Public outcry will not affect our judicial decisions, the Supreme Court asserted on Tuesday, as it began weighing the legality of the remission granted to all the 11 convicts in the Bilkis Bano gang-rape case and murder of seven of her family members during the 2002 Gujarat riots.
A bench of Justices BV Nagarathna and Ujjal Bhuyan made it clear that agitations and society’s outcry will not have an effect on its decisions and that it will go only by the law.
”Public outcry will not affect our judicial decisions. We will consider only legal submissions and will not go by this (public anger over the incident). Suppose, there is no public outcry. Are we supposed to uphold the order? If there is a public outcry, does it mean it is a wrong order?” the bench told advocate Shobha Gupta, appearing for Bilkis Bano.
The observation came after Gupta submitted that ”public outcry” is one of the important factors to be considered while granting remission to convicts.
She said there was an outcry in society after the convicts in the case were released and there were agitations across the country.
As the hearing began on Tuesday, Bilkis Bano’s counsel told the apex court the Additional Director General of Police, Prisons and Correctional Administration, Gujarat had tendered a negative opinion about remission to the convicts and not recommended premature release of one of them-Radheshyam Shah.
She told the bench that after Radheshyam Shah’s plea seeking premature release under the Gujarat government’s July 9, 1992 policy on remission was declined by the Gujarat High Court, he approached the apex court in a writ petition for relief.
”How is this writ petition before this court maintainable after he has already availed remedy under Article 226 (before HC), accepted order and acted on it? For what purpose did he come to this court, and how did this court entertain the petition?” he bench asked.
Article 226 gives high courts the power to issue instructions, orders, and writs to any person or authority, including the government.
Radheysham Shah had moved to the Supreme Court seeking remission on the ground that he had completed 15 years and 4 months in jail. He was sent to life imprisonment by a CBI court in Mumbai in 2008. In accordance with the rules then in force, a convict could apply for remission after 14 years, which was then considered the period of life imprisonment.
Hearing Shah’s petition, the apex court had asked the Gujarat government to look into the matter and decide within two months whether he could be granted remission.
Bilkis Bano’s counsel Gupta submitted that after the apex court order directing the Gujarat government to consider his plea, everything got expedited and all the convicts got released on August 15, 2022.
Senior advocate Indira Jaising, appearing in one of the PILs, recalled how the convicts were garlanded and felicitated and statements were made about their being Brahmins who cannot commit crime.
Additional Solicitor General S V Raju said those who garlanded the released convicts were their family members. ”What is wrong in garlanding by a family member?” he asked.
At the fag end of the hearing on Tuesday, the top court said it will hear arguments on August 9 on the locus standi of multiple people who have filed PILs in the Bilkis Bano gang-rape case.
Besides the petition filed by Bilkis Bano, several other PILs including one by CPI(M) leader Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma have challenged the remission. Trinamool Congress (TMC) MP Mahua Moitra has also filed a PIL against the remission.
Senior advocate Sidharth Luthra, appearing for one of the convicts, told the bench that once the victim individual is in court, others may not have a locus standi (entitlement to bring a lawsuit in court) to intervene in the matter of this nature.
The convicts in the Bilkis Bano gang-rape case and murder of seven of her family members during the 2002 Gujarat riots chased her with a ”blood thirsty approach” to hunt Muslims and kill them, the apex court was told on Monday, as it commenced the final hearing on a batch of pleas challenging the remission granted last year to all the 11 convicts in the case.
The top court had on April 18 questioned the Gujarat government over the remission granted to the 11 convicts, saying the gravity of the offence should have been considered before showing leniency, and wondered if there was any application of mind. All of them had walked free on August 15, 2022.
Asking for reasons for the premature release of the convicts, the top court had also questioned frequent parole granted to them during their incarceration.
”It (remission) is a kind of grace, which should be proportional to the crime,” it had said.
Terming Bilkis Bano’s gang-rape and the murder of her family members a ”horrendous” act, the apex court had on March 27 asked the Gujarat government whether uniform standards, as followed in other murder cases, were applied while granting remission to the convicts.
Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the horror of the communal riots that broke out after the Godhra train-burning incident. Her three-year-old daughter was among the seven family members killed in the riots.
The 11 convicts granted premature release are Jaswantbhai Nai, Govindbhai Nai, Shailesh Bhatt, Radheshyam Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Pradeep Mordhiya, Bakabhai Vohania, Rajubhai Soni, Mitesh Bhatt, and Ramesh Chandana.
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