By Md. Arif Imam
Published on: January 14, 2024 at 21:37 IST
The Bilkis Bano gangrape case, a tragic chapter of March 3, 2002 Gujarat riots, has recently witnessed a landmark Supreme Court judgment that reverberates through legal circles and societal discourse. This analysis aims to delve deeper into the complexities surrounding the case, shedding light on its legal journey and the profound impact on the pursuit of justice.
Genesis of the Bilkis Bano Case
The origins of the Bilkis Bano case lie in the intense heat of communal violence during the 2002 Gujarat riots. In the backdrop of the 2002 Gujarat riots, Bilkis Bano, five months pregnant, lived with her family from Randhikpur village. Their refuge in the Chhaparvad district turned into a nightmare when a mob of 20-30 men attacked, leading to the gangrape of Bilkis, her mother, and three other women. Tragically, seven family members, including her 3-year-old daughter, was victim to the brutality.
Bilkis, a survivor of unimaginable brutality, bravely embarked on a quest for Justice by filing a writ petition under Article 32. This moment marked the initiation of a legal odyssey filled with challenges, casting a spotlight on the constitutional significance of the case. The court’s acknowledgment of the foundational importance of this petition set the stage for a thorough exploration of constitutional values and the judiciary’s role in safeguarding fundamental rights.
Timeline of Events in the Bilkis Bano Case
The case unfolds against the backdrop of the 2002 Gujarat riots, a dark episode in the history of communal violence. Bilkis Bano, a symbol of resilience, faced unspeakable atrocities, becoming a beacon of the pursuit of justice. The roots of the Bilkis Bano case delve into the communal violence triggered by the burning of the Sabarmati Express in Godhra in 2002. This incident led to widespread violence and targeted attacks on minority communities in Gujarat. In this volatile environment, Bilkis Bano’s harrowing experience unfolded.
Survivor’s Courageous Move (2002-2003):
Bilkis Bano, having endured unimaginable horrors during the violence, displayed immense courage by filing a writ petition under Article 32 of the Constitution. After Facing initial rejection by the police, Bilkis sought justice from the National Human Rights Commission (NHRC) in 2003, escalating the matter to the Supreme Court. The apex Court entrusted the Central Bureau of Investigation (CBI) with the case in 2004, relocating the trial to Mumbai due to concerns about evidence tampering. This act invoked her fundamental rights under Article 21 and Article 14, initiating a legal battle that not only sought justice for her but also challenged broader constitutional principles.
Legal Odyssey Begins (2004):
Recognizing the exceptional circumstances, the Supreme Court, in 2004, transferred the trial from Gujarat to Maharashtra. This important decision aimed to ensure a fair trial and protect witnesses from potential harm, highlighting the complexities associated with delivering justice in a polarized environment.
Convictions and Sentencing (2008):
The legal proceedings reached a conclusion in 2008 when a CBI Court in Mumbai pronounced 11 men guilty for their involvement in the gangrape and brutal murder. The charges included conspiracy, rape, murder, and unlawful assembly under the Indian Penal Code.
Appeals and Upheld Convictions (2017):
In a crucial juncture in May 2017, the Bombay High Court upheld the convictions and life imprisonment of the 11 individuals involved in the heinous crime. This judicial affirmation marked a pivotal moment in Bilkis Bano’s quest for justice.
Supreme Court’s Intervention (2019):
The legal journey continued in 2019 when the Supreme Court awarded compensation of Rs 50 lakh to Bilkis Bano. This historic decision represented a significant acknowledgment of the state’s responsibility and the need for restorative justice.
Controversial Remission Orders (2022):
The case took an unexpected turn on 15th August 2022 when the Gujarat government, acting on a Supreme Court order, granted remission to the convicted individuals. This decision, made under the State’s 1992 remission policy, sparked public outrage and raised questions about the appropriateness of such a move considering the gravity of the crime.
Grounds for Remission: Gujarat Government’s Emphasis on “Good Behavior”
The controversy on remission was arises when one of the convict Radheshyam Shah, who had served over 15 years, approached the Supreme Court on May 15, 2022, seeking early release. His plea eventually led to a directive from the Supreme Court to the Gujarat government to examine the matter of remission for Shah’s sentence, resulting in the formation of a committee led by Panchmahal Collector Sujal Mayatra.
By August 15, 2022, as part of the remission policy, the eleven convicts, including Shah, were released from the Godhra sub-jail, triggering a widespread public outcry. The Gujarat Government’s decision to grant remission to the 11 convicts in the Bilkis Bano gangrape case was anchored in the concept of “Good Behavior.” State authorities argued that the release was in accordance with the State’s Remission policy effective in 1992. According to this policy, there was no explicit prohibition against the premature release of individuals convicted of rape. The Government contended that the convicts, having completed 14 years and more in prison, exhibited commendable behaviour, meeting the criteria for remission under the prevailing policy.
Moreover, the Gujarat government highlighted that the Union Home Ministry had swiftly approved the release within two weeks, adding a layer of legitimacy to their decision. The authorities emphasized that due consideration was given to the recommendations of the Jail Advisory Committee (JAC), which unanimously suggested remission based on the convicts’ Good Behaviour.
It’s important to note that the Gujarat government’s argument leaned on the 1992 remission policy, as opposed to the more detailed and restrictive 2014 policy currently in effect. The contention was that the 1992 policy, being applicable at the time of the conviction in 2008, governed the remission decisions for the 11 convicts.
This ground for remission granted by the Gujarat government, though legally interpreted, faced vehement opposition and criticism, particularly from the Supreme Court. The apex court, in its subsequent ruling, not only nullified the remission but also rebuked the State for an abuse of discretion and an unjustifiable exercise of jurisdiction. The Court firmly asserted that Gujarat was not the appropriate government for deciding on the remission plea, challenging the very foundation on which the remission was granted.
Why SC Overturned the Remission Granted by the Gujarat Government
The Gujarat Government remission was highly criticized by the individuals, including Trinamool Congress MP Mahua Moitra and former CPI member MP Subhashini Ali, filed PILs challenging the release in the Supreme Court. In November 2022, Bilkis Bano herself appealed to the Supreme Court, contesting the Gujarat government’s decision to permit the 11 men’s release from incarceration
The Supreme Court’s decision to overturn the remission granted by the Gujarat government in the Bilkis Bano case stems from important legal and jurisdictional considerations. The Court, in its ruling on January 8, 2024, cited several reasons for declaring the remission null and void:
- Jurisdictional Error: The Supreme Court emphasized that the Gujarat government had no jurisdiction to entertain the application for remission or pass the orders. The court underscored that the appropriate government to decide on remission is the state within whose jurisdiction the accused were sentenced. According to Section 432 of the CrPC, the government of the state where the offender was tried and sentenced is the appropriate authority for remission. In this case, it was the State of Maharashtra, where the trial had been transferred to Mumbai due to exceptional circumstances not Gujarat.
- Abuse of Discretion: The Court characterized the Gujarat government’s decision to grant remission as an “instance of usurpation of jurisdiction” and an “abuse of discretion.” It pointed out that the State acted in tandem with the convicts and questioned the validity of the remission orders.
- Legal Infirmities and Non-Application of Mind: The Supreme Court scrutinized the remission order and found legal infirmities. It noted that the orders were stereotyped and lacked a detailed application of mind. The court highlighted that the remission decision reflected a “complete non-application of mind.”
- Nullity and Non Est in Law: The Court went a step further by declaring the May 13, 2022, judgment, which directed the Gujarat government to consider the remission plea, as a “nullity and non est in law.” The court suggested that the order was obtained by suppression and misrepresentation of facts, constituting fraudulent means.
- Failure to Seek Correction: The Supreme Court criticized the state of Gujarat for not filing a review petition seeking correction of the May 13, 2022, order by another bench of the Supreme Court. The court indicated that the state should have approached the court to rectify the jurisdictional error but failed to do so.
- Restoration of Status Quo Ante: The Court underscored the need to restore the status quo ante, emphasizing that allowing the convicts to remain out of jail would be contrary to the rule of law. It stressed that the remission orders, being null and void, required the convicts to surrender to the authorities.
Conclusion
The Bilkis Bano gangrape case, etched into the collective memory of India, exemplifies the resilience of survivors and the complexities of seeking justice in the aftermath of communal violence. The recent Supreme Court ruling, overturning the controversial remission granted by the Gujarat government, serves as a pivotal moment in the protracted legal battle.
The apex court’s meticulous scrutiny of jurisdictional errors, abuse of discretion, and legal infirmities underscores its commitment to upholding the rule of law. By declaring the remission null and void, the Court not only rectified a jurisdictional anomaly but also reaffirmed the principle that justice must be dispensed without compromise, especially in cases of heinous crimes.
The Bilkis Bano case resonates beyond its legal dimensions, symbolizing the struggles of survivors for justice, the judiciary’s role in upholding constitutional values, and the imperative of societal introspection. As the convicts face the prospect of surrender, the case stands as a testament to the endurance of truth and the resilience required in the pursuit of justice.
