Sunday, March 3, 2024

Bilkis Bano vs us

The recent decision by the Supreme Court to nullify the Gujarat government’s grant of remission to 11 convicts involved in the egregious crimes against Bilkis Bano marks a significant turning point in the pursuit of justice. This legal intervention has garnered widespread support from conscientious citizens who view it as a reaffirmation of their faith in both the Criminal Justice System and the Court of Law.

The fact that the cancellation of remission has become a cause for celebration among the general populace underscores a disheartening aspect of our societal outlook. The meagre dispensation of justice in Bilkis Bano’s case, which should be considered a fundamental and indisputable human right, has inadvertently become a benchmark of victory. This phenomenon reveals a concerning trend where our collective expectations for justice may be diminishing, leading us to accept limited retribution as a triumph.

Justice Nagarathna’s written verdict commences with a crucial inquiry: “Can heinous crimes against women justify the remission of convicts through a reduction in their sentence and the granting of liberty?” The contemplation of this question within Indian Courts might have been preempted had they timely applied their internally devised legal doctrine of the “rarest of rare,” a criterion associated with imposing the death penalty.

Page no. 5 of the judgement cancelling the remission states,

‘The grotesque and diabolical crime in question was driven by communal hatred and resulted in twelve convicts, amongst many others, brutally gang-raping the petitioner in Writ Petition (Crl.) No.491 of 2022, namely, Bilkis Yakub Rasool, who was pregnant at that time. Further, the petitioner’s mother was gang raped and murdered, her cousin who had just delivered a baby was also gangraped and murdered. Eight minors including the petitioner’s cousin’s two-day-old infant were also murdered. The petitioner’s three-year-old daughter was murdered by smashing her head on a rock, her two minor brothers, two minor sisters, her phupha, phupi, mama (uncle, aunt and uncle respectively) and three-cousins were all murdered’.

While the imposition of the death sentence should not be the norm in a society, the presence of such a provision in the legal framework prompts consideration. Why have Indian Courts refrained from applying capital punishment to convicts in cases like that of Bilkis Bano, which, upon prima facie examination and a thorough evaluation of facts and circumstances, appears to fall within the ambit of the rarest of rare crimes?

Perhaps the courts take into consideration whether there was a public outcry at India Gate, marked by candles, posters, and slogans. Allow me to refrain from asserting that justice served to Nirbhaya was a matter of privilege. Had Nirbhaya’s convicts still been alive today, they would have spent more than a decade in jail. Now, envision a scenario where these convicts, granted remission for good behaviour, are potentially walking free—would our collective response remain as composed as it largely did in the case of Bilkis Bano? While the former situation is hypothetical, the latter is an undeniable reality. Yet, why does the hypothetical scenario seem to evoke more discomfort than the one that transpired right before our eyes?

The Gujarat Government’s involvement in this case can be likened to that of a malevolent force, diligently working to secure the release of individuals involved in heinous acts. The Supreme Court’s judgment explicitly notes, “the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 (one of the convicts) herein had sought before this Court.” The documented strategies employed to shield the convicts during the trial and post-sentencing are well-established, making it unnecessary to reiterate them here.

However, what often goes unspoken is the alignment of the BJP government in Gujarat with the ideology of Veer Savarkar, who justified the use of rape as a political instrument. Interested individuals can find detailed information on this matter in the mentioned article.

This is not the initial instance where adherents of Savarkar’s ideology have aligned themselves with perpetrators of violence against Muslim women. The Kathua rape case serves as another illustration wherein right-wing organizations conducted processions in support of individuals accused of gang-raping a Muslim girl. In a separate incident, where the garlanding of eight convicts for the Ramgarh mob lynching seemed to represent a reprehensible low. Our perceptions were challenged when a similar scenario unfolded upon the release of Bilkis’ convicts through remission.

It prompts us to question whether those individuals who openly endorsed and championed the cause of the convicts, despite widespread awareness of their actions, may be considered more forthright than a significant portion of society that tacitly approved or silently condoned their leniency. While the Government of Gujarat may not have succeeded in securing the freedom of the rapists, it has managed to convey to its voter base the message that one can potentially evade consequences even after committing a crime against an entire community. This section of society, whether overtly or tacitly, appreciated this approach—some with unreserved enthusiasm and others with a silent endorsement.

Bilkis, through her lawyer, released a statement expressing, “Today marks a true New Year for me. I’ve shed tears of relief, smiled for the first time in over a year and a half, and embraced my children. It feels as if a stone, equivalent to a mountain, has been lifted from my chest, and I can breathe again. This is what justice feels like. I extend my gratitude to the honourable Supreme Court of India for providing me, my children, and women everywhere with this validation and hope in the promise of equal justice for all.”

This declaration signifies Bilkis’ sense of triumph in the aftermath of the remission cancellation.

In this noteworthy case, Bilkis emerged as a formidable force against various adversaries. It was Bilkis against an entire state government, equipped with its machinery, including the Gujarat Police, for which, the Bombay High Court observed that the investigation by the Gujarat police was not proper and that the Gujarat police had taken the investigation in the wrong direction from the beginning.

She faced off against Narendra Modi, who opted for silence amidst the case’s unfolding developments.

Bilkis stood against the Indian judicial system, be it the opinion of the local Sessions Judge at Dahod, who was also a member of the Jail Advisory Committee and there was a positive opinion by him for grant of remission to the convicts or be it India’s top Court, where it was deceived by convicts, and directed the State of Gujarat to consider the application of the convicts for remission. She confronted the empty lanes of India Gate, challenging the apathy of a generation more inclined to share pictures of coffee cups on social media than address social injustices. It was Bilkis against the challenges of India’s struggling criminal justice system, it was a case of Bilkis vs us and in the end, she triumphed. Regrettably, our collective tendency to view this as a victory speaks volumes about our conditioned perspective on such matters.

Mohammad Ahmed Usmani is a final-year student at the Faculty of Law, University of Delhi.

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