Bilkis Bano case: Hearing doesn’t proceed beyond issuance of 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 played "fraud on the affidavit". The court attempted several times to get the petitioners to argue, but it was always interrupted. This led Justice KM Joseph to state that it was evident that they did not want him to hear the case.

The two-judge bench of Justices KM Joseph and BV Nagarathna is hearing 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 respondent took objection that the petitioner stated in the affidavit that the respondent was out of station at the time of service of notice and sought to declare deemed service.

“She (Adv Shobha Gupta appearing for the petitioners) has annexed 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. Ignoring the question, the respondent’s lawyer kept insisting that cognizance should be taken on the ‘fraud’ played by Gupta. Eventually when Nagarathna kept pressing the matter on, the respondent’s lawyer said he would accept the notice would ‘press that action be taken against her for fraud as per CrPC’.

The bench recorded the allegation of the respondents that though the respondent was not present and the report was that the notice could not be served on him due to his absence; it was made to appear that he refused service. They also recorded that Gupta disputed the allegation. The court gave the lawyers of the convicts two weeks to file the counter.

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

The lawyers for the petitioners (Indira Jaising, Vrinda Grover and Shobha Gupta) intervened to state that attempts to stall the hearing before Justice Joseph should not be allowed to succeed. Jaising highlighted that Justice Joseph would retire online much later. It was then pointed out that May 19 would be his last working day as after that the Supreme Court would be on vacation.

Both the judges agreed to hear the case during the vacation, but the petitioners for the convicts did not want to appear during vacations. Solicitor General Tushar Gandhi, appearing for both the Gujarat and 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 derailing the matter, Justice Joseph snapped at them. “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 clear that the matter will be heard for disposal. You are officers of court not just counsels for clients. We will proceed with the matter,” said Joseph. 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 is being said that they were in the way of justice, Justice Joseph curtly said that court wasn’t a market place. “Don’t shout,” said Justice Joseph.

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

The bench pointed out that they would be listing the matter after two weeks to ascertain notice and would post the matter for hearing after the vacation. Gupta requested for a date before vacations or during vacations.

History of the case

In the previous hearing, the bench had highlighted that when remission is considered in such heinous crimes affecting the society at large, the power must be exercised keeping in mind public interest. Justice Nagarathna had then stated that it would have been better if the government produced the files regarding decision.

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

Justice KM 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 parole. “What policy have you been following? Today it is this lady (Bilkis). Tomorrow, it can be you or me. There must be objective standards. You can't compare someone who has committed murder with this crime.” Joseph had asked both the state and union government to be ready with the files. However, it was not submitted during the latest hearing.

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

Bilkis Bano was 21 years old and five 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.