31 Aug 2023 2:55 PM GMT
The Supreme Court on Thursday asked whether the non-payment of the fine imposed as a part of the sentence would have an effect on the remission of the convicts in the Bilkis Bano case. This question was posed to Senior Advocate Sidharth Luthra, when he informed the bench that recently, the full amount owed by the convict he is representing, has been paid to a sessions court in Mumbai.A bench...
The Supreme Court on Thursday asked whether the non-payment of the fine imposed as a part of the sentence would have an effect on the remission of the convicts in the Bilkis Bano case. This question was posed to Senior Advocate Sidharth Luthra, when he informed the bench that recently, the full amount owed by the convict he is representing, has been paid to a sessions court in Mumbai.
A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the Gujarat government
Luthra, appearing for convict Ramesh Chandana, informed the court today that not only had his client moved an application before the Supreme Court seeking permission to deposit the unpaid fine imposed on him as a part of his sentence, but had also recently paid the fine to the convicting court in Mumbai.
Advocates Shobha Gupta and Vrinda Grover, for Bilkis and PIL petitioners respectively, had both pointed out the non-payment of the fines by the life convicts, contending that their remission was illegal inasmuch as they had not served the default sentence. Grover had also argued that the wilful refusal to pay fines, even when the Bombay High Court directed for the money to be paid as compensation to the victim, reflected the convicts’ lack of remorse.
Justice Nagarathna observed, “You have asked for permission, and now without permission, you have deposited the fine…”
Luthra replied, “We had filed an application in this court seeking liberty to deposit the fine because of an initial apprehension that the sessions court may not accept the fine. My client went running to the court to deposit the fine without waiting to hear from us and the registry accepted it in the normal course. This is not meant to overreach the Supreme Court.”
“Does non-deposit of fine have a bearing on remission? Did you apprehend this?” Justice Nagarathna asked the senior counsel.
Luthra unequivocally contended that the non-payment of fine would have no legal consequences since any default sentence would be subsumed within a life sentence.
“Non-deposit of the fine has no bearing on remission. But, since the issue was raised, we have deposited the fine to reduce the contours of that controversy. So, that contention would not stand in any case, because the fine stands deposited. In any event, their argument that the convicts would have to undergo default sentences for non-payment of fines is legally unsustainable because the default sentence would be subsumed within their life sentence. But, without prejudice to this legal argument, now that the fine has been paid, this issue does not remain.”
“But at the time when remission was granted to the convicts, the fine was not paid,” Justice Bhuyan pointed out.
“I bow down,” Luthra conceded, before adding, “But that has no legal consequence.”
“If you did not apprehend that non-deposition of fine would have a bearing on the merits of the case, then there was no need to deposit the fine at this stage,” Justice Nagarathna countered.
There was absolutely no need, Luthra insisted. Nevertheless, he advised his client to make the payment, the senior counsel told the bench. On a lighter note, he added, “Perhaps it was poor advice, but I’m known to give bad advice at times. I will leave it at that.”
“But it is an act sub judice,” Justice Nagarathna pressed on.
“Yes, undoubtedly,” Luthra agreed.
Convicting court did not order life sentence without remission or death sentence and therefore envisioned a possibility of remission: Sidharth Luthra
Senior Advocate Sidharth Luthra pointed to the convicts in the Bilkis Bano case not being sentenced to die, or handed fixed-term sentences by the trial court or the Bombay High Court to argue that the possibility of reformation could not be precluded. During Thursday’s hearing, he told the Supreme Court –
“There are three categories of sentences – life sentence, life sentence without remission for a fixed period, and death sentence. The majority of the body of law suggests that reformation is the ultimate aim of the criminal justice administration. Otherwise, in a murder case, where the choice is between a life sentence and death penalty, the latter would be handed out more rampantly. But, through judicial diktat, it has been made clear that it must first answer to the ‘rarest of rare’ doctrine. That is a case, when the court believes there’s no possibility of reformation, subject to a reference to higher courts. But, these are cases where the high court thought fit to impose a life sentence, and not the death sentence. Neither were fixed-term sentences excluding remission handed out. Therefore, these are not beyond the remit of reformation.”
“My learned friends have argued in great detail about the nature of the crimes. And they were justified, up until a point,” Luthra told the bench, before adding that this issue could no longer be re-litigated, once the convicting court imposed a sentence of life imprisonment simpliciter, which was subsequently upheld by higher courts. After explaining the development of the different species of punishment in cases involving the commission of grievous offences, with a special focus on the judicially evolved punishment of ‘life imprisonment without remission’, the senior counsel argued –
“The issue relating to the nature of the crime came to an end after the court sentenced them to life imprisonment, leaving it open to the executive to look into the subsequent events and conduct of the convicts. The argument of society’s cry for justice or the heinousness of crime is not relevant at this stage. Otherwise, the court would have specified that no remission could be granted…”
At this juncture, Justice Nagarathna chimed in with an example. She referred to the 2008 Swamy Shraddananda ruling, in which, observing that life imprisonment simpliciter, subject to the applicable policy of remission after a number of years, was grossly disproportionate and inadequate, a three-judge bench sentenced a murder convict to life imprisonment ‘till his last breath’. Justice Nagarathna noted –
“In this case, they were conscious that there may be a remission after 14 years. But, did not want the remission policy to be applicable. At the same time, the death penalty was not imposed. So they said, imprisonment till the last breath.”
“Indeed, Your Ladyship,” Luthra replied, before proceeding to read out from a 2009 judgment that drew a contrast between the death penalty and life imprisonment –
“The rarest of rare dictum hints at this difference between death punishment and the alternative punishment of life imprisonment. The relevant question here would be to determine whether life imprisonment as a punishment will be pointless and completely devoid of reason in the facts and circumstances of the case. As discussed above, life imprisonment can be said to be completely futile, only when the sentencing aim of reformation can be said to be unachievable.”
“My argument is the converse,” the senior counsel said in conclusion, highlighting that the sentencing aim of reformation could not be said to be unachievable in the current case.
Besides this, the senior counsel stressed that the issue of the appropriate government had been settled by the Supreme Court in May last year and there could be no ‘oblique’ challenge to its decision. As a corollary to this, Luthra also argued that the remission order pursuant to this ruling and in compliance with it, cannot now be called into question, therefore excluding the possibility of a review of remission orders. After hearing his submissions, the bench adjourned the hearing until Thursday, September 14. The respondents’ counsel are expected to continue their oral submissions from 3 PM.
What has happened so far?
Bano’s lawyer, Advocate Shobha Gupta argued that the punishment imposed on Bilkis’ rapists ought to be proportional to the nature and seriousness of the crime they were had committed – which included 14 murders and three gang rapes. Highlighting the brutality of the crimes and the religious hatred motivating it, Gupta asked the Supreme Court bench if the convicts deserved the leniency they had been accorded:
“…Bilkis saw her first child’s head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or her family no mercy…Are these people – the perpetrators who have been found guilty of committing these crimes – deserving of the leniency shown to them?”
Among other things, Gupta also contended that the government did not consider the societal impact of prematurely releasing Bilkis Bano’s rapists, nor did it consider a host of other relevant factors that they were required to under the law.
Before Bilkis Bano herself approached the top court, a number of petitions had been filed in the public interest, challenging the Gujarat government’s decision. The list of petitioners includes Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. However, the government, as well as the convicts have challenged the maintainability of the writ petitions filed by politicians, activists, and journalists saying that they do not have locus standi. The respondents’ counsel, including senior advocates Rishi Malhotra, and Sidharth Luthra, and Additional Solicitor-General SV Raju argued that the grant of remission fell within the domain of criminal law, which did not countenance ‘unnecessary interference’ by third-party ‘interlopers’.
Senior Advocate Indira Jaising, and advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, have resisted the challenge to the maintainability of the PIL petitions. Besides defending the petitioners’ right to bring an action in the case, the counsel have also mounted an attack on the legality of the Gujarat government’s decision.
Leading the charge for the respondents, Additional Solicitor-General SV Raju, appearing for the State of Gujarat, has argued that the state government was bound by the specific mandamus issued by the Supreme Court asking it to consider the remission applications of the convicts under the policy that was in force at the time of the conviction. Accordingly, it has considered the applications with respect to the guidelines prescribed by the Gujarat remission policy in force in 1992, which was only superseded in 2014, and allowed the convicts’ requests for premature release after taking into account all relevant factors as prescribed under this policy.
Not only did the Gujarat government argue that the remission was legal and was granted after taking into consideration all factors required to be examined under the law, but it also cited the reformative theory of punishment to argue that even those convicted of heinous crimes deserved an opportunity to reform themselves and be reintegrated into society, on showing contrition and after serving their time.
In response to this, Justice Nagarathna posed an important query about remissions being selectively applied across the country. She asked –
“How far is this law being applied to inmates in jail? Why are our jails overcrowded? Particularly with undertrials? Why is the policy of remission being applied selectively?”
During last week’s hearing, the Supreme Court questioned whether a convict should be granted the license to practice law, highlighting the profession’s nobility. This was in response to Senior Advocate Rishi Malhotra informing the bench of his client’s rehabilitation efforts in jail, and post-conviction legal practice in an effort to drive home the point that the objective of punishment was not to wreak vengeance, but to reform and rehabilitate the criminal. In a similar vein, Advocate Sonia Mathur argued that remission was earned, and not granted as a matter of ‘charity’. Additional Solicitor General SV Raju, representing the Union of India this time, made a limited submission relating to the absence of any negative opinion from the Central Bureau of Investigation, which had taken over the probe from the state police.
Importantly, the bench also rejected the ‘judicial propriety’ argument asking it to ‘not sit in judgment over a coordinate bench’s ruling’, categorically stating that its 2022 judgment holding Gujarat government as the competent government to deal with the convicts’ application for premature release would not bar a judicial review of the remission orders now.
On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.
In a notable development, after almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on grounds of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to ‘exceptional circumstances’, only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts’ applications for remission.
Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government last year, provoking widespread outrage and protest. It also led to a batch of petitions being filed before the top court, challenging the decision of the Gujarat government to grant the convicts premature release. Among the petitioners are Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. The top court issued notice in the first set of pleas on August 25 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9.
Bilkis Bano approached the Supreme Court in a writ petition challenging the premature release of the 11 convicts. She also sought a review petition against the top court’s judgment allowing the Gujarat Government to make a decision on the remission of the convicts, which was dismissed by the bench of Justices Ajay Rastogi and Vikram Nath.
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022