2 May 2023 11:10 AM GMT
The final hearing in Bilkis Bano's case could not take place in the Supreme Court as scheduled, after lawyers appearing for some of the convicts raised disputes against Bano's affidavit regarding service of notice. Bano has approached the Supreme Court challenging the decision of the Gujarat Government to allow the premature release of convicts who were sentenced to life for gang rapes...
The final hearing in Bilkis Bano's case could not take place in the Supreme Court as scheduled, after lawyers appearing for some of the convicts raised disputes against Bano's affidavit regarding service of notice. Bano has approached the Supreme Court challenging the decision of the Gujarat Government to allow the premature release of convicts who were sentenced to life for gang rapes and murders during the 2002 Gujarat riots.
Although a bench comprising Justices KM Joseph and BV Nagarathna had posted the matter for final hearing today at 2 PM, no effective hearing happened. Advocates appearing for some convicts took objection to an affidavit filed on behalf of Bano seeking to declare deemed service on the ground that some respondents had refused notice. They argued that Bano had made a false claim in the affidavit regarding the respondents refusing to accept service, as the postal records showed that service could not be completed as the parties were out of station.
Claiming that Bano "played fraud on the court", the convicts' counsel sought criminal action against her. Bano's lawyer Advocate Shobha Gupta denied these allegations and stated that the affidavit was filed on the basis of postal endorsements.
Faced with these objections, the bench had to adjourn the hearing, in order to give time to the convicts' advocates to file a counter-affidavit to bring on record their objections. The bench was faced with another difficulty, as the service was not complete with respect to all respondents. Therefore, the bench directed the completion of service on the unserved respondents and allowed it to be served through the concerned police station. Since Justice Joseph is set to retire on June 16 (May 19 is his last working day before the vacation), he offered to sit during the vacation to hear the matter. Though the petitioners were agreeable to the suggestion, Solicitor General Tushar Mehta and the respondents' lawyers were not willing.
Ultimately, the bench decided to adjourn the hearing till July and to list the case after two weeks to ascertain the completion of service.
During the proceedings, Justice Joseph expressed his anguish at the hearing getting delayed on procedural grounds. Addressing the respondents' lawyers, Justice Joseph said :
"It is clear what is being attempted here. I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter. But, this is not fair to me. We had made it absolutely clear that the matter will be heard for disposal. You are officers of the court. Do not forget that role. You may win a case, or lose one. But, do not forget your duty to this court."
Bilkis Bano tried to play 'fraud' with court by making false statements in affidavit: Counsel for convicts
Right at the outset, it was alleged that even though two of the respondents were out of the station, an affidavit had been filed by Bano indicating that they had refused to accept the notice. "Bilkis Bano has played fraud with this court," the counsel furiously exclaimed. They strongly objected to letting the counsel for the petitioners begin their submissions, saying that they had not been given adequate time to file their responses.
"You are present today in court. Will you take notice or not?" asked Justice Nagarathna, noting that the counsel was appearing for the same convict in the connected PILs.
"I will take notice, but I will require time to file my response. The court should also take into account the fact that she has tried to mislead the court. I can show that this is not the first time that the petitioner is doing this," the counsel responded. He also insisted that action under the Code of Criminal Procedure should be taken against Bano, the victim of the horrific crime.
However, Advocate Shobha Gupta, appearing on behalf of Bano, vehemently objected to this allegation. She stated that notice was served via e-mail as well to the advocates who were appearing for the convicts in the connected PILs.
"Was permission taken to serve them notice via email?" asked Justice Nagarathna. Gupta explained that the court had granted permission for the same, but had clarified that the respondents would have the discretion to accept notice served electronically. "Only two of the lawyers responded saying that they did not have instructions from their clients. But, everyone has filed responses in the connected matters."
"When did you file the vakalatnama?" Justice Joseph asked the arguing counsel. He responded that the vakalatnama with respect to Bilkis Bano's plea had not been filed.
"How did you know that this case was filed today, then?" Justice Joseph countered.
"Because the connected matters are listed today," the counsel replied.
Justice Joseph asked, "You are in court today with the awareness that the connected matters are listed today. However, you deny receiving notice of this particular petition. Correct?" the judge asked. The counsel responded, "Yes."
"Alright. We will hear you. You will get time to file a response," Justice Joseph said.
One counsel raised an objection that the envelope did not have the seal of the Supreme Court and hence the party cannot be faulted for not accepting the notice. However, Justice Nagarathna, after examining the postal records, found this claim to be not true. Pulling up the counsel for making a wrong statement, the judge said, "Before you make a statement, you should be responsible enough to verify them against the records, instead of wasting our time. The process has been initiated. They have all been dispatched. These are Supreme Court records, and yet, you have the gumption to say no process has been initiated and nothing has been done."
The bench also clarified that the matter would be taken up after two weeks only to ascertain service of notice, and it would continue hearing it only after the vacations.
Convicts attempting to wait out the period I have left in my tenure: Supreme Court Judge KM Joseph
Justice Joseph remarked in open court that he understood that this was a bald attempt to wait out the time he had left before retirement. "We understand that they do not want this bench to hear the matter," the top court judge said. The counsel for the petitioners, including Gupta, advocate Vrinda Grover, and senior advocate Indira Jaising also strongly objected to what they described as a blatant machination to interrupt justice.
Jaising suggested that the batch of petitions could be heard during the summer vacation, which will commence on Monday, May 22. "Your Lordship's term is till July. Hearings can be held during the vacations," she said.
"We are prepared to sit during the vacations," said Justice Joseph. However, this recommendation did not find favour with Solicitor-General Tushar Mehta(appearing for Union and State of Gujarat) and senior advocate Rishi Malhotra, who was appearing on behalf of one of the convicts. The solicitor-general quickly clarified, "It is not that we will be unavailable only with respect to this case, but all cases. Once I make an exception for one, I'll soon be making exceptions for all."
"We cannot compel them," Justice Joseph conceded.
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 the ground 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, causing a great furore. Not only Bano herself, but also other activists have filed public interest litigation (PIL) petitions challenging this controversial decision before the top court.
Earlier this year, while issuing notice on Bano’s plea, the bench headed by Justice Joseph had directed the union and the state government to 'be ready' with the relevant files regarding the grant of remission to the party respondents on the next date of hearing. However, last month, the centre as well as the state expressed their reluctance to share the files with the top court. Senior advocate and additional solicitor-general SV Raju told the bench that a review application seeking a reconsideration of the top court’s March 27 order might be filed by both governments. However today, Solicitor General Tushar Mehta told the Court that the records will be produced and no review will be sought.
Justice Joseph explained that the crucial question in the matter was whether, while granting remission, the state government had asked the ‘right’ questions and ‘applied its mind’ before approving the remission applications of the convicts, notwithstanding any consultation with or concurrence of the government. He also categorically stated that if the governments failed to provide a reason for allowing the convicts' premature release, the court would be forced to draw its own conclusions. The Supreme Court judge said:
“What was the material that formed the basis of this decision? Did the government ask the right questions and was it guided by the right factors? Did it apply its mind?” The law is very clear. The state government cannot abdicate its responsibility to apply its mind to consider relevant facts, eschew irrelevant facts, see whether there are any mala fides involved, and meet other requirements under the Wednesbury principle, notwithstanding any consultation with the union government or its concurrence. We are interested in examining whether the government exercised the power of granting remissions within the parameters of the law as laid down and in a bona fide manner. That is all. If you do not give us a reason, we will be forced to draw our own conclusions.”
Before adjourning the hearing, Justice Joseph also emphasised that there needed to be objective standards that could be used to determine such applications as were preferred by the life convicts in this case. Emphatically, he said, "Today it is Bilkis Bano. Tomorrow, it can be you or me. There must be objective standards."
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022
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