A Landmark Judgement

Madhu Bhaduri

The Supreme Court of India, in a historic judgement delivered on 8 January 2024, has revoked remission orders passed by the Gujarat government in August 2022 on eleven convicts in what has come to be known as the Bilkis Bano case. This landmark judgement is part of a long chronicle of crime and punishment. It has caused relief and hope among a large section of people, especially the victim BilkisBano, whom the convicts had gang-raped, her family and her community. At the same time, the judgement has brought to a sudden end the liberty of the convicts who had been granted remission a year and a half ago and have now been ordered to return to prison. For them, it is the end of personal freedom, which they were enjoying due to an unlawful order passed by the Gujarat government.

The Court of Justice Nagarathna and Justice Ujjal Bhuyan has declared that remission was granted to the convicts on manipulation and suppression of evidence on the part of one of the convicts and by ‘usurpation’ of power and authority which it was not lawfully entitled to, by the government of Gujarat. This powerfully worded judgement has created much discussion and divided public opinion, which is visible in the media, especially social media.

The case goes back to twenty-two years. A young Bilkis Bano, who was 21 years old then and pregnant, was gang-raped.

She could not prevent her three-year-old daughter’s head from being smashed on a rock and the murder of seven members of her family in front of her eyes. She survived because the rapists and murderers took her to dead. All of them were known to her by name. They were her neighbours. This was in Gujarat in February 2002 during the frenzy of hate killings, which left several thousands dead. Bilkis, the lone survivor, had the courage to fight for justice. In that process, her case was shifted by the Supreme Court from Gujarat to Maharashtra, where the criminals were convicted in 2008 and were all given rigorous life imprisonment.

In an unprecedented move, the Gujarat government granted remission to all eleven convicts in 2022. Bilkis, the victim, was shattered to hear that her rapists and murderers of her family, which had gone through prolonged hardships during the years of trial when they were compelled to move from one place to another in fear of being haunted, was in danger once again.

Friends and well-wishers couldn’t persuade Bilkis to renew her fight for legal justice. Her lawyer, Shobha Gupta, said that Bilkis felt tired and hunted. Without sufficient public support, she was unwilling to take on another battle in the court of law alone, just by herself. While many people and activists were ready to file Public Interest litigation against the grant of remission to the convicts, rules made it mandatory for the victim to file case first. Finally, large public support persuaded Bilkis to approach the Supreme Court.

In August 2023, the Supreme Court began hearings of the cases relating to grant of remission to the rapists of Bilkis Bano. Along with her case, several public interest litigations were also filed for revoking the remission orders granted to the convicts of gang rape and murders. Interestingly, all the petitioners on BilkisBano’s side (with one exception of Jagdeep Chhokar, former professor at IIM, Ahmedabad) were women, and so were all the top lawyers on her side women. On the other side, some of the top male lawyers in the country represented the Gujarat government, the convicts and the central government. During the hearings before a two-member bench headed by Justice Nagarathna, the Supreme Court gave the visual appearance of gender confrontation.

 The heart of this landmark judgement lies in the revelation that under the existing laws, the rightful authority to grant remission lies with the state government where the conviction is made. In this case, the government of Maharashtra was legally responsible for considering a grant of remission because a special court in that state had convicted the criminals on charges of gang rape and murder. The judgement says the government of Gujarat unlawfully ‘usurped’ that right. So, the order of remission passed by it violated the law. It was legally invalid.

The Gujarat government passed the remission order with the concurrence of the Home Ministry in Delhi. The central government was also part of team defending the order of remission in the Supreme Court.

The Judgement showed that one of the convicts had filed a case in the Supreme Court in 2022 in which he had withheld important information about his having applied to te special court and the government of Maharashtra as also the CBI 9 The agency which had investigated the case of BilkisBano) for grant of remission. From all of them, he had received negative responses. He had then fraudulently received permission to approach the Gujarat government for a grant of remission.

A third and important revelation in this Judgement is that the Gujarat government granted remission on the basis of rules of remission that had been cancelled by that government and replaced by new rules circulated by the central government. The new rules do not allow for remission to rapists. It is a sad reflection on the Gujarat government that it has been complicit in violating more than one law. Some commentators have expressed the view that this Judgement can be regarded as an indictment of the Gujarat government for having violated the law of the land and in violation of rules of remission.

The team of lawyers in defence of the remission granted to the convicts argued forcefully against sending the convicts back to prison, which would amount to curtailing their freedom. The Judgement comes out clearly against “protection to a fortunate few”, which it says does not come in the meaning of the rule of law.

The important element of the Judgement is the relevance of the social dimensions of the crime committed by the convicts. The current CJI, Justice Chandrachud, is quoted in the Judgement to have said that when considering the grant of remission, it should be seen if the crime was an individual one or a social crime. In current case, there is no doubt that the crimes of the eleven convicts were clearly committed in a frenzy of hate against a particular community. On the score of the social impact of their crimes, the remission granted to the criminals has clear and wide implications.

Here, while reflecting on the social aspects on this case, it would be relevant to re call that when the eleven convicts were set free on August 15, 2022, just when the PM was upholding the honour of India’s women in his speech from the ramparts of the fort, the convicts were felicitated under the gaze of TV cameras with garlands and sweets. They were praised for their ‘sanskars’ and for their high caste behaviour.

As one of the many petitioners who approached the Supreme Court against the grant of remission to the rapists of BilkisBano, this writer thinks that the Judgement passed by Justice Nagarathna will have deep relevance in years to come. It has not only held high and, above all, the value of the rule of law and equality for all, but it has also placed the social relevance of law very high. Much higher than the ‘sanskars’ of the higher caste.

On this historic Judgement, Bilkis Bano has expressed herself most eloquently:

“Even as I absorb the full meaning of this verdict for my life and my children’s lives, the dua that emerges from my heart today is simple---the rule of law above all else and equality before all”.

Has this Judgement brought to an end the long chronicle of crime and punishment, which started twenty-two years ago, or is there more to follow within and outside the courts of law? That remains to be seen.

For now, Justice Nagarathna, through this Judgement, has brought back the dominance of the rule of law above all else and equality for all.

[Courtesy: Madras Courier]

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Vol 56, No. 31, Jan 28 - Feb 3, 2024