NEW DELHI: The Supreme Court on Tuesday questioned the Gujarat government over the remission granted to the 11 convicts last year in the Bilkis Bano gangrape case and the murder of her family members during the 2002 Godhra riots.
The court held that the gravity of the offence should have been considered and went on to question whether there was any application of mind while releasing the rapists.
Asking reasons for the premature release of the convicts, a bench of Justices KM Joseph and BV Nagarathna also questioned the paroles granted to the rapists during their incarceration period.
"It (remission) is a kind of grace which should be proportional to the crime. Look at the records, one of them was granted parole for 1,000 days which is three years, the other for 1,200 days and the third for 1,500 days. What policy have you (the Gujarat government) been following? It is not a simple case of section 302 (murder) but a case of murders compounded by gang rape. Like you cannot compare apples with oranges, similarly massacre cannot be compared with a single murder."
Hearing a plea challenging the release of the convicts, the court said although there was consultation with the Centre for grant of remission but the state is required to apply its mind, looking at the gravity of the offence.
The Centre and the Gujarat government also told the court they may file a plea seeking a review of its March 27 order asking them to be ready with original files on the grant of remission.
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Senior advocate AM Singhvi, appearing for one of the PIL petitioners, said the records show that when the convicts were released on bail, they had given threats to witnesses and were involved in other crimes.
Advocate Shobha Gupta, appearing for Bano, said no new records have been filed in the petition and it is just the challenge to the remission granted to the convicts.
The bench told Additional Solicitor General SV Raju, appearing for the Centre and the Gujarat government, "Here a pregnant woman, who was gang-raped and several members of her family were killed. Crimes are generally committed against society and the community. Unequals cannot be treated equally. The real question is whether the government applied its mind and what material formed the basis of its decision to grant remission in the facts and circumstances of the case," the bench said, adding, "Today it is this lady (Bilkis) but tomorrow it can be anyone. It may be you or me. If you do not show your reasons for grant of remission, then we will draw our own conclusions."
The bench told Raju that non-production of original files will be construed as contempt and asked him why the state government was shying away from producing the files.
Justice Joseph said the court is actually concerned with the exercise of power by the state in the present case and referred to a 2006 two-judge verdict of the apex court in the case of Epuru Sudhakar versus Government of Andhra Pradesh, in which the remission order was set aside as the ground was that the convict was "a good Congress worker".
"We are aware that the power of the state government to grant remission is not amenable for judicial review unless manifestly arbitrary. It is a sovereign power which does exist under various jurisdictions. It is a kind of grace which should be proportional to crime. There has to be some objective standards. For the exercise of power under Article 161 of the Constitution, certain guidelines as laid down by this court needs to be followed," he said.
The bench further said that when a crime is committed, the offence is against a community or the society and "when you release a person in a case like this, you have to look at the public at large. You have to see what message you are sending to the public".
Senior advocate Siddharth Luthra, appearing for one of the convicts, said that when the victim has filed the petition challenging the remission, then the court ought not to hear PILs filed by third parties.
"This court has said it is a grave offence and I appreciate that but equally we have to see that my client has served 15 years incarceration for the offence," he added.
Advocate Rishi Mahotra, also appearing for one of the convicts, sought a copy of the review petition filed by Bano, which was dismissed by the top court last year, and said that according to him the grounds taken in the review petitions are same as in the writ petition filed by her.
"If the grounds in the review petition and the writ petitions filed by Bano are the same then the writ petition will not survive."
The bench said the review was against the order passed by the top court in May on which state's remission policy will apply in the case of convicts and that it had not challenged the remission order.
Counsels of other convicts also sought time to file their responses.
Raju said he has to seek instructions on further course of action by April 24 but as per his current instructions, the Centre and the state may file a plea for review of the March 27 order.
The bench said all the respondents shall file their replies by May 1 and posted the matter for further hearing on May 2.
At the outset, when counsels for convicts said they need time to file their responses, Justice Nagarathna said the court is aware of this strategy that in one hearing, a convict will file his reply and in another hearing another accused will file their reply and eventually delay the proceedings.
On March 27, terming Bilkis Bano's gang rape and the murder of her family members during the 2002 Godhra riots as a "horrendous" act, the top court had asked the Gujarat government whether uniform standards, as followed in other cases of murder, were applied while granting remission to the 11 convicts in the case.
It had sought a response from the Centre, Gujarat government and others on the plea filed by Bano, who has challenged the remission of the sentences.
All 11 convicts were granted remission by the Gujarat government and released on August 15 last year.
The top court is 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.
Bano was 21 years old and five months pregnant when she was gang-raped while fleeing from the riots that broke out after the Godhra train burning incident.
Her three-year-old daughter was among the seven family members killed.