In case: Bilkis Yakub Rasool V. Union Of India and Ors.
A 21 years old and five months pregnant woman, Bilkis Bano was gang raped during the post-Godhra communal riots in Dahod, Gujarat on 3rd March 2002.
Rioters killed seven of her family members, and also her 3-years old daughter. After the trial was transferred to Session Court in Maharashtra in 2008, the accused were convicted by the Court under Section 302, 376(2)(e)(g) read with Section 149 of IPC, 1860 and handed them a life sentence.
A Bombay High Court headed by Justice VK Tahliramani upheld the conviction and life imprisonment of 11 convicts in May 2017. After two years Supreme Court directed Gujarat Government to pay Rs. 50 lakhs as compensation including a govt. Job and a house to Bilkis Bano.
After 15 years, one of the offenders Radheshyam Shah addressed the Gujarat High Court seeking remission of his sentence. Court rejected his request on the ground of lack of Jurisdiction and held that the relevant government to take the decision was the Maharashtra government and not the Gujarat government. Later on, when the case traveled to Apex Court, a bench of Justice Ajay Rastogi and Vikram Nath stated that the remission application has to be decided in Gujarat court because the offence took place in Gujarat. The Bench also noticed that the case was transferred to Maharashtra Court because of exceptional circumstances and only for the restriction purpose of the trial, permitting the Gujarat government to examine the offender’s application for remission. According to the remission policy which was prevailing at that time, the offenders were released by the Government of the State last year, causing a great furore. To challenge this, Bilkis Bano and other activists have filed a Public Interest Litigation.
The Government of State told SC in an affidavit that the decision was taken after the center’s approval, taking into consideration the ‘Good Behaviour’ of the convicts who had been under incarceration for 14 years. The State affidavit disclosed the presiding Judge of the special CBI court in Mumbai objected to the release of the offenders as the crime for which they have been convicted was grave.
Advocate Shobha Gupta, appearing on the behalf of Bilkis Bano has also opposed the government’s decision saying that the gang-rape survivor has experienced terrible violence upon herself including her family members.
The Petition challenging the decision of the government of Gujarat to prematurely release the 11 convicts who had been sentenced to life imprisonment for multiple murders and the gang-rape of Bilkis Bano in 2002 during the communal riots was to be heard by the bench of Justice KM Joseph and BV Nagarathna.
This petition was filed because last year, on independence, the convicts were allowed to walk free after their application of remission was approved by the government of Gujarat.
Earlier when Bilkis Bano filed a plea, the bench headed by Justice Joseph stated that:
“The first respondent, i.e., Union of India as also the second respondent, i.e., State of Gujarat will be ready with the relevant files regarding the grant of remission to the party respondents on the next date of hearing. This is besides filing of the pleadings as they are advised to file.”
It has been said by the senior advocate and additional solicitor-general SV Raju that a review application can be filed. After that Justice Joseph asked, “Are you appearing for the union or the state?” Then the respective lawyers replied ” Both”. Justice Joseph said, “By Monday, we will take a call on whether to file the review applications. Both wish to file. “
Justice Joseph said surprisingly that “We have only asked you to be ready with the files. That also you want us to review.”
Both the State and Centre indicated visibly their unwillingness to bring their files on the remission granted to the now-released convicts. Justice Joseph described that the question which matter is whether,
- While granting remission, the state government had asked the ‘right’ questions and ‘applied its mind’ before approving the remission applications of the convicts.
- “What was the material that formed the basis of this decision? Did the government ask the right questions and was it guided by the right factors? Did it apply its mind?”
On this Raju said that “there was an application of mind”. After that Justice Joseph said, “Then show us the file. We have asked you to be ready with it.”
Then the senior counsel said:
“We have the files. In fact, I have brought them along to court. But I have instructions that we might seek a review of this court’s order. We are also claiming privilege,” the senior counsel informed the bench.
“The law is very clear. No state government can escape the contours of the law or abdicate its responsibility to apply its mind to consider relevant facts, eschew irrelevant facts, see whether there are any mala fides involved, and meet other requirements under the Wednesbury principle” Justice Joseph said, as he pointed out that notwithstanding any consultation with the union government or its concurrence, state governments were required to independently assess remission applications. “Now you are saying that you are going to refuse to produce the files.”
After that Raju replied that “Subject to the decision taken by this court on the review application and the governments’ right to privilege.”
Afterward, Justice Joseph said, “We are interested in examining whether the government exercised the power of granting remissions within the parameters of the law as laid down, and in a bona fide manner. That is all. If you do not give us a reason, we will be forced to draw our own conclusions.” “I am not saying that. I will put the information on an affidavit if required. Let me apply my mind. I will come back next week,” the additional solicitor-general requested”.
During the whole proceeding, Advocate Kapil Sibal advised that the union and government of the state may be allowed to generate the appropriate documents in a sealed cover. The top court stated that it will violate the principle of natural and open justice.
Therefore, it was informed to the SC that both Union and State can seek a review of its order directing them to get ready the files on the remission granted to the 11 life convicts in the present case.
Name: Varsha Sukhwal, College: Parul University, Semester: 4th (BALLB)
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