This article has been written by Ayush Chandra, founder of LegalOnus.

“The Bilkis Bano Case: Tragedy, Convictions, and Controversy”

Introduction

In this article, we will explore the significant legal case known as “Bilkis Yakub Rasool vs. Union Of India (2023),” often referred to as “the Bilkis Bano case.” This case unfolded in the context of the 2002 Godhra riots, which were preceded by the devastating Sabarmati massacre involving approximately 60 Hindu passengers on a pilgrimage aboard the Sabarmati train.

The tragic incident occurred when the Sabarmati train, carrying Hindu pilgrims, was set on fire within the Godhra district. This horrific event triggered a wave of violence, with Hindu mobs attributing blame to Muslims for the train’s destruction. This blame, in turn, led to brutal attacks on Muslims living in the area and surrounding neighborhoods.

At the heart of this case is the story of Bilkis Bano, a young woman belonging to the Muslim community. During her attempt to flee the violence with her family members, she endured the traumatic experience of a gang rape. What makes this tragedy even more heart-wrenching is that Bilkis Bano was five months pregnant when she was subjected to this horrific crime. Tragically, the violent mob not only sexually assaulted her but also killed almost all of her family members, leaving her to grapple with unimaginable loss.

The incident sparked nationwide outrage, leading to legal action against those responsible. Eventually, eleven individuals were convicted for their involvement in these heinous crimes and sentenced to life imprisonment. The verdict was handed down by a division bench composed of Supreme Court judges KM Joseph and BV Nagarathna. The severity of the crimes committed necessitated rigorous punishment.

However, several years later, in 2022, these convicts were granted a “Special Remission” as part of India’s 75th Independence Day celebrations, known as ‘Azadi Ka Mahotsav.’ This decision stirred controversy and met with opposition from not only Bilkis Bano but also many others across the country who disagreed with the early release of these convicts. In response to this decision, Bilkis Bano filed a petition, challenging their premature release.

In this article, we will delve into the various stages of this complex case, including the convictions for rape, the grant of remission, and the debate surrounding the convicts’ right to practice law, shedding light on the profound impact it has had on both the victim and the broader Indian society.

Background of the Case

The Bilkis Bano case unfolded during a period of communal riots that ravaged Gujarat on 3rd March 2002, specifically in the district of Dahod. It was a tumultuous time, as tension mounted between Hindus and Muslims. Bilkis Bano, fully aware of the perilous situation, took the difficult decision of fleeing alongside her entire family, seeking shelter from the brewing storm. Unfortunately, their attempt to escape was foiled when they were captured by a group of twenty to thirty Hindus.

A Horrific Ordeal

Tragically, Bilkis Bano and the women in her family endured a nightmarish fate at the hands of the captors. They were not only subject to unspeakable physical violation but also witnessed the brutal murder of seven of their loved ones. Bilkis Bano, at the tender age of 21 and five months pregnant, experienced the unimaginable as she was gang-raped. The shocking magnitude of this crime sent shockwaves throughout the entire state, leaving its inhabitants seething with rage.

Outrage and Criticism

The Bilkis Bano case became a glaring example of the escalating crimes against women in India. The incident sparked widespread criticism of the government, which grappled with the fallout from this heinous act. The public’s outrage and demand for justice pushed the government into an uncomfortable spotlight, highlighting the urgent need to address the deteriorating situation that women face in the country.

Struggle for Justice

As Bilkis Bano regained consciousness after the harrowing ordeal, she mustered the strength to approach the local police station and file a complaint. However, her quest for justice encountered yet another obstacle, as she faced resistance from the authorities. Bilkis Bano alleged that the police deliberately omitted crucial details from the First Information Report (FIR), undermining the strength of her case. Frustrated by this blatant disregard for justice, she took matters into her own hands.

Seeking Legal Recourse

With no other alternative, Bilkis Bano sought assistance from the National Human Rights Commission (NHRC), hoping to find solace and support. Subsequently, her indomitable spirit led her to approach the Supreme Court, where she presented her case in pursuit of justice. Her relentless pursuit of truth and accountability compelled the Supreme Court to order a Central Bureau of Investigation (CBI) inquiry into the matter.

In conclusion, the Bilkis Bano case exposes the deeply disturbing reality of crimes against women in India, especially during times of communal unrest. Bilkis Bano’s unwavering determination to seek justice serves as an inspiration to all those fighting for a society free from such atrocities. The case not only shook the collective conscience of the nation but also shed light on the urgent need for robust measures to safeguard the rights and well-being of women across the country.

The NHRC played an important role in supporting the victim

In March 2002, Bilkis Bano, a survivor of the Godhra incident, found solace and support in the form of the National Human Rights Commission (NHRC). This case study aims to delve into the significant role played by NHRC in assisting Bilkis Bano throughout her ordeal and ensuring justice prevailed.

Meeting with J. S. Verma and NHRC’s Support

Former Chief Justice of India, J. S. Verma, compassionately reached out to Bilkis Bano at a relief camp organized by the Human Rights Commission in Godhra. This encounter marked the beginning of a partnership that would prove crucial in seeking justice for Bilkis. The NHRC, recognizing the gravity of her situation, promptly stepped in to provide the much-needed assistance.

Legal Representation by Senior Advocate and Former Solicitor General

Understanding the importance of a strong legal defense, the NHRC appointed a senior advocate, accompanied by a former Solicitor General, to represent Bilkis Bano before the Supreme Court. This strategic move aimed to ensure that her voice was heard and her rights vindicated in the pursuit of justice.

Swift Action and Arrest of the Accused

Thanks to the combined efforts of NHRC and the legal team, within a month of the inquiry commencing, the accused individuals were apprehended and presented before the Gujarat High Court. This swift action not only showcased the efficiency of the NHRC’s involvement but also served as a testament to their commitment to ensuring the rights of victims like Bilkis Bano.

The Prevalence of Death Threats

During this turbulent period, Bilkis Bano faced the harrowing reality of receiving death threats from the accused. Fearing for her life, she approached the Supreme Court to shed light on the grave danger she was confronting. The Court, acknowledging the seriousness of the situation, made the critical decision to transfer the case from the Court of Gujarat to the Court of Maharashtra. This relocation ensured an independent and impartial investigation, shielding Bilkis Bano from potential biases.

Investigation before the CBI inquiry

Prior to the CBI inquiry, the Gujarat police station failed to carry out a thorough investigation. Deliberate tampering of evidence was conducted by conducting a medical examination several days after the incident, causing the loss of crucial evidence. This manipulation was later proven in court, resulting in charges against the police officers and doctors involved.

Initially, when Bilkis Bano went to file a complaint, the police refused to register the First Information Report (FIR). When they finally registered it, they omitted important details and information regarding the incident.

Inquiry by the CBI

Bilkis Bano submitted a petition, leading the Supreme Court to direct the Central Bureau of Investigation (CBI) to inquire into the matter. The case was then transferred to the Mumbai Sessions Court to ensure a fair trial. The CBI conducted a thorough investigation and submitted a charge sheet that revealed the names of 19 accused individuals, including police officers and doctors who attempted to cover up the crimes. Through their investigation, the CBI unearthed crucial information necessary for the case, while also discovering the bodies of some of the victim’s family members without skulls. Proceedings continued in the Mumbai Sessions Court.

Decision of the Mumbai Sessions Court

Faced with death threats, Bilkis Bano approached the Supreme Court in pursuit of justice, stressing the lack of a proper investigation by the Gujarat police station. Consequently, the Apex Court ordered the transfer of the case to the Mumbai Sessions Court.

The trial began in 2008 and concluded with the Mumbai Sessions Court’s judgment in 2017. It convicted 11 individuals, including a police officer, as the offenders of the crime. The remaining accused were acquitted due to insufficient evidence against them. The convicted individuals were sentenced to rigorous life imprisonment and imposed fines as a deterrent against future similar crimes. Their crimes fell under Section 302 and Section 376(2) of the Indian Penal Code, which were read in conjunction with Section 149.

Section 149 of the Indian Penal Code addresses the offense of unlawful assembly. When more than five individuals join together with a common objective and any member commits an offense, all members are deemed guilty. In this case, approximately twenty to thirty people participated in the gang rape and murder of Bilkis Bano’s family members. Hence, they were convicted.

The Sessions Court’s verdict was affirmed by the Mumbai High Court in May 2017. Additionally, the Supreme Court directed the Government of Gujarat to provide the victim with a job, housing, and a monetary compensation of fifty lakh rupees.

One of the convicts, a police officer, received a life imprisonment sentence, while the others were sentenced to seven years in prison. The Court also ordered them to pay a fine of fifty lakh rupees.

In May 2017, the Bombay High Court upheld the life imprisonment sentence for the 11 convicts. The Trial Court’s release of those with no direct involvement in the case was overturned by the High Court, convicting them. The Trial Court had initially acquitted them based on their presence at the scene without active participation.

Appeal to the Bombay High Court by the Convicts and CBI

In a significant legal battle, the convicts who had been pronounced guilty by the Session Court filed an appeal challenging the judgment. On the other hand, the Central Bureau of Investigation (CBI) also appealed for stricter punishment for the convicts, seeking the death penalty for the three main perpetrators. This appeal had a profound impact on the proceedings and brought forth a series of contentions from both sides.

Contentions of the Victims

The victims, represented by Advocate Shobha Gupta, put forth compelling arguments against the convicts. It was contended that the crimes committed were not impulsive acts but rather meticulously planned. The convicts conspired to rape the victim and murder her family members, displaying a level of brutality that is difficult to comprehend.

As the victims tried to flee, the convicts relentlessly pursued them, revealing their bloodthirsty nature. Shockingly, they did not hesitate to rape a five-month pregnant woman, causing her to lose consciousness. This heinous act was followed by the barbaric killing of her first child, brutally smashing the infant’s body. The convicts continued their horrifying spree by gang-raping and murdering the victim’s mother, cousins, aunts, uncles, and four minor brothers and sisters. The manner in which these murders were committed was so gruesome that identification of the bodies became virtually impossible. A total of only seven bodies were recovered.

In light of these atrocities, the petitioner stressed that there should be no leniency towards individuals who commit such inhuman acts. The victim’s pleas for mercy were completely disregarded by the convicts, underscoring the gravity of the crime committed. It was urged that the Court carefully weigh the severity of the offense before passing any judgment in this case.

Contentions of the Convicts

The convicts presented their own arguments to counter the charges against them. They claimed that the victim giving birth to a child post-incident was proof that she had not suffered gang rape, as alleged. Additionally, they argued that all the evidence presented by the CBI was fabricated and lacked authenticity.

Furthermore, the convicts highlighted that there was no concrete evidence of their family members’ murders since their bodies had not been recovered. They maintained that this lack of evidence should call into question their guilt regarding the commission of murder.

Decision of the Bombay High Court

After careful consideration, the Bombay High Court acquitted Bhagora and others who had been initially convicted. The Court acknowledged that these individuals had been enmeshed in the circumstances surrounding the crimes but had not actively participated in the offenses. Consequently, Bhagora and his counterparts were released from prison.

Nevertheless, the convictions of the remaining 11 convicts were upheld by the Bombay High Court, thereby affirming the original decision of the Trial Court. The Court attributed this decision to the tampering of evidence by five policemen and two doctors, charging them under Section 201 and Section 218 of the Indian Penal Code, respectively, for failing to perform their duties.

Despite this ruling, the Bombay High Court categorically rejected the imposition of the death penalty. The Court emphasized that capital punishment is only warranted in the rarest of circumstances.

Supreme Court’s Decision on the Convicts’ Appeal

Following an extensive review of the case, the Supreme Court dismissed the appeals filed by the convicts. On 10 July 2017, the Court rejected the appeals filed by the two doctors and four policemen. The Supreme Court emphasized that the judgment of the Mumbai Sessions Court was flawless, as there was clear-cut evidence against the accused. Furthermore, the Court ruled that the Bombay High Court’s decision to acquit the other convicts was unreasonable, warranting a confirmation of the convictions by the Session Court.

In conclusion, this case study presents a stark example of the appeals process and the complex legal arguments put forth by both the convicts and the victims. The ultimate decisions of the Bombay High Court and the Supreme Court serve as a reminder of the importance of evidence, the gravity of the crimes committed, and the pursuit of justice.

Plea for Remission

Radheshyam Shah, a convict, made a plea for his premature release after spending more than 14 years in prison.

Radheshyam Shah approached the Gujarat High Court, seeking his premature release from prison, his plea was rejected, and he was denied the opportunity to be released early. Unwavering in his pursuit of justice, Shah appealed to the Supreme Court, highlighting the Gujarat government’s remission policy of July 9, 1992.

Request for Premature Release

Having already served 15 years and 4 months in jail, Radheshyam Shah appealed to the Apex Court to grant him his freedom based on the remission policy. Shah’s lawyer argued that although he was handed a life imprisonment sentence by a CBI Court in Mumbai, he had the right to apply for premature release after completing a minimum of 14 years behind bars.

The Foundation of the Argument

The pivotal point in Shah’s case lies in the fact that his initial sentence was a life imprisonment term handed down in 2008. Shah’s legal team contended that the 14-year period he had already served should be considered as fulfilling the requirements for life imprisonment. Hence, he approached the Court seeking remission on the grounds of completing the stipulated 14-year sentence.

Supreme Court’s Verdict

Upon careful consideration of Radheshyam Shah’s arguments, the Supreme Court delegated the authority to the Gujarat Government to determine whether his release could be granted in accordance with the 1992 Gujarat remission policy. The Court granted a two-month window for the government to make a decision.

This case study sheds light on Radheshyam Shah’s plea for remission and the subsequent legal battle he fought to secure his early release. While the Gujarat High Court denied his petition, the Supreme Court recognized the Gujarat government’s authority to evaluate the possibility of granting the requested release. The outcome of this case will be determined by the decision made within the stipulated two-month period.

• Should the Gujarat government allow Radheshyam Shah’s remission?
  • Yes, considering the completion of his minimum sentence.
  • No, as it may set a precedent for other convicts seeking premature release.
  • The decision should be made based on factors such as behavior and rehabilitation during his time in prison.

Laws relating to remissions with legal provisions and sections

Laws relating to remissions, especially in the context of criminal sentences, can vary significantly from one jurisdiction to another. Below, is a general overview of the legal provisions and sections commonly associated with remissions in many legal systems, particularly in India. It’s important to note that specific laws and sections may differ depending on the country and its legal framework.

In India, the legal provisions and sections related to remissions are primarily governed by the Code of Criminal Procedure (CrPC) and relevant state laws. Here are some key legal provisions and sections associated with remissions:

1. Section 432 of the Code of Criminal Procedure (CrPC):
   • This section empowers the state government to suspend or remit sentences. It provides the government with the authority to grant remissions to convicts, either temporarily or permanently.
2. Section 433 of the Code of Criminal Procedure (CrPC):
   • This section relates to the remission of sentences by the appropriate government. It outlines the conditions and criteria under which a sentence can be remitted, such as good behavior, conduct, and the nature of the offense.
3. Section 433A of the Code of Criminal Procedure (CrPC):
   • This section restricts the power of the appropriate government to grant remission in certain cases, particularly for those who have been sentenced to life imprisonment. It mandates that a person sentenced to life imprisonment must serve a minimum of 14 years in prison before being considered for remission.
4. State Laws:
   • Each state in India may have its own laws and rules governing remissions. These laws can vary, and the conditions for remission may differ from one state to another. State governments often use their authority under these laws to grant remissions to prisoners.
5. Central Laws and Notifications:
   • In some cases, the central government may issue notifications or guidelines regarding remissions. These notifications can apply to specific categories of prisoners or situations and may be applicable nationwide.
6. Special Remissions:
   • Special remissions, such as those granted during significant national events or celebrations (e.g., independence anniversaries), may be authorized by the central government or state governments. These remissions often have specific criteria and timelines.

It’s essential to consult the specific legal provisions and sections relevant to your jurisdiction to understand the precise conditions and procedures for granting remissions in that area. Additionally, the interpretation and application of these laws can be subject to judicial decisions and evolving legal precedents, so seeking legal counsel or referring to authoritative legal sources is advisable when dealing with remission matters.

Notable case laws related to remissions and the commutation of sentences in India:

1. Gopal Vinayak Godse vs. The State of Maharashtra (1961):
   • In this case, the Supreme Court held that the power to grant remissions under Section 432 of the Code of Criminal Procedure is an executive function, but it must be exercised judiciously and not arbitrarily. It emphasized that the government must consider the nature of the crime and the character of the offender when deciding on remissions.
2. Maru Ram vs. Union of India (1980):
   • The Supreme Court ruled that the power to grant remission is subject to judicial review. It held that the government cannot act arbitrarily or mala fide (in bad faith) when exercising its remission powers. The decision affirmed the importance of fairness and due process in remission decisions.
3. Swamy Shraddananda vs. State of Karnataka (2008):
   • In this case, the Supreme Court clarified that the government’s power to grant remission is not absolute and must be exercised in accordance with the principles of justice, equity, and good conscience. The court emphasized that remissions should not be granted mechanically and without due consideration.
4. Sukhlal vs. State of Madhya Pradesh (2019):
   • The Supreme Court held that remission is a matter of executive discretion, but the government must exercise it reasonably and not arbitrarily. It also emphasized that the government should consider the facts and circumstances of each case and not grant remissions indiscriminately.
5. Swapan Kumar Chatterjee vs. State of West Bengal (2010):
   • In this case, the Supreme Court clarified that Section 433A of the Code of Criminal Procedure, which mandates a minimum of 14 years of imprisonment for those sentenced to life imprisonment before being considered for remission, is constitutionally valid. It upholds the restriction on the power to grant remission in such cases.

Remission policy of Gujarat

This policy outlines a specific procedure for initiating the remission process, requiring the input of the district magistrate, jail chairman, and police officer in the respective district. The inspector general must also consider the report from the advisory board committee and evaluate the behavior of the convicts. However, the 2014 Remission Policy introduces a restriction on the government’s ability to grant remission to prisoners convicted of serious offenses such as rape or murder, especially if these cases have been investigated by the Central Bureau of Investigation (CBI).

In essence, it can be concluded that prisoners received remission solely because they adhered to the 1992 remission policy. If the newer policy from 2014 had been followed, these convicts would not have been released, as the 2014 remission policy expressly prohibits their premature release in such cases.

Granted Remission in the Bilkis Bano Case

In a recent development, a remission has been awarded in the highly controversial Bilkis Bano case. This decision has raised significant outrage and sparked a mass revolt against the government’s judgment. The release of the convicts on the day of independence, 15th August 2022, has been criticized by journalists, activists, opposition parties, and many others globally.

Grounds for Release:

All the convicts were granted remission based on their completion of 14 years of their imposed sentence. The government justified their release on the grounds of ‘good conduct’ exhibited by the prisoners. The remission policy of 1992 was followed in this decision.

Criticism of the Release:

Bilkis Bano and other surviving family members who endured the brutal attack expressed their discontent over the release of the criminals through remission. They have decided to challenge this decision and have submitted a petition to the Supreme Court. This case holds tremendous significance as it represents a landmark fight against communal rights and crimes against women that continue to occur in certain parts of the country. Journalists, activists, and politicians criticize this remission, condemning the release of individuals involved in such inhuman crimes against innocent people.

Review Petition and PILs:

Upon learning about the release of the convicts on remission, Bilkis Bano promptly filed a review petition in the Supreme Court. Furthermore, various other individuals, including CPI(M) leader Subhashini Ali, independent journalist Revati Laul, former vice-chancellor of Lucknow University Roop Rekha Verma, and Trinamool Congress MP Mahua Moitra, submitted Public Interest Litigations (PILs) challenging the Gujarat government’s decision to release the 11 convicts involved in the gangrape and murder of Bilkis Bano’s family members.

Government’s Obligation:

It is worth noting that it is not the government’s duty to exercise its power in favor of the convicts or the public. Hence, the grant of remission has been vehemently contested before the Supreme Court.

Legal Proceedings:

Following the release of all the convicts on 15th August 2022, Advocate Shobha Gupta, representing Bilkis Bano, filed a review petition against the premature release of the 11 convicts in the case. Several Public Interest Litigations (PILs) were also filed against the decision to release these convicts who were involved in such heinous crimes. The Supreme Court scrutinized these arguments and deliberated on whether the petitioners had the locus standi, or the right to submit these PILs.

Convicts’ Response:

Sonia Mathur, the advocate of Bipin Chandra Joshi, one of the convicted individuals, argued that only the state possesses the right to challenge the court’s decision, and the victim herself has no right to do so. Mathur emphasized that her client should not be held responsible for the government’s decision and that it is the state’s responsibility to be held accountable for any mistakes made in granting remission. She further highlighted that while monetary compensation cannot undo the incident experienced by the victim, she has been provided with a job, accommodation, and the highest compensation ever awarded in a rape case, underscoring the victim’s rights over those of the convict. Moreover, Mathur contended that the convicts have fulfilled all necessary conditions for premature release and that outsiders do not have the locus standi to interfere at the remission stage. Mathur also cited various judgments by top courts that have ruled in favor of the premature release of convicts on remission.

Supreme Court’s Response:

After hearing Mathur’s arguments, the bench questioned why jails in India remain overcrowded if, indeed, all prisoners who have completed 14 years of their sentence are released on remission as part of their rehabilitation. The court was also informed about the illness of Bipin Chandra Joshi’s wife, who is suffering from cancer. Additionally, it was revealed that a portion of the compensation had already been paid in 2019, and no objection was raised by the trial court at that time. The hearing for the Bilkis Bano case was adjourned and is scheduled to resume on 31st August 2023.

The Supreme Court sought answers from the Gujarat government regarding the release of convicts on remission. Specifically, they queried if the gravity of the offenses committed by the convicts was considered if they were frequently granted parole during their life imprisonment sentence, if uniform standards were applied, and if the intensity of the crimes committed was adequately acknowledged before granting leniency.

The decision to grant remission in the Bilkis Bano case has evoked widespread criticism and sparked legal challenges. The Supreme Court will carefully consider the arguments presented by both sides and weigh the implications of releasing convicted individuals involved in such heinous crimes.

Current Status of the Review Petition

In a recent turn of events, Bilkis Bano, a victim of a heinous crime, filed a review petition against the Gujarat Government’s decision to prematurely release the 11 convicts involved in her case. The Supreme Court of India, on April 18th, 2023, expressed its strong disapproval of the government’s actions, emphasizing the gravity of the offenses committed by these convicts.

The Government’s Responsibility

When any government decides to release convicts from prison, especially those involved in such horrendous acts as gang-raping a pregnant woman and her family members, it is their duty to understand the gravity of the case. Justice K. M. Joseph stressed that the government should exercise its power responsibly for the benefit of the people of the state. By releasing such convicts prematurely, the Gujarat Government failed to recognize the severity of the crimes committed.

Inadequate Comparison

Justice K. M. Joseph critically questioned the Gujarat Government’s motive by comparing the murder of 14 helpless victims from the victim’s family to the murder of a single person. He pointed out that a massacre cannot be equated with the killing of an individual. Such a comparison undermines the magnitude of the crime committed and shows a lack of empathy towards the victims and their families.

Challenging the Supreme Court’s Order

Faced with the Supreme Court’s strong disapproval, the Gujarat Government and the Center decided to challenge the court’s order. In order to proceed with their review petition, they had to submit all relevant documents related to the remission of the convicts. However, the bench expressed its strong disapproval of their proposal, signaling their reluctance to accept any argument that could potentially impact the justice system.

Judicial Review and Remission

It was observed by the Court that the State Government’s power to grant remission cannot be amended through judicial review unless the order of remission is given arbitrarily by the government. This emphasizes the importance of ensuring that any decision regarding remission is made with careful consideration and due process. It also highlights the need to prevent any arbitrary or unjust exercise of power that can compromise the principles of justice and fairness.

The Way Forward

As the review petition process continues, the Supreme Court has given the Gujarat Government and the Center time to decide whether to submit the petition. Additionally, the court has ordered an extension of parole granted to the convicts during their life imprisonment sentence. These decisions demonstrate the court’s commitment to thorough examination and consideration of all relevant factors before coming to a final conclusion.

In conclusion, the case study highlights the crucial importance of responsible decision-making by the government and the need for a fair judicial review system. The Supreme Court’s stern reaction to the premature release of the convicts sends a strong message that justice should never be compromised, especially in cases involving such grave offenses. It is hoped that through this case, the victims and their families will find solace in knowing that the highest court in the land is diligently working to ensure justice is served.