SC notice to Centre, Gujarat govt on Bilkis case convicts' release

New Delhi: Was there application of mind while considering remission, the Supreme Court asked on Thursday and issued notice to the Centre and the Gujarat government on a plea challenging the release of 11 convicts in the 2002 case of Bilkis Bano's gangrape and murder of her family members.

A bench headed by Chief Justice N V Ramana asked the petitioners to implead all 11 who have been granted remission as parties in the matter.

The bench, also comprising Justices Ajay Rastogi and Vikram Nath, posted the matter for hearing after two weeks.

Bilkis Bano was 21 years old and five months pregnant when she was gangraped while fleeing the riots that broke out after the Godhra train burning in 2002. Her three-year-old daughter was among the seven killed.

The 11 men convicted in the case walked out of the Godhra sub-jail on August 15 after the Gujarat government allowed their release under its remission policy. They had completed more than 15 years in jail.

The plea in the apex court has been filed by CPI(M) leader Subhashini Ali, journalist Revathy Laul and activist Roop Rekha Rani.

Deliberating on the issue that has led to huge debate on the issue of relief in such heinous cases, the court said the question is whether there was application of mind while considering the issue of remission and whether it was within the parameters of law.

"Day in day out, those who are convicted and complete their sentence, they are eligible for remission. What is the exception?" the bench observed. Is that sufficient to say they are not entitled for remission, it asked.

During the hearing, senior advocate Kapil Sibal, appearing for the petitioners, referred to the facts of the case and said several people, including minors, were killed and a pregnant woman was raped.

"The only question is, in these circumstances, what is the judicial review of the court in the context of remission," he said.

The bench observed that whatever act was committed by the accused persons, they have been punished and held guilty by the court.

Sibal said the petitioners want the apex court to look at the record and find whether there was application of mind.

The chief justice of India referred to an apex court judgement in May this year. It said the state of Gujarat was the "appropriate government" competent to examine the application filed for premature release of a life convict in a murder case, which was transferred from a court there to a Mumbai court for trial in August 2004.

"I have seen somewhere that as if the court has granted permission for release. No," Justice Ramana, who retires on Friday, observed.

The bench said it would issue notice on the plea.

One of the counsels appearing in the matter said the petitioners are "third party" to the criminal prosecution in this case and have not made those, who were granted remission, as party in the plea.

"Why have you not included him as a party respondent?" the bench asked Sibal.

Sibal said the petitioners would make them party in the case.

"Petitioners are directed to implead the persons who are released by virtue of order. Issue notice. List after two weeks," the bench said.

On August 23, the apex court had agreed to consider listing the plea challenging the grant of remission by the state to the life convicts.

The plea referred to the sequence of events of the case recorded in judicial files and said, "It is submitted that on such facts, no right thinking authority applying any test under any extant policy would consider it fit to grant remission to persons who are found to have been involved in the commission of such gruesome acts."

"It is further submitted that it would appear that the constitution of members of the competent authority of the respondent No.1 (state of Gujarat) also bore allegiance to a political party, and also was sitting MLAs. As such, it would appear that the competent authority was not an authority that was entirely independent, and one that could independently apply its mind to the facts at hand," it said and quoted media reports to buttress its contention.

The apex court had earlier asked the Gujarat government to consider the plea of remission.

TMC MP Mahua Moitra has also filed a separate petition in the Supreme Court against the release of the convicts in the case. She alleged that the remission "completely fails to bolster either social or human justice and does not constitute a valid exercise of the guided discretionary power of the State".

The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra local court by the Supreme Court.

A special CBI court in Mumbai on January 21, 2008, sentenced the 11 to life imprisonment on charges of gangrape and murder of seven members of Bilkis Bano's family. Their conviction was later upheld by the Bombay High Court and the Supreme Court.

The state had witnessed riots in 2002 after the Sabarmati Express was attacked in Godhra and 59 passengers, mainly 'kar sevaks', were burnt to death.