Bilkis Bano case: Hearing doesn't proceed beyond notice to convicts

The Supreme Court hearing in the Bilkis Bano case did not proceed beyond the issuance of notice to all parties as the lawyers for the convicts alleged that the petitioners lied and committed "fraud on the affidavit".

The court attempted several times to get the petitioners to argue with decorum, but was always interrupted. This led Justice K.M. Joseph to state that it was evident that they did not want him to hear the case.

The two-judge bench of justices K.M. Joseph and B.V. Nagarathna is hearing a batch of petitions challenging the Gujarat government's decision to prematurely release 11 life convicts who were sentenced to life for gang rapes and murders during the 2002 Gujarat riots. The apex court had issued notices on March 27 and the case had come up for hearing on April 18. The matter is likely to be heard after the vacations, in July.

Raking up the words used by the petitioner in the affidavit, the counsel for the respondent objected to the petitioners stating in the affidavit that the respondent was out of station at the time of service of notice and sought to declare it a case of 'deemed served'.

"She [Adv. Shobha Gupta, appearing for the petitioners] has annexed [an] envelope stating that the respondents are out of town. But in the affidavit, she is saying that the respondent was out of town. Can a fraud be played like this?" questioned the respondent's lawyer.

When Justice Nagarathna questioned whether the respondent's lawyer was willing to take the notice as he was present in court, the respondent’s lawyer ignored the inquiry and continued to insist that cognisance be taken of Gupta's 'fraud'.

Eventually, when Justice Nagarathna kept pressing the matter, the respondent's lawyer said he would accept the notice and would "press that action be taken" against her for fraud as per CrPC.

The bench recorded the allegation of the respondent that it was deliberately made to appear that the respondent refused to accept the notice served when in fact he was not present and that was why the notice could not be served.

Gupta disputed this allegation. The court gave the lawyers for the convicts two weeks to file the counter.

Both judges attempted to ensure the hearing of the case could begin, but to no avail. Justice Joseph pointed out that he would retire on May 19.

Indira Jaising, Vrinda Grover and Shobha Gupta, the lawyers for the petitioners, intervened to state that attempts to stall the hearing until Justice Joseph's retirement should not be allowed to succeed.

Jaising highlighted that Justice Joseph would actually retire from his duties later. It was pointed out that May 19 would be his last working day only because the Supreme Court would be on vacation after that.

Both the judges agreed to hear the case during the vacation, but the petitioners for the convicts did not want to appear during this time.

Solicitor General Tushar Mehta, appearing for both the Gujarat and the union governments, said that the court could continue to hear the matter at present and not during the vacations.

As the counsels for the convicts kept deferring the hearing with other discussions, Justice Joseph snapped, "Don't make me say things. It is obvious you do not want this bench to hear the matter. But, this is not fair to me. We had made [it] clear that the matter will be heard for disposal. You are officers of [the] court, not just counsels for clients. We will proceed with the matter."

Both Grover and Jaising objected to what they termed as machinations by the respondents to delay justice.  

When the advocate for the convicts repeated again that it was being said that they were in the way of justice, Justice Joseph curtly reminded him that the court wasn’t a marketplace. "Don’t shout," said Justice Joseph.

To proceed with the matter, the bench took note of the appearances for the respondents and noted that some of the parties had no appearance. Gupta requested that service be ordered through the concerned police station, and the court allowed it.

The bench allowed two weeks to ascertain notice was served and said it would post the matter for hearing after the vacations. Gupta requested a date before vacations or during vacations.

History of the case

Bilkis Bano was 21 years old and 5 months pregnant when she was gang-raped while fleeing the riots that broke out in the aftermath of the Godhra train burning incident in Gujarat. Her three-year-old daughter was among seven family members killed at that time. The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court.

A special CBI court in Mumbai had on January 21, 2008, sentenced the 11 to life imprisonment. Their conviction was later upheld by the Bombay High Court and the Supreme Court.

In May 2022, a bench comprising justices Ajay Rastogi and Vikram Nath had ruled that the Gujarat government had the jurisdiction to consider the remission request as the offence took place in Gujarat.

On August 15, 2022, the 11 convicts in the Bilkis Bano case walked out of jail as the Gujarat government had allowed their release under its remission policy. 

In the previous hearing, the bench had highlighted that when remission is considered in cases of such heinous crimes, power must be exercised keeping in mind the public interest. Justice Nagarathna stated that it would have been better if the government had produced the files regarding the decision. (Joseph had asked both the state and union government to be ready with the files. However, it was not submitted during the latest hearing.)

The convicts' counsels then sought more time to respond in the matter and urged the bench to adjourn the hearing. However, the petitioners strongly objected to this request.

Justice K.M. Joseph had pointed out that these 11 men were granted 1,100 days of parole, which translated into almost three years and one convict got 1,500 days of parole. "What policy have you been following? Today it is this lady [Bilkis Bano]. Tomorrow, it can be you or me. There must be objective standards. You can't compare someone who has committed murder with this crime."