Across the aisle by P Chidambaram: A Daniel come to judgement

Part I is the story of Ms Bilkis Bano that deserves to be told and retold. (Image/PTI)

I wrote in this column on August 28, 2022.

‘None could have poured out the anguish of a human better than an abused, violated and bereaved mother by name Bilkis Bano. In a few simple but heart-rending words she summed up the situation of millions of poor, discriminated and oppressed citizens: “Give me back my right to live without fear”.’

The heinous crime

Part I is the story of Ms Bilkis Bano that deserves to be told and retold. Following the burning of a train in 2002, violence erupted in Gujarat. Ms Bilkis Bano, 21, was married, had a 3-year old daughter, and was pregnant again. In the violence, a mob of men attacked her, killed seven members of her family including her child, and gang-raped her. She was lucky to survive and tell her story. Her assailants were tried by the Special Judge, Greater Mumbai. By judgement dated January 21, 2008, 11 men were found guilty and sentenced to imprisonment for life. On August 15, 2022, the Prime Minister, in his Independence Day address, asked the people to take pride in Nari Shakti — women’s power. Ironically, hours later on the same day, the government of Gujarat remitted the remainder of the sentence of life imprisonment and set the 11 convicts free.

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The released convicts did not show any contriteness; nor did they walk into the sunset. They were welcomed and feted with garlands and sweets. Some in the welcoming party touched their feet, showing reverence. One said, “they are Brahmins with good sanskar (culture).”

The tortuous litigation

Part II is about the Courts. On January 8, 2024, in a landmark judgement, the Supreme Court allowed the petitions filed to set aside the orders of remission and directed the 11 released convicts to report to the jail authorities to serve the sentence. This column is not about the unjustified reprieve won by the convicts. It is about the larger questions concerning the rule of law and the interplay of law and human rights.

The Court observed (and I quote only the portions relevant to this column):

• A woman deserves respect howsoever high or low she may be….
• The Investigation Agency filed a closure report stating that the accused could not be traced and the said closure report was accepted by the Judicial Magistrate….
• This Court directed the reopening of the case and transferred the investigation to the Central Bureau of Investigation. ….The Special Judge, Greater Mumbai convicted the eleven accused.
• ….by judgement dated 04-05-2017….Bombay High Court upheld the conviction of the eleven persons.
• ….respondent No.3 …..(challenged) the non-consideration of his application for premature release ….the Gujarat High Court by order dated 17-07-2019 directed the petitioner .…to pursue his remedy with the State of Maharashtra.
• (In a judgement dated May 13, 2022, the Supreme Court), even in the absence of any challenge, the order dated 17-07-2019 passed by the Gujarat High Court .…was set aside and directed the State of Gujarat to consider the application of the petitioner (Radheyshyam Shah) for premature release in terms of its policy dated 09-07-1992. 
• ….a meeting of the Jail Advisory Committee of the State of Gujarat took place on 26-05-2022 and all the members recommended grant of remission ….
• The Sessions Judge, Godhra….applied the policy dated 09-07-1992 and gave an ‘affirmative’
• opinion as regards the premature release…..
• By letter dated 11-07-2022, the Ministry of Home Affairs, …. conveyed its approval ….for the premature release of all 11 convicts….

In the judgment dated January 8, 2024, the Supreme Court found that the entire proceedings relating to the remission, starting with the earlier judgement of the Supreme Court dated May 13, 2022, were vitiated. The reasons given by the Court were devastating:

1. The judgement of the High Court, Gujarat dated July 17, 2019 had not been challenged; yet the Supreme Court by judgement dated May 13, 2022 had set aside the judgement.

2. The judgement dated May 13, 2022 was obtained by suppression of facts and fraud, and is a nullity.

3. The judgement dated May 13, 2022 had ignored binding precedents of Constitution Benches of the Supreme Court.

4. Only one prisoner (Radheyshyam Shah) had approached the Supreme Court, yet the cases of all 11 convicts for remission were considered.

5. The state of Gujarat had no jurisdiction in the matter; only Maharashtra had jurisdiction.

6. The policy dated July 9, 1992 had been cancelled and a new policy dated January 23, 2014 had been framed by Gujarat.

7. The State of Gujarat had acted in tandem and was complicit with what Radheyshyam Shah had sought before the Supreme Court.

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The bitter-sweet lessons

Part III concerns the citizens of India. The lessons of the Bilkis Bano case are that the dignity, liberty, privacy and human rights of citizens are violated with impunity. But there are intrepid police officers and courageous judges who will punish the guilty. The State may collude with perpetrators of crimes and aid and abet them to win underserved freedom. Litigants do play a fraud on courts. Judges can err grievously. Public outrage may stir other judges to correct the errors. Daniels will come to judgement. The rule of law prevails over everything. And Ms Bilkis Bano’s words “I can breathe again” will resonate forever.

Amidst the surrounding despair and darkness, there is some hope and light.