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A Time Of Torment

The Supreme Court, in quashing the remission order of the Gujarat government for 11 convicts, has set a very high standard of justice. Will this be the end to the hapless woman’s woes?

By Sujit Bhar

In 2002, a 21-year-old woman, five months pregnant, was fleeing for her life as the Gujarat riots broke out after the Godhra train-burning incident. Bilkis Bano was terrified, knowing that seven of her family members, including her three-year-old daughter had just been murdered in the riots. But fate had even worse designs for her. She was caught and was mercilessly gangraped. The 11 accused were convicted for life, but Bilkis’ apparent peace was shattered, when the Gujarat government granted remission to all 11 convicts on Independence Day in 2022.

The fight began all over again for Bilkis and, finally, on January 8 this year the Supreme Court quashed the remission order of the Gujarat government, saying that a “fraud” had been played on the Court by suppressing material facts.

Justice for Bilkis had been delayed in two phases, but had been delivered, this time by the top court bench of Justices BV Nagarathna and Ujjal Bhuyan. The order of the bench stated that it was not under the territory of Gujarat that the sentence was passed and the accused were convicted. The Court ordered the convicts to surrender in two weeks.

The 11 convicts have to go back to jail, but the issue does not end here.

The bench clarified that the trial was transferred to the state of Maharashtra from Gujarat and it makes the Maharashtra government as the “appropriate government”. This reverses the order passed by the Gujarat government.

“Here appropriate government means that the government under whose jurisdiction the sentence order has been passed and the accused were convicted,” the bench said.

That could also mean that this specific order of quashing could as easily be overcome, if the Maharashtra government now, choosing a suitable occasion, grants another remission to the convicts.

The order has been aptly qualified by an observation of the bench. It said: “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.” This truism was the plinth on which the judges based their order.

And, while the Court has handled its legal responsibility with aplomb, it has also left a “poison pill”, so to say, within the order.

The top court held as “nullity” its May 13, 2022, order of another bench asking the Gujarat government to consider remission plea of convicts, because it was obtained by “playing fraud on the court” and by suppressing material facts.

It said this is a classic case where the order of this Court was used to violate the rule of law by granting remission.

The top court said Rule of law was breached by the usurpation of power and the May 13, 2022, order was used to usurp the powers and abuse the process of law. “We strike down the remission orders on the ground of usurpation of power by Gujarat government,” the bench said.

Hence, it is not just a jurisdictional issue (Maharashtra government and not the Gujarat government), but a “fraud” that was perpetrated, the Court points out.

The Court was issuing orders on writ petitions filed by some influential women of the country (see box 1).

“End of Justice?”

CPI(M) leader and activist Subhashini Ali has been quoted in the media as saying: “On August 15, when the prime minister was talking about women’s security and honouring women, the Gujarat government gave the remission order and released them (the convicts). I then heard that Bilkis made a statement saying ‘is this the end of justice?’ That really shook me and many like me who thought, ‘What is the use of us being around?’”

Trinamool Congress leader Mahua Moitra had been more scathing in her comments. She had told the apex court that the gangrape of Bilkis Bano and murder of seven of her family members were a “crime against humanity”, and accused the Gujarat government of having failed to exercise its constitutional mandate of protecting the rights of women and children by granting remission to the 11 convicts in the “horrendous” case.

On April 18 last year, she had commented on X: “I was in SC today & listened to both Union of India & State of Gujarat cite “privilege” & refuse to share Bilkis killers’ remission files (in contempt of court). The privilege of protecting sanskari gang rapists & killers. The privilege of thumbing a nose at the law…”

Critical observations

An interesting observation in the top court shows the seed of the judgment.

Says the order: “After undergoing 14 years 5 months and 6 days of his sentence, respondent No. 3 herein, namely, Radheshyam Bhagwandas Shah, filed Criminal Application No.4573 of 2019 before the Gujarat High Court challenging the non-consideration of his application for premature release under Sections 433 and 433A of the Code of Criminal Procedure, 1973… The High Court after considering the submissions observed that respondent No.3 herein had been tried in the State of Maharashtra, hence, as per Section 432 (7), the ‘appropriate government’ for the purpose of Sections 432 and 433 of the CrPC would be the State of Maharashtra…”

And there was more. The CBI recommendation of that time has also been included. About this, the order says: “Respondent No. 3 then moved an application dated 01.08.2019 before the Secretary, Department of Home Affairs, State of Maharashtra, seeking premature release under Sections 432 and 433A of the CrPC. Respondent No.3 specifically relied on the order dated 17.07.2019 of the Gujarat High Court granting liberty to the convict to approach the State of Maharashtra seeking premature release.

“…As the case was investigated and prosecuted by the CBI, the opinion of the said Agency was sought on the application for premature release. The CBI submitted its report dated 14.08.2019 wherein it was recommended that respondent No.3 should serve his sentence fully and no leniency should be given to him. The CBI submitted that respondent No.3 had actively participated in the heinous crime and that the offences committed by him and others were serious in nature and thus, he should not be pardoned or the sentence suspended or remitted.”

Technically, that should have finally rejected the plea, sealing the fate of the criminal. Then, on Independence Day in 2022, the Gujarat government stated that it had allowed the remission of the convicts based on the 1992 policy. The Gujarat government stated that the convicts were released after they completed 14 years of sentence in prison, and their “behaviour was found to be good”. The remission was approved by the centre.

The Supreme Court said the Gujarat government should have taken the permission of the apex court for passing remission orders. The Court also said that Shah had suppressed all facts while applying to the Supreme Court, which was a “fraud”.

In fact, this fraud was the key to the release of all the 11 convicts.

A story of cruel apathy

Bilkis’ case is a story of utter cruelty and complete apathy by the state. The case (of the gangrape and murders) was virtually forgotten, pushed to one side and would have been lost if not for the tireless efforts of Bilkis and her supporters. The case was finally reopened and the culprits were brought to justice.

All this was achieved despite there being no proper investigation in the initial stages of this horrendous crime. Every bit of evidence was tampered with and even the medical examination of Bilkis was conducted after several days, by which time crucial evidence had been lost.

Then there was the shocking issue of no FIR having been registered. The police, initially, flatly refused, and even when they did, they left out crucial details of the incident. With the police in complete denial, the case was transferred to the Central Bureau of Investigation (CBI) on the order of the Supreme Court in 2004.

The CBI conducted a thorough investigation and filed a charge sheet against 20 accused persons, including police officers and doctors who had tried to cover up the crime.

In 2008, the trial began in a Mumbai court and, finally, in 2017 a Mumbai court convicted 11 of the accused, including one police officer, for gang rape and murders.

The rest is legal history, before the shocking remission order by the Gujarat government.

Not the end

This judgment is a victory for truth and justice. There may be, however, no finality in sight yet for Bilkis Bano. An appeal to the Maharashtra government on similar grounds may be seen and then, maybe, a revision appeal in the Supreme Court as well.

Despite the “poison pill” in the recent order of the Supreme Court bench, a lot depends on how the Maharashtra government decides to handle this in an election year.

The cruellest part of the Indian justice system maybe the lack of finality in court judgments. Appeals are fair, but when such is done with the intent to defraud, as the current bench has pointed out in this case, a case can drag out further, draining the resolve of the appellant. That would be unfair.

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