Rape Survivor Bilkis Bano Archives - Lokmarg

Bilkis’ Rapists Release Case: Justice Bela Recuses From Hearing

By LokMarg 13th December 2022

Justice Bela M Trivedi, Supreme Court judge, on Tuesday, recused herself from hearing the plea filed by Bilkis Bano, challenging the pre-mature release of 11 convicts, who had gang-raped her and murdered her family members during the 2002 Godhra riots.

A bench of Justices Ajay Rastogi and Bela M Trivedi said the matter be posted before another bench.
Besides filing a petition against the per-mature release of convicts, Bano has also filed a review petition seeking its earlier order by which it had asked the Gujarat government to consider the plea for the remission of one of the convicts.

The review petition was also listed for hearing today before Justice Rastogi in his camber.

As per procedures, review pleas against top court judgments are decided in chambers by circulation by the judges who were part of the judgment under review.

She has filed a review plea against the May order of the Supreme Court which allowed the Gujarat government to apply the 1992 remission Rules.

Bilkis said that even being the victim of the crime, she had no clue about any such process of remission or premature release initiated.

Gujarat’s remission order is a mechanical order of remission by completely ignoring the law requirement as consistently laid down, the plea said.

Earlier, some PILs were filed seeking directions to revoke the remission granted to 11 convicts.

The pleas were filed by the National Federation of Indian Women, whose General Secretary is Annie Raja, Member of the Communist Party of India (Marxist) Subhashini Ali, journalist Revati Laul, social activist and professor Roop Rekha Verma, and TMC MP Mahua Moitra.

Gujarat government in its affidavit had defended remission granted to convicts saying they completed 14 years of sentence in prison and their “behaviour was found to be good”.

The State government said it has considered the cases of all 11 convicts as per the policy of 1992 and remission was granted on August 10, 2022, and the Central government also approved the ore-mature release of convicts.

It is pertinent to note that the remission was not granted under the circular governing grant of remission to prisoners as part of the celebration of “Azadi Ka Amrit Mahotsav”, it has said.

The affidavit stated, “State government considered all the opinions and decided to release 11 prisoners since they have completed 14 years and above in prisons and their behaviour was found to be good.”

The government had also questioned the locus standi of petitioners who filed the PIL challenging the decision saying they were outsiders to the case.

The pleas said they have challenged the order of competent authority of the government of Gujarat by way of which 11 persons who were accused in a set of heinous offenses committed in Gujarat were allowed to walk free on August 15, 2022, pursuant to remission being extended to them.

The remission in this heinous case would be entirely against public interest and would shock the collective public conscience, as also be entirely against the interests of the victim (whose family has publicly made statements worrying for her safety), pleas stated.

The Gujarat government released the 11 convicts, who were sentenced to life imprisonment, on August 15. All the 11 life-term convicts in the case were released as per the remission policy prevalent in Gujarat at the time of their conviction in 2008.

In March 2002 during the post-Godhra riots, Bano was allegedly gang-raped and left to die with 14 members of her family, including her three-year-old daughter. She was five months pregnant when rioters attacked her family in Vadodara. (ANI)

Stan Swamy Dies In Jail, Rapists Are Released! Welcome To New India

By LokMarg 30th August 2022

Kavita Srivastava, national secretary of the People’s Union of Civil Liberties, says remission granted to Bilkis Bano’s rapists was premeditated

It is outrageous, both in law and morally. Procedurally, the question of remission should have gone to the Maharashtra State, where the trial happened. The Supreme Court in 2016 had established it in the union of India vs V. Sriharan, which the Gujarat High Court had relied upon, when one of the convicted, Lala Vakil, in the ‘Bilkis Bano gang rape and murder of her family case’, had moved court for premature release.

The SC, in its May order too, had not pronounced the remission — it had only asked the Gujarat government to consider it. The constitution of the committee, with the non-official members being BJP leaders, including elected representatives, further establishes that at every step, the stage was set for the release of the convicted. Also, the permission of the presiding judge, who convicted the accused, was not sought. That should ideally have been the Mumbai trial court which sentenced the 11 accused in 2013.

Since the CBI had investigated the case, it is also clear in law that the Gujarat government should have consulted the central government in Delhi, since its opinion would be mandatory in the remission. Did the Gujarat government seek its opinion? It is time the Union Ministry of Home Affairs clarified this position.

Being a crime against humanity, there was no way that remission should have been granted. The revised guidelines of remission as listed in 2014 are clear on this, but the Gujarat government, again making it easy for the convicts, decided to use the 1992 guidelines.

This aspect is what is chilling; that the survivor of rape and a witness of the murder of 14 people of her family, including three children, including her own 3-year-old daughter, is expected to live everyday with the killers and rapists (confirmed by court) living close by. Did the committee not see this aspect while upholding the remission?

ALSO READ: ‘Bilkis Lives In Fear, Her Rapists Being Lionized’

It is not that the women’s movement does not believe in the remission of those convicted against acts of violence against women. But this is unprecedented as there is no such example for remission for such a heinous crime. If the convicted were medically not well, or facing debilitating illnesses, or, simply could not take care of themselves, as was the case of Father Stan Swamy, there was still a cause for consideration. Father Stan was 83 and an under trial; he was not granted bail and denied even a sipper.

Or consider the case of 93-year-old Dr Habib, arrested on charges of terrorism, who could not even clean himself. The jail manual is clear that if the physical strength of the prisoner is reduced to half of what it was at the time of committing the crime, his case should be considered.

This has raised a new question for the women’s movement; that first we have to struggle for justice at every step, from the lodging of the FIR, fair investigation, filing of a proper charge sheet, and ensuring that good lawyers are available to fight it out in the trial court. The protracted trial itself becomes difficult when the woman has to speak her testimony in front of her own rapists. In the current circumstances, it is a signal that if at all the judgement does come in favour of the woman, it can be done away with a stroke by the executive if it wants to reverse it through remission.

The remission policy was a humanitarian dimension in our Constitution and criminal law, but to convert it for the sake of one party wanting to show that it has met the aspirations of the people by granting remission to Brahmins, as they are ‘sanskaris’, as stated by the MLA of the remission committee, shows that this dimension too can be abused. It adds to a terribly frightening scenario for Muslim women in particular, who are vulnerable to sexual violence in the present majoritarian and xenophobic times, even while the issue of hijab is still unsettled. Indeed, this is a big blow for Muslim women in India.

This example is clear — that in the contemporary, majoritarian times of the re-establishment of the chaturvarna system, through Brahminism, which is integral to the ideology of Hindutva, Muslims, Dalits, adivasis, and all women, will be affected. The Manu law will be re-established. All women will consequently face attacks and women’s rights will be violated encompassing all women across the spectrum.

Savarkar clearly said that the ‘othering’ of the women of the ‘enemy’ – read, the minorities, Muslims, Christians, communists, etc, – is acceptable and part of the struggle to make Bharat a Hindu Rashtra. Well, we are almost there. Indeed, historically, the contestation between communities always happens over women’s bodies! Surely, this is another kind of organised violence.

Bilkis Lives in Fear, Her Rapists Are Being Lionized

By LokMarg 24th August 2022

Pyoli Swatija, a Supreme Court advocate and rights activist, points out how the remission granted to rape convicts in the Bilkis Bano case overlooked legal norms

Being a feminist advocate I do not subscribe to capital punishment for any crime. Reformation as the ultimate aim of legal punishment. But we have to consider the peculiar facts and circumstances of this case: What was the crime, the circumstances surrounding it and how did the law & order machinery and the criminal justice system deal with it?

Also, from the criminological point of view: does the conduct of the convicts show that they have been reformed? This was not just a case of 12 persons (one of whom has subsequently died) murdering seven people (including two children) and raping five women including a pregnant Bilkis Bano. Bilkis should not be seen as just another woman. She is a Muslim. Whatever happened to her and her relatives during the Gujarat pogrom was due to their religious identity and as per law, identity-based rape and murder is considered graver than rape and murder simpliciter.

About the state of law & order at the time of the crime, recall the Supreme Court’s statement: “When Rome was burning, Nero was busy playing his lyre.” Under those circumstances, the apex court had transferred the cases of Bilkis Bano and Zahira Sheikh from Gujarat to Maharashtra and ordered CBI investigation.

Were the legal parameters for granting remission of sentence met in this case? A bare reading of CrPC and that which has been interpreted by a five-judge SC bench in the Union of India Vs V Sriharan case (2014), in a case of remission, the concerned government will be the government in whose state the trial was conducted and the verdict was given, regardless of the place of occurrence of the crime.

It is a settled law that no writ petition under Article 32 is maintainable against the order of a high court in SC. Writ is maintainable only against the state and courts are not covered under the definition of “state” under Article 12. When the remission case came to Gujarat HC, it clearly held that the Gujarat government did not have the power to consider remission since the trial was held in Maharashtra.

Instead of appealing against this order, the convict approached the Supreme Court under Article 32 and the SC reversed the high court judgement in a writ petition. In my opinion, this 14th May 2002 order of the Supreme Court is per incuriam (not paying attention to relevant statutory provision).

We need to take into account two rulings in remission cases. Article 14 mandates that discretion cannot be exercised arbitrarily. In Laxman Naskar Vs Union of India, SC said that a petition for remission will be considered by the state government only after considering the following five parameters: a) What is the impact of the offense on the society at large; b) Probability of crime being repeated; c) Potential of the convict to commit a crime; d) Fruitful purpose of keeping convict in detention; and e) Socio-economic condition of the convict.

Victim Bilkis Bano has said that she has been repeatedly threatened by the offenders, whenever they have come out on parole. Now they are out and being felicitated. I do not know the socio-economic condition of convicts but the rest four points regarding state discretion clearly demonstrate that they are a threat to society and have a probability to repeat the crime. Where is the reformation after all these years? They have walked free like triumphant victors while Bilkis has lived a nomad’s life.

Second, Under CRPC 432(2), the opinion of the trial court judge has to be solicited for remission. Justice Chandrachud and Justice Aniruddh Bose in Ramchandra Vs State of Chhattisgarh have stated that the state’s decision cannot differ from the trial court judge’s recommendation, except when the judge has not given a reasoned opinion and considering the five parameters of the Laxman Naskar case, there was no option for the state government but to differ from the trial court judge.

We came to know from media reports that the trial court judge clearly said that convicts should not be remitted. How the state dealt with his opinion, we do not know. Then again, CrPC 435 says that remission in any crime that has been investigated by CBI should not be granted without the central government’s consultation. Did they consult the central government? Central government should tell what it opined on the point of remission so that we will know if what the PM spoke of about respecting women on August 15 was followed in practice or not.

This is my opinion as per law. As far as morality is concerned, we are nowadays witnessing the felicitation of convicts by society. We can easily see here the legal system is not different from the societal structure. You cannot expect institutions to remain insulated from society when fascism has gripped the minds of the majority our people. As is the society, so is the justice system. Hope remains only in resistance, in speaking truth to power, in standing in solidarity with the brave-heart Bilkis Bano.

Pyoli Swatija is also affiliated with Women Against Sexual Violence and State Repression, an NGO

As told to Abhishek Srivastava