“I Can Breathe Again”

“Today is truly the New Year for me. I have wept tears of relief. I have smiled for the first time in over a year and half. I have hugged my children. It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again,” this is what Bilkis Bano said in a statement, issued by her advocate Shobha Gupta.

On Monday, in a move that has given a little hope to many, the Supreme Court of India, quashed the remission given to 11 men who had been jailed for life for the gang rape of Bilkis Bano and murdering her relatives during anti-Muslim riots in the western state of Gujarat in 2002.

The apex court has also ordered the 11 men to surrender to the prison authorities in Gujarat within two weeks.

The group of accused are Radheshyam Shah, Jaswant Chaturbhai Nai, Keshubhai Vadaniya, Bakabhai Vadaniya, Rajibhai Soni, Rameshbhai Chauhan, Shaileshbhai Bhatt, Bipin Chandra Joshi, Govindbhai Nai, Mitesh Bhatt, and Pradip Modhiya.

Meanwhile, the SC held that the Gujarat government was not the “appropriate government” to decide the issue of remission as the trial was held in Maharashtra. Since the Gujarat Government was found to be incompetent, the remission orders were held to be invalid. Accordingly, the court directed the convicts, who were given premature release in August 2022, to surrender in prison within two weeks.

“This is what justice feels like. I thank the honourable Supreme Court of India for giving me, my children and women everywhere, this vindication and hope in the promise of equal justice for all.

“I have said before, and I say again today, journeys like mine can never be made alone. I have had my husband and my children by my side. I have had my friends who have given me so much love at a time of such hate, and held my hand at each difficult turn.

“I have had an extraordinary lawyer, Advocate Shobha Gupta, who has walked with me unwaveringly for over 20 long years, and who never allowed me to lose hope in the idea of justice,” Bano further said in her statement.

After an 11-day-long hearing that began in August, a division bench of Justices B. V. Nagarathna and Ujjal Bhuyan reserved its judgment on October 12.

“A year and half ago, on August 15, 2022, when those who had destroyed my family and terrorised my very existence, were given an early release, I simply collapsed. I felt I had exhausted my reservoir of courage.

“Until a million solidarities came my way. Thousands of ordinary people and women of India came forward. They stood with me, spoke for me, and filed PIL petitions in the Supreme Court. 6000 people from all over, and 8500 people from Mumbai wrote appeals; 10,000 people wrote an Open Letter, as did 40,000 people from 29 districts of Karnataka.

“To each of these people, my gratitude for your precious solidarity and strength. You gave me the will to struggle, to rescue the idea of justice not just for me, but for every woman in India. I thank you. Even as I absorb the full meaning of this verdict for my own life, and for my children’s lives, the dua that emerges from my heart today is simple – the rule of law, above all else and equality before law, for all,” Bano’s statement added.

Bano, now in her 40s, was five months pregnant when she was gang-raped during the violence, which saw nearly 2,000 people, most of them Muslims, killed in some of the worst religious riots India has experienced.

Tensions escalated after the burning of the Sabarmati train in Godhra on February 27, 2002. The state of Gujarat was experiencing a period of heightened tensions. Fifty-nine karsevaks lost their lives in the Sabarmati train incident.

Anticipating violence and rage against the minority in the village, the then five-month-old pregnant Bilkis Bano fled her home in Randhikpur village with her three-year-old daughter, husband, and her other family members to find a safe space.

As reports of violence emerged from various parts of Gujarat on February 27, 2002 people tried to escape for safety. Bano and her family, at the time, had sought safety in the Chhaparvad district.

However, on March 3, a group of around 20 to 30 individuals, armed with sickles, swords, and sticks, attacked Bilkis and her family. Among these attackers were the 11 men who were later convicted of gang-raping her. Bilkis, along with her mother and three other women, were raped and assaulted. Her three-year-old daughter was killed by the mob.

The barbarity with which she was raped, her family and children murdered, shook the whole country. Bano survived because she lost consciousness and her attackers left, believing she was dead.

According to various media reports, when she regained consciousness, a Home Guard cop took Bano to Limkheda police station where Head Constable Somabhai Gori “distorted” her charges by suppressing “material facts” in a “truncated version” of her complaint.

Bano was later brought to Godhra relief camp where she reunited with her husband Yaqub Rasool.

Of the 17-member group of Muslims from Radhikapur village, eight were found dead, six were missing. According to reports, two boys - seven and four - were the only other survivors of the massacre.

Bano’s ordeal did not end there. Her fight from getting her complaint registered to state officials intimidating her, Bano faced it all head on.

There are numerous eyewitness accounts and documents revealing how some police and state officials tried to intimidate her, evidence was destroyed and the dead were buried without post-mortem exams. The doctors who examined her said she hadn't been raped, and she also received death threats.

Bano’s story was exposed when a few local journalists stumbled upon the massacre while covering the riots. Although Bano was terrified, she continued to go to the police about the massacre of her family.

When the journalists investigated further, they took her to see the bodies, where she identified eight from her family. Bano was then examined at the civil hospital, and samples were taken. Yet, the rape was not registered. It was only in 2004, when the Central Bureau of Investigation and the SIT began their investigation that the case was given importance.

At the time, Prime Minister Narendra Modi was Gujarat’s Chief Minister, the Bharatiya Janata Party (BJP) still rules the state today.

In 2004, her case was taken up by the National Human Rights Commission and the Supreme Court of India.

The Timeline

Between 2002-2003, the local police consistently rejected Bilkis's case, despite consistent efforts by her, citing insufficient evidence, and even went so far as to threaten her with legal consequences if she persisted. It is then that she turned to the National Human Rights Commission (NHRC) for help, Bilkis eventually appealed to the Supreme Court.

In December 2003, responding to her plea, the apex court mandated the Central Bureau of Investigation (CBI) to undertake an inquiry into the matter.

In January 2004, the CBI apprehended all the suspects allegedly involved following a thorough examination of the evidence presented in Bilkis's complaint. Most of the accused were Bano’s neighbours, men she had seen almost daily while growing up.

Author and activist Harsh Mander wrote in his book ‘Between Memory and Forgetting: Massacre and the Modi Years in Gujarat’ that “among the assailants was the son of a medical practitioner who treated Bilkis Bano’s father and lived right across the street, a man who owned a bangle shop in the village, another who owned a hotel in the neighbourhood where her family resided, and the husband of an elected member of Gram Panchayat.”

In August 2004, concerned about potential tampering with evidence and risks to witnesses, Bilkis expressed her worries, after which, the High Court opted to transfer the trial from Ahmedabad to Bombay.

In January 2008, the trial court found 12 individuals guilty of various charges including rape, conspiracy, and murder. Eleven of them received life sentences after one of them died during the trial. In response, the defendants challenged their convictions in the High Court, seeking to overturn the trial court's verdict.

In July 2011, the CBI urged the Bombay High Court to impose the death penalty on the convicts.

On July 15, 2016, the Bombay High Court deliberated on appeals presented by the 11 individuals charged in connection with the 2002 gang rape case. In September 2016, the convicts' lawyer requested a re-examination of several witnesses, but the Bombay High Court rejected this petition.

In October 2016, the Bombay High Court dismissed the application under the Code of Criminal Procedure while indicating that Bano could potentially elevate her application to an appeal.

However, in December 2016, the Bombay High Court reserved judgment on appeals filed by 11 prisoners who had been sentenced to life imprisonment. Additionally, the Court reserved judgment on a CBI appeal that sought the death penalty for three of the convicted individuals, classifying it as an “extraordinary circumstance”.

In May 2017, the Bombay High Court upheld the life sentences of the 11 convicts. The same month, seeking early release, one of the prisoners, who had already served more than 15 years, approached the Supreme Court.

The accused, Radheshyam Shah filed a petition to the Gujarat High Court in pursuit of sentence remission under the provisions outlined in sections 432 and 433 of the Code of Criminal Procedure. The HC dismissed his appeal, highlighting that the decision regarding his remission rested with the "appropriate government," which, in this case, was determined to be Maharashtra rather than Gujarat.

Shah, then, submitted a plea to the Supreme Court, wherein he asserted that, as of April 1, 2022, he had spent a total of 15 years and four months in prison without receiving any form of remission. Responding to his plea, the Supreme Court instructed the Gujarat government to examine the matter of remission of Shah's sentence.

This directive led the government to establish a committee, under the leadership of Panchmahal Collector Sujal Mayatra, to address the issue.

On August 15, 2022 the Gujarat government released 11 men convicted of Bilkis’ gang rape and the killing of her family. This caused a massive outrage but the government cited “good behaviour” as the reason behind the release of 11 convicts.

The government said it “decided to release 11 prisoners since they have completed 14 years and above in prisons and their behaviour was found to be good”. It further justified its decision on the grounds that the remission was granted in accordance with the 1992 policy which placed no bar against the premature release of rape convicts.

The Gujarat government told the Supreme Court that the release of the men was approved by the Union home ministry within two weeks.

Following the release of the accused, in December 2022, Bano filed a petition in the Supreme Court contesting the remission granted to them, which the apex court had dismissed.

Several other PILs, including one by CPI(M) leader Subhashini Ali, independent journalist Revati Laul and former vice-chancellor of Lucknow University Roop Rekha Verma, also challenged the relief. TMC leader Mahua Moitra has also filed a PIL against the remission and their premature release.

In March 2023, the case challenging the release of the eleven accused men was listed before a Bench of Justices K. M. Joseph and B. V. Nagarathna. The Bench issued notice to the Centre, Gujarat government and 11 convicts on the petition filed by Bano.

The court’s decision has once again reignited a “hope” in the judiciary, which many believed was diminishing looking at recent judgements and events.

Speaking to The Citizen about the decision, Indian writer Sara Ather said it is the resilience of Bano that has led to this point.

“I think this judgement is certainly historical, but it is historical for the resilience that Bilkis Bano has shown in this fight and not for anything else. Justice in case of sexual crimes is anyway a huge battle for women in this country, but in case of Bilkis Bano, it is not just that.

“It wasn’t merely a battle against patriarchy but against an entire Islamophobic right wing structure that not just openly promises impunity to men who commit these crimes but also celebrates them. Bilkis has instilled in us that despite the bleakness that we feel in our times, there is hope. Not all is lost,” she said.

What Did The SC Say?

Answering the question of whether the petition filed by Bano, was maintainable, the SC Bench said, “It is clearly maintainable. The arguments of senior advocates Guru Krishna Kumar and V. Chitambaresh are not accepted.”

The SC also refused to answer the question of whether the petitions filed as public interest litigation (PIL) petitions were maintainable. Justice Nagarathna said, “We do not think it is necessary to answer this question since one of the victims herself has approached the court. The question of the maintainability of the PILs do not call for an answer, being rendered academic and is left open in an appropriate case. Consideration of the merits of Bano’s petition is enough.”

The judge, while reading the portion of the ruling dealing with the competence of the State of Gujarat to pass these remission orders said, “This clearly means that the place of occurrence of the incidence or place of imprisonment are not relevant considerations, and they have been excluded from the definition of Section 432 of the Code of Criminal Procedure.

“The intent of the legislature is that the appropriate government is of the state within which a convict was tried and sentenced. The emphasis is on the place of trial and sentence, rather than the place of commission of offence or sentencing. This also takes within its ambit a situation where a trial is transferred from a competent court within the territorial jurisdiction.”

Justice Nagarathna added that, “On that short ground alone, the orders of remission have to be quashed. The competency of the State of Gujarat goes to the heart of the matter.”

She also added that the matter did not end there and the Gujarat government had to decide the applications and pass the order under challenge in terms of the May 2022 decision of the Supreme Court.

On the writ petition filed by one of the convicts, Radheshyam Shah, Justice Nagarathna said that the accused suppressed material facts like an earlier decision of the Gujarat High Court and the opinion of the presiding judge and making misleading statements.

The court said that the decision was “nullity, in as much as it was hit by fraud and the doctrine of per incuriam.”

"The convict played fraud on this court. The Gujarat High Court's order could not have been challenged in a writ petition, nor could it have been set aside in writ proceedings. Hence the said order is a nullity and non-est in law. Consequently, the May 2022 order is hit by fraud and is a nullity. It cannot be given effect to…”

On directing the convicts to be sent back to jail, Justice Nagarathna said, “If the convicts can circumvent the consequences of their conviction, the peace and tranquillity in the society will be reduced to a chimaera. The courts have to be mindful not just to the spelling of justice but also the content of it. It is the duty of this court to correct arbitrary orders at the earliest and to retain the foundation of trust of the public…”

Besides advocate Gupta representing Bano, senior advocates Indira Jaising , Aparna Bhat, Nizamuddin Pasha, and Pratik R. Bombarde appeared for the various public interest litigants.