'Won't Be Emotional... Have To Strike Balance': Judge in Bilkis Bano Case

The Supreme Court today questioned if the release of 11 convicts in the Bilkis Bano case was done according to remission standards in other such cases and asked the Centre and the Gujarat government  to present all the relevant documents on the next date of hearing. "We have before us many murder cases where convicts are languishing in jails without remission for years. Is this a case where standards have been applied uniformly as in other cases too?" questioned Justice KM Joseph, who was part of the two-judge bench.

The special bench of Justice Joseph and Justice BV Nagarathna was set up to hear a clutch of petitions challenging the Gujarat government's move to release the 11 men on Independence Day last year. The men were convicted in 2008 for the gangrape of Bilkis Bano and the murder of her family during the 2002 riots in Gujarat.

The release was made on basis of an outdated policy, consulting a panel that included men linked to the ruling BJP, after the top court asked the state to take a call on the plea of a single convict.

In today's hearing, the question of jurisdiction came up in a big way, with the advocate representing Bilkis Bano contending that the state where the case was heard should have been asked to take the call.

The hearing in the original case was shifted from Gujarat to Maharashtra as it was felt that a fair trial would not be possible in a state which saw a flood of violence in 2002 following the death of 59 Kar Sevaks in the burning Sabarmati Express.

Senior advocate Vrinda Grover -- who was representing CPM politburo member  Subhasini Ali, journalist Revati Laul, and former vice-chancellor of the Lucknow University Roop Rekha Verma -- pointed out that both Central Bureau of Investigation and the presiding judge of the trial court were against the remission.

"Substantive sentence is on 14 counts of murder and three counts of gang-rape. Fine of total 34,000 rupees and in default 34 years. It is undisputed that fine is not paid. So default sentence will come, that has not been served," she also pointed out.

The convicts argued that they have already served more than 15 years, when life term convicts are released after 14 years. When their counsel Rishi Malhotra argued that an "emotional plea is not a legal plea," Justice Joseph said, "We are not going to be overwhelmed by emotions… have to strike balance… It is a horrendous crime".

A series of petitions have been filed challenging the release of the 11 rapists. Bilkis Bano had filed two petitions -- one of them asked the top court to review its May 2022 order, directing the Gujarat government to consider a convict's plea for release. That has been dismissed by the court.

In response to the court's order  and a single convict's release petition, the Gujarat government had released all the convicts. The members of the panel that took the call had justified their decision calling the men "sanskari (cultured)" Brahmins who have already served 14 years in prison and displayed good behaviour.