HEADLINE : Why Supreme Court has indicted Gujarat govt in Bilkis Bano case, Vrinda Grover explains

Jyoti Malhotra speaks to Vrinda Grover, on why the Supreme Court cancelled the remission of 11 convicts in the Bilkis Bano case, in which she was gang-raped by them during the 2002 Gujarat riots and 14 members of her family killed

JYOTI MALHOTRA : I'm with Vrinda Grover, an advocate at the Supreme Court who has filed a public interest litigation on behalf of an IPS officer on the Bilkis Bano case. I'm Jyoti Malhotra with Awaaz South Asia.

Today of course, we're discussing the Supreme Court verdict which has cancelled the remission of 11 convicts who were convicted for the gang rape and murder of Bilkis Bano, way back in 2022, during the riots in Gujarat.

Miss Grover, thank you so much for speaking to me on Awaaz South Asia. We are live. And I just wanted to ask you to tell us what this means? What is the meaning of the Supreme Court judgment today on the Bilkis Bano affair?

VRINDA GROVER : I think it's a very important and landmark judgement. And we will recall that the entire case around Bilkis Bano is located in one of the moments in Indian politics, when in 2002 she and her family were fleeing from their village and there was a targeted violence against Muslims in Gujarat. And about at least 14 members of her family, including her three year old daughter, a little baby were murdered before her eyes by this mob. The women were gang raped, including a pregnant woman. Bilkis Bano was 21 years old.

At that time, the Supreme Court had early on transferred the investigation to the CBI and trial of the case, looking into its facts and circumstances, it had transferred it to Maharashtra. There,  all these 11 men were convicted on many multiple counts of murder and rape. The conviction has since been upheld in all the appellate courts. 

In 2022, the convicts secured remission from the state of Gujarat after serving 14 years of life imprisonment. That was challenged both by Bilkis and by several public interest litigation petitions. The Court has today in its verdict, very categorically felt out that this remission is contrary to the rule of law. 

The rule of law grants the power of remission to the state, okay, but that remission power was not available in this particular case, to the state of Gujarat, which exercised the power. Except that Gujarat state appears to have acted in tandem with the convicts. And it had no power, no jurisdiction, no authority to grant them remission. That it has usurped this power. So both under the Code of Criminal Procedure, as well as judgments of Constitutional bench, the state of Maharashtra must give permission because that is the state where the convict is sentenced, noit Gujarat. 

Q : But why did the Supreme Court last year allow one of the convicts, Radheysham, to get bail, remission? I think in the mind of a lot of people who have read this judgment, there seems to be some contradiction, so if you could explain that, please.

A : One of the convicts, Radheshyam, first moved the Gujarat high court saying that my remission application – and the convict is entitled to move a remission application at the end of 14 years – should be considered. The state of Gujarat, relying upon the Sreedharan judgement of the Constitution bench of the Supreme Court in Section 42 (subsection seven of the Code of Criminal Procedure) rightly held that the state of Gujarat has no power. That if you wish to apply for remission apply to the state of Maharashtra, because that is where the sentencing took place. After which he did apply to the state of Maharashtra. 

And the special judge of the Mumbai high court, the CBI, the Superintendent of Police and other authorities said this is not a fit case for grant of remission given the nature of the offence. So clearly that did not work in the convict’s favour, 

Another convict had meanwhile moved the state of Maharashtra seeking a transfer from Maharashtra prison to Gujarat prison, which was done for almost all of them. And they would then be serving their sentence in Gujarat, which is allowed as per law. 

Now, the state of Gujarat order saying Maharashtra is the appropriate government in law was never challenged by anybody – there was no challenge, no petition filed in the Supreme Court. 

Thereafter, a fresh petition gets filed by Radheysham under Article 32, which therefore has to make out a case of violation of a fundamental right, saying the state of Gujarat must be directed to consider my application because there appears to be some confusion and a contradictory stance taken by states of Maharashtra and Gujarat. 

Now, this was a misrepresentation to the Supreme Court, because the state of Maharashtra had not opined on the aspect of who should consider the revision application that had never come before its High Court. Also, in this fresh case that was filed, which should have been struck down on multiple grounds, there was no one from Bilkis Bano’s side representing her. 

So Radheshyam and the state of Gujarat did not bring to the attention of the honourable Supreme Court certain very material and relevant facts. The Court today has, therefore, held that that order that was passed in May 2022, (contained) suppression of facts, that a fraud was played upon the court, and since Gujarat state was cognizant of an earlier order of the High Court of Gujarat, it was the duty of the Gujarat state to file a review once the May 2020 order was passed.

Q : I fail to understand why the Supreme Court was surprised today, had it not done its homework?

A : I agree that it would have been important to have heard her (Bilkis Bano), because then they would have known that this was a fraud being played upon them. Why didn't they hear her? I think there are multiple complex jurisprudential principles involved here. That the victim not be heard at this stage, or the convict only saying, please  consider my application. 

I would actually say the problem lies with the state of Gujarat, having utterly and completely failed to discharge the duty it owes to the court and having remained conveniently silent, and therefore in very strong terms for the Supreme Court to say that you are working in tandem with the convict and in complicity with the convicts.That is the most scathing indictment that the Supreme Court can ever make of the state. 

The fundamental issue here is that courts function by having faith in what is said on behalf of the State. Otherwise, how does the Court hear matters? How does the Court understand what is happening? The Court doesn't have eyes and ears everywhere. If the State makes a submission, the Court takes it in good faith here – here there is a breach of that. And so that has that has to be turned around. And the Court today put the state of Gujarat in the dock. 

Q : So Justices BV Nagarathna & Ujjal Bhuyan, who delivered this judgement today, have chastised the Gujarat government?

A : Oh, very severely. It's a scathing indictment. And in fact, they have said that you have, it appears, to have worked in tandem with them.

Q : So what was the response by the state? And what happens to the 11 convicts?

A : They will respond by whatever they wish to file. As for the convicts, they have been directed to surrender within two weeks. And of course, they are free to use the legal remedies available to them, including seeking permission from the state of Maharashtra.

I think the central message the Court has given today is that rule of law is the central pillar of Indian democracy and rule of law will prevail to protect all and to ensure that justice is done to all, including women. And it doesn't matter who the accused are, or what kind of affiliation somebody may have, the equal treatment of law will be upheld by the court.

Q : So in these next two weeks the 11 convicts are free to appeal…But after two weeks, do they have to go back to jail? 

A : Their lawyers will see what kind of relief they can secure for them failing, which, yes, they have to go to jail, otherwise there will be warrants issued against them. 

Q : Do they go to jail for the rest of their lives?
A : Well, they have rights of permission under the law, and those rights are available to everyone. They will have to secure remission from the appropriate government, the state of Maharashtra, and the relevant policy. And hopefully this time round, the letter and spirit of the law of remission will be respected.

Q : And what happens to Bilkis Bano?

A : Well, I think Bilkis Bano continues to remain the symbol of a woman's struggle for justice, when she is pitted against those who the state decides to protect and shield. It's a story that every Indian should be haunted by, that this is what it means when a woman seeks justice from mass crimes, the most egregious of what in international law would amount to war crimes, and hate crimes are committed against her and her family members. This is the manner in which ahe has to struggle for justice.We are in 2024. I think it's something that should hold each one of us.

Q : So 22 long years after this horrific crime was committed, it's going to be 22 years next month in February when the Gujarat riots took place, Bilkis Bano seems to have got the justice that she wanted, perhaps not fully yet, because I'm not sure what kind of compensation she gets, but if any, the monetary compensation is never going to compensate for what she went through. 

But thank you so much Vrinda Grover, for speaking to me on Awaaz South Asia. Thank you so much for your time. Thank you.