There was an application of mind in considering pardons, the Supreme Court asked on Thursday, issuing a notice to the Center and the Gujarat government on a plea challenging the release of 11 convicts in the 2002 Bilkis Bano rape and murder of her family members case. A bench headed by Chief Justice N.V. Ramana asked the petitioners to enforce all 11 who were granted amnesty in the case. The bench, which also included Justices Ajay Rastogi and Vikram Nath, posted the matter for hearing after two weeks.
Bilkis Bano was 21 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 scam on August 15 after the Gujarat government allowed their release under its amnesty policy. They spent more than 15 years in prison. The petition was filed in the high court by CPI(M) leader Subhashini Ali, journalist Revathy Laul and activist Roop Rekha Rani.
The Court, while discussing the issue which has led to much debate on the question of relief in such heinous cases, said that the question is whether there was an application of mind in considering the question of pardon and whether it was within the bounds of law. “Day after day, those who are convicted and complete their sentence are eligible for a pardon. What is the exception?” the bench watched. Is that enough to say they don’t qualify for a pardon, he asked.
During the hearing, senior advocate Kapil Sibal, appearing for the petitioner, referred to the facts of the case and said that several people, including minors, were killed and a pregnant woman was raped. “The only question is, under the circumstances, what is the judicial review of the court under the pardon,” he said. The court stated that whatever act the accused persons committed, they were punished and found guilty by the court. Sibal said the petitioners want the apex court to look at the record and see if there was an application of mind.
The Chief Justice of India appealed the Supreme Court’s judgment in May this year. The state of Gujarat is the “competent government” to examine an application for early release of a life convict in a murder case, which was transferred to a Mumbai court in August 2004. “I saw somewhere that the court granted permission to release. No,” noted Justice Ramana, who is retiring on Friday. The court said it would issue a notice of suit.
One of the attorneys appearing in the case stated that the appellants are a “third party” to the prosecution in this case and have not named those who have been granted pardons as parties to the suit. “Why didn’t you include him in the party?” asked bench Sibal. Sibal said the petitioners would make them participate in the case. “Appellants are directed to enforce the persons who have been dismissed under the order. Notice of issue. List after two weeks,” the court said.
On August 23, the Supreme Court agreed to consider writing a plea challenging the state’s granting of pardons to lifers. Referring to the sequence of events of the case as recorded in the court records, the plea stated: “It is submitted that, on such facts, no right-thinking authority, applying any test under any existing policy, would see fit to grant a pardon to those who were found to take part in the commission of such heinous acts.”
“It is further submitted that it would appear that the constitution of the members of the competent authority of the respondent No. 1 (State of Gujarat) also bore political party allegiance and also sat in the MLA. As such, it would appear that the competent authority was not a body which was entirely independent, and a body that could independently apply its opinion on the facts at hand,” he said, citing media reports to support his claim.
The Supreme Court had earlier asked the Gujarat government to consider the amnesty plea. TMC MP Mahua Moitra also filed a separate petition in the Supreme Court against the release of the convicts in the case. She argued that pardons “will not entirely advance either social or human justice and do not constitute a valid exercise of the state’s guided discretion”.
The investigation of the case was handed over to the CBI and the trial was transferred to a local court in Maharashtra by the Supreme Court. On January 21, 2008, a special CBI court in Mumbai sentenced 11 to life imprisonment on charges of felony murder and murder of seven members of Bilkis Bana’s family. Their convictions were later upheld by the Bombay High Court and the Supreme Court. The state witnessed riots in 2002 after the Sabarmati Express was attacked in Godhra and 59 passengers, mostly ‘kar sevaks’, were burnt to death.
