The Supreme Court bench of Justices K.M. Joseph and B.V. Nagarathna on Tuesday said some lawyers defending the release of 11 lifers in the Bilkis Bano case were trying to avoid it by seeking adjournments, aware that Justice Joseph was days away from retirement.

The comment came on a day the Centre and the Gujarat government made a surprise turnaround and offered to furnish all the documents relating to the decision to remit the convicts’ jail terms.

“It is clear what is being attempted here. You don’t want this bench to hear the matter. You know I will retire on June 16. Since that is during the vacation, my last working day is Friday, May 19. It is obvious you do not want this bench to hear the matter,” Justice Joseph said.

“But you must know that this is not fair to me. Earlier, we made it absolutely clear that the matter will be heard for final disposal. You (advocates) are officers of the court; do not forget that role. You may win a case or lose one, but do not forget your duty to the court.”

Bilkis, gang-raped during the 2002 Gujarat riots while seven members of her family were killed, has petitioned the apex court challenging the August 15, 2022, release of the convicts. At the previous hearing, the bench of Justices Joseph and Nagarathna had castigated the Gujarat government for the remissions.

Justice Joseph’s comments on Tuesday came after some of the counsel appearing for the released convicts sought an adjournment saying Bilkis had not served their clients with notices.

The judge further said that while the apex court would not sit between May 19 and July 3, he and Justice Nagarathna were willing to hear the matter during the vacation.

But counsel for the convicts opposed any hearing during the vacation. Solicitor-general Tushar Mehta too said the government was not keen on hearings during the vacation, while clarifying that this stand applied to all cases.

The defence counsel alleged that Bilkis’s legal team had lied to the court in an affidavit by claiming that notices sent to some of the freed convicts had been returned unserved as they had refused to accept them.

The defence counsel claimed that some of the convicts had been out of station and there was none to receive the notices.

The counsel further alleged that Bilkis had earlier too been caught “playing fraud” with the court by filing false affidavits, and demanded action against her. But the counsel did not cite specifics. The bench granted a week’s time to complete the process of formally serving the notices through the local police stations, and posted the next hearing to May 9.

About-turn

Solicitor-general Mehta, appearing for the Centre and Gujarat, assured the bench that both governments were willing to place before it the documents they had considered before deciding to release the convicts.

The development comes just a fortnight after the two governments had opposed the court’s March 27 directive to furnish the documents, arguing they contained “privileged” information and communications. They had said they would move review petitions against the March 27 directive — a position they withdrew from on Tuesday.

At the last hearing on April 18, the bench had threatened the Gujarat government with contempt for not producing the documents as ordered on March 27. On Tuesday, Mehta said the two governments had no objection to contesting Bilkis’s petition as she was the aggrieved party but opposed the locus standi of public interest petitioners like CPM member Subhashini Ali and Trinamul MP Mahua Moitra, who had filed separate pleas challenging the remissions.

He argued that allowing PIL petitioners to intervene in the matter “will set a bad precedent and will have wide ramifications as third parties will come to courts in hundreds of criminal matters”. The same argument had been made earlier during the day’s hearing by senior advocate Sidharth Luthra, representing some of the convicts.

The bench did not commit itself either way on the plea. On April 18, the bench had dismissed the two governments’ argument that many convicts sentenced to life for murder get remission after 14 or 15 years, saying “you cannot compare apples with oranges”. “A pregnant woman was gang-raped and several people were killed. You cannot compare the victim’s (Bilkis’s) case with standard Section 302 (murder),” it had said.

The Gujarat government had remitted the life sentences with the Centre’s consent. The state says it acted on the basis of a May 13, 2022, order passed by the apex court bench of Justices Ajay Rastogi and Vikram Nath directing it to consider the plea for release moved by one of the convicts, Radheshyam Bhagwandas Shah. Radheshyam had petitioned the apex court after Gujarat High Court ruled that the government of Maharashtra, where the trial was held, alone had the power to consider remission.

Ali, two others and Moitra then filed public interest petitions seeking cancellation of the remissions. Bilkis later moved the present petition challenging the release of the convicts and another one seeking a review of the May 13 order. The review plea has been dismissed by another bench.