In the last week of February 2002, violent communal riots rocked the state of Gujarat after a few bogies of Sabarmati Express were burnt near the Godhra railway station. Bilkis Bano, who was five months pregnant, was fleeing the conflict zone with her family when a mob accosted and gangraped her. They also killed her three-year-old daughter along with 13 others. The ghastly incident took place in Limkheda taluka of Gujarat’s Dahod district in March 2002. It was first investigated by Gujarat police and later transferred to the Central Bureau of Investigation. Eleven persons were convicted and sentenced to life imprisonment by the special court in Mumbai on January 21, 2008. The trial was transferred to Maharashtra as the communal divide had vitiated the atmosphere in Gujarat. Investigation of the case by Gujarat police before its transfer to the CBI was later severely criticised by the Bombay High Court.
Having completed 14 years of imprisonment, the convicts applied for remission and the state of Gujarat vide its orders dated August 10, 2022, prematurely released them. Considering the barbaric and heinous nature of the crime, the “wholesale remissions” shocked and rattled many of us. Our group consisting of Jagdeep Chhokar, Madhu Bhandari and I filed Writ Petition No 352 on September 8, 2022, in the Supreme Court. Advocate Vrinda Grover and her team took it up pro bono and followed it meticulously through the legal labyrinth. At that time, Bilkis Bano had not challenged the Gujarat government’s decision on remission.
Many advised us against taking up the case. Some labelled it a “lost battle” while others talked about the all-pervasive corruption. But we never lost hope. It has been a battle for a just cause and an honest and transparent criminal justice system.
Bilkis reminded me of an old lady in a torn saree who met me once in the late 1990s. She had come from the drought-prone Mhaswad town and I was then police chief of Satara district in Maharashtra. The lady had reached my office quite late. After a heated argument with the officer in the police control room, who would not let her meet me as the visitors’ time was over, she made her way to my official chamber on the first floor.
She was short and her feet did not touch the floor when seated. Dragging her chair forward, she pounded her hand on the huge office glass table and said she expected justice from me and “that I was sitting on ‘the chair’ to do that”. Her confidence was in total contrast to her rural “voiceless” demeanour. She was firm and clear, shaking me out of my stupor and comfort. And she did make me act.
Bilkis is a woman who has fought for justice because she believes that she will get it even if she has to shake up the system. She was supported by the civil society and the dedicated legal team of Shobha Gupta. Justice BV Nagarathna, who authored the judgment, while pronouncing on various intricate issues involved, has focused on Bilkis in the very beginning of the order. “A woman deserves respect howsoever high or low she may otherwise be considered in society or to whatever faith she may follow or whatever creed she may belong to,” the order said.
On Monday, the Court pronounced that its May 13, 2022 order that the Gujarat government was competent to decide remission, was “per incuriam and non-est in law” (lacking due regard to fact and bad in law) since it was obtained through “suppression of material facts as well as by misrepresentation of facts”.
Further, for Section 432 of the Code of Criminal Procedure, the state of trial is the “appropriate authority” for granting remission and not the state where the crime took place. It has also given due importance to the opinion of the presiding judge of the trial court as “an independent authority which must be consulted”. In this instance, the investigating officer of the Central Bureau of Investigation or the special judge had not recommended remissions. The Court has frowned upon “non-payment of fines by the convicts” and has cautioned against arbitrariness and “any abuse of discretion” by the State.
The 11 convicts have been asked to report back to prison. The state of Maharashtra is competent to decide on their remissions as the trial was held in Mumbai. However, while seeking remission is the legal right of a convict, it is not an entitlement he can claim. The state government has to analyse the gravity of the crime, its impact on society and the chances of future recurrence before acceding to such requests.
Women in India and across the world are watching, as the crime in this case is not against a particular gender, but against humanity.
Meeran Chadha Borwankar, one of the petitioners in the Bilkis Bano case, is a retired officer of the Indian Police Service. The views expressed are personal
