How Do We Proceed When Convicts Remain Unserved, They Have Rights, Says SC While Adjourning Bilkis Bano's Plea
The Supreme Court yesterday adjourned the hearing in Bilkis Bano’s plea challenging the remission granted to the convicts in the rape-murder case by the Gujarat Government. The Court said that it will hear the matter after the vacation. It listed the matter on May 9 to ascertain whether the respondent convicts who have been granted remission have been served notice in the case.
The Court said that it cannot proceed with the matter without a respondent being served, and that the respondents have a right to be served notice.
While saying that the respondents do not want the present bench to hear the matters, Justice KM Joseph also said that had the matter come before him earlier, "it would have taken a different turn".
The Solicitor General appearing for the state of Gujarat and the Central Government clarified that he is ready for a hearing that day.
Along with Bilkis Bano, several women activists and social organizations have filed similar pleas before the Apex Court challenging the order of remission, which were challenged by the respondents on the ground of alleged lack of locus standi.
The bench of Justice K.M. Joseph and Justice B.V. Nagarathna while hearing the matter said, "We will list the matter early only for directions for the purpose of finding out whether respondent 9 (convict) is served. Then we can list the matter immediately after the Court reopens".
Yesterday, commencing the arguments, Solicitor General Tushar Mehta appearing for the Gujarat State and the Centre Government submitted, "I would flag at the outset, Your Lordships are not dealing with only one remission case. Entertaining a petition by x, y or z would lay down a law, not only applicable to this case but for application throughout the country. Someone can challenge someone else’s remission in any High Court etc. Please decide accordingly. So far as Bilkis Bano is concerned she is a victim... I could not object to her locus. But I would like your lordships to decide other petition on the ground of locus and please dismiss them. Otherwise, it would set a very wrong..”. Senior Advocate Sidharth Luthra appearing for a convict also sought the petitions other than that of Bilkis to be dismissed on the same ground.
While Advocate Sanjay Kumar Tripathi appearing for Bipin Chandra Joshi (convict) vehemently contended saying, “On behalf of victim a serious fraud has been played upon the Court while filing an affidavit of service. Not only false statements have been made which are contrary to the documents attached. And this is not the first time the petitioner has been doing so…she did this earlier before the Trial Court as well”. Further sought directions from the Court to take cognizance of the same under CrPC.
"The affidavit of service that was filed is incorrect as it states that there was a refusal (to accept service) whereas as per the postal report, the person was not in town. So there is a discordance between the postal report which they have annexed and the affidavit of service", said Luthra while supporting Tripathi's argument.
Replying to that submission, Advocate Shobha Gupta strongly objected saying, "Somebody who went to serve notice was in Gujarati...who signed and had went himself...I have sent the email to him also. I am repeatedly sending emails to each one of them". To that the Court asked, whether there was permission to send notice through emails.
The bench then recorded in the order, "serious allegations have been levelled against AOR...and though the respondent was not present at station and the report is to the effect that he was not present at the station and therefore service could not be served on him. It is made to appear as if he has refused service".
The other Lawyers who contented that their clients have not been served, agreed to accept notice and sought time to file counter affidavits.
Advocate Shobha Gupta then submitted that she may be permitted to start with her arguments in the matter.
"...It should be more than clear to you, what is happening. The problem for me is that I am retiring on the 19th. It is obvious that they do not want us to hear the matter", Justice Joseph said.
"Then they should not succeed", Shobha Gupta submitted. "Some people should not be allowed to interrupt justice in this way", Advocate Vrinda Grover submitted.
"....My Lord, the hopes everybody had. Let it go on. Let me start. I am committed to finish ASAP My Lord", Shobha Gupta submitted.
"That is a call beyond this case, I am canvassing because I am officer of this Court", Vrinda Grover submitted. She submitted that he is urging the Solicitor General to speak to the respondents and allow the matter to be heard.
"It came to my court on the ..(inaudible) We issued notice on that day. At the earliest date we could do it. If it had come before me earlier, it would have been a different matter. It would have taken a different turn. It is obvious that they will try to....(inaudible)", Justice Joseph said.
On Jaisingh's suggestion to conduct the hearing during vacations, Justice Joseph said, "Since I am retiring on the 16th of June. It happens to be in the vacation. 19th of May is the last working day. I will declare that I have no problem. My sister will be going to Singapore for a conference. I am giving you the whole facts. She will be back on the 26th. After that day, I and my sister, we are prepared to sit during the vacations".
"Lordship may take it up now. Not during vacation", Tushar Mehta submitted. I have also a problem during vacation, another lawyer submitted.
"I have no problem right now. I am saying, please don't keep it in the vacation", said SG added.
"What is tearing hurry? I can understand the tearing hurry on our side if we are in jail. We are already out for more than one year. What is the tearing hurry on their side", a Lawyer for the respondent submitted.
"Most grave miscarriage of justice has taken place", Vrinda Grover submitted. "There is no tearing hurry on that", the Lawer for the respondent said.
Another Lawyer then sought time to file a counter affidavit.
"I have kept quiet till now, don't make me say things. It was understood that it will be heard today. All of you were present here, you understood that it is to be heard today. It is not fair, fair to me. You are counsel appearing for the party, but you all are officers of the Court. Please don't forget that role. You can win a case, you may lose a case. You have more at stake. We are giving you the time, but we will proceed with the matter", Justice Joseph said.
We offered to sit in the vacation, but they don't want to do that, Justice Joseph said. "Not in this matter, in any matter. Please don't take it that in this matter we are saying. Otherwise, once we the government make an exception, we keep on making exceptions. Then there is no vacation", Tushar Mehta submitted.
The Court then verified whether the service is complete with respect to each of the respondents separately.
After considering the case of each respondent on the status of service, Justice Joseph said, "..can we proceed with the matter without a party being served? ..He has a right, you know it in criminal law. It is a right. Like you suggested, we issue notice, he comes and then he says give me two weeks, can we say no? All because of limitation of time", Justice Joseph said.
The Bench also took note of the submission of the SG that neither the States nor the Union of India is pressing a claim of privilege on records, and are not seeking a review of the order directing production of records pertaining to the grant of remission.
Even though a fervent plea was made by the counsel for a respondent that the Court should look at the envelopes to ascertain the status of service, the Court did not do so.
Background
Previously, on April 18, 2023, the bench had listed the matter on Tuesday at 2 pm for final disposal.
“…we had directed that the first respondent-Union of India as well as the second respondent-State of Gujarat will be ready with the relevant files regarding the grant of remission to the party-respondents on the next date of hearing. Learned Additional Solicitor General who appears for the Government of Gujarat and the Union of India would submit that while he has the files ready with him, both the State of Gujarat and the Union of India wish to file application seeking review of the order directing the State and the Union to be ready with the files…”, the bench had noted.
Earlier, a bench led by CJI DY Chandrachud and comprising Justice PS Narasimha and Justice JB Pardiwala had agreed to constitute a special bench to hear the writ petition.
“I will have a bench constituted. Will look at it this evening," the Bench had said when Gupta had mentioned the matter for urgent listing before the Court.
On December 13, 2022, Justice Bela M Trivedi recused from hearing the writ plea filed by Bilkis Bano. The Court said that the writ petition may be listed before a Bench of which Justice Bela M Trivedi is not a member.
In her plea against the grant of remission which had led to the release of the convicts on August 15, Bilkis Bano has said the state government passed a mechanical order completely ignoring the requirement of law as laid down by the Supreme Court.
Bilkis Bano was 21 years old and five months pregnant when she was gang-raped while fleeing the riots that broke out after the Godhra train burning incident. Her three-year-old daughter was among the seven family members killed.
The investigation in the case was handed over to the CBI and the trial was transferred to a Maharashtra court by the Supreme Court. A special CBI court in Mumbai had on January 21, 2008 sentenced the 11 to life imprisonment. Their conviction was later upheld by the Bombay High Court and the Supreme Court.