Dismissal by apex court of Bilkis Bano’s review petition is most disappointing

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Bilkis Bano

By Adv Parvez Alam

I am most aghast, most appalled, most ashamed and most astonished to learn that none other than the Apex Court itself in its latest judgment titled Bilkis Yakub Rasool vs Union of India & Others in Review Petition (Crl.) No(s). of 2022 (Diary No. 37739/2022) in Writ Petition (Crl.) No(s). 135 of 2022 has dismissed the review petition that was filed by Bilkis Bano who was seeking review of the May 2022 judgment which had held that Gujarat Government had the jurisdiction to decide the remission applications of 11 convicts who were sentenced to life for gangrape and murder during the 2002 Gujarat riots. The Apex Court said that, “In our opinion, there appears no error apparent on the face of record, which may call for review of the judgment dated 13th May, 2022 and as regards the judgments on which the reliance has been placed, none of the judgments are of any assistance to the review petitioner. In our opinion, no case for review is made out. The review petition is accordingly dismissed.” It must be mentioned here that Bilkis through her lawyer Shobha Gupta had sought review of the judgment by primarily contending that it was contrary to clear language of Section 432(7)(b) of CrPC which envisages that the appropriate government to decide remission is the government of the State where the trial was held. She also pointed out that the Apex Court passed the judgment in a writ petition filed by one of the convicts.

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While allowing the writ petition, the Apex Court set aside the judgment of the Gujarat High Court which held that remission has to be decided by the Maharashtra Government), although no special leave petition was filed challenging the High Court judgment. This, Bilkis contended, amounted to a grave procedural irregularity as a judgment cannot be set aside under Article 32 of the Constitution. She also stated that the convict had “cleverly suppressed” the fact that the case related to Gujarat riots.

It must also be mentioned here that neither was Bilkis made a party nor was her name mentioned in the petition. Thus, the gravity and seriousness of the crime were suppressed from the Court and the Court was misled into passing the order, she contended in the review petition. She has also filed another writ petition challenging the decision of the Gujarat Government to allow the premature release of the eleven convicts.

It must be asked: Why is it that when for murder there cannot be any lesser sentence than life have they been released so early? Why the Apex Court tend to gloss over that it was not just murder or rape but it was gang rape of Bilkis Bano on March 3, 2002 who was then 21 year old and five months pregnant and who witnessed rape and murder of her 3-year-old child in front of her smashing her head before her eyes and rape of her own mother and murder of 15 family members and gang rape of a pregnant women? It is most shuddering to think how horrendous the crime had been perpetrated so fearlessly by the perpetrators!

A piece in Shiv Sena’s mouthpiece Saamana some time back very rightly states on felicitation of Bilkis Bano convicts that, “Who is Bilkis Bano? Just because she is a Muslim does not mean that atrocities against her, rape and murder of her child is pardonable. What if she was our mother or sister? We cry out loud when similar atrocities take place in neighbouring Pakistan and Bangladesh. Then where has our sensitivity gone in case of Bilkis Bano? Neither the Prime Minister nor our Union Home Minister has spoken a word on this. What is the reason?”

Eminent and senior journalist and author Tavleen Singh very rightly points out in ‘The Indian Express’ dated August 21, 2022 in her enlightening editorial that, “Then came the news that the Gujarat government had decided to release the 11 monsters who raped Bilkis Bano and smashed her three-year-old daughter’s head before her eyes. They also raped Bilkis’s mother and killed several members of her immediate family. And these crimes have been proved in a court of law. The legal battle for justice happened because Bilkis, left naked, bleeding and half dead by these sub-human brutes, found the courage to go to a police station and register an FIR. Her complaint was reluctantly registered by the local police probably because she was able to name each one of the 11 rapists. They were her neighbours in her village. They were her neighbours in her village. Bilkis fought with great courage a long, traumatic battle for justice and her rapists were finally convicted in 2008. The crimes they committed were so awful that when the Supreme Court awarded her compensation of Rs 50 lakh three years ago, the Judges remarked that what was done to her was so horrifying that she deserved the highest recompense paid in a rape case.”

It must be mentioned here that Bilkis Bano case convicts were out of jail for around 1000 days even before being released on remission of life sentence and one of them even got charge sheeted for outraging the modesty of a woman in 2020 while out on parole, the Gujarat government had itself told the Apex Court about this. A state government affidavit said all convicts were granted parole, furlough and even temporary bail at different points during their incarceration, with the highest being for 1576 days for Ramesh Chandana and the lowest being 998 days for Bakabhai Vahoniya. Out of the 11, Mitesh Chamanlal Bhatt was booked and chargesheeted for offences under Sections 354 (outraging the modesty of a woman), 504 (insult intended to provoke breach of the peace) and 506 (criminal intimidation) of IPC entailing a maximum sentence of 7 years or fine or both.

How can it be just glossed over that none other than the BJP leader and Maharashtra Deputy Chief Minister and former Chief Minister – Devendra Fadnavis said days after the release of the 11 convicts that it was wrong for the convicts to have been “honoured”? Fadnavis also pointed out that, “The convicts served their sentence and were released as per a Supreme Court order. However, be it any accused, honouring them on their release is wrong. A convict is a convict and they cannot be honoured.” This definitely cannot be ever justified under any circumstances as it amount to abetting the crime itself!

It must be asked: Why these 11 convicts were frequently given parole and furlough leaves multiple times in a year even though the rules forbid them and they had committed such heinous crimes? Why is it glossed over that one of the convicts named Rajubhai Soni was granted 90 days parole in September 2013 but returned in July 2014 after a 197-day delay? Why was this allowed to happen at the first place? Why no action taken against those guilty?

As if this was not enough, why was it again glossed over that one of the convicts Mitesh Bhatt was booked for the offence of outraging the modesty of a woman during parole in 2020? Why still Mitesh Bhatt continued to enjoy over 350 days of parole to after this offence was committed? Is Mitesh Bhatt above the law of the land?

It must also be asked: How can remission be granted to 11 convicts in August despite objections from the Trial Court Special CBI Judge who convicted the 11 men? How can remission be granted to them when even CBI which investigated and prosecuted the case in Mumbai following the 2004 Apex Court order of shifting the trial outside Gujarat calling the offence “heinous, grave and serious’ while turning down the remission requests”? The Trial Court Judge Umesh Salvi who was a Special Judge in the Mumbai City Civil and Sessions Court who convicted these 11 convicts in Bilkia Bano case minced just no words to say that, “While the remission was legal, was it just?” Salvi said that the Government should have sought better legal understanding of the circumstances and the people involved. The Committee never closely consulted any legal professionals on the case, let alone those closely associated with it.” Salvi also said that, “But their felicitation (by some people) was in absolute bad taste. The convicts themselves should not have accepted felicitation.”

In hindsight, the 11 men were released after one of them named Radheshyam Shah approached the Apex Court in April 2022 seeking remission arguing that they had spent over 15 years in prison.” Bano had very rightly condemned their release saying that, “The release of these convicts has taken from me my peace and shaken my faith in justice. My sorrow and my wavering faith is not for myself alone but for every women who is struggling for justice in courts. I was bereft of words. I am still numb. Today I can say only this – how can justice for any woman end like this? I trusted the highest courts in our land. I trusted the system, and I was learning slowly to live with my trauma. No one enquired about my safety and well-being, before taking such a big and unjust decision. I appeal to the Gujarat Government, please undo this harm. Give me back my right to live without fear and in peace…”

All told, Bilkis Bano still has the option to file curative petition. One definitely feels most dejected to see that the Apex Court has not risen to the occasion and displayed the same level of zero tolerance as it displayed in Dhananjoy Chatterjee case where he was hanged in 2004 for rape and murder of a school girl and that too on circumstantial evidence alone and who was only personally liable  but in this case where there is murder, gang rape and what not by so many men in group and still accused are being treated so lightly! Supreme Court is final but it is certainly not infallible.

Let us still hope fervently that Apex Court will realize its grave folly and do justice with Bilkis Bano who has gone though so much of trials and tribulations for no fault of hers other than her being a women and a Muslim! Apex Court must remember that it had itself on April 23, 2019 while awarding her Rs 50 lakh in compensation described how the “brutal, diabolic, gruesome, horrific acts of violence” committed on her has left an “indelible imprint on her mind which will continue to torment and cripple her”. It also had noted that the then 21-year-old and pregnant Ms Bilkis was “repeatedly gangraped”.

She was a “mute and helpless witness to her three-and-a-half-year old daughter butchered to death”. She had lost all the members of her family while fleeing the mayhem and violence of the 2002 riots. The Apex Court had itself conceded that she had lived the life of a nomad, an orphan!

Before parting, it must be definitely asked most forthrightly: How can the killers and gang rapists who didn’t spare her small child of 3 years nor her aged mother and gang raped her also and so also killed all 15 members be not sent to the gallows? But what we see here is let alone being sent to the gallows, they have not  even been sent to jail for whole life! They are out within few years! This is not “rule of law” but “rule of jungle” and if not corrected soon will be the biggest miscarriage of justice from which both Centre and the Apex Court cannot be ever exonerated for not taking this high profile case to its logical conclusion! The Apex Court should never gloss over that it had itself conceded in its 2018 decision in Tehseen Poonawalla case that “horrendous acts of mobocracy” should not become the “new normal”. Justice should not only be done but should also seen to be done. We find both lacking in case of Bilkis Bano which is certainly an unpalatable truth from which we definitely cannot run away!

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Parvez Alam is a Meerut based lawyer, he can be reached at Email: parvezalamadvocate@gmail.com

 

3 COMMENTS

    • iN #AUTOCRATICINDIA we are witnessing the rise of #RSSFührerprinzip.

      ” The Lawyer Who Mocked Hitler, and Other Jewish Commentaries on the Nuremberg Laws
      Published online by Cambridge University Press: 18 January 2017
      Douglas G. Morris

      Abstract
      Nazi Germany’s Nuremberg Laws of 1935 generated legal commentary by Nazi jurists who eagerly extended its antisemitic principles—but not by Jewish lawyers, for whom the discrimination was too blatant and the risks of public criticism too dangerous. In the winter of 1936-37 in Leipzig, however, one obscure lawyer named Max Hellmann made an incisive commentary about the laws. Faced with prosecution for employing a female “Aryan” cook, Hellmann, a convert and widower in despair, responded boldly: he subpoenaed Adolf Hitler to testify and even moved to imprison him pending the judge’s decision. His defense was, in fact, a satire. It mocked the so-called Führerprinzip (leadership principle), i.e., the idea of law as the Führer’s will, at the heart of the Nazi legal system. Persistently contrasting the need for legal procedures with the primacy of irrational will, Hellmann showed that the leadership principle was incoherent with regard to the separation of powers, the role of the judiciary, the process of legislation, and the very nature of law itself. He provided a detailed critique of Nazi law that insiders, such as Nazi jurists, dared not think, and that outsiders, such as Jewish lawyers, had no reason to develop. “

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