Thread by @LiveLawIndia

#SupremeCourt to continue hearing #BilkisBano’s petition challenging the premature release of 11 convicts who were sentenced to life for gang rapes and murders during the 2002 #Gujarat riots.

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Y'day, #BilkisBano's lawyer, Advocate Shobha Gupta, asked #SupremeCourt if the men who raped her and killed her entire family deserve the leniency they have been given.

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase

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Bench comprises Justices BV Nagarathna & Ujjal Bhuyan. Follow this thread for live updates from the hearing.👇🏾

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Advocate Shobha Gupta, appearing for Bano, resumes her submission.

"...Y'day, I was referring to document on remission of one of convicts, Radheshyam. Now let us look at jail advisory committee..."

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Nagarathna J: How many members of jail advisory committee?

Gupta: 10.

Nagarathna J: How many recommended?

Gupta: 9 did, Sessions Judge, Godhra did not. He said premature release may create an adverse effect.

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Gupta: Additional Director General of Police, Prisons and Correctional Administration, Gujarat gave negative opinion and did not recommend premature release of convict Radheshyam.

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Gupta: From here comes the stage where this convict approaches #SupremeCourt in Apr '22 in a writ petition.

BVN J: For what purpose was writ petition filed? ...Did he reveal to this court that he had already approached Gujarat HC?

Gupta: Yes.

#SupremeCourtofIndia #BilkisBano… twitter.com/i/web/status/1…

BVN J: How is this writ petition before this court maintainable after he has already availed remedy u/A 226, accepted order & acted on it? For what purpose did he come to this court? And how did this court entertain the petition.

Gupta: That's what we argued. This could only… twitter.com/i/web/status/1…

BVN J (to ASG Raju): Did you oppose writ petition by saying that he has already gone to Gujarat HC, which has passed an order, on which he has acted? What is the prayer?

(reads) This is for consideration of request for premature release.

#SupremeCourtofIndia #BilkisBano… twitter.com/i/web/status/1…

BVN J: Where is application filed in Gujarat?

Gupta: There is none, only one in Maharashtra.

BVN J: In absence of application, how would mandamus lie? You file an application in one state, but seek a mandamus in another state to consider?

#SupremeCourtofIndia #BilkisBano… twitter.com/i/web/status/1…

BVN J: Was Gujarat HC order (saying State of Maharashtra would be appropriate government) challenged in writ petition before this court?

Gupta: No.

BVN J: Then how was it set aside? From where did this court get jurisdiction?

Gupta: Also what we are wondering.… twitter.com/i/web/status/1…

Rishi Malhotra (interjects): My main objection...You cannot sit in writ against #SupremeCourt judgment.

BVN J: How is writ petition maintainable against order of HC? How was it admitted & entertained? Without a challenge to order of HC, how was it set aside? You first tell us… twitter.com/i/web/status/1…

Malhotra continues arguing.

BVN J: Please sit down. Do not jeopardise proceedings of this court.

Bhuyan J: Mr Malhotra please take your seat. You are representing a convict. Let your case be defended by State of Gujarat & Union of India. They are here to defend it.… twitter.com/i/web/status/1…

Gupta: The judgment impugned...There was no judgment impugned.

BVN J: Your submissions are not accepted by this court. Did you file a review? (to ASG)

Gupta: No. They filed a review. Bilkis.

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Gupta: After #SupremeCourt order, everything got expedited relying on it...For all the convicts. And they got released on Aug 15.

BVN J: Even if there was an application, direction was only qua the applicant/petitioner.

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Gupta: We filed a review petition, which was dismissed...After order of this court, things proceeded first. I'll refer first to convict Radheshyam...Making my submissions based on documents they submitted.

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BVN J: What about other convicts?

Gupta: They had filed in Gujarat. On different dates.

BVN J: They did not approach this court?

Gupta: No...I'll show how leniency has been shown.

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Gupta: The central government sent its concurrency in a letter on July 11.

Bhuyan J (reads): This only mentions Radheshyam. Did they write separate letters for each convict?

Gupta: Yes. Trying to finish his chronology first.

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Gupta: So Radheshyam approached Maharashtra govt after Gujarat HC's order. This ended with negative opinion of Additional Director General of Police. Then he approached #SupremeCourt.

BVN J: So no application before State of Gujarat?

Gupta: No as per papers supplied here.… twitter.com/i/web/status/1…

Gupta: In release order, they have referred to positive recommendation of Addl DGP, as opposed to earlier adverse opinion. This was not in the earlier counter-affidavit. As far as this counter-affidavit was concerned, this document was non-existent.

#SupremeCourtofIndia… twitter.com/i/web/status/1…

Gupta: Incident of '02. CBI arrested them for first time in '04. Trial court ordered in '08. Set off of 4 yrs.

BVN J: If you exclude period of furlough & parole, will their actual period served come to 14 yrs? Is it correct?

Opposing counsel: Yes that's our submission.

BVN J:… twitter.com/i/web/status/1…

BVN J: Make a statement on whether each convict has completed 14 yrs of actual time served.

Gupta: I'll submit a chart during lunch...But you may note that they are in default sentence...None of them have paid fines. That does not go concurrently.

#SupremeCourtofIndia… twitter.com/i/web/status/1…

BVN J: This court said '92 policy would apply. Consideration was under which policy?

Gupta: In last documents, they considered u/'92 policy. But before order of this court, all other things were considered u/'14 policy.

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Gupta: Minimum sentence is of 14 yrs, but for people convicted of murder committed with premeditation and with exceptional violence and/or brutality, it is 26 yrs; while for those convicted of crimes with exceptional violence and/or with brutality or death of victim due to burn… twitter.com/i/web/status/1…

Gupta: According to their documents, one of the considerations was whether an offence had been committed u/S376 of IPC. Here the offences were far more serious.

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase

Gupta: Opinion of convicting court was sought with respect to each convict. He gave a negative opinion with respect to each of the convicts. The opinion of investigating agency (CBI) was also sought, and CBI gave a negative opinion for all the convicts.

#SupremeCourtofIndia… twitter.com/i/web/status/1…

Gupta: Y'day this court said jail superintendent might only be familiar with conduct of prisoner while in jail. But look at this sheet. Jail superintendent is supposed to provide reasons. Not a whisper about the gravity of offences. This is either a negligent exercise done very… twitter.com/i/web/status/1…

Bhuyan J: Has any of them expressed any repentance or remorse?

Gupta: They have not even bothered to pay the fines they were asked to.

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Sr Adv Indira Jaising, representing PIL petitioner, interjects.

"[Bilkis' rapists] have been garlanded & felicited. Statements been made that they are Brahmins & can't commit such crimes. There's denial that crime was committed."

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Jaising: ...There is denial that crime was committed after conviction!

ASG SV Raju: What is wrong with garlanding a family member who comes out of jail?

Jaising: ...Saying they are Brahmins, & therefore, cannot commit this crime.

BVN J: Let us not go back, let's go forward.… twitter.com/i/web/status/1…

Gupta will continue her submission after lunch. Opposing counsel seeks adjournment till next week; bench informed that Sidharth Luthra (for another respondent) will not be available for the rest of the week.

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#CourtroomExchange

When informed about senior advocate's unavailability -

Nagarathna J: This is also the Supreme Court. If he is going anywhere or to any other court, we are not concerned. AoRs have to make arrangements for other counsel.

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BVN J: Now we have discharged the board. You must hurry up now. We are not hurrying you...but hurry up (smiles)

Adv Shobha Gupta resumes.

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Gupta: Document part is over. Now I have to take you through the remission policies, and then judgments...

BVN J: Also tell us which are the appropriate sections.

Gupta: Alright.

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Gupta: 'Appropriate government' for grant of remission would be Maharashtra, not Gujarat...The unambiguous language of Section 432(7)(b) of CrPC, 1973 makes it clear. (Relies on 1976 judgment of #SupremeCourt in Ratan Singh)

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase twitter.com/i/web/status/1…

Gupta reads out from State of MP v. Ratan Singh.

BVN J: Here it is a transfer after conviction. Do you have any case where trial took place in a different state?

Gupta: I'll show...

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase twitter.com/i/web/status/1…

Gupta reads out from Hanumant Dass v. Vinay Kumar (1976) and Govt of Andhra Pradesh v. MT Khan (2004).

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase twitter.com/i/web/status/1…

Next, Gupta reads out from five-judge bench decision in Union of India v. V Sriharan (2016).

Courtesy: @indiankanoon

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase https://t.co/prLu1ebDHdtwitter.com/i/web/status/1…

@indiankanoon BVN J: Was this five-judge bench decision not shown to #SupremeCourt?

Gupta: Yes...Said this won't be applicable by [distinguishing V Sriharan].

BVN J: Was there any other precedent?

Gupta: No.

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase twitter.com/i/web/status/1…

BVN J: Remission order under which policy?

Gupta: Order under '92 policy, but before 18.08.2021, he was being considered under '14 policy.

BVN J: Whose policy?

Gupta: State of Gujarat.

BVN J: But he had not made any application to State of Gujarat.

Gupta: It was all over the… twitter.com/i/web/status/1…

Bench informed of two applications to State of Gujarat which hasn't been included in counter-affidavit -

Nagarathna J: Why have you not referred to it in your counter? How can you have something on record and not refer to it in counter? Do we go by your counter or not? If… twitter.com/i/web/status/1…

Gupta tells bench that good behavior in jail and completion of 14 yrs are not only factors to be considered while considering remission application.

"Jail superintendent supposed to give reasoned recommendation after going through judgment, as per their own policy."… twitter.com/i/web/status/1…

Gupta: 'May' in S 432(2) of CrPC has been interpreted as 'must'. Govt must obtain opinion with reasons of presiding judge of convicting/confirming court.

BVN J: Which judgment?

Gupta refers to Sangeet v. S/O Haryana (2013).

#SupremeCourtofIndia #BilkisBano #BilkisBanoCase https://t.co/QdNHm9wcFXtwitter.com/i/web/status/1…

Gupta: Despite this opinion by presiding judge, there is no explanation as to why they are not concurring...

BVN J: Or differing.

Gupta: Either way.

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Gupta: Opinion of presiding judge not only a relevant factor...

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On compliance with remission policy -

BVN J: Policy is not the whole and soul. Policy and section both have to be considered. One does not substitute the other.

Bhuyan J: Has to be read in context of statute.

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Gupta questions why adverse opinion of stakeholders were ignored.

BVN J: That is, district judge and IGP?

Gupta: CBI.

BVN J: And also ADGP?

Gupta: At least in one case. (Radheshyam Shah)

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Gupta: Sangeet was pronounced on Nov 20, 2012. In 2013, central govt circulated notice to states & UTs to implement Sangeet's directions...to not grant remission in wholesale manner & assess each application on a case-by-case basis.

#SupremeCourtofIndia #BilkisBano… twitter.com/i/web/status/1…

Gupta: 1992 remission policy did not exist when remission applications were considered since it was scrapped in 2013 to implement Sangeet judgment.

BVN J: It's cancelled? No longer revived?

Malhotra: From May 8, 2013, this policy was no longer there.

#SupremeCourtofIndia… twitter.com/i/web/status/1…

Counsel: Law at time of conviction would apply.

BVN J: If this policy stands cancelled, then which is the law that says...

Gupta: Jagdish says that. There was no cancellation, but supercession. Two things - policy applicable as on date of conviction, and second, whichever… twitter.com/i/web/status/1…

Gupta: '92 policy might apply, but they could not have been blind to subsequent developments.

BVN J: You cannot mix up policy.

Gupta: Assuming this is '92 policy, and there is a gap of 30 yrs. My submission is that while granting remission, govt cannot be oblivious to its own… twitter.com/i/web/status/1…

Gupta: Earlier, remission policies were simple. '14 policy throws light on wisdom of govt. This is before the convicts' remission was considered. Cannot be blind to subsequent wisdom as well law pronounced by court.

BVN J: You can say judgment of this court, but cannot pinpoint… twitter.com/i/web/status/1…

Gupta: Maharashtra formulated a policy in April 2008.

BVN J: If test is date of conviction, even this would not apply?

Gupta: There was a circular, which we could not lay our hands on, which says this policy would apply to all pre-2010 convictions.

#SupremeCourtofIndia… twitter.com/i/web/status/1…

BVN J: Where is this circular mentioned?

Gupta: In order of special judge in Mumbai.

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Gupta: The factors that are to be considered according to judgments of this court have been given a complete go-by when granting them remission...Crime test, impact test, society's cry, abhorrence...

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