The long road to justice: Bilkis Bano’s epic struggle
Feb 01, 2024By Arvind Narrain
In the beginning of 2024, a Supreme Court bench headed by Justice Nagarathna delivered a fine judgment holding that the Gujarat government did not have the power in law to remit the sentences of thirteen persons convicted of the brutal gangrape of Bilkis Bano and several other women of her family along with murder of her family members, including her 3 year old daughter during the communal pogrom in Gujarat in 2002.
This was a welcome judgment as the remission for the convicts were not only against the law but also shocked the conscience of right thinking Indians. Even by the standards of violence which we are increasingly getting inured to, the crime against Bilkis and her family members was one of extraordinary brutality.
The crimes committed against Bilkis, her family members and relatives was committed against the backdrop of the mass violence which was allowed to continue unchecked post the burning of the Sabarmati Express at Godhra on 27.02.2002. For 72 hours following the train burning mobs were allowed to have free rein to target Muslim women for rape, murder Muslim men, women and children and destroy Muslim owned houses and businesses [Concerned Citizens Tribunal, Crime Against Humanity, 2002. https://www.sabrang.com/tribunal/]. Bilkis and her family were only a few of the innumerable victims of this state wide pogrom. When trying to escape mob violence, the van she was travelling in was stopped by a group of 25 people near Pannivel on 3.03.2002. Shouting “Musalmanoko Maro” they ran towards the group carrying swords, lathis and sickles in their hands. From the group of persons who attacked them, Bilkis identified accused Nos. 1 to 12 since they were all from the village Randhikpur. The acts the accused were convicted of included snatching Bilkis’s three year old daughter from Bilkis’s arms and smashing her to the ground due to which she died, forcibly removing her clothes and raping her as well as other female members of the group.
This background context of strong anti-Muslim bias combined with an atmosphere in which crimes against Muslims were committed with impunity, point towards another significant element of the crime. The crime was not only ‘uncommon’ because it was the heinous crime of gang rape and murder, but it was also ‘uncommon’ for its intention. Bilkis and her family members were targeted for murder and rape because they were Muslims. The crime against Bilkis has the elements of a crime committed against a collectivity, namely what international law could characterize as a ‘crime against humanity’.
The rape and murder suffered by Bilkis and her family members has elements of both a crime against humanity and genocide. Bilkis was subjected to gang rape not just because she was a woman but because she was a Muslim woman and her family members were killed because they were Muslim. As such the nature of the crime is of an altogether different level of seriousness from an IPC offence.
The judgment records the arguments of Indira Jaisingh as well as Vrinda Grover who approached the issue of why the remission in this case was particularly unconscionable. Indira Jaisingh argued that, ‘the crimes were specifically targeted at the victim on the basis of her religion and gender. That these heinous crimes constitute crimes against humanity. It was submitted that the nature of the crime is important to consider while deciding whether to grant remission.’ Indira Jaisingh also submitted that, ‘the grant of remission to the respondent Nos.3 to 13 is in violation of India’s obligations under international law, specifically instruments such as the International Covenant on Civil and Political Rights and the Convention on the Elimination of All Forms of Discrimination Against Women. That rape was used as a tool of oppression by the perpetrators and the victim in the instant case experienced significant trauma as a consequence.’ Ms. Jaisingh also argued that, ‘the grant of remission in the instant case is in violation of the obligation to prevent crimes against humanity, which itself forms a part of the norm of jus cogens. That there is a link between the peremptory norm of jus cogens and fundamental values, making the former non-derogable and a part of domestic law even if not explicitly codified.’
While the judgment did not take direct cognizance of any of these weighty matters, Justice Nagarathna observed that, ‘A woman deserves respect howsoever high or low she may be otherwise considered in society or to whatever faith she may follow or any creed she may belong to. Can heinous crimes, inter alia, against women permit remission of the convicts by a reduction in their sentence and by granting them liberty? These are the issues which arise in these writ petitions.’
Justice Nagarathna choose to answer the question by arguing that the ‘appropriate government’ vested with the power of remission was the government of Maharashtra and not Gujarat. This according to Justice Nagarathna flowed from a reading of both provisions of the Criminal Procedure Code as well as judgments of the Supreme Court.
As such the decision of the Gujarat government was a decision which was without requisite legal authority and hence was a nullity in terms of law. The other hurdle the Court had to cross was an earlier decision of the Supreme Court, in which it had been held that the appropriate government to decide on remission was the place where the offence was committed, namely Gujarat. The Supreme Court held that, the said judgment of the Supreme Court ‘is a nullity and is non est in law since the said order was sought by suppression of material facts as well as by misrepresentation of facts (suppressio veri, suggestio falsi) and therefore, fraudulently obtained at the hands of this Court.’
In a scathing indictment of the way the remission policy was operationalized by the State of Gujarat, the Supreme Court reasserted its own responsibility to safeguard rule of law, when the state failed.
Rule of law means wherever and whenever the State fails to perform its duties, the Court would step in to ensure that the rule of law prevails over the abuse of the process of law. Such abuse may result from, inter alia, inaction or even arbitrary action of protecting the true offenders or failure by different authorities in discharging statutory or other obligations in consonance with the procedural and penal statutes. Breach of the rule of law, amounts to negation of equality under Article 14 of the Constitution.
It was this logic of the failure of the rule of law which resulted in the Supreme Court deciding that the eleven convicts must surrender, ‘within two weeks’ of the judgment being delivered to the jail authorities.
In her extraordinary battle for justice, Bilkis traversed the legal system right from the trial courts in Gujarat to the Sessions court in Mumbai to the Bombay High Court as well as the Supreme Court over seventeen long years. The judgment of the Special CBI Court convicted the eleven accused of gang rape and murder in 2008 and sentenced them to life imprisonment. In 2017, the conviction order was upheld by the Bombay High Court. In 2022 the sentence of the convicts was remitted by the Gujarat Government and the accused walked free after fourteen years in judicial custody. The arbitrary and undoubtedly political decision to grant remission to the eleven convicted persons by the Gujarat government was an unexpected twist in the long struggle for justice of Bilkis Bano. Finally the balance of justice has been restored in this decision by the Supreme Court to quash the remissions and send the convicts back to jail.
As Bilkis Bano put it in a moving statement on the judgment which needs to be quoted in full and read again and again:
Today is truly the New Year for me. I have wept tears of relief. I have smiled for the first time in over a year and half. I have hugged my children. It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again. This is what justice feels like. I thank the honourable Supreme Court of India for giving me, my children and women everywhere, this vindication and hope in the promise of equal justice for all.
I have said before, and I say again today, journeys like mine can never be made alone. I have had my husband and my children by my side. I have had my friends who have given me so much love at a time of such hate, and held my hand at each difficult turn. I have had an extraordinary lawyer, Advocate Shobha Gupta, who has walked with me unwaveringly for over 20 long years, and who never allowed me to lose hope in the idea of justice.
A year and half ago, on August 15, 2022, when those who had destroyed my family and terrorised my very existence, were given an early release, I simply collapsed. I felt I had exhausted my reservoir of courage. Until a million solidarities came my way. Thousands of ordinary people and women of India came forward. They stood with me, spoke for me, and filed PIL petitions in the Supreme Court. 6000 people from all over, and 8500 people from Mumbai wrote appeals; 10,000 people wrote an Open Letter, as did 40,000 people from 29 districts of Karnataka. To each of these people, my gratitude for your precious solidarity and strength. You gave me the will to struggle, to rescue the idea of justice not just for me, but for every woman in India. I thank you.
Even as I absorb the full meaning of this verdict for my own life, and for my children’s lives, the dua that emerges from my heart today is simple – the rule of law, above all else and equality before law, for all.