The mention of Gujrat in 2002 brings about a shiver of dismay in every living Indian. While the country was not immune from communal clashes the riots of 2002 brought about the most heinous crimes in the name of religion. Among these, the one that scarred the whole country was the gangrape and assassination of Bilkis Bano and her family.
During the 2002 Gujarat riots, Bilkis Bano who was pregnant at the time, was subjected to a brutal gangrape, while 14 members of her family were raped, molested, and hacked to death by the mob. Bilkis was the sole witness and survivor of eight gang rapes and 14 murders. She knew the names of her attackers and described the events to the police officer in detail. However, the Police Head Constable, Somabhai Gori, refused to register her complaint. He instead sent her to a relief camp, where she was reunited with her distraught husband, Yakub Rasool. Two days after the killings, some local photographers discovered eight bodies of the massacred family, and it was this public exposure that compelled the police to act.
Following extensive legal proceedings, the Central Bureau of Investigation (CBI) investigated the case. A special CBI court in Mumbai on January 21, 2008, sentenced 11 men to life imprisonment on charges of gang rape and for the murder of 14 members of Bilkis Bano’s family. The Bombay High Court and the Supreme Court later upheld their conviction.
Verdict of 2022
On August 15, 2022, the Gujarat government remitted the sentences of the eleven convicted individuals based on the advice of a Jail Advisory Committee. This remission was made possible by the May 13 Supreme Court ruling delivered by a Bench headed by Justice Ajay Rastogi (now retired), allowing Gujarat to decide the application of one of the convicts, Radheshyam Bhagwandas Shah, for premature release in terms of the State’s remission policy of July 9, 1992
The Supreme Court overturned the Gujarat High Court’s decision, ruling that Gujarat, not Maharashtra, was the proper government to evaluate the remission. Following that, a special panel of judicial experts and politicians recommended to the Gujarat government that the 11 convicts be released.
Bilkis Yakub Rasool, after the release of the 11 convicts took the case to the Supreme Court. She, along with 5 other petitioners filed a case seeking quashing of the orders by the Supreme Court, for the sake of convenience. She filed the case against the Union of India and the state of Gujarat for the remission of the 11 convicts.
Sections 432 and 433 of the CrPC are of great relevance to the case. Section 432 addresses the authority to suspend or commute sentences. Under this provision, the ‘appropriate government’ has the authority to suspend the execution of the convict’s sentence or remit the entire or a portion of the punishment imposed on them, either unconditionally or by imposing conditions accepted by the convict.
Understanding the Remission Policy under CrPC
The Code of Criminal Procedure (CrPC) is the fundamental set of laws that govern the administration of criminal cases in the country. The CrPC is divided into 37 Chapters, 484 Sections, and two Schedules.
Section 432 in The Code Of Criminal Procedure, 1973 is as follows:
“When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced.”
The Criminal Procedure Code of 1973 (CRPC) allows the government to suspend, remit, or commute a sentence issued by any court for any offence. The appropriate government can exercise these rights with or without constraints and without the approval of the person convicted, but they are subject to specific restrictions under section 43A.
Sections 432 and 433 of the law empower the government to use its power over suspension, commutation, and remission.
The procedure followed under Section 432 of CrPC, 1973 is:
The government would seek the advice of the court that imposed such a sentence. The court would respond with appropriate records. If the government believes that all of the conditions for such a request have not been met, it may grant or reject the application for remission and suspension. If the offender is still at large, he or she may be arrested without a warrant by any police officer and must serve the remainder of the sentence. The power of remission is entirely executive. There is no law to call the legality of this action into question, but the government should use this power fairly and not arbitrarily.
The Gujarat Government’s Twisted Game
The incompetence and visible bias of the Gujarat government towards the rapists was evidently visible by the way they twisted the law in their favour. The leading case on the subject would confirm that the Maharashtra government was the appropriate government for determining the remission. The Supreme Court, however, interpreting CrPC section 432(7), determined that the Gujarat government is the appropriate government because the case was transferred to and adjudicated in Maharashtra for the limited purpose of trial.
Moreover, one of the convicts applied for remission under the 1992 policy, which does not distinguish between the nature of the crime and its mode of investigation. As per the current policy formulated in 2014, a person convicted for both gang rape and murder can not be released prematurely, but the 1992 policy had no such bar.
The Gujarat government therefore granted remission to the 11 convicts with consultation from a panel that it has set up. It is important to note that most of these panel members were from BJP, or in some way related to it. One panel member, a BJP MLA, had said that the convicts deserved to be released because they were “Brahmins with good sanskaras or values.”
The Verdict of 2024
The Supreme Court ruled that the Gujarat government lacked the authority to grant the premature release of 11 convicts sentenced to life in prison for gang-raping a pregnant Bilkis Bano. The court ordered the convicts to return to prison within two weeks.
The Supreme Court ruled that the May 13, 2022, judgment of a bench of Justices Ajay Rastogi and Vikram Nath, which directed the Gujarat government to consider remission, was “a nullity” because it was obtained by “playing fraud on the Court” and suppressing material facts. “All proceedings taken in furtherance of the judgment are also vitiated and a nullity in law,” the court ruled.
The Supreme Court stated that the order issued by another bench in May 2022, asking the Gujarat government to decide on remission based on the 1992 policy, was obtained by concealing facts and defrauding the court. The court said it was a classic case where the order of the SC has been used to violate the rule of law for passing orders for remission.
In a harsh and cutting judgment, the court also noted that if the convicts can “circumvent the consequences of their conviction, peace and tranquillity in the society will be reduced to a chimaera.”
“Usurpation of power arises when power vested in one authority is exercised by another, the judge said. “Applying the principle in this case, having regard to our answer of “appropriate power”, Gujarat government exercising the power was an instance of usurpation of power.”
Media coverage
The Bilkis Bano case was the epitome of gruesome communal violence that shook the entire nation including its media. It was local journalists who by finding and photographing the bodies of Bilks’s family put her story in the limelight and created pressure to carry out investigations.
However, as the media in the country becomes less free each day the release of the 11 rapists was buried in obliviation by many newspapers. While most Hindi newspapers kept the news from their readers, the Times of India carried a snippet on page one on August 17. The newspaper with the highest circulation in the country chose to carry only the victim’s words – Bilkis Bano – in quotes rather than the actual news report.
In contrast, two other national newspapers, the Indian Express and The Hindu, not only prominently displayed the news on page one, but also published editorials condemning the move.
Despite the fact that the two leading national newspapers, the Times of India and the Hindustan Times, found an indirect way to report the story, most Hindi newspapers blacked it out. Amar Ujala, Dainik Jagran, Hindustan, and Rajasthan Patrika all chose not to publish the news in their print editions.
When it comes to television news, with the current media landscape where the major news channels are completely funded by the right wing it doesn’t come as a surprise that the Bilkis Bano case was buried in between headlines. The duty of the media is to investigate and hold the government accountable for its actions. However, for Indian media, it seems that looking the other way is tempting with the cash that it brings. Except for NDTV, mainstream television did not give the recent release of the convicts the attention it deserved
Justice was repeatedly delayed for Bilkis Bano, the only reason we remember the case is not because of the media’s persistence in reporting it but because of how gruesome it was and the bravery of the women who fought for justice.
Consequence
The Supreme Court has ruled that the Gujarat government lacks the authority to grant the premature release of 11 convicts sentenced to life in prison for gang-raping a pregnant Bilkis Bano and members of her family, as well as mass murdering at least 14 of them during the 2002 Gujarat riots. The court has ordered the convicts to return to prison within two weeks.
The landmark judgement by the Supreme Court smashed the Gujrat government and its role in denying justice to a woman. The communal origin of the case gives a clear indication of why the government if not aid then dismiss the cruciality of the matter. The Supreme Court judgement was a political landmark which reminded the nation of the modis government in Gujrat and how it had a direct contribution the the 2002 riots. It pointed out that the Gujarat government “acted in tandem” with the convict, breached the rule of law, and usurped power”.
The verdict held the union government accountable for clearing the remission. It slammed the Hindutva ideology which supported the release of the convicts on the grounds of them being “sanskari brahmins”.
It is important to remember that justice did not come as a result of the government but because of the women who fought endlessly for it. State and federal governments took a side with the prisoners in this matter, advocating for them and never standing up for the survivors. It took women petitioners, expelled TMC MP, Mahua Moitra, ex-CPI(M) MP, Subhasini Ali, social worker, Revati Laul and Rooprekha Verma to petition the supreme court and move on Bilkis Bano’s behalf.
Opinion
The Supreme Court ruling in some way has indeed restored the faith of the country in its justice system, especially at a time when the government itself is a weapon of communal radicalization. Being found guilty of fraud and complicity by the learned judges is an affront to our illustrious Gujarat Model of governance. And, if the Gujarat government has any integrity at all, it should be very ashamed after what the judges said. Yet, there has been no response from the right-wing, BJP or its supporters. The Supreme Court judgment called out the Gujrat government led by BJP but it seems as if our Prime Minister, Home Minister and even the Chief Minister of Gujarat have a lock on their mouths. What echoes from BJP, is complete silence. While we rejoice and hail the judgment, the ecosystem that aids and abets the establishment that from time to time shocks us by its recurrent overreach has gone silent.
Bilkis Bano got justice and the 11 convicts were asked to surrender however the people who helped in the release of these convicts faced no repercussions. All those informed enough know how BJP and its ideological parent RSS facilitated the 2002 riots which led to the killing of a majority of Muslims under Modi rule. The same government then facilitated the release of rapists and murderers and even applauded them. When the Supreme Court gave out its final verdict calling the 11 convicts to surrender Obviously, some have chosen to duck the Bilkis Bano ruling for the time being. They expect the embarrassment to blow over before it becomes business as usual, allowing them to abuse and misuse the authority vested in them with impunity once again.
The anonymity that our ministers have been enjoying has come as a curse to those who suffer. Individuals are falsely accused, even of sedition, and those who started and signed the files remain unpunished even after the cases are eventually dismissed. The only people who are forced to carry the weight of this kind of power abuse are the victims.
Conclusion
The case comes out as a victory for the ordinary citizens’ belief in the judiciary system. But the struggle of a gangrape survivor to get justice spanning over 20 years reminds us of the unlawful power granted in the hands of the government. Bilkis Bano took on the state and central government by herself, this wasn’t just a fight for women, their rights and justice it was a fight against a fascist regime doing everything in its power to protect its monstrous soldiers. In such a time we must remember that allowing officials to hide behind the anonymity of a state government and avoid accountability is cruel. Returning the rapists to prison while letting the officials go free is justice only half done.
Written by – Yukta Chaudhari
Edited by – Shamonnita Banerjee