

• The convicts have enjoyed several parole and furloughs during their incarceration despite the gravity of the crime and the concern of public interest.
• The learned counsel states that the attainment of justice would only be accomplished when the convicts are returned to prison. If any remission were to follow, it must only be accepted when done in accordance to law.

Respondents

• The learned counsels for the convicts claim that having experienced freedom after a long imprisonment, the liberty of the convicts must be protected.
• The Court must exercise jurisdiction under Article 142 of the Constitution.

Judgement

• Article 21 of the Constitution establishes that no person should comprise their liberty except in accordance with law. In the present case the crutch of liberty availed has been granted in violation of law
• The Bench clarifies that the rule of law prevails, which is to say that “no one, howsoever high or low, is above the law.” In a case of failure of the State to perform, the Court must step in to realign with the rule of law.
• Judiciary being the guardian of the rule of law and centre pillar of a democratic state must at all costs emphasize on the supremacy of rule of law.
• The judgement underscores the importance of justice, the cardinal principle of respecting the law, the accountability of the faith instilled by the people, and the highest responsibility of the Court to rectify arbitrary orders.
• The reasoning arising from the above leads to the conclusion that the invocation Art 142 would lead to an ignorance of rule of law. The ‘depravation of liberty’ with regards to the convicts is thus justified given the abuse of law exercised in attainting the remission.

Verdict

1. The outcomes of other petitions were rendered redundant in regards to the present petition.
2. The order of May 2022 with regards to the appropriate government was declared null and non eston grounds of concealment of material facts and misrepresentation of facts. It was also declared per incuriam and not to be a binding precedent.
3. The impugned orders of remission dated August 10, 2022 were quashed
4. The convicts were ordered to report to the concerned jailed authority

Though victory has come Bilkis’ way again, in 2024, given that remission and the right to grant sentence is an available remedy in criminal law, there is little to prevent these convicts from now approaching the Maharashtra government. Where a more friendly government currently rules.

(The judgement primer has been researched by CJP’s legal intern’s team including Karishma Jain)

^[1] 432 od CRPC Section 432 of the CRPC: Power to suspend or remit sentences

^[2] https://www.ndtv.com/india-news/bilkis-bano-rapists-were-out-of-jail-for-1-000s-of-days-on-parole-before-release-3440854

^[3] https://timesofindia.indiatimes.com/india/in-the-bilkis-case-parole-and-furlough-are-on-trial/articleshow/95917873.cms?from=mdr

^[4] Citizens for Justice and Peace, in all its legal actions concerning survivors of 2002 Gujarat, Dhule, Maharashtra, Muzaffarnagar, Uttar Pradesh has always approached the court on behalf of and with survivors and not in isolation.

Related:

Bilkis Bano speaks: First person account, Godhra Relief Camp, March 2002

Today, I Can Breathe Again: Bilkis Bano on landmark Supreme Court judgement

Bilkis Bano Case: Supreme Court strikes down remission for gang rape and murder convicts, citing flagrant violation of rule of law

The post Justice once more for Bilkis Bano, but what now lies ahead? appeared first on SabrangIndia.

And it was here that I met Bilkis Bano first in early March, soon after the ghastly crimes committed on her and then on March 22, 2002, again. I then recorded this interview which was published in the seminal issue of Commumalism Combat, ”Genocide” Gujarat 2002.

She recounted her tale haltingly but firm, as tears did not stop welling up as the account progressed and she recalled what the “mob” had done to her precious three year old Saleha, the unborn child in her womb (she was pregnant at the time), her mother and her sister. She has, by then already sent her complaint, in writing, to the Superintendent of Police (SP) Godhra, then one Rajiv Bhargava. She even provided us with a copy of the written complaint to the SP.

I recorded the interview dispassionately, reproducing the words she uttered, in Gujarati and Hindi, both languages I understand.

Today, January 9, 2024, a day after the Supreme Court’s historic verdict in quashing the remission order that allowed 11 men –powerfully connected to the regime in Delhi and Gandhinagar (Gujarat)—to walk free on August 15, 2022, I turned the pages of my diaries, documents and files, pages that go back 22 years.

As a writer and student of the law, a profession and process that witnesses fewer successes and more failures on the question of substantive justice delivery,  I felt the need to reproduce that account, in the first person by Bilkis Rasool Shaikh made before me at the Godhra Relief Camp on March 22, 2022.

For the record, Justice JS Verma, then Chairperson of the National Human Rights Commission (NHRC) and former Chief Justice of India (CJI) was also present at the Godhra Relief Camp the same day. The NHRC report on Gujarat 2002 (Interim report, April 2002 and Final Report July 2002) remains the most accurate and scathing indictment of the then state government in its failure to ensure the Indian constitutional mandate, its complicity in allowing innocent lives of women, men and children, and their dignity to be snatched away. By mobs of men who enjoyed political cover and impunity.

Saluts Bilkis Bano!

Panchmahal

Place: Randhikpur, Panchmahal district
Witness: Bilkees (19-year-old). Rabia, her neighbour and relative, was with her at the time of the interview. (Interviewed by Teesta Setalvad at Godhra Relief Camp on March 22)

“On the highway just outside the village we were set upon by a mob and 14 persons from my family were butchered and killed — 7 from my father’s family and 7 from my in-laws’ side. All the women and young girls, including my 3 1/2 -year-old baby, were…….. before being killed. They did the same thing to me, and if I am alive, it is only because after attacking me, they left me, thinking I was dead.

“My aunt, my mother, my three sisters all met with the same fate. I am 5-6 months pregnant. My husband and in-laws were away for Id. My husband came to meet me yesterday. All the other villagers, including Rabia’s family, had fled the day before, but we stayed behind because my aunt’s daughter was about to deliver. That delay has cost us everything. I have filed a complaint with the police but I don’t know whether I will get justice.

Bilkees’ FIR, addressed to the DSP, Dahod, reads:

“I, the complainant, am married to Yakub Rasul Patel, resident of Kapdi falia, Baria. We had a daughter named Saleha who was aged 3 ½ years. My mother’s home is in Randhikpur taluka, Dahod.

“On February 23, it being Id, I had gone with my little girl to my mother’s home. On February 27, because of the incident at Godhra Railway station, there was tension and violence in the surrounding villages. In order to save our lives, at about 10 o’clock in the morning on February 28, a total of 16 people from our house — I, my two sisters and two brothers, our mother, my little girl, my maternal uncle, my paternal aunt and her husband and their daughters — left Randhikpur for Baria on foot. As we came to know that there was violence everywhere on the way, we stopped at Bijal Damor in Chuddi village. Around midnight, we went and hid in Kuvajar mosque.

“The daughter of my paternal aunt who was pregnant, gave birth to a girl. Around 10 o’clock the next morning, we went to Khudra and stayed with Adivasis for two days. After two days, early in the morning, we came to Chhaparwad. We were walking down a kutcha road to save our lives.

“While passing between two hills, two vehicles came in the direction of Chhaparwad and Randhikpur, with 30-40 people in them. This included Shailesh Bhat, Raju Soni, Lala doctor, Govind Nana, Jaswant Navi, Lalo Vakil, who is the son of Bhagu Kuverji and Kesar Khima, Baka Khima Vasava. All of them are from Randhikpur so we recognised them. The others were from Chhaparwad, whose names we did not know, but whom I would recognise if I see them.

“All had lethal weapons in their hands — swords, spears, scythes, sticks, daggers, bows and arrows. They started screaming, “Kill them, Cut them up!’ They raped my two sisters and me and behaved in an inhuman way with my uncle and aunt’s daughters. They tore our clothes and raped eight of us. Before my very eyes they killed my 3 ½-year-old daughter.

“The people who raped me are Shailesh Bhatt, Lala doctor, Lala Vakil and Govind Navi, all of whom I know very well. After raping me, they beat me up. Having been injured in the head, I fainted. They left, assuming I was dead.

“After two to three hours, when I regained consciousness, on seeing the corpses of my family members, I was terrified. I climbed up the hill and stayed there the whole night.

“In the morning, when the police came to know about this attack, they came to take the corpses and found me alive. As all my clothes were torn, they brought me some clothes from the house of an Adivasi staying at the foot of the hill. Then they brought me to Limkheda and from there I was brought to the relief camp at Godhra.

“The above-mentioned people raped my deceased sisters and me, as well as the daughters of my maternal uncle and my paternal aunt. They killed all the people except myself. For which reason I say that legal action should be taken against the above-mentioned people.”

The deceased: 15 of a family butchered. All women victims, including a 3 1/2 -year-old baby, raped before being killed. Among those named by Bilkis Bano orally included  Shailesh Bhat, Raju Soni, Lala doctor, Govind Nana, Jaswant Navi, Lalo Vakil, who is the son of Bhagu Kuverji and Kesar Khima, Baka Khima Vasava (all from Randhikpur).

Facts from the prosecution case:

On that fateful day of the targeted crimes, after remaining unconscious for some time Bilkis got up and found her petticoat and put on it and climbed the hill. She stayed overnight on the hill and came down to a hand pump where one Adivasi woman gave her blouse and Odhani, Thereafter, on seeing a man in police uniform she went to him who took her to Limkheda Police Station where police head constable Somabhai – A – 17, on 04.03.2002, recorded her complaint which was not taken down as per her say and the offence was registered vide I.C.R. No. 59/02.

The investigation was then carried out by police head constable Narpatsing (later accused 13), I. A. Saiyed (later Accused 14) , C.P.I. R.M. Bhabhor (later Accused 16 and B.S. Bhagora , Dy . S.P. (later Accused 18). B.R. Patel was the P.S.I. at the Limkheda Police Station during the said period.

On March 4, 2002, photographs of the 8 dead bodies were taken. Again, the next day, March 5, 3, 2002 photographs of seven dead bodies were taken and the post mortem (P.M). was performed by Dr. Arunkumar and Dr. Sangeeta (later Accused 19 and Accused 20) respectively.

Ultimately, the C.P.I. R.M. Bhabhor ‘ A ‘ Summary report with the recommendation of R.S. Bhagora in the court of the Ld . JMFC, Limkheda and the Court, despite the evidence, accepted the report.

Bilkis with the legal aid provided by NHRC Challenged the ‘ A ‘ Summary report in the Hon’ble Supreme Court which set aside the ‘ A ‘ Summary report and transferred the investigation to C.B.I. and the C.B.I. filed the Charge sheet in the Supreme Court against the present accused and case was transferred for trial to Maharashtra by the Supreme Court. The Charge Sheet filed by the CBI may be read in the April-May 2004 issue of Communalism Combat here.

Note:

The 11 convicts released on premature release  (August 15, 2022) — Radheshyam Shah, Jaswant Chaturbhai Nai, Keshubhai Vadaniya, Bakabhai Vadaniya, Rajibhai Soni, Rameshbhai Chauhan, Shaileshbhai Bhatt, Bipin Chandra Joshi, Govindbhai Nai, Mitesh Bhatt, Pradip Modhiya

The ones convicted by Special CBI Court in 2008 -Jaswantbhai Nai, Govindbhai Nai, and Naresh Kumar Mordhiya (deceased) had raped Bilkis, while Shailesh Bhatt had killed her daughter, Saleha, by “smashing” her on the ground. Others who were convicted are Radheshyam Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Vohania, Bakabhai Vohania, Rajubhai Soni, Nitesh Bhatt, Ramesh Chandana, and Head Constable Somabhai Gori.

(The author is a senior journalist, co-editor Communalism Combat and now Sabrangindia.in and secretary, Citizens for Justice and Peace)

Related:

“I will stand & fight again, against what is wrong & for what is right, for women everywhere’: Bilkis Bano

Bilkis Bano case: Convicts set free with MHA’s approval, despite opposition from CBI and Special Court

Bilkees Bano Case: Rejecting Appeals of 11 Accused Bombay High Court Upholds Convictions

NHRC report, 2002

https://nhrc.nic.in/press-release/nhrc-makes-prelimnary-comments-and-recommendations-government-gujarat-and-government

https://nhrc.nic.in/press-release/further-proceedings-commission-situation-gujarat

The post Bilkis Bano speaks: First person account, Godhra Relief Camp, March 2002 appeared first on SabrangIndia.

New Delhi: Bilkis Bano says she smiled for the first time in a year and a half today, she said in a letter thanking the Supreme Court for its judgement undoing the remission given to those who raped her and murdered her family members during the 2002 Gujarat riots.

“Today is truly the New Year for me. I have wept tears of relief. I have smiled for the first time in over a year and half. I have hugged my children,” Bano said in a letter issued through her lawyer Shobha Gupta.

A two-judge division bench of the apex court, headed by Justice BV Nagarathna, said on Monday (January 8) that the Gujarat government did not have the power to grant premature release to the 11 convicts who gang-raped a pregnant Bano and her family members, and also murdered 14 of her relatives.

The convicts had been, in 2008, sentenced to life in prison. The conviction orders had been confirmed even enhanced by the Bombay High Court and then the Supreme Court.

“It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again. This is what justice feels like,” Bano’s letter continued to state.

” I thank the honourable Supreme Court of India for giving me, my children and women everywhere, this vindication and hope in the promise of equal justice for all.”

She also thanked her husband for children for staying by her side and her friends for “[holding] her hand at each difficult turn”.

Bilkis Bano had special word of thanks for her lawyer, Shobha Gupta, saying she “never allowed me to lose faith in the idea of justice”.

“A year and half ago, on August 15, 2022, when those who had destroyed my family and terrorised my very existence, were given an early release, I simply collapsed,” she said.

“I felt I had exhausted my reservoir of courage. Until a million solidarities came my way.”

Also, thousands of ordinary people moved the Supreme Court, wrote appeals and open letters in solidarity with her, Bano said, saying they had given every woman in India the will to “rescue the idea of justice”.

In a brazen defence of it’s actions, the Gujarat government said the decision to remit the convicts’ sentence was arrived at by a panel it had set up, comprising officials and ‘social workers’, all of whom were either members of the ruling BJP or were connected with it.

On Monday, January 8, a division bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan said the Gujarat government “acted in complicity with the convicts” and noted that if the convicts can “circumvent the consequences of their conviction, peace and tranquillity in the society will be reduced to a chimaera.”

Bano said the apex court’s decision affirmed her belief in the rule of law.

“Even as I absorb the full meaning of this verdict for my own life, and for my children’s lives, the dua that emerges from my heart today is simple – the rule of law, above all else and equality before law, for all,” she said.

Her full statement, which was also issued in Gujarat and Hindi, may be read here:

The post Today, I Can Breathe Again: Bilkis Bano on landmark Supreme Court judgement appeared first on SabrangIndia.

Advocate Shobha Gupta, who has stoically represented Bilkis in her battle for justice in the apex court told Sabrang India, “It is a victory for all of us.”

Strong words of censure against the deliberate lapses in procedure have been made in the much-hailed judgement. The bench slammed the Gujarat government of being “complicit” and having “acted in tandem with the convict in approaching the Supreme Court with unclean hands, making misleading statements and hiding relevant material” and having granted remission “as an instance of usurpation of power of the Maharashtra government.” J. Nagarathna also remarked that it was this same complicity by the Gujarat government with the convicts in the case that had resulted in the cases being transferred out of the state. Referring to the nullity of the May 2022 judgment of the Supreme Court, which had granted the power to the Gujarat Court to grant remission in the said case and was heavily relied by the respondents in the present case, the bench had pointed stated “We fail to understand why the state of Gujarat did not file a review petition against the judgment dated May 13, 2022. Had the Government filed a review and impressed upon this court, the ensuing litigation would not have occurred.”

Based on this, the bench deemed the present case to be a ““A classic case where the order of this court was used to violate the rule of law by granting remission.”

In short, the Supreme Court quashed the remission order of the Gujarat government that granted premature release to the eleven convicts from their life imprisonment for multiple murders and gang rapes, including that of Bilkis Bano, during the 2002 communal riots in Gujarat. Through this highly anticipated judgement, the bench of Justices BV Nagarathna and Justice Ujjal Bhuyan emphasised on the duty of Constitutional Courts to ensure justice and rule of law and the importance that has been assured to the rights of a victim in India’s criminal justice system. Before beginning with the pronouncement, Justice Nagarathna had stated “A woman deserves respect”.

On January 8, the Supreme Court bench delivered its verdict in the case against the early release of Bilkis Bano Gangrape Convicts by the Gujarat Government on August 15, 2022. During the pronouncement of the verdict, judgment of which has been authored by Justice Nagarathna, the bench concerned itself with the following issues:

1. The maintainability of the petition filed by Bilkis Bano and other PILs, moved by CPI (M) Member of Parliament Subhashini Ali, journalist Revathi Laul and Prof. Roop Rekha Verma, former Trinmool Congress Member of Parliament Mahua Moitra, assailing the remission order were maintainable or not
2. Whether the Gujarat Government was competent to pass the said remission orders and if due process had been followed in the said case
3. Whether the remission orders in accordance with law

Issue 1: Maintainability

Referring to the first issue, J. Nagarathna held Bilkis Bano’s petition challenging the grant of remission to be maintainable. In view of this, the bench refused to answer the question raised regarding the maintainability of the PILs (Public interest litigations) filed in the said case as the Court had already found Bilkis Bano’s petition to be maintainable.

Issue 2: Power of Gujarat government to grant remission

Addressing the said issue, J. Nagarathna observed that instead of holding the place of occurrence of crime and place of imprisonment as the relevant consideration in this case, emphasis needed to be on the place of trial. In view of this, the bench stated “Government of the state, i.e. the Maharashtra government, where the offender is sentenced is the appropriate one to grant remission and not the government of the state, i.e. the Gujarat government, where the offence took place.”

Based upon the said observation, the bench held that the state government of Gujarat was not the competent government to pass the said order. While holding the aforementioned ground, of the Gujarat government lacking competence, to be enough to hold the remission orders null, the bench went on to deal with the ruling of the Supreme Court of May 13, 2022, which had enabled the Gujarat government to consider remission of convicts.

In the said judgment of May 2022, the Supreme Court bench comprising former Justice Ajay Rastogi and Justice Vikram Nath was dealing with the petition filed by Radheshyam Bhagwandas Shah @ Lala Vakil seeking direction to the State of Gujarat to consider his application for pre­mature release under the policy that was existing at the time of his conviction. The said bench had held that the remission or pre­mature release in terms of the policy which is applicable in the State where the crime was committed has to be considered. The present bench held the above-mentioned petitioned filed by convict Radheshyam to be suppressing material facts as well as containing misleading facts. It was also pointed out the opinion of presiding judge in the earlier judgment of Bombay High Court was also not revealed. Furthermore, J. Nagarathna held the judgment delivered by Supreme Court in May to be a “nullity” as it was obtained by “playing fraud on the Court”. The bench also emphasised that the same was in contrary to the Constitution Bench judgment in Sriharan case, which had dealt with the power of the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen year.

In pursuance to making the said observations, the bench declared the judgment being relied upon to be a nullity, inasmuch as it was hit by fraud and the doctrine of per incuriam (bad in law). The bench added that the May 2022 judgement was per incuriam as it was contrary to the plain letter of the statute as well as binding judgments of the Supreme Court.

With this, the Supreme Court bench in the present case held that the government of Gujarat had no competence to entertain the applications for remission or pass orders thereon regarding the eleven convicts and that the May 2022 order of the Supreme Court had been obtained by fraud a nullity.

Issue 3: Remission orders to be in accordance to law

At the outset, J. Nagarathna observed all the remission orders dated August 10, 2022 to be “stereotype and cyclostyled orders”. Dealing with the test of whether test is whether the authority was acting within the scope of powers and if the same was exercised in accordance with law, J. Nagarathna observed that “There is arbitrariness if there is non-consideration of relavant factors, non-application of mind, acting on dictation, or any usurpation of power. Usurpation of power arises when power vested in one authority is exercised by another. Applying the principle in this case, having regard to our answer of ‘appropriate power’, Gujarat Government exercising the power was an instance of usurpation of power.”

In addition to terming the Gujarat government’s action of issuing the remission orders to be “usurpation of power” and “abuse of power”, J. Nagarathna also came down heavily at the Gujarat government for failing to file a review petition against the May 13, 2022 judgment of the Supreme Court. During her pronouncement, she stated “What is interesting is that in the earlier judgment, Gujarat Government had submitted before this Court that appropriate government was that of Maharashtra. But the same contention was rejected, which was contrary to precedents. Inspite of this, the state of Gujarat failed to file a review petition. We fail to understand why the state of Gujarat did not file a review petition against the judgment dated May 13, 2022. Had the Government filed a review and impressed upon this court, the ensuing litigation would not have occurred.”

The bench then slammed the Gujarat government of “acting in tandem” with the convict who had approached the Supreme Court with “unclean hands to suppress facts”.

In furtherance to this, J. Nagarathna pointed stated that it was this complicity of the state of Gujarat Government with the convicts that had resulted in the transfer of trial. As reported by LiveLaw, Justice Nagarathna observed “State of Gujarat acted in complicit with the convicts, which was the very apprehension that had led this Court to transfer the trial out of the State.”

Observing the abovementioned, the bench then held the presence instance to be “A classic case where the order of this court was used to violate the rule of law by granting remission.”  With this, the bench quashed the remission order and held the convicts to be the beneficiaries of an invalid order.

The primary question- Protection of personal liberty vs. rule of law?

Pursuant to the quashing of the remission orders issued by the Gujarat government, the question that loomed in front of the bench was to decide whether the released convicts should be sent back to prison. Pondering upon the same, J. Nagarathna stated “In our view, personal liberty is important. But this is a case where 11 convicts are granted liberty on a remission order which has been quashed. So, should they be sent back to prison? This is a delicate question.”

This question needed to be decision in view of the entitlement of liberty to a person under Article 21 of the Constitution of India. With regards to this, the bench held that “As per Article 21, a person is entitled to liberty only in accordance with law.” Exploring further on the same, the bench held that rule of law mean that no one can be above law and any breach of rule of law amounts to negation of right to equality.

Emphasising upon the duty of Court to step in and enforce the rule of law, the bench stated “This Court must be a beacon in upholding the rule of law. In a democracy, rule of law has to be preserved. Compassion and sympathy have no role to play. It is through power of judicial review conferred on independent institutions, like High Courts and Supreme Court, that the rule of law is preserved. Rule of law must be preserved unmindful of the ripples of the consequences.”

Imploring the duty of the court to “be mindful not just to the spelling of JUSTICE but also the content of it” as well as “to correct arbitrary orders at the earliest and to retain the foundation of trust of the public”, the bench asserted that by allowing the convicts to remain out of prison will amount to giving an imprimatur to invalid orders. The bench also highlighted that the eleven convicts had remained in prison for a little over fourteen years while enjoying multiple liberal parole and furlough. In view of ensuring that “rule of law prevails”, the bench then ordered the eleven convicts in the Bilkis Bano gang rape and murder case to surrender back to prison within 2 weeks.

J. Nagarathna also said “We hold that deprivation of liberty to the respondents (convicts) is justified. They have lost their right to liberty once they were convicted and imprisoned. Also, if they want to seek remission again, it is important that they have to be in jail.”

Bilkis Bano case was and is among the rarest of rare case. Since March 2002, she has fought virtually alone in the most adverse of circumstances, helped mainly by a band of human rights activists, many of whom themselves became victims of the processes of injustice, precisely because of the help extended in cases like Bilkis’. After 20 years, one can only hope that Bilkis’s quest for justice is over.

Brief background of the case:

During the communal violence that engulfed Gujarat in February- March 2002, in a particularly brutal attack, 14 members of Bilkis Bano’s family were killed, including Bano’s two-and-a-half-year-old daughter whose head was smashed on a rock! On March 3, moving from one village to another, the group were spotted by gangs of men in two cars hunting for Muslims. At the time she was carrying Saleeha, her three-year-old daughter, in her arms. She recognised the men, mainly from her own village, who rushed towards her. They tore the child from her arms and smashed her head on the ground. The child died before her mother’s eyes. Three men gang raped the pregnant Bilkis. Her sister and cousin sister were also raped. One of them had given birth only the day before. The baby was with her. Every single one of the group of eight was killed including the baby. Bilkis, who had lost consciousness, was left for dead, but she survived.

After Bilkis Bano approached the National Human Rights Commission (NHRC), the Supreme Court ordered a probe by the Central Bureau of Investigation (CBI). The accused were arrested in 2004 and the trial originally began in Ahmedabad. However, Bano expressed concerns about witness intimidation and evidence tampering and the case was transferred to Mumbai in August 2004. After a tortuous legal journey, the men were convicted by a special CBI court in January 2008. In 2017, the High Court upheld their conviction.

The order of remission:

After completing 14 years behind bars, Radheshyam Shah moved court for sentence remission. But the Gujarat High Court dismissed his plea stating the appropriate government to consider his plea under sections 432 and 433 of the Code of Criminal Procedure, was Maharashtra and not Gujarat. Then, Shah moved Supreme Court which ruled in May that Gujarat was the appropriate state to examine his plea. Besides, the presiding Judge who heard the trial in Mumbai after transfer, UD Salvi had also expressed his opinion against the remission.

A committee was formed to look into the plea for remission and according to Panchmahals collector Sujal Mayatra it “took a unanimous decision in favour of remission of all the 11 convicts in the case.” Both the Gujarat government and the Ministry of Home Affairs (MHA) acceded to the request.

The convicts who were granted remission were: Jaswant Nai, Govind Nai, Shailesh Bhatt, Mitesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Bakabhai Vohania, Rajubhai Soni, Pradeep Mordhiya, and Ramesh Chandana. They are all residents of Randhikpur village located in Daud district of Gujarat. They were all known to Bilkis Bano and her family; while some were neighbours, others did business with her family. In May 2022, the Supreme Court bench of Justice Rastogi and Justice Vikram Nath had held that Gujarat Government was the appropriate government to consider the remission in the case and directed that the remission applications be decided within two months. On August 15, 2022, as India was celebrating her 75th Independence Day, these convicts walked out of jail and were felicitated with garlands by their family and friends.

Outrage followed and many legal luminaries and civil society members also wondered how remission was granted for serious crimes like gang rape and mass murder. Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.” Then nearly 9,000 people from different walks of life in Mumbai participated in a signature campaign urging the Chief Justice of the Supreme Court to reverse the decision to grant remissions.

Then an NDTV investigation revealed that at least five people on the Advisory Committee that recommended the release are allegedly connected to the Bharatiya Janata Party (BJP). Citing an official document that lists the members of the advisory committee, NDTV said it included two BJP MLAs, a member of the BJP state executive committee and two others, who are also linked to the party.

Meanwhile, according to a report by journalist Barkha Dutt’s digital news platform Mojo Story, some of the eleven convicts were not living in their homes after their release. Families of some convicts said they were on pilgrimage, but none provided details of their whereabouts of when they would return. This is significant in light of the current hearings before the Supreme Court. If the court overturns the decision to grant remission, the men need to be traceable so that they can be re-imprisoned.

Petitions against the Remission:

On August 25, 2022, the Supreme Court bench comprising of the then Chief Justice of India NV Ramana, Justice Ajay Rastogi and Justice Vikram Nath had issued notice to the state on the petition challenging the order of Gujarat Government allowing premature release of 11 convicts sentenced to life in the Bilkis Bano case for gangrape & murder. While Senior Advocate Kapil Sibal had narrated the grim facts of the case, relating to exodus of Muslim population, rampant incidents of rape and murders, etc., the counsel appearing for State of Gujarat on the other hand opposed the petition on ground of maintainability.

In October, 2022, the Gujarat government told the Supreme Court that it decided to release the 11 convicts in the Bilkis Bano case on completion of their 14 years sentence as their “behaviour was found to be good”. The approval for their release was granted despite opposition from a special court and the Central Bureau of Investigation (CBI). The Gujarat government also submitted before the Supreme Court that it was the Ministry of Home Affairs (MHA) that enabled the release of eleven men convicted in the Bilkis Bano case.

It is pertinent to note that one of the convicts, who was released by the Gujarat government on remission in the Bilkis Bano case, stands charge sheeted for outraging the modesty of a woman on June 19, 2020.

Related:

‘Be ready with files’, SC warns as it issues notice to GoI, Gujarat govts on Bilkis Bano’s plea against remission of convicts

Bilkis Bano gang rape convict shares stage with BJP MP, MLA: Gujarat

“I will stand & fight again, against what is wrong & for what is right, for women everywhere’: Bilkis Bano

Bilkis Bano case: Convicts set free with MHA’s approval, despite opposition from CBI and Special Court

The post Bilkis Bano Case: Supreme Court strikes down remission for gang rape and murder convicts, citing flagrant violation of rule of law appeared first on SabrangIndia.

The Supreme Court on Monday, March 27, sought a response from the Union of India, Gujarat government and others on a plea filed by Bilkis Bano, who was gang-raped with seven other members of her family were killed during the 2002 post-Godhra riots.

Bano has challenged remission of sentence of 11 convicts in the case.

While now scheduling the matter for hearing on April 18, a bench of Justices K M Joseph and B V Nagarathna said there is a plethora of complex issues involved and it needs to hear the matter in detail.  The apex court issued a notice to the Union of India, the Gujarat government and the convicts.

It also directed the Gujarat government to be ready with all relevant files granting remission to the parties on the next date of the hearing.

Also read: Bilkis Bano gang rape convict shares stage with BJP MP, MLA: Gujarat

During today’s proceedings, the bench also observed that it would not be overwhelmed by emotions in the case and would only go by the law.

On January 4, a bench comprising Justices Ajay Rastogi and Bela M Trivedi first took up the petition filed by Bano and other pleas fled by citizens. However, Justice Trivedi recused from hearing the case without citing any reason. Ms Trivedi was Secretary in the Law Department in the years immediately after the Gujarat carnage of 2002.

Bilkis Bano had moved the apex court on November 30, 2022 last year challenging the “premature” release of 11 lifers by the state government, saying it has “shaken the conscience of society”.

PTI reports also how, besides the plea challenging the release of the convicts, the gang-rape survivor had also filed a separate petition seeking a review of the apex court’s May 13, 2022, order on a plea by a convict. The review plea was later dismissed in December last year.

All 11 convicts were granted remission by the Gujarat government and released on August 15 last year despite the then presiding judge, Judge UD Salvi and the Central Bureau of Investigation (CBI) formally objecting to the proposed remission. After the local administration and state government of Gujarat even the Ministry of Home Affairs (MHA) had acquiesced to the remission plea. 

Related:

Bilkis Bano gang rape convict shares stage with BJP MP, MLA: Gujarat

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The controversy erupts again on March 25/26, 2023 though it is not the first time. A controversy has erupted over two leaders of the Bharatiya Janata Party (BJP) including a Member of Parliament and a local legislature sharing stage with one of the 11 convicts of Bilkis Bano gang rape case in a government function held in Dahod district. Jaswantsinh Bhabhor, the BJP MP from Gujarat’s Dahod, and his brother Shaileshbhai Bhabhor, the BJP MLA from Limkheda, on Saturday (March 25) shared a stage with Shailesh Bhatt – one of the 11 men convicted for raping Bilkis Bano during the 2002 Gujarat riots and released on parole by the Gujarat government. Both the elected officials, Jaswantsinh and Shaileshbhai tweeted pictures of the launch of a Gujarat Water Supply and Sewerage Board (GWSSB) project in Karmadi village in Singvad taluka of Dahod district, and Bilkis’s husband Yakub Rasool confirmed to The Quint that one of the men on stage was Bhatt, who is among the 11 convicts released prematurely by the state government. Bhatt is seen sitting in the front row during the ground breaking ceremony of Gujarat Water Supply and Sewerage Board project at Karmadi village in Singvad taluka of Dahod district on Saturday. On the day after their release in 2022, August 16, eleven convicts in the Bilkis Bano rape case, released from jail under the Gujarat government’s remission policy, were greeted with garlands at the Vishwa Hindu Parishad office.

Available photographs and the videos of the event show Bhatt sitting between local BJP MP Jasvantsinh Bhabhor and his brother Shailesh Bhabhor, who is a BJP MLA of Limkheda. Despite repeated attempts both the BJP leaders couldn’t be contacted for comments. These were reported by Deccan Herald, Indian Express and Times of India.

At the event hosted by the BJP-ruled state government, the BJP leaders performed rituals of the Rs. 101.88 crore project aimed at supplying potable water to 64 villages of Limkheda, Singvad and Jhalod talukas of the Dahod district. 

The fact that the state and central governments had wilfully effected the release of all convicts on remission after a judgement of the Supreme Court in May 2022 is well known. The release was finally ordered by the Ministry of Home Affairs, union of India, despite objections from the Central Bureau of Investigation (CBI) and the presiding judge, Justice Salvi who had convicted them!

The fresh controversy of stamp of approval for the released convict comes a day before the Supreme Court is set to hear a batch of petitions challenging the premature release of all 11 convicts by the Gujarat government.  It was on India’s 75^th Independence Day, that the macabre release on August 15, 2022 took place. This was based on recommendation of Jail Advisory Committee, whose members consisted of two BJP MLAs along with district collector, Panchmahal, among others, 11 people convicted to life imprisonment for gang rape of Bilkis and killing of 14 persons including her children and close relatives, were released from jail on remission.

The Indian Express reported that photographs of the event released by the Dahod District Information Department, Bhatt is seated in the front row, between Jaswantsinh and Kanta Damor, president of the Singvad taluka panchayat. “It (GWSSB) was a public event that I attended… I don’t have anything else to say,” Bhatt told the newspaper.

While Jaswantsinh refused to comment, Shaileshbhai reportedly said, “Being the MLA, I was so busy at the event that I did not see who else was sitting on the dais. I will check if he (Bhatt) was present at the event.” Pradeep Parmar, Deputy Engineer of the GWSSB, Dahod, denied knowledge of the person who had issued the invitation. “The invitations are not sent out by the water supply department even if the event is organised by us… The taluka panchayat members would have invited the guests. We do not know who decided the seating on the dais. It is possible that the local engineer of the GWSSB in Limkheda would have been privy to the list.”

Trinamool Congress MP Mahua Moitra has reacted sharply to the incident, calling Bhatt a “monster” who should be put back in jail.

Bilkis Bano’s Rapist Shares Stage With Gujarat’s BJP MP, MLA.

I want to see these monsters back in jail & the key thrown away. And I want this satanic government that applauds this travesty of justice voted out. I want India to reclaim her moral compass. pic.twitter.com/noaoz1c7ZW

— Mahua Moitra (@MahuaMoitra) March 26, 2023

Supreme Court petitions

Bilkis Bano and others have file pleas in the Supreme Court against the early release of the 11 convicts. The court is supposed to hear the petitions on Monday.

In a shocking turn of events, eleven people convicted in the Bilkis Bano case have been freed from Godhra sub jail after a state government panel approved their application for remission of sentence. The men had been convicted for gang raping Bano and murdering 14 people including Bano’s two and a half-year-old daughter Saleha.

The convicts who have been freed are: Jaswant Nai, Govind Nai, Shailesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt and Ramesh Chandana.

Bilkis Bano’s husband Yakub told Deccan Herald, “We are shocked. We have no idea about this order. We don’t know what kind of justice system this is.”

The Indian Express quoted Gujarat Additional Chief Secretary (Home) Raj Kumar as saying, “The 11 convicts have served a 14-year sentence in total. According to law, a life term means a minimum period of 14 years after which the convict can apply for remission. It is then the decision of the government to consider the application. Based on eligibility, prisoners are granted remission after the recommendation of the prison advisory committee as well as district legal authorities.”

He went on to offer an explanation around why men were freed, he said, “Among the parameters considered are age, nature of the crime, behaviour in prison and so on…The convicts in this particular case were also considered eligible after considering all the factors since they had competed for 14 years of their life term.” The release has then, and now again, with this brazen support for the convicts, sparked outrage on social media.

August 2022: felicitating Rapists and Murderers in Gujarat

In August 2022, within days of their release, the freed men had been felicitated.

This brazen act of “welcoming convicts in Bilkis Bano case with garlands defamed Hinduism’, the former Judge UD Salvi who convicted them had told the media. Salvi had noted that while releasing them was in the power of the state, felicitating them was absolutely incorrect. He lashed out at a recent remark by a BJP MLA who claimed that ‘Brahmin men (the convicts) are of good sanskar’. 

Justice UD Salvi, giving public reactions at the time of the release last year, also said that the 11 convicts, who were remitted in the Bilkis Bano rape case, should not have been released. Salvi, who convicted those 14 years ago, criticised the welcoming celebration of the men with sweets and garlands that “defamed” Hinduism, according to a report by NDTV. 

At the time, while speaking to NDTV, Salvi noted that while releasing them was in the power of the state, felicitating them was absolutely incorrect. He lashed out at a recent remark by a BJP MLA who claimed that ‘Brahmin men (the convicts) are of good sanskar’.  “Whoever took this decision, should reconsider this, that’s all I can say.”

Commenting on the remission procedure, Salvi noted that the state government did not consult him under whom the case was heard. He further noted that when cases are transferred to the Central Bureau of Investigation (CBI), the state government ought to seek advice from the central government.

MHA backs release: Gujarat Govt affidavit in SC

Thereafter, after a slew of petitions challenging the questionable release were filed, a submission made by the Gujarat government before the Supreme Court has revealed that it was the Ministry of Home Affairs (MHA) that enabled the release of eleven men convicted in the Bilkis Bano case. The approval for their release was granted despite opposition from a special court and the Central Bureau of Investigation (CBI).

According to documents submitted before the Supreme Court, and reported in LiveLaw, the premature release application was first filed on February 23, 2021. In a letter dated March 11, 2021, the CBI, the Superintendent of Police, and the SCB, Mumbai advised against the release of the convicts. According to NDTV, the CBI said that the crime committed by the accused was “heinous, grave and serious” and so the “accused cannot be released prematurely and no leniency can be given to him”.

While the matter was under consideration, in March 22, 2021, Special Judge (CBI), Anand L Yawalkar also opposed the release was quoted by NDTV in a letter writing in his objections to the Superintendent of the Godhra sub-jail: “In this case all convicted accused were found guilty for rape and murder of innocent people. That the accused had no enmity or any relation with the victim. The crime was committed only on the ground that the victims belongs to a particular religion. In this case even minor children and pregnant woman were not spared. This is worst form of hate crime and crime against the humanity.”

Yet the officers of the district administration concurred with the decision for the release. In a letter dated March 7, 2022, the Superintendent of Police Dahod, Gujarat, said that he had no objection to the premature release of the prisoners. The Collector and District Magistrate of Dahod also said he had no objection in another letter dated March 7, 2022. The Jail Superintendent of Godhra Sub-Jail also said he had no objection.

Finally, May 26, 2022, the Jail Advisory Committee unanimously recommended the premature release of the convicts. Following this the Additional Director General of Police, Prisons and Correctional Administration, Ahmedabad, wrote to the Gujarat Home Department on June 9, saying he too had no objection to the release. The Gujarat Home Department then wrote to the MHA on June 28, 2022, recommending the release and sought approval/suitable orders for the same. Just two weeks later, on July 11, the MHA wrote back to the Gujarat Home Department approving the release.  

Related:

Bilkis Bano case: Convicts set free with MHA’s approval, despite opposition from CBI and Special Court

Rectify this horrendously wrong decision: Ex-bureaucrats to SC on remission to convicts in Bilkis Bano case

The post Bilkis Bano gang rape convict shares stage with BJP MP, MLA: Gujarat appeared first on SabrangIndia.

New Delhi: The hearing on Bilkis Bano’s plea challenging the remission of sentence of 11 convicts in the gang-rape case by the Gujarat government, could not be held in the Supreme Court on Tuesday as the judges concerned were hearing a matter related to passive euthanasia as part of a five-judge Constitution bench.

The petition of Bilkis Bano, who was gang-raped and seven members of her family slaughtered during the 2002 Gujarat riots, was scheduled to be heard on Tuesday by a bench of Justices Ajay Rastogi and CT Ravikumar.

However, Justices Rastogi and Ravikumar were busy hearing, as part of a Constitution bench headed by Justice K M Joseph, the pleas seeking modification of guidelines on execution of a “Living Will or Advance Medical Directive” for permitting passive euthanasia.

A fresh date for hearing will now be notified by the apex court registry..

Bilkis Bano had moved the apex court on November 30, 2022 challenging the grant of remission of sentence to 11 convicts by the state government, saying their premature release has “shaken the conscience of society”.

Besides the plea challenging the release of the convicts, the gang-rape survivor had also filed a separate petition seeking a review of the apex court’s May 13, 2022 order on a plea by a convict.

In its May 13, 2021 order, the apex court had asked the state government to consider the plea of a convict for premature release in terms of its policy of July 9, 1992 which was applicable on the date of conviction and decide it within a period of two months.

All the 11 convicts were granted remission by the Gujarat government and released on August 15 last year.

Her review plea, however, was dismissed by the top court in December last year.

The victim, in her pending plea, said the state government passed a “mechanical order” completely ignoring the requirement of law as laid down by the Supreme Court.

“The enmasse premature release of the convicts in the much talked about case of Bilkis Bano, has shaken the conscience of the society and resulted in a number of agitations across the country,” she said in the plea.

Referring to past verdicts, the plea said enmasse remissions are not permissible and, moreover, such a relief cannot be sought or granted as a matter of right without examining the case of each convict individually based on their peculiar facts and role played by them in the crime.

“The present writ petition challenging the decision of the State/ Central Government granting remission to all the 11 convicts and releasing them prematurely in one of the most gruesome crimes of extreme inhuman violence and brutality by a group of human beings upon another group of human beings, all helpless and innocent people – most of them were either women or minors, by chasing them for days together persuaded by hate towards a particular community,” it said.

The plea, which gave minute details of the crime, said Bilkis and her grown up daughters were “shell-shocked with this sudden development”.

The decision of the government came as a shock to the citizens, nationally and internationally, and the society across segments showed “anger, disappointment, distrust” and protested the clemency shown by the government.

“When the nation was celebrating its 76th Independence Day, all the convicts were released prematurely and were garlanded and felicitated in full public glare and sweets were circulated and this is how the present petitioner along with the entire nation and the whole world came to know about the shocking news of premature release of all the convicts (respondents no. 3-13) of one of the most gruesome crime this country has ever seen of multiple time gang rape of a pregnant woman,” it said.

It referred to wide-virtual public protest in each city, on all social media platforms and news channels, portals.

“It was also reported heavily that Muslims of the area started fleeing away from Rahimabad in fear after release of these 11 convicts,” the plea said.

The top court is already seized of PILs filed by CPI(M) leader Subhashini Ali, Revati Laul, an independent journalist, Roop Rekha Verma, who is a former vice chancellor of the Lucknow University, and TMC MP Mahua Moitra against the release of the convicts.

Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed.

The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court.

A special CBI court in Mumbai had on January 21, 2008 sentenced the 11 to life imprisonment on charges of gang-rape of Bilkis Bano and murder of seven members of her family.

Their conviction was later upheld by the Bombay High Court and the Supreme Court.

The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.

Courtesy: The Daily Siasat

The post Bilkis Bano’s plea against remission to convicts could not be heard in SC appeared first on SabrangIndia.

On December 13, the Supreme Court dismissed the review petition that was filed by Bilkis Bano seeking review of the court’s judgment in May, 2022 allowing the Gujarat government to decide remission application of the 11 convicts. It is pertinent to note here that the petition challenging the remission itself is still pending before the court and will be heard after the court’s winter vacation.

Eleven convicts were held guilty and sentenced to life for the gang rape and murder of Bilkis Bano and 14 of her family members including her 3-year-old daughter. The convicts released by an order of the Gujarat government on the India’s 75^th Independence Day (August 15, 2022) are: Jaswantbhai Nai, Govindbhai Nai, Shailesh Bhatt, Radhesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.

It was on May 13, 2022 that the same bench comprising Justices Ajay Rastogi and Vikram Nath who had earlier held that the Gujarat government had the necessary jurisdiction to decide on the remission of the convicts since the offence was committed in the state. Applying this logic, the Gujarat government released the convicts under its remission policy of 1992, on August 15, 2022.

The review petition, filed by Bilkis Bano’s lawyer, Shobha Gupta, had contended that the Gujrata Hgh Court judgement contrary to Section 432(7) (b) of CrPC which states that the appropriate government to decide remission is the government of the State where the trial was held. A court in the state of Maharashtra had decided the case and sentenced the convicts in 2008. The transfer of this trial was the second such trial to be transferred out of Gujarat in 2004, following a spate of acquittals by Gujarat’s lower courts in grave targeted crimes committed against the minorities. Communalism Combat was one of the first media entities to interview Bilkis Bano, then a 19 year-old survivor, in person at the Godhra Relief Camp on March 22, 2002, the day former chairperson of the National Human Rights Commission (NHRC) Justice JS Verma was also visiting there. The FIR filed by Bilkis Bano to the DSP Dahod district may be read here. On April 12, 2004, the Supreme Court of India first ordered transfer in the famed Best Bakery Case. Thereafter, on April 19, 2004, the CBI –to whom the investigation in the Bilkis Bano case had been transferred filed it’s charge sheet following the intervention of the NHRC. Following this, the SC also transferred the trial in the Bilkis Bano case to Mumbai, Maharashtra. The charge sheet filed by the CBI may be read in the April-May 2004 Communalism Combat, here.

In her review petition through her counsel Shobha Gupta, Bilkis Bano has made serious arguments on the law and judicial precedence.

Section 432(7)(b) of CrPC defines “appropriate government” to be “the Government of the State within which the offender is sentenced or the said order is passed.”

The same bench, deciding the review, held that there appeared to be “no error apparent on the face of record, which may call for review of the judgment dated 13th May, 2022” and further held that the cases relied upon by the petitioner are of no assistance to her in this review petition.

“In our opinion, no case for review is made out. The review petition is accordingly dismissed,” the order reads.

The impugned Judgment of May 2022 observed that,

“11…the crime in the instant case was admittedly committed in the State of Gujarat and ordinarily, the trial was to be concluded in the same State and in terms of Section 432(7) CrPC, the appropriate Government in the ordinary course would be the State of Gujarat but the instant case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State (State of Maharashtra)”

The court further said that, “after the conclusion of trial and the prisoner being convicted, stood transferred to the State where the crime was committed remain the appropriate Government for the purpose of Section 432(7) CrPC.” (para 11)

Cases relied upon by Bilkis Bano

1.      State of Madhya Pradesh v. Ratan Singh & Ors. (1976) 3 SCC 470

In this case the apex court had held that “since the prisoner in the instant case was tried, convicted and sentenced in the State of Madhya Pradesh the State of Madhya Pradesh would be the appropriate Government to exercise the discretion for remission of the sentence under s. 401(1) of the Code of Criminal Procedure.” 

2.      Hanumant Dass v. Vinay Kumar & Ors. (1982) 2 SCC 177

In this case, the Supreme Court observed that according to section 432(7) of the CrPC the appropriate Government is the Government of the State of conviction and not the Government of the State where the offence was committed. It also relied upon the Ratan Singh judgement and held that in Ratan singh the case was based on Section 401 (High Court’s powers of revision) of CrPC but “the Code of Criminal Procedure, 1973 has put the matter completely beyond any controversy and reiterated the provisions of section 402(3) in sub-section (7) of section 432”. 

3.      Union of India v. V. Sriharan alias Murugan & Ors. (2016) 7 SCC 1

In this case, the constitution bench of the court while answering a question framed as to “Whether there can be two Appropriate Governments in a given case  under Section 432(7) of the Code?” stated thus,

“52.5… In other words,  cases  which  fall  within  the four corners of Section 432(7)(a) by  virtue  of  specific  Executive  Power conferred on the Centre, the same  will  clothe  the  Union  Government  the primacy with the status of Appropriate Government.   Barring  cases  falling under Section 432(7)(a), in all other cases where the offender is  sentenced or the sentence order is passed within the territorial jurisdiction  of  the concerned State, the State Government would be the Appropriate Government.”

Cirtique

An editorial piece in The Hindu noted that the bench’s view “goes against a statutory provision”. It further points out that the transfer of the trial from Gujarat to Maharashtra as noted by the court under “exceptional circumstances” was only because a fair trial was not possible in Gujarat.

Manu Sebastian also wrote in LiveLaw that the distinction made by the bench citing “exceptional circumstances” as the reason, cannot qualify as a logical explanation since the section 432(7) itself does not have any room for such an exception, it is clearly unequivocal in its language.

“The trial from one state will be transferred to another state only in exceptional and extraordinary circumstances. Also, there appears to be a sound logic behind this provision. Because, if free and fair trial is not possible in one state due to various factors, then the government of that State is also unlikely to take an independent decision regarding remission. So, the legislative intention behind this provision appears to be to ensure that remission is decided by the outside state free of political compulsions,” he added.

He further writes that there is no basis for the Court to invent an artificial ground of “exceptional reasons” for not following the statute and the binding precedents.

The Supreme Court’s May 13, 2022 judgement may be read here:

The Supreme Court’s December 13, 2022 order may be read here:

Related:

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