Bilkis Bano approaches Supreme Court to contest premature release of rape convicts

Bilkis bano

On November 30, Bilkis Bano approached the Supreme Court to contest the premature release of the 11 convicts who were given life sentences for the crime of gang rape and mass-murder during the Gujarat Riots in 2002. A writ petition has been filed by her, through Advocate Shobha Gupta, to the Supreme Court of India. Bilkis Bano has additionally filed a review petition in objection to the Supreme Court’s ruling allowing the Gujarat Government to make a decision on the remission of the convicts.

Bilkis Bano’s lawyer, advocate Shobha Gupta, mentioned the petitions before Chief Justice of India DY Chandrachud this morning. She questioned if the panel headed by Justice Ajay Rastogi, who wrote the prior ruling permitting Gujarat to determine the remission plea, would be able to hear the case because he is now in a Constitution Bench hearing. In response to this, CJI Chandrachud stated that “The review has to be heard first. Let it come before Justice Rastogi,” as reported by LiveLaw.

When advocate Gupta submitted that the matter had to be heard in an open court, CJI added that “only the court can decide that,” as reported by LiveLaw.

In response to advocate Gupta emphasizing on urgent listing of this case, the CJI then stated that that he will decide on the listing after looking into the matter this evening.

Brief background of the case:

During the communal violence that engulfed Gujarat in February- March 2002, in a particularly brutal attack, 14 members of Bilkis Bano’s family were killed, including Bano’s two-and-a-half-year-old daughter whose head was smashed on a rock! On March 3, moving from one village to another, the group were spotted by gangs of men in two cars hunting for Muslims. At the time she was carrying Saleeha, her three-year-old daughter, in her arms. She recognised the men, mainly from her own village, who rushed towards her. They tore the child from her arms and smashed her head on the ground. The child died before her mother’s eyes. Three men gangraped the pregnant Bilkis. Her sister and cousin sister were also raped. One of them had given birth only the day before. The baby was with her. Every single one of the group of eight was killed including the baby. Bilkis, who had lost consciousness, was left for dead, but she survived.

After Bilkis Bano approached the National Human Rights Commission (NHRC), the Supreme Court ordered a probe by the Central Bureau of Investigation (CBI). The accused were arrested in 2004 and the trial originally began in Ahmedabad. However, Bano expressed concerns about witness intimidation and evidence tampering and the case was transferred to Mumbai in August 2004. After a tortuous legal journey, the men were convicted by a special CBI court in January 2008. In 2017, the High Court upheld their conviction.

The order of remission:

After completing 14 years behind bars, Radheshyam Shah moved court for sentence remission. But the Gujarat High Court dismissed his plea stating the appropriate government to consider his plea under sections 432 and 433 of the Code of Criminal Procedure, was Maharashtra and not Gujarat. Then, Shah moved Supreme Court which ruled in May that Gujarat was the appropriate state to examine his plea. Besides, the presiding Judge who heard the trial in Mumbai after transfer, UD Salvi had also expressed his opinion against the remission.

A committee was formed to look into the plea for remission and according to Panchmahals collector Sujal Mayatra it “took a unanimous decision in favour of remission of all the 11 convicts in the case.” Both the Gujarat government and the Ministry of Home Affairs (MHA) acceded to the request.

The convicts who were granted remission were: Jaswant Nai, Govind Nai, Shailesh Bhatt, Mitesh Bhatt, Radhyesham Shah, Bipin Chandra Joshi, Kesarbhai Vohania, Bakabhai Vohania, Rajubhai Soni, Pradeep Mordhiya, and Ramesh Chandana. They are all residents of Randhikpur village located in Daud district of Gujarat. They were all known to Bilkis Bano and her family; while some were neighbours, others did business with her family. In May 2022, the Supreme Court bench of Justice Rastogi and Justice Vikram Nath had held that Gujarat Government was the appropriate government to consider the remission in the case and directed that the remission applications be decided within two months. On August 15, 2022, as India was celebrating her 75th Independence Day, these convicts walked out of jail and were felicitated with garlands by their family and friends.

Outrage followed and many legal luminaries and civil society members also wondered how remission was granted for serious crimes like gang rape and mass murder. Justice UD Salvi, the judge who had convicted the eleven men, told Bar and Bench, “A very bad precedent has been set. This is wrong, I would say. Now, convicts in other gang rape cases would seek similar reliefs.” Then nearly 9,000 people from different walks of life in Mumbai participated in a signature campaign urging the Chief Justice of the Supreme Court to reverse the decision to grant remissions.

Then an NDTV investigation revealed that at least five people on the Advisory Committee that recommended the release are allegedly connected to the Bharatiya Janata Party (BJP). Citing an official document that lists the members of the advisory committee, NDTV said it included two BJP MLAs, a member of the BJP state executive committee and two others, who are also linked to the party.

Meanwhile, according to a report by journalist Barkha Dutt’s digital news platform Mojo Story, some of the eleven convicts were not living in their homes after their release. Families of some convicts said they were on pilgrimage, but none provided details of their whereabouts of when they would return. This is significant in light of the current hearings before the Supreme Court. If the court overturns the decision to grant remission, the men need to be traceable so that they can be re-imprisoned.

Petitions against the Remission:

On August 25, 2022, the Supreme Court bench comprising of the then Chief Justice of India NV Ramana, Justice Ajay Rastogi and Justice Vikram Nath had issued notice to the state on the petition challenging the order of Gujarat Government allowing premature release of 11 convicts sentenced to life in the Bilkis Bano case for gangrape & murder. While Senior Advocate Kapil Sibal had narrated the grim facts of the case, relating to exodus of Muslim population, rampant incidents of rape and murders, etc., the counsel appearing for State of Gujarat on the other hand opposed the petition on ground of maintainability.

The order can be read here.

In October, 2022, the Gujarat government told the Supreme Court that it decided to release the 11 convicts in the Bilkis Bano case on completion of their 14 years sentence as their “behaviour was found to be good”. The approval for their release was granted despite opposition from a special court and the Central Bureau of Investigation (CBI). The Gujarat government also submitted before the Supreme Court that it was the Ministry of Home Affairs (MHA) that enabled the release of eleven men convicted in the Bilkis Bano case.

It is pertinent to note that one of the convicts, who was released by the Gujarat government on remission in the Bilkis Bano case, stands charge sheeted for outraging the modesty of a woman on June 19, 2020.

Mockery of Justice

Bilkis Bano case was and is among the rarest of rare case. Since March 2002, she has fought virtually alone in the most adverse of circumstances, helped mainly by a band of human rights activists, many of whom themselves became victims of the processes of injustice, precisely because of the help extended in cases like Bilkis’. After 20 years, Bilkis’s quest for justice is still not over. Today, a survivor of the most heinous crimes had to go to the court herself to demand justice, once again. It is not possible here to recount the dreadful story of her suffering. At every stage, her fight for justice has been destroyed, and her efforts trampled. The labour put in by multiple people, and the survivor herself, have come loose today. For securing women’s rights in India, the pardons given to these convicts will have a long lasting effect. If, even the judiciary cannot defend the fundamental rights from excessive State power, then who will? If even conviction of a crime does not guarantee justice, then what will?