Supreme Court Verdict Revoking Remission In Bilkis Bano Case Raises Hope For Democratic India

Establishing democratic societies on the basis of social justice and truth, particularly by well-meaning socio-political institutions, including the judiciary, is not easy. The construction of public conception of moral and psychological ‘‘social good’’ constituting the fundamental character of social justice and truth is also a challenge. The recent verdict by the Supreme Court (SC) in the Bilkis Bano gang-rape and murder case that rescinded the remission of 11 convicts does raise hope for a democratic India based on social justice, even though it seems to be a bit of an oddity nowadays. The judiciary, the Constitution, the rule of law and women’s rights matter; the verdict clearly declares that institutions matter and all is not lost yet. It has rekindled hope and trust in many, particularly those on the margins, and restored in feminists the courage to fight for women’s rights, dignity and the elimination of collective and individual violence against women. The verdict emboldens women’s solidarity movements and empowers social-action litigants for consequential Public Interest Litigations (PILs).

The Case And The Verdict

While fleeing the xenophobic violence during the Gujarat riots (2002), a three-month pregnant Bilkis Bano was gang-raped in front of her mother, and 14 of her family members were hacked to death. She fled, moved from one city to another, and gathered the courage to fight against injustice.

When Bilkis approached the SC seeking re-opening of her case (2003), closed down by the local magistrate in Gujarat, the SC transferred the case to the Central Bureau of Investigation (CBI) and the trials to Mumbai, particularly in the backdrop of the threats she had received and the possibility of miscarriage of justice in Gujarat. In 2008, a Special Judge in Mumbai convicted 11 of the accused in the case and sentenced them to life imprisonment for rapes and murders. In 2022, after 14 years in prison, one of the convicts approached the SC seeking directions to the Gujarat government to remit their further imprisonment in accordance with the Gujarat remission policy of 1992 and not with the more progressive extant remission policy of 2014, formulated post-Nirbhaya case. The SC asked the Gujarat government—the court deeming it the ‘appropriate government’—to consider, within two months, the convicts’ application for premature release. The convicts were released soon after on the basis of a government panel’s recommendation.

Their release made for a ghastly spectacle. The rapists and murderers were accorded a grand welcome by the women in their families, who were seen garlanding, applying tilak on their foreheads, distributing sweets and peddling a narrative that since they belonged to a virtuous caste they would not have committed the crime. Such a vulgar display of supporting the criminals and the crass communalisation of gang rape and murder was orchestrated to ‘‘normalise the horrors and violence” of rape and riots.

Bilkis and a few PILs challenged the remission order before the SC, which struck it down recently, ordering the convicts back to prison within two weeks. In legal terms, the verdict is far-reaching. In criminal jurisprudence, remission is essentially the cancellation of a part of the imprisonment period owing to good conduct by the convicts, and it upholds the reformative and rehabilitative goals of the prison justice system. The Gujarat government, in granting remission, failed in its application of ‘‘mind and reason’’, and in its observation of the ‘‘differential principles of criminal liability’’. The judgement castigating the Gujarat government is encouraging for three reasons. One, it declared its May 13, 2022 order, which allowed the Gujarat government to decide on remission, per incuriam and non-est in law (lacking due regard to fact and bad in terms of the law), as the order was procured through ‘‘suppression of material facts as well as by misrepresentations of facts’’. Bilkis was not made a party in the previous petition, the Gujarat High Court had held that Maharashtra is the appropriate state government to grant remission, and the CBI, the investigating agency in this case, when consulted, had recommended against remission. Two, the verdict clarified that the remission order never dissolved the offence and noted ‘‘It [remission] does not wipe out the conviction. All that it does is to have an effect on the execution of the [length] sentence.’’ The court, however, upheld the rights of the convicts to have their cases considered for the grant of remission and cautioned the state governments not to exercise power of remission arbitrarily and discriminately. Three, the court admonished the Gujarat government for usurping Maharashtra’s power and abusing the discretionary power, thereby breaching federal principles. It also rapped the Gujarat government for being complicit with the convicts. How else would one explain the same order, stereotyped and cyclostyled, for all the 11 convicts? Can there be any accountability of the Gujarat government for this subversion of the rule of law?

Restorative Justice

With people from all sections of society writing appeals and open letters, staging protests and filing PILs against remission, the fight for restorative justice since the Nirbhaya case has gained new strength. (In the USA, restorative justice is the consequence of social movements for civil rights and women’s rights.) But it is to be noted that Bilkis and her family keep on relocating, most often to undisclosed locations, because of the fear of backlash from both known and unknown sources. Bilkis still fears the re-release of the convicts.

The Politics of Mass Sexual Crimes

Bilkis dared to bring mass sexual crimes into the judicial and public discourse. Gang-rapes during communal violence are generally passed off as another incident of collective violence. Individual perpetrators of crimes dissolve into a mob known more by religion, caste, region or sometimes even nation, and these collectives, in turn, mystify individuals. So, how to punish individual perpetrators of sexual violence acting on behalf of a collective? Bilkis’ first FIR at Limkheda police station did not mention her rape and passed it off as collective violence and the police closure report on it was accepted by the local court. It was only when the SC transferred the case to the CBI and moved the trials to Mumbai that the individual convictions were made possible. Bilkis spoke with courage every time she had to identify the individuals from the collective. In her article ‘Can the Subaltern Speak?’, Gayatri Spivak argues that the ideological construction of gender keeps the male dominant and the subaltern as female, particularly colonial subject, has no history and cannot speak, but Bilkis challenged Spivak by speaking out, indomitably, every time.

The Women’s Movement

From Nirbhaya to Bilkis, the movements against sexual vio­lence seemed to have weakened. Often, feminist movements find themselves without much-needed support from civil society groups. The extension of the issue of sexual violence from the private to the political seems to be backsliding. Feminists from the Left-liberal sphere, largely the Left, fought against remission. The polarisation and politics of hate by Right-wing feminists are taking a toll on the women’s movement as they tend to mobilise middle-class women for Hindutva politics and create hatred against the ‘other’, Muslim women in particular. With the judgement in hand, it is time for feminists of all hues, once again, to strongly fight for peace, dignity, justice and equality and against the normalisation of violence and targeting.

(Views expressed are personal)

This appeared in print as 'Rekindling Hope'

Tanvir Aeijaz teaches public policy and politics at Ramjas College and is Honorary Director, Centre For Multilevel Federalism, Delhi