The division bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan of the Supreme Court has reserved its judgment in the pleas against remission granted by the Gujarat government to 11 convicts sentenced to life imprisonment for crimes committed during the 2002 Gujarat pogrom.
The Apex Court, on Thursday, October 12, concluded hearing arguments in the challenges to the Gujarat government’s controversial remission order to prematurely release 11 convicts in the Bilkis Bano gang rape case and reserved its judgment.
The case has its origins in the order passed by another division bench of the court on May 13, 2022. In this order, Justices Ajay Rastogi and Vikram Nath held that the Gujarat government’s remission policy of 1992 would be applicable since that was the policy in place at the time of conviction.
The Rastogi-Nath bench also held that the appropriate government to decide the remission question was the Gujarat government because the case was transferred to Maharashtra for a limited purpose, that is, trial of the case. And after the conclusion of the trial and the prisoners being convicted, the case stood transferred to the state where the crime was committed, the bench had concluded. Therefore, the Supreme Court held that Gujarat would remain the appropriate government for the purpose of using remission or suspension powers under Section 432(7) of the Code of Criminal Procedure (CrPC).
On Thursday, senior advocate Indira Jaising, counsel for one of the interveners before the court, pointed out that the Supreme Court had erroneously quashed the Gujarat high court order directing the convicts to approach the Maharashtra government as it was the “appropriate” government under the law to decide the issue.
The petition of the convict, Radheshyam Bhagwandas Shah alias Lala Vakil, was under Article 32 and not a Special Leave Petition, as no writ could lie against a judicial order, she underlined. She relied on the Supreme Court’s judgment in Naresh Shridhar Mirajkar vs State of Maharashtra (1966) to support this contention. She described this as a “fraud” played on the court by the convict-petitioner, who had filed a writ petition instead of an SLP in order to assail the high court’s order. Besides, she said there was no prayer in the writ petition to set aside the 2019 judgment of the Gujarat high court declaring Mahrashtra as the appropriate government to decide the remission of convicts in this case.
Secondly, Jaising also assailed the May 13, 2022 order of the apex court because it was per incuriam. – that the court failed to pay attention to relevant statutory provisions or precedents. The division bench in the Radheshyam case ignored the principle laid down by a five-judge bench in the Sriharan case earlier. In this case, interpreting Section 432(7) of the CrPC, the constitution bench held that even if an offence is committed in State A and the trial takes place and the sentence is passed in State B, it is the latter State which shall be the appropriate government.
Even though the decision in V. Sriharan was known to the division bench in the Radheshyam case, it nowhere cared to explain why the said decision was inapplicable to this case. The trial in the Bilkis Bano case was held in Maharashtra and the appeals against the trial court’s verdict were also heard by the Bombay high court. Although as a general proposition, a previous coordinate bench’s decision is binding on the division bench, Jaising argued that in this case, it is not, because it is per incuriam.
Third, Jaising said the premeditated motive of the convict has a major role to play in sentencing and remission. In a nutshell, she claimed the question before the court has a bearing on its conscience as well as that of the nation, and therefore, the “ball is in your court”.
Counsel Vrinda Grover, appearing for another intervenor, told the court that she is neither opposing the power of remission nor the opportunity of reform provided to the conflicts. What is under challenge is the mala fide manner in which the remission was granted to the convicts, she told the bench.
She said the right question to ask while exercising the power of remission is about the nature of the crime, and the public welfare involved, as it is a noble power given to the state. “Does the offence affect the society at large?” she asked.
Grover was of the view that the convicts could be sent back to prison, and given a fresh opportunity to apply for remission before the appropriate government (that is, Maharashtra), which would, in turn, consider their applications on the basis of the nature of the crime committed, public welfare, and the opinion of the presiding judge, etc.
Counsel Aparna Bhat, on behalf of another intervenor, assailed the complete absence of application of mind on the part of the state government while remitting the sentence of the convicts. She claimed that it is extremely perverse to say that convicts have a right to reform. Instead, the convicts have to demonstrate that they have reformed in order to claim remission, she submitted.
Advocate Nizam Pasha highlighted that the remission decision of the state government ignored the heinous nature of the crime.
Advocate Shobha Gupta, appearing for Bano, had earlier submitted to the bench that the punishment should be proportional to the gravity of the crime, which in this case, involved 14 murders and three gang-rapes. Considering the brutality and the religious hatred which was the motive, the convicts do not deserve remission, she argued.
The Gujarat government, through the additional solicitor general S.V. Raju, submitted that it was bound by the Supreme Court’s previous order directing it to consider remission applications of the convicts under the 1992 policy which was in force at the time of their conviction. This policy was only superseded in 2014, making them ineligible to apply for remission on the ground that the crime committed by them was heinous.
Besides, the state government relied on the reformative theory of punishment to submit that those found to have committed heinous crimes too deserved to reform themselves and show remorse after serving their sentences.
Siddharth Luthra, on behalf of one of the convicts, said none of the courts finding them guilty had deprived them the opportunity to apply for remission of their sentences.
On the contrary, the non-payment of fines by the convicts was construed by the intervenors as an indication of absence of remorse, which cast doubts on their claim that they are entitled to reform