7 Aug 2023 1:45 PM GMT
Do the men convicted for brutally gang-raping Bilkis Bano and killing her entire family in front of her eyes deserve the leniency they have been accorded, Advocate Shobha Gupta asked the Supreme Court of India on Monday, while arguing that the punishment befalling the convicts ought to be proportional to the nature and seriousness of the crime committed by them. A bench of Justices...
Do the men convicted for brutally gang-raping Bilkis Bano and killing her entire family in front of her eyes deserve the leniency they have been accorded, Advocate Shobha Gupta asked the Supreme Court of India on Monday, while arguing that the punishment befalling the convicts ought to be proportional to the nature and seriousness of the crime committed by them.
A bench of Justices BV Nagarathna and Ujjal Bhuyan was hearing a clutch of pleas against the decision of the Gujarat government to grant remission to the 11 convicts who had been sentenced to life imprisonment for multiple murders and violent sexual assault during the 2002 communal riots in Gujarat. Last year, on Independence Day, the convicts were allowed to walk free after their application for remission of the sentence was approved by the state government.
The division bench today appeared keener to discuss the technical aspects regarding the premature release of the convicts, but Gupta insisted that an examination in some detail of the crime committed by them would help contextualise the punishment they deserve. The nature of the crime that Bilkis’ rapists committed was especially material for the purposes of examining the question of remission, Gupta stressed. She told the bench:
“I want to highlight the crimes themselves and the way they have been executed. Bilkis herself was brutally gang-raped multiple times while she was five months pregnant. Her first child was smashed on a rock to death. Her mother and a cousin was gang-raped and murdered. Four minor brothers and sisters of Bilkis were murdered. Her cousin’s two-day-old baby was murdered. Aunts and uncles, other cousins…murdered.”
Gupta also pointed out that Bilkis and her family had attempted to flee once the communal violence broke out in Gujarat in 2002. They were on the run from February 28, till March 3, when the family was slaughtered in a gruesome manner. “This is not a spur-of-moment incident. The convicts were chasing them, trying to find out where they had hidden. They were bloodthirsty. The bodies that could be recovered…The heads and chests were smashed. Only seven could be found since the place of the incident was not protected.”
Justice Nagarathna asked, “Did it come on record that there were 14 deaths?”
“Yes,” Gupta responded, “The conviction says that there have been 14 deaths and three gang rapes.”
During the hearing, Gupta read out the details of the injuries suffered by survivors and those found on the bodies of the deceased. To explain her motive behind this exposition, she said that apart from technical factors like the lack of an application of mind, and arbitrariness, the nature of the crimes itself was an important consideration when deciding the question of remission.
“Bilkis saw her first child’s head being smashed on a stone. She kept pleading to the attackers because she was from the same locality as them. That is why she could name them. She knew them because they were from the locality. But they showed her or her family no mercy…Are these people – the perpetrators who have been found guilty of committing these crimes – deserving of the leniency shown to them?”
In this connection, Gupta also relied on the adverse opinions delivered by the sentencing judge as well as the Central Bureau of Investigation with respect to the remission of Bilkis’ rapists.
The hearing in the case will continue tomorrow.
We thought it was over but then convicts were released from jail to celebrations: Gupta tells Supreme Court
Saying that the Supreme Court had already taken ‘judicial notice’ of the extraordinary circumstances surrounding this case, Gupta read out the observations made by the Supreme Court while directing Bano to be awarded ₹50 lakh as compensation, a government job and housing in an area of her choice in the first such order relating to the 2002 Gujarat riots. A three-judge bench headed by then-chief justice Ranjan Gogoi had observed in an order:
“Bilkis Yakub Rasool, is a victim of riots which occurred in the aftermath of the Godhara train burning incident in the State of Gujarat on February 27, 2002. While eventually, the perpetrators of the crime including the police personnel stand punished, the appellant, who was aged twenty-one years and pregnant at that time, having lost all members of her family in the diabolical and brutal attacks needs to be adequately compensated…She was repeatedly gang-raped and was a mute and helpless witness to her three-and-a-half-year-old daughter being butchered to death. This factual position is undisputed and unchallenged in light of the findings of the trial court upheld by the high Court and this court…The gruesome and horrific acts of violence have left an indelible imprint on her mind which will continue to torment and cripple her.”
After Gupta read out this passage, Justice Nagarathna asked her, “Was this order complied with?”
“To an extent, it has been complied with,” Gupta replied, before elaborating on the deep psychological trauma that she has suffered and how it affected her life to this day. “She has not recovered from the trauma. Bilkis is afraid of men. She cannot face strangers or be in crowded places.”
“We thought it was over, but then came the sudden news of all convicts being released on August 15. Bilkis got to know about this one they came out from jail and the celebrations had started. Sweets were being circulated, they were garlanded…”
On 3 March 2002, Bano, who was 21 years old and five months pregnant, was gang-raped in the Dahod district of Gujarat during the post-Godhra communal riots. Seven of her family members, including her three-year-old daughter were also killed by rioters. In 2008, after the trial was transferred to Maharashtra, a sessions court in Mumbai convicted the accused under Sections 302, and 376(2)(e)(g) read with Section 149 of the Indian Penal Code, 1860 and handed them a life sentence. In May 2017, a Bombay High Court bench headed by Justice VK Tahilramani upheld the conviction and life imprisonment of the 11 convicts. Two years later, the Supreme Court of India also directed the Gujarat government to pay Rs 50 lakhs as compensation to Bano as well as provide her with a government job and a house.
In a notable development, after almost 15 years in jail, one of the convicts, Radheshyam Shah approached the Gujarat High Court seeking remission of his sentence. However, the high court turned him back on the ground of the lack of jurisdiction. It held that the appropriate government to take a decision with respect to his remission was the Maharashtra government, and not the one in Gujarat. But, when the matter travelled in appeal to the apex court, a bench of Justices Ajay Rastogi and Vikram Nath held that the remission application had to be decided by the Gujarat government as the offence took place in the state. The bench also observed that the case was transferred to Maharashtra due to ‘exceptional circumstances’, only for the limited purpose of the trial, allowing the Gujarat government to consider the convicts’ applications for remission.
Accordingly, under the remission policy which was in force at the time of their sentencing, the convicts were released by the state government last year, provoking widespread outrage and protest. It also led to a batch of petitions being filed before the top court, challenging the decision of the Gujarat government to grant the convicts premature release. Among the petitioners are Communist Party of India (Marxist) leader Subhashini Ali, professor Rooplekha Verma, journalist Revati Laul, Trinamool Congress MP Mahua Moitra, former IPS officer Meeran Chadha Borwankar, and National Federation of Indian Women. The top court issued notice in the first set of pleas on August 25 – ten days after the convicts were allowed to walk free – and agreed to take on board another batch on September 9.
Bilkis Yakub Rasool v. Union of India & Ors. | Writ Petition (Criminal) No. 491 of 2022