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While quashing the Gujarat government’s grossly unjust order to release the 11 men sentenced to life imprisonment for gangrape and multiple murders in the Bilkis Bano case, the Supreme Court noted that the release of the perpetrators marked a “usurpation of jurisdiction and an instance of abuse of discretion”. The judgment of Justice Nagarathna and Justice Ujjal Bhuyan overruled the May 2022 decision of the Supreme Court which had said Gujarat was the appropriate government to decide the remission plea in accordance with the state’s 1992 remission and premature release policy.
Bilkis Bano was a victim of egregious sexual violence but the case is not only about that, it is also about communal violence and state impunity. In 2002, communal violence became a strategic instrument of polarisation and mobilisation in Gujarat. This strategy adopted in the aftermath of the violence changed the political landscape of the country. It also illustrates how legal provisions and laws can be subverted. After a prolonged legal battle, the 11 accused were sentenced to life imprisonment in 2008. But the case had to be shifted out of Gujarat to Maharashtra since Bilkis had received death threats and there were apprehensions that the victim would not receive a fair trial or justice.
These fears were borne out by the premature release of convicts on August 15, 2022, by the Bhartiya Janata Party government which was in power during the 2002 communal riots. The Supreme Court noted that the state of Gujarat had “acted in complicity with the convicts” and that “it was this very apprehension which led this Court to transfer the trial out of the state” to Maharashtra. In effect, the Gujarat government did not have any jurisdiction to decide on granting remission to convicts sentenced in Maharashtra. While pronouncing the verdict, the apex court stated that the government to decide on the remission is the state within whose jurisdiction the accused were sentenced, and not the state within whose territory the offence was committed. In view of this policy, the state government was guilty of usurpation of power.
The grounds on which the remission was granted were manifestly political – the remission order was given in in the midst of the campaign for state assembly elections in Gujarat in 2022. Significantly, the highest courts’s verdict was an indictment of the Union government too, as the remission order was counter-signed by the Union Ministry of Home Affairs. Sending the convicted men back to jail in these circumstances marks a pivotal moment for the pursuit of justice in the current political landscape.
Also read: In Her Own Words: What Bilkis Bano Went Through in 2002
No one from the Gujarat government and none of those who matter in the state have said anything yet on the verdict. No ruling party leader has commented on the ruling, let alone welcoming it. The verdict got almost no mention in most of the television news channels and found no mention even in the national dailies beyond the first day of reporting. The media and middle classes have been largely silent on the unlawful remission and its reversal, even as they outrage over other cases of sexual violence and crimes against women. This calculated silence is part of the effort to erase the horrific violence and the unprecedented scale of gendered violence from public memory. For this reason, it is important to remember the Bilkis case as it reminds the country of a dark chapter in our history. Remembering it is crucial to prevent it from recurring.
Despite many attempts to silence her, Bilkis Bano persisted and emerged as a symbol of resistance. It was due to her perseverance and resistance that justice was delivered. But equally, we must also recognise the work and commitment of fearless lawyers and women’s rights activists who stood by her over the years. Feminist solidarities came to the forefront in all forms in these years – legal petitions, street protests, vigils and signature campaigns. These solidarities were particularly evident after the remission. Multiple pleas were filed by social activists against the remission.
Mahua Moitra, Revati Laul, Shobha Gupta, Bilkis Bano, Meeran Chadha Borwankar, Subhashini Ali and Roop Rekha Verma.
Most notable was the work done by Bilkis Bano’s lawyer Shobha Gupta, who has backed her unwaveringly for 20 years. TMC member of parliament Mahua Moitra filed a petition. Another PIL was filed by Subhashini Ali, ex-MP and a member of the CPI(M), journalist and author Revati Laul, and Professor Roop Rekha Verma of Lucknow University, challenging the Gujarat government’s remission and release order. Subsequently, another petition was filed by former IPS officer Meeran Chadha Borwankar in September 2022. The National Federation of Indian Women (NFIW) also filed a PIL challenging the release of the convicts.
Bilkis Bano has acknowledged the importance of feminist solidarities in her struggle for justice. She thanked the apex court for providing justice to her and her children, but she also thanked all the women for “this vindication and hope in the promise of equal justice for all.” It is a victory for not just this brave survivor of communal and sexual violence and warrior for justice, but also for everyone who fought for her and for justice to prevail. What emerges from this historic verdict is that the rule of law, above all, equality before law is for all, and is worth fighting for. This is a historic verdict because the Supreme Court very rarely declares its own judgment “null and void”, noted Indira Jaising, lawyer for Moitra.
She said the verdict “is a milestone on the journey of justice”. It may restore faith in the judiciary to some extent which has largely echoed the government’s point of view in cases that matter to the government and not held it accountable for its actions. However, the fight has to go on to ensure that the Maharashtra government does not follow in the footsteps of the Gujarat government.
Zoya Hasan is Professor Emerita, Centre for Political Studies, Jawaharlal Nehru University.
