The Gujarat government has told the Supreme Court that the 11 convicts in the Bilkis Bano case were released since they completed 14 years in prison and their behaviour was found to be good.
In an affidavit, state Home Department Under Secretary said: "I say that the state government considered all the opinions and decided to release 11 prisoners since they have completed 14 years and above in prisons and their behaviour was found to be good."
It added that the state government considered the opinions of the seven authorities --the Inspector General of Prisons, Gujarat, the Jail Superintendents, the Jail Advisory Committee, the District Magistrate, the Police Superintendent, the CBI, the Special Crime Branch, Mumbai, and the sessions court, Mumbai (CBI).
"After approval of the state government, orders have been issued on August 10, 2022 to release the prisoners. Hence, in instance, case the state has considered the proposals under policy of 1992 as directed by this court and not granted under the circular governing grant of remission to prisoners as part of celebration of 'Azadi Ka Amrit Mahotsav', added the affidavit.
The affidavit said that all the convict prisoners have completed 14+ years in the prison under life imprisonment and opinions of the concerned authorities have been obtained as per the policy of July 9, 1992, and submitted to the Ministry of Home Affairs, by letter dated June 28, 2022 and sought the approval/suitable orders of the Centre.
"The Government of India conveyed the concurrence/ approval of the Central Government under section 435 of the CrPC for premature release of 11 prisoners vide letter dated July 11, 2022," said the affidavit.
The affidavit said the state government is empowered to take the decisions on the proposal of premature release of prisoners under the provision of Section 432 and 433 of CrPC. "However, considering the provision of Section 435 CrPC, it is indispensable to obtain the sanction of the Government of India in cases in which the investigation of the offence was carried out by a central investigation agency. In the present case, the investigation was carried out by the CBI and the state government has obtained the approval/suitable orders of the Government of India," it added.
The Gujarat government's response came on a plea has been filed by CPI-M's former MP Subhasini Ali, journalist Revati Laul, and Prof Roop Rekha Verma, challenging the release of 11 men convicted for the gang-rape of Bilkis Bano and multiple murders during the 2002 Gujarat riots. Another plea challenging the release of the convicts was filed by Trinamool Congress MP Mahua Moitra.
The Gujarat government denied each and every assertion made by the petitioners and said the petition is not maintainable in law nor tenable on facts. "The petitioner, being a third stranger, has no locus to challenge the remission orders by the competent authority strictly as per applicable law in the instant case under the garb of a PIL," said the affidavit.
The affidavit submitted that it is well established that a PIL is not maintainable in a criminal matter and 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. Thus, a petition, at the instance of a mere busybody, (and) which has political machinations, is liable to be dismissed, it added.
On September 9, the apex court directed the Gujarat government to file all records, which formed the basis for granting remission to all the accused in the case. It directed the state government to file its response within 2 weeks and also asked advocate Rishi Malhotra, representing some of the accused, to file a response.
A convict in Bilkis Bano case has told the Supreme Court that the petition challenging Gujarat government's remission order is "speculative and politically motivated".
The plea filed by Radheysham Bhagwandas Shah said: "This court not only on the ground of locus and maintainability but also on the ground of such speculative and politically motivated petition should dismiss the said petition with heavy hand and imposed an exemplary cost so that such political motivated petition by strangers should not be encouraged in future by others."