BILKIS BANO CASE: A SERIES OF UNFORTUNATE EVENTS

FACTS : 

59 Kalsevaks were killed when the Sabarmati train burned during the 2002 Gujarat riots. Bilkis Bano, who was five months pregnant at the time, fled the village with her three-and-a-half-year-old daughter and 15 other family members, fearing violence.

They took refuge in the Chhaparvad district. On 3 March however, they were immediately attacked by about 20-30 people with sickles, swords, and sticks. Bilkis along with her mother, and three other women were raped and brutally assaulted.  Eight of the 17 members of the Muslim group in Radhikpur village were found dead and six are missing. Only Bilkis, a man and a three-year-old child survived the attack.

ANALYSIS : 

Bilkis Bano alleged that the police refused to include all the necessary information while registering the FIR. Therefore, without raising any further objection, she reported the matter to the National Human Rights Commission (NHRC) and subsequently to the Supreme Court, seeking a CBI inquiry. The National Human Rights Commission provided support and assistance by appointing a senior lawyer and a former Attorney General as his counsel to defend her before the Supreme Court. When the investigation started within a month, the accused were arrested and produced before the Gujarat High Court. After Bilkis faced death threats, the Supreme Court decided to transfer the case from the Gujarat court to the Maharashtra court for a fair and just trial, citing concerns that the evidence could be disturbing and dangerous to the witnesses.

In 2008, a special court convicted 13 of the 20 defendants. Eleven criminals were given life sentences, while seven were acquitted due to insufficient evidence. They were sentenced to life imprisonment and fines for their crimes, so that people in the future will fear committing such dreadful crimes. They were punished under Sections 302 and 376(2) of the Indian Penal Code, 1860, which must be read with Section 149 of the Indian Penal Code. Section 149 of the Indian Penal Code, 1860 deals with the offense of unlawful assembly. If more than five people come together for a purpose and one member of the unlawful assembly commits a crime, all members are considered guilty of that crime.

In response, the defendants appealed their decision in the Supreme Court in an attempt to reverse the court's decision. In 2011 India's Central Bureau of Investigation asked the Bombay High Court to sentence the convicts to death. Later in 2016 the convicts' lawyers requested re-examination of several witnesses, but the Bombay High Court rejected the request. The Bombay High Court reserved its decision on the appeal filed by 11 convicts sentenced to life imprisonment. Moreover, the court reserved its decision on the CBI's objection to the death penalty of the three convicts, considering it to be an extraordinary circumstance.  On appeal, the Bombay High Court upheld the verdict and sentenced the 11 accused in May 2017 to life imprisonment.

In 2017 SC rejected the appeal of two doctors and four civil servants against Bombay High Court’s conviction.  Later in 2019, the Supreme Court directed the state government to pay 50 lakh as compensation to Bano along with directing the state government to provide for employment opportunity for the victim and government accommodation at a place of her choice in response to a petition filed by Bano seeking compensation in 2017.

One of the convicts, Radheshyam Shah, approached the Gujarat High Court seeking remission of his imprisonment sentence under Article 432, which gives the state government the power to remit sentences as prison is a state according to the Constitution of India. He filed an appeal against the order of Gujarat High Court in July 2019, which had ruled that in this case the appropriate government to decide on his plea for remission would rest in Maharashtra, the plea being on the ground that he had completed 15 years and four months of his life term awarded by a CBI court in Mumbai in 2008.

After hearing the convict’s arguments the Supreme Court in accordance with the 1992 Gujarat remission policy, gave the power to decide whether he could be granted premature release on his sentence to the Gujarat Government. 

Articles 72 and 161 of the Constitution of India give the President and the Governor respectively, the power to grant pardon, suspend, remit, or commute a sentence passed by a Court.  These two dignitaries must commute the sentence. It has been stated by the judicial body that in case of remission or release of custody of a prisoner from imprisonment by way of remission then the court should be informed about the sentence reduction and the reasons for such dismissal must be reasonable and fair. This decision should not be made arbitrarily. Section 432 of the Code of Criminal Procedure, 1973 grants power to the State Government to release a prisoner by way of remission, as prisons are considered a state subject. However, this power to remit prisoners from jail has certain limitations that are given in Section 433A of the CrPC.

In 2022 August, the Bharatiya Janata Party (BJP)-led Gujarat government commuted the sentences of all 11 convicts who were sentenced to 14 years in prison. The decision, seemingly influenced and taken out of political considerations, sent shock waves across the country. The struggle for justice opens a new page with Bilkis Bano and her supporters opposing the commutation of her sentence in the Supreme Court.

The Government of Gujarat said that they decided to release them early in accordance with the policy enacted in 1992 based on "good conduct" of convicts during their imprisonment. Their release was immediately met with criticism and widespread opposition from journalists, non-governmental organizations and citizens. Critics pointed out that criminals had not served the full 14 years which was a requirement for early release under the 1992 rule when they were released.  Nine of the convicts had reportedly violated their parole and one was charged with molestation while he was out on parole, and hence the claim of ‘good conduct’ under the 1992 rule was argued as baseless. 

Bilkis Bano, Subhashini Ali Communist Party leader, challenged the Gujarat government’s decision. They alleged that the Gujarat government's decision to immediately release the 11 prisoners was "premature" and "mechanical". Each application must be evaluated individually instead of releasing all 11 convicts ‘en masse’.  They also demanded that the Gujarat government should have consulted the union before deciding on prisoners convicted by a special CBI court, a central agency. Moreover, the petitioners claimed that the crime was so heinous that no amount of "justice" could be sanctioned as a matter of public policy.  This grant of remission was challenged before the Supreme Court in August 2022.

Convicts argued before the court that only the state has the right to challenge the verdict.  They further argued that the convicts should not be held liable for the government’s decision and instead the government should be held accountable for its mistake in granting the remission.

JUDGMENT : 

In January 2024, the Supreme Court quashes Gujarat government’s decision to grant remission to 11 convicts and slammed the Gujarat Government for the premature release of the rape and murder accused convicts.  The court's reasoning was twofold: 

• 1) the Gujarat government lacked the jurisdiction to grant remission in this case, which falls under the purview of the central government; and 
• 2) the decision to release the convicts, without considering the gravity of the offense and the impact on the victim, was arbitrary and unreasonable. The Supreme Court observed that they should not have been released from jail after committing such horrendous offenses. 

It was a common feeling among the general public that those persons who gang-raped a pregnant woman and other women in her family and murdered her family members had no right to get out of prison. The Supreme Court's verdict reverberated throughout the nation. It was a vindication for Bilkis Bano's long and arduous struggle for justice and a reaffirmation of the principles of fair trial and judicial accountability. However, the case also exposed the deep-rooted biases and political influences that can manipulate the justice system.

CONCLUSION:

While the legal battle may be nearing its end, the scars of the tragedy run deep for Bilkis Bano and her family. The loss of loved ones, the physical and emotional trauma of the assault, and the relentless fight for justice have profoundly impacted her life. The case serves as a stark reminder of the devastating consequences of communal violence and the need for swift and effective mechanisms to protect vulnerable communities. The Bilkis Bano case transcends the individual tragedy and sheds light on broader societal issues. It highlights the vulnerability of women, particularly during times of communal tension. It raises questions about the accountability of state actors and the potential for political interference in the justice system. It also underscores the importance of access to legal aid and social support for victims of such heinous crimes.

The Bilkis Bano case is a story of hope amidst tragedy. It showcases the unwavering resilience of a survivor and the power of the justice system, however flawed, to provide retribution. However, it also serves as a stark reminder of the fragility of social harmony and the urgent need for collective action to combat discrimination and violence. While the scars of this case may never fully heal, the fight for justice for Bilkis Bano and all victims of similar atrocities continues, paving the way for a more just and equitable society.

Written by: Swetha SS