New Delhi: The Union Ministry of Home Affairs had approved the premature release of 11 convicts facing life imprisonment in the Bilkis Bano gangrape-cum-murder case, the Gujarat told the Supreme Court Monday.
The disclosure came as part of an over-400-page affidavit submitted by the state in response to a public interest litigation (PIL) filed by Subhashini Ali, a member of the Communist Party of India (Marxist), journalist Revati Laul and professor Rekha Verma, against the remission granted to the convicts. The 11 were released from prison on 15 August “on account of good behaviour”, following which the PIL was filed in the top court, which had issued notice for response to the convicts and the state on 25 August.
Bano had been gang-raped and according to the prosecution in her case, fourteen members of her family — including her three-year-old daughter Saleha — killed, by a mob in Gujarat’s Randhikpur village, when they were fleeing during the Godhra riots in March 2002. Bano had been 19, and five months pregnant at the time.
According to Monday’s affidavit, the approval order for the convicts’ release by Shri Prakash, joint secretary of the union home ministry, was communicated to the state’s home ministry department on 11 July. This came in response to a letter the union ministry had received from the state home department on 28 June, seeking approvals for the convicts’ premature release. The approval was sought since the case in hand was prosecuted by the central agency, the Central Bureau of Investigation (CBI).
The affidavit further revealed that the superintendent of police, CBI, Mumbai, had in March last year opposed the premature release application filed by the convicts. Also, the sessions judge who had tried the case and convicted the 11 men did not favour their premature release.
But the two opinions were given prior to the Supreme Court’s ruling in May this year, which directed the Gujarat government to initiate the process of remission according to its 1992 policy under which the opinion of the concerned district police officer, district magistrate and chairman of the Jail and Advisory Board Committee is required to decide a remission application.
According to the affidavit, one convict had applied for premature release in August 2019, while the remaining 10 did so in February last year.
Following the Supreme Court’s May order, the concerned authorities — superintendent of police, Dahod, Gujarat, collector and district magistrate of the same district, superintendent of Godhra sub-jail, additional director general of police, prisons and correctional administration and the jail advisory committee — recommended premature release of 10 convicts.
However, with regard to one — Radheyshyam Bhagwan Das Shah — there were objections from all except for the Jail Advisory Committee. In his case the central government went by the jail advisory committee’s opinion and sanctioned the premature release.
Also read: Personal sense of justice betrayed, writes BJP’s Shazia Ilmi on release of Bilkis Bano convicts
‘PIL not maintainable in a criminal matter’
Raising a preliminary objection to the maintainability of the PIL, the Gujarat government said judicial interference is not warranted in the present matter at the instance of “so-called public-spirited individual”.
Being a third-party stranger, the petitioner, the state added, has no locus to challenge the remission orders passed by the competent authority under the law.
“It is well established that a PIL is not maintainable in a criminal matter. The petitioner is in no way connected to the proceedings which either convicted the accused in question nor with the proceedings which culminated in grant of remission to the convicts,” the affidavit stated.
The state referred to several judgments of the top court as precedents and asserted that the criminal procedure code precludes a third party to question the correctness of the grant or refusal of sanction to prosecute someone, assail conviction and sentence imposed by a court after a regular trial. Similarly, it said, a third party cannot be allowed to question the remission given to a convict in a criminal case.
The petitioner, it said, is admittedly a political functionary and has not justified her locus in challenging the remission granted in the case.
A PIL can only be filed in case someone’s fundamental right is affected. However, in the said case, the petitioner has not shown how the state government’s remission order has left her aggrieved and abridged or infringed her fundamental rights.
“In the aforesaid background, it is the bonafide belief of the state government that the present petition is nothing but an abuse of PIL jurisdiction,” the affidavit submitted.
The petitioner, it claimed, is not an “aggrieve person”, but a mere “interloper”, who has invoked the PIL jurisdiction for “extraneous purpose”.
It denied the allegation that remission was granted to the convicts under the government circular governing grant of remission to prisoners as part of “Azadi Ka Amrit Mahotsav” celebrations.
(Edited by Poulomi Banerjee)
Also read: Anger, fear, politics — Bilkis convicts’ remission revives 2002 memories for Gujarat Muslims