Introduction
The terrible episode that was developed around 2002 Gujarat riots, in the Bilkis Bano case involved this woman’s gang rape who carried a pregnant baby and death of fourteen family members including her three year old daughter. This culminated into criminal conviction of eleven perpetrators, which included police officers who participated as well.
Bilkis Yakub Rasool vs. Union of India 2023 case takes place during Godhra riots that followed the Sabarmati rail incident and witnessed Hindu mobs attacking Muslims. Life imprisonment was handed down by the Supreme Court to these prisoners. However, they were released in 2022 after serving for only fourteen years on grounds that “Azadi Ka Mahotsav” marked for India’s 75th independence anniversary is being celebrated and thus it required them to be freed before their term expired under “Special Remission.” This decision sparked widespread outcry and a plea from Bilkis Bano against their untimely release. There are concerns regarding communal violence, gender issues as well as constraints within India’s legal system that are highlighted by the facts of this case.
Facts of the case
The genocide of 128 people took place in Gujarat after the train was burnt at Godhra station in which fifty-eight Hindu pilgrims were killed. On March 3, 2002, the story of Bilkis Bano, 21 years old, and five-month pregnant were captured when she tried to escape the violence with her family. A group of 20-30 persons attacked them when everyone was inside the localhs in Randhikpur village. Bilkis was gang-raped, and 14 of her family members, including her little three-year old daughter, were killed mercilessly. As you will learn, Bano was able to survive the incident since he pretended to be dead before coming back to life and asking for help.
Bilkis Bano faced significant difficulties in seeking justice where the police were either inactive, played a pro-active role or mischievously dealt with the FIR. feeling threatened and Intimidated she filed both with the National Human Rights Commission (NHRC) India as well as Supreme Court of India. The Supreme Court referred the matter to the biassed local CBI and trisubstituted the trial from Birmingham to Maharashtra in respect of threats to Bano.
Police investigations were carried out by the CBI and in 2004, it presented a charge sheet against 19 persons including some police officials and doctors accusing them of negligence and sabotage. A special CBI court in Mumbai on January 21, 2008, convicted 13 persons and discharged three others. Of them, eleven were condemned to life imprisonment on charges of gang rape and murder and other accused were awarded for various offences of removing the evidence. Some of the defendants were acquitted on the grounds of lack of sufficient evidence, but the Bombay high court while admitting the appeal in civil appeal no 1809 of 2014 affirmed the convictions in 2017.
The apex court of India in April 2019 directed that Bilkis Bano be paid ₹50 lakh compensation from the Gujarat government, be provided with a job in the government, and be provided with lodging. Thus, the Court underlined that the state may be required to offer a formal apology for its previous handling of the issue.
The 11 prisoners were set free in August 2022 by the Gujarat government after describing them being very well-behaved in the prison. This judgement triggered a lot of animosity and condemnation from human right groups, advocacy groups, and other citizens of the world. In its judgement on 8 January 2024, the Supreme Court set aside the government’s decision of mass pardons of the 11 men who was involved in the gang-rape of Bilkis Bano and the murder of her family during the violence in Gujarat in 2002.
Issues
- Whether the Government of the State of Gujarat under article 161 was competent to pass the impugned orders of remission?
- Whether the orders of remission were in accordance with law?
- Keeping section 432 in mind was Gujrat government the ‘appropriate government’
Contentions
Prosecution
1.The counsel for the plaintiff, namely Bilkis Bano being represented by Advocate Shobha Gupta, argued that the crimes committed by the prisoners were not merely criminal acts but were carried out as part of a criminal conspiracy (section 120B of the IPC).
2.She described the sheer intent of the offenders to kill and to sexually assault Bilkis and her family during the 2002 Gujarat genocide. Gupta accentuated the savageness of the acts as the new mothers were gang raped one of them Bilkis was five months pregnant and another one had her head bashed on a rock by the Ogai people because they wanted to kill her three year old daughter.
3.She mentioned that all or any of these acts showed no shard of pity and humanity, this amplified the severity of the offences, the kind which could not elicit any indulgence.
4.The prosecution also said similar remarks insisting that the crime was very cruel and unfolded after a careful plan to organise a gang rape(section 376D of IPC) followed by the brutal murder of 14 relations (section 302 of IPC).
5.The oral testimony of Bilkis Bano pointing the fingers at the defendants along with support from other fingers, forensic evidence and eye-witnesses, along with very moving/heart-touching own testimony made the defendants liable for prosecution in legal eyes.
6.Also, the prosecution sought to establish how the police and other authorities participated in the attempt to cover up the crimes, and the threats and coercion involving witnesses, as the Supreme Court appointed CBI investigation uncovered.
Defence
1.For their part, the convicted accused the Genotype team of faking evidence and distorted the story of Bilkis Bano. They argued that Bilkis’ claim of being gang raped was an issue because she had a baby out of that rape. Everybody wanted to know how she was gang raped because she had a baby out of that.
2.Moreover, they accused the CBI of fabricating the evidence (section192 od IPC) and, therefore, brought up the lack of the bodies found to support the murder charges. Acquittal was sought on the same grounds that the woman may have taken a wrong identify of the accused and that they provided different alibis which could be true.
3.It sought to portray the CBI investigation as being influenced and in turn influenced others on bias and political interferences This was followed by contradictions in the prosecution and the testimonies produced in court.
4.They also noted that after the conviction, the defence moved the court for mercy petition (article 72) and reduction of the sentences for the accused persons based on their socioeconomic statuses and ages.
Rationale
The case being Bilkis Bano in Mumbai Court in 2017 sentenced 11 out of the defendants charged and included a police official in murder and gang rape as per Section 302 & 376 (2) of the Indian Penal code of 1860 and unlawful assembly under Section 149. The six accused were given life imprisonment and a fine for their roles in the gang rape and killing of Bilkis Bano’s family during the Gujarat riots of 2002.
The recent development includes the Supreme Court’s interference to set aside the premature remission granted by the Gujarat government in February 2022 observing that the Government of the State of Gujarat had no power, in context to Section 432(7) read with Sections 432 (1) and (2), CrPC could have entertained applications for remission submitted by all prisoners since it was not proper Governing body under those provisions.
The Court also elaborated on the flaws of the remission procedure citing factors such as factual concealment, and other undertakings that can be deemed as deceptive.
The court further reinforced that the remission could be granted only by the Maharashtra government which is the government of the state where the convicts were caught and convicted. The Court gave the offenders two weeks to report to prison officials instead of the long additive time they sought. This case brings to the foreground judicial check and aggravation and the belief that women deserve severe punishment if they have committed grievous offenses, or if the offenders deserve what they get as the law has taken its course.
Defects of the law
Delays in Justice and Trauma Endured
In fact, the much-publicized Bilkis Bano case, despite all the complexities and efforts towards deliverance of justice, has been significantly marred by a lengthy delay. The legal processes had gaps and over the few years the processes faced some set back and witnesses were pressured and the evidence eroded. Such delays not only protracted the suffering of the surviving families but also harmed the smooth running of the legal system. This might make people hesitate to seek legal assistance when they are stuck in similar circumstances for what could be lengthy periods of time, only to uncover endemic issues that require correction.
Limited Accountability of Higher Officials
While some police officers were convicted for the tampering with evidence and obstruction of justice, some critics have said that it put higher profile individuals who they claimed ordered, or turned a blind eye to the violence, above the law. This has germination doubts about selective justice and especially about those in power, who seem to be able to get off the hook easily. The difficulty in taking higher levels of authority underlines issues with assuming complete culpability in cases of violence in the congregation’s area and eroding the confidence of the people in the legal process.
Issues with Compensation and Rehabilitation
While passing the recent judgment in the case of Bilkis Bano, Apex Court has awarded compensation to the victim, lingering questions still persists over the adequacy of the compensation and the rehabilitation programmes being provided to the victims of the communal riots in particular. A lot of survivors remain struggling for proper care services to rebuild living and communal settings after receiving such horrid picture of trauma. The requirement for additional effective and forceful procedures in benefit of the attack survivors continues to be an important subject, as it conduces towards bigger structural problems in managing the aftermath of community violence.
Challenges in Witness Protection.
While the apex court has laid down the guidelines, there remain the concerns as regards the competency of witness protection facilities in India. Such situations of having to face strong persons or cases of communal violence often result in threats and use of force whereby the witnesses are often compelled to give a testimony that is not only truthful but also courageous. The existence of such weaknesses raise serious questions as to the effective safeguarding of witness security and credibility of testimony especially in high profile legal cases thus compromising justice and accountability.
Inference
This fictionalized narrative of Bilkis Bano has emerged as somewhat of a rallying cry for the seemingly insurmountable barriers to justice for rape and other grave offenses in India. After the horrific offences committed in 2002 Gujarat riots that involved the gang-rape of Bilkis Bano and murder of her kin, the court proceedings were monitored keenly. Though earlier people including police personnel involved in the massacre wedged and inmates helped continue this atrocity, the release of prisoners on India’s Independence Day in 2022 caused the outrage all over the world. Haters blamed this on the government of Gujarat apply the outdated 1992 remission policy rather than applying the current 2014 standards in their decision to acquit them and this is the fault of the Indian judicial system.
The outrage generated by the Bolngar case meant that key questions were raised regarding the ways justice is delivered to victims of similar cases in the context of India’s legal system. Some regarded the free flow of convicted rapists and murderers as an injustice that denied the innocent victims’ rights such as Bilkis Bano. Non-action of the Supreme Court to effectively get into the process of overturning the release helped fan dissatisfaction further.
This case has thereby revealed systemic inadequacies in India’s approach to addressing such acts of violence against women and ensuring that the perpetrators are punished. It has fostered discussions on various significant changes which could be made such as an enhancement of witness protection, trial acceleration, and the increase in the rates of punishment implementation. Specifically, the failure to apply fresh remission techniques and the consequent discharge of the offenders demonstrate the challenges of the procedural justice attainment and public confidence in the court. Mitigating these shortcomings will be an important step towards rebuilding faith in the Indian justice system, and guaranteeing that the survivors of GBV get the justice they deserve.
Sneha Paul
Sister Nivedita University, Kolkata