The Supreme Court has asked the Union government and the Gujarat government about the selective application of the policy for the remission for the convicts who were serving jail term and were given pre-mature release in the Bilkis Bano case.
The Court was hearing pleas that challenged the Gujarat’s Governments order for the remission to 11 convicts who had been involved in the murder of Bilkis Bano’s family and in her rape during the Gujarat riots of 2002.
A bench comprising of Justice BV Nagarathna and Justice Ujjal Bhuyan orally stated every eligible convict must be given an opportunity to reform and reintegrate into society.
Justice Nagarathna asked as to why the policy of remission is being applied selectively? The justice added that the opportunity to reintegrate and reform should be given to every convict, not a few.
Justice further said that the question is, not en masse, but whether all eligible life sentence convicts after 14 years are being given the benefit of remission?
The Gujarat government had granted remission to the 11 convicts based on a May 2022 judgment of the apex court.
The top court received a bunch of petition challenging the remission.
The Apex court had sought the response of the Gujarat government on some of the pleas last year on August 25.
The bench had earlier this month remarked that an accused in a criminal case has a constitutional right to be reintegrated into society.
The State of Gujarat was represented by the Additional Solicitor General (ASG) SV Raju today.
The ASG said that the State government was bound by the effective mandamus issued in a May 2022 Supreme Court ruling that had said that the remission policy applicable to a convict is the policy of the State where the crime is actually committed.
The ASG added that the Lordships can disagree or say it (May 2022 judgment) is per incuriam but that will not have the effect of refusal. For the future, it can be overruled by larger bench, but the situation inter-se parties cannot change, it is binding.
Talking further the ASG cited the recent decision in the ED director tenure case, where it was said that an earlier mandamus could not have been avoided.
He added that all compliances with the 1992 remission policy of Gujarat (that would be applicable as on the date of the sentence) were done.
SV Raju also spoke about Section 432(power to suspend or remit sentences) of the Criminal Procedure Code at length.
The ASG was questioned by the bench as to why the adverse opinion of the Maharashtra trial court judge was ignored in favour of the opinion of a Godhra judge.
The ASG replied that the Maharashtra sessions judge’s negative opinion was not based on the merits of the case. It was the opinion of the successor, not the one who oversaw trial.
The ASG added that the opinion is not on merits, and was based on old remission policy. They relied on Maharashtra remission policy. This opinion would be hardly relevant, keeping the 1992 (Gujarat remission) policy in mind.
The ASG added that the Maharashtra judge would not be aware of ground realities unlike the Gujarat sessions judge, who knows the condition of jails after visiting the same frequently.
The ASG also pointed out that the petitioners had not challenged the 1992 remission policy of Gujarat, on the basis of which the convicts were released.
The ASG emphasised that the trial judge, in this case, had chosen not to give the death penalty or specify that the life sentence has to be more than 14 years.
The hearing will continue on August 24 at 2 pm.