The Supreme Court on Tuesday, August 23, 2022 agreed to consider listing a plea challenging the grant of remission by the Gujarat government to 11 convicts in the Bilkis Bano gangrape case.
Chief Justice of India N.V. Ramana told advocate Aparna Bhat and senior advocate Kapil Sibal to file the case records. Ms. Bhat pressed the court to list the petition on Wednesday itself.
“We are challenging the remission. Fourteen people were killed and a pregnant woman was assaulted,” said Mr. Sibal, who orally mentioned the case for urgent hearing.
Gujarat government relied on its remission policy of 1992 to approve the convicts' applications for remission of the sentence and not the current policy of 2014.
In May 2022, the apex court had directed the Gujarat government to consider the application of one of the convicts, Radheshyam Bhagwandas Shah @ Lala Vakil, for premature release in terms of its remission policy of July 9, 1992. The 1992 policy was prevalent on the date of conviction
The Supreme Court has followed its judgment in the State of Haryana versus Jagdish which had held that the policy applicable at the time of conviction must be considered for deciding an application of pre-mature release.
In its May 13 judgment, a Bench led by Justice Ajay Rastogi concluded that Gujarat was the "appropriate government" under Section 432 of the Code of Criminal Procedure to decide the remission of the convicts in the case.
"Undisputedly, in the instant case, the crime was committed in the State of Gujarat which is the appropriate Government competent to examine the application filed for pre-mature release," the apex court had observed in May.
"Is it by virtue of the Supreme Court judgment that they (11 convicts) were released?" Chief Justice Ramana asked Mr. Sibal.
"We are not faulting the Supreme Court judgment… We are only challenging the remission," Mr. Sibal responded.
The petition challenging the release of the convicts on August 15 has been filed by CPI(M) leader Subhasini Ali, independent journalist and filmmaker Revati Laul and former philosophy professor and activist Roop Rekh Varma.
Trinamool Congress MP Mahua Moitra has also filed a petition challenging the remission.
The State government’s decision to remit the sentence of the 11 convicts has raised a furious public outcry. There is a plethora of precedents to guide the apex court
In April 2022, an apex court Bench led by Justice D.Y. Chandrachud said that the State cannot exercise its remission powers arbitrarily.
The court, in State of Haryana versus Mohinder Singh, has underscored that the grant of remission should be “informed, fair and reasonable”.
‘Premature release not a privilege’
In Rajan versus Home Secretary, Department of Tamil Nadu, the top court has held that “grant of premature release is not a matter of privilege but is the power coupled with duty conferred on the appropriate government”.
The court has said that “remission should not undermine the nature of crime committed”.
The court has, Laxman Naskar versus Union of India, laid down five questions which should feature in the State’s mind before deciding on remission.
They are, whether the offence is an individual act of crime that does not affect the society; whether there is a chance of the crime being repeated in future; whether the convict has lost the potentiality to commit crime; whether any purpose is being served in keeping the convict in prison; and socio-economic conditions of the convict’s family.
In Union of India versus Sriharan @ Murugan, the apex court has said the State should mandatorily seek the opinion of the sentencing court's presiding judge. It has said this opinion would shed light on factors like the nature of the crime that was committed, the record of the convicts, their backgrounds and other relevant factors. These inputs would enable the government to take the ‘right’ decision as to whether or not the sentence should be remitted