(2022)
Citation Writ Petition (Cr.) No. 491/2022
Court: Supreme Court of India
Bench:
• Hon’ble The Chief Justice Ranjan Gogoi
• Hon’ble Mr. Justice Deepak Gupta
• Hon’ble Mr. Justice Sanjiv Khanna
Parties:
Appellant:
• Ms. Bilkis Yakub Rasool
• Sr. Adv. Shadan Farasat, AOR
• Mr. Shankar Narayanan, Adv.
• Ms. Jahnavi Sindhu, Adv.
• Ms. Shruti Narayan, Adv.
Sr. Adv. Shobha Gupta
Sr. Adv. Tushar Mehta
Sr. Adv. Hiten Venegaonkar
Respondent for UOI:
• Union of India
• Mr. Shailesh Bhatt
• Mr. Mitesh Bhatt
• Mr. Pradeep Bhatt
• Mr. Rajubhai Soni
• Mr. Rajendrakumar
• Mr. Jaswantbhai Nai
• Mr. Pradeep Vyas
• Mr. Ramesh Chhara
• Mr. Bhagwan Chhara
Sr. Adv. Harshad Ponda
Sr. Adv. Yatin Oza
In the year 2002, our nation witnessed the bloodiest riot of the 21st century that engulfed the entire city of Gujarat. Triggered by the Godhra incident wherein the Sabarmati Express Train carrying Hindu Pilgrims was set to fire after religious disputes. This resulted in 59 deaths that began communal riots tearing apart the state resulting in retaliation against the Muslim community resulting in over 1,000 deaths with thousands displaced and several reports of arson, looting and brutal attacks.
Facts of the Case
February 28, 2002:
With riots breaking out following the Godhra Incident, Bilkis along with her family flee from their home in Randhikpur.
March 3, 2002:
Bilkis who was five months pregnant at the time was gang-raped after being attacked by a mob consisting of around 20-30 men. 14 members of her family were killed including her 3–year old daughter. Reports say thet the only reason Bilkis survived was by losing her consciousness that led the rioters to believe that she was dead.
March 4, 2002:
Bilkis was taken to the Limkheda police station where although the FIR was registered, the fact that she was raped was nowhere to have been stated and the accused was also not named despite her claiming to have identified 12 of them who were residents of her own hometown, Randhikpur.
March 5, 2002:
Bilkis was later taken to the Godhra Relief Camp, where her statement was recorded by the executive magistrate after receiving instructions from then Jayanti Ravi, the Panchamhal Collector. Seven bodies of her family members were later retrieved from the jungle of Kesharpur.
Police Actions
November 6, 2002:
Police submits summary report ‘A’ stating that the incident did occur but undetected and the culprits were not located. They also requested for closure of the case. However, the court did not accept the closure report submitted and directed the forces to continue investigation.
February, 2003:
Limkheda Police resubmitted summary report ‘A’ requesting for closure of case, which was eventually accepted by the court.
Probe Shifted
April 2003:
Bilkis approached the Supreme Court desiring that the Magistrate’s order accepting ‘A’ summary shall be set aside. She also knocked on the door of the CBI for help on her path to justice.
December 6, 2003:
Supreme Court ordered for a transfer of investigation to CBI.
January 1, 2004:
CBI DSP KN Sinha took charge of the investigation and the case out of the hands of the Gujarat Police.
February 1-2, 2004:
Bodies exhumed for CBI probe – 109 bones were found, skulls were not found. Bombay HC claimed in its verdict that “it appears that at some point the heads were cut off”.
April 19, 2004:
CBI filed a chargesheet before CJM Ahmedabad against the accused men, the police officers handling the case and the doctors who performed the post-mortem on the seven bodies on March 5, 2002.
Case Shifts to Mumbai
August 2004:
The Supreme Court of India moved the trial of the case from Gujarat to Mumbai.
May 2017:
Bombay HC upheld the life imprisonment conviction of the 11 accused previously handed by trial court.
Appeals
January 21, 2008:
Verdict passed by the Special Judge at Greater Mumbai stated that the 11 accused were convicted to life imprisonment for murder, rape; seven acquitted; two abated during trial due to their death.
2009-2011:
Accused convicts filed appeals where as CBI proceeded to seek enhancement of sentence for Jaswantbhai Chaturbhai Nai, Govindbhai Nai and Shailesh Chimanlal Bhatt toa capital punishment. CBI also appealed against the granted acquittal of eight others under Sections 201, 217 and 218 IPC (out of which one expired during pendency of trial and thus was not to be applied).
May 2017:
Bombay HC upheld the life imprisonment of the 11 sentenced by the trial court, it also refused to enhance punishments and additionally sets aside acquittal of seven — 5 police officers and two doctors — convicting them under Sections 201 and 218 of IPC, sentencing them to the period of imprisonment undergone by them along with fine.
Appeals in Supreme Court
July 2017:
The accused doctors who overlooked the post mortem and the accused policemen formerly incharge of the case filed for an appeal against the Bombay High Court Verdict. The Supreme Court of India dismissed these appeals.
April 23 2019:
The Supreme Court directed for the payment of Rs 50 lakh as compensation to Bilkis along with directing the state government to provide employment for the victim and for the government accommodation at a place of her choosing in a 2017 petition filed by Bano seeking compensation
April 23, 2019:
In the year 2003, Bilkis filed a petition where she was seeking departmental action against the accused police officers. The state government passed orders in relation to three of the convicted police officials and imposed a penalty of a hundred percent cut of the pension that they were entitled to after their retirement. The Gujarat government also recommended for the punishment of demotion by two stages to convicted IPS officer RS Bhagora.
May 30, 2019:
Bhagora, an accused was dismissed by the Union Home Ministry a day before his retirement and was thus deemed ineligible to get retirement benefits
August 15, 2022:
Remission was granted to 11 convicts from the Gujarat sub Jail
January 8, 2024:
the following decision of the Gujarat government was later quashed by the Supreme Court and the remission verdict of 11 convicts including Radheshyam Shah was overturned.
Issues raised
The State of Gujarat depicted through its exercise of power of the horror that our communities are vulnerable to face due to the usurpation of power. It also brought to light how easy it was for administrations to abuse power when backed by political support. It was this action in complicit with the convicts that caused the Supreme Court to transfer the case to Maharashtra. Through supressing material facts crucial for the convictions along with negligent recording and misleading facts, the State aided in the remission granted to the convicts. It was at this point where the order of the court was used to violate the rule of law.
Contentions of the victims
Advocate Shobha Gupta took over the case as the lawyer of the petitioner, who contends that the crimes that the convicts had committed were not in the nature of a frenzy during the riots but were rather pre-planned. They must be charged with forming a criminal conspiracy to rape the victim as well as killing other members of her family. While the victim fled with her family members, the convicts tracked and followed them in order to commit these heinous acts. The delicate state of the five months pregnant woman made no difference to the convicts when performing the hate crime. They gang-raped her resulting in her losing consciousness. Bilkis’ first child was killed by smashing her to death on a rock. After that, they proceeded to gang-rape and kill the victim’s mother, her cousins, aunts, uncles, and four minor brothers and sisters. They have murdered them so brutally that they cannot be identified.
The petitioner argued that any person committing such an inhuman act does not deserve any leniency. The victim was constantly begging them for some mercy and requested that they leave however it made no difference to the intent of the convicts. So the counsel concluded by claiming that the Court should take into consideration the grievousness of the crime before passing any judgement in this case.
Contentions of the convicts
The convicts filed an appeal stating that the victim had given birth to a child after that incident, thus implying that she had not been gang-raped as claimed. They also claimed the evidence filed by the CBI was fabricated. They argued that the inability to retrieve the corpse of the family members of the victim should be considered.
Rationale
The verdict is based on the ground that the State of Gujarat lacked jurisdiction to grant remission to convicts who were sentenced in Maharashtra. The Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan said, “the State of Gujarat has acted in tandem and was complicit” in one of the convicts’ petition for a direction to the State government to grant remission of the remainder of his life term based on a defunct 1992 policy.
On merits, it is a timely reiteration of the core principles that animate exercise of the power to grant remission that it should be fair and reasonable and based on a set of relevant parameters such as whether the crime involved affected society at large, whether the convict retained the potential for committing similar offences or is capable of reform.
The release of life convicts who were sentenced to spend the entirety of their lives in prison, ought to be individually considered and not part of any omnibus gesture without regard to the impact of their freedom on the victims, survivors and society. Any rational remission policy should encompass humanitarian considerations and the convicts’ scope for reform without violating the rule of law or societal interests. In this case, none of the conditions for remission was met.
Analysis
The Bilkis Bano case stands as a significant milestone in the quest for justice for victims of communal violence in India. In March 2002, amid the Gujarat riots, Bilkis Bano, who was five months pregnant at the time, was gang-raped, and 14 of her family members were brutally murdered. The initial investigation was compromised by police negligence and evidence tampering. The Supreme Court stepped in, directing a CBI investigation and relocating the trial to Mumbai to ensure fairness. In 2008, a special court in Mumbai convicted 13 individuals for the atrocities committed against Bilkis Bano and her family. The case was further significant as the Bombay High Court upheld these convictions and overturned the acquittals of several police officers and doctors who had attempted to cover up the crime. In 2019, the Supreme Court awarded Bilkis Bano significant compensation and directed the Gujarat government to provide her with a job and accommodation. This case highlights the challenges of seeking justice in communal violence incidents and the crucial role of the judiciary in upholding human rights.
Defects in Law
The most controversial aspect of the case was the remission that was granted to the convicts repeatedly despite the heinous nature of the crime.
The major criticism of the legal framework was how the Supreme Court Order was used to violate the overall spirit of law.
In May 2022, a bench headed by Justice Ajay Rastogi allowed the Gujarat Government to consider the premature release of the convict Radheshyam Bhagwandas Shah in terms of the state’s remission policy passed earlier in 1992. This order further allowed the remaining 10 convicts to join this plea and apply for remission which was subsequently granted by the Gujarat Government.
Inferences
The Bilkis Bano case underscores several critical inferences about India’s legal and justice system. Firstly, it highlights the pervasive issues of communal violence and the systemic failures in initial investigations, often marred by police complicity and evidence tampering. The intervention by the Supreme Court demonstrates the judiciary’s pivotal role in ensuring justice, particularly in sensitive cases where local biases might impede fair trials. The case also emphasizes the importance of victim compensation and rehabilitation, recognizing the long-term impact of such heinous crimes on survivors. Additionally, the convictions and subsequent upholding of these by higher courts illustrate the potential for legal accountability, even years after the crime. Finally, it underscores the need for continued vigilance and reform in handling communal violence cases, advocating for more robust protections and support mechanisms for victims.
Arjun Chandra
O.P Jindal Global University, Sonepat