'Crime Committed Against Bilkis Bano Part Of Communal Violence Targeting Members Of One Community' : Indira Jaising Tells Supreme Court

The brutal gang-rape of five-months-pregnant Bilkis Bano and the murders of her family members including kids amidst the 2002 Gujarat riots was a ‘crime against humanity’, Senior Advocate Indira Jaising told the Supreme Court on Thursday. The senior counsel said: “India follows the dual system of international law. A treaty is not binding on India unless it is ratified and domesticated. We have domesticated the International Covenant on Civil and Political Rights or ‘ICCPR’ through the enactment of the Human Rights Act of 1993. This treaty forbids ‘cruel, inhuman and degrading’ treatment and what happened to Bilkis Bano was cruel, inhuman, and degrading. There are also non-derogable norms of international law, which includes crimes against humanity. My submission is that what happened to Bilkis Bano was a crime against humanity because it happened in a situation of widespread communal violence targeting the members of one community…The crime committed against Bilkis Bano cannot be viewed in isolation from the communal and sectarian conflict that broke out in Gujarat.” 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. Today, along with Jaising, advocates Aparna Bhat, Vrinda Grover, Pratik R Bombarde, and Nizam Pasha, appearing for various politicians, journalists, activists and other concerned civil society members, mounted an attack on the legality of the Gujarat government’s decision, besides defending their own right to bring an action in this case. Jaising, who appeared for Trinamool Congress MP Mahua Moitra and others, submitted that the PIL petitioners were far from ‘uninterested’ parties, being ‘vitally interested’ to prevent – in public interest, and for public good – a public authority from acting capriciously. This was owing to the mandate of the fundamental duties of every citizen, particularly one who has sworn an oath of allegiance. She also added, “It is not true that there cannot be no interference from third parties in criminal matters. I accept that as a general rule the State is dominus litis. But, it’s not an absolute rule.” On the nature of the crime, Jaising argued that the crime against Bilkis Bano was a part of a ‘widespread’ and ‘systematic’ attack directed against a civilian population, which included murder, rape, and other forms of sexual violence of ‘comparable gravity’. “It is also a part of targeted persecution of a identifiable group based on religion, and in Bilkis’ case, gender, which are crimes against humanity, and universally recognised, prohibited, and punished under international law. These are also issues of gross constitutional violations.” Jaising, besides highlighting the brutality with which the 11 convicts committed the crimes that led to a court handing them life terms, also urged the court to not look at the multiple murders and gang rapes in isolation from the sectarian and communal violence that had seized the State of Gujarat in February 2002. The senior counsel submitted: “Look at the cases in which the Supreme Court constituted special investigation team conducted inquiries…Godhra, Sardarpura, Mehsana, Gulberg society where a sitting MLA was burnt to death only because he was a Muslim, Naroda Patiya, Ode Anand district, Naroda Gaon…Imran Dawood was a case where British citizens travelling through Gujarat were killed because they were Muslim…This is the context in which Bilkis Bano was gang raped, at a time when she was pregnant. The number of people killed during the Gujarat riots was beyond anything we have seen in the country before. The context is a relevant factor in deciding whether to grant remission.” The context in which the crimes were committed, their nature, the motive, or the vulnerability of the victim in its communal context ought to have been taken into consideration by the State, Jaising argued. She further argued that the 1992 policy on the basis of which the 11 convicts were granted remission was “not a policy per se” and only a guide on the procedure to be followed: “There is a silence on the categories of crime and convicts to be considered for remission. This is policy relating to procedure alone and only tells you who is to be consulted. Therefore, this is not really a policy. We agree with the proposition that the policy at the time of conviction needs to be seen. However, there was no substantive policy. Therefore, the matter is at large. I am not saying that they are not entitled to remission. However, in such a situation, the State is...

'Crime Committed Against Bilkis Bano Part Of Communal Violence Targeting Members Of One Community' : Indira Jaising Tells Supreme Court

Awstika Das

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