A Redeeming Verdict
IT was a judgment that was eagerly awaited by many who saw it as a litmus test of whether the diminishing flames of hope in the judiciary’s ability to deliver justice would be snuffed out or would burn brighter. These hopes had been considerably diminished on August 15, 2022 when they saw 11 perpetrators of heinous crimes against humanity being garlanded and feted as ‘sanskari brahmins’ when they left jail as free men granted remission by the Gujarat government. This was happening just when the prime minister was holding forth from the Red Fort against those who did not protect the security and honour of women.
During the 2002 riots, these men had pursued 21 year old and 4 months pregnant Bilkis Bano and her family who had fled the village that they all belonged to, fearing violence. They had surrounded the hapless fugitives a day later and had brutally killed her 3 year old daughter and day-old nephew; gang-raped her along with her mother and sister-in-law and murderously attacked all of them. Only Bilkis survived and was taken to the riot victims’ camp at Godhra by the police. The horrific nature of what she endured shocked many and her courageous fight for justice against unimaginable odds won the support of groups of activists and lawyers. The Gujarat government extended every kind of protection to the accused and, only after the case was transferred to the special CBI court in Maharashtra, were the accused convicted in 2008. In 2017, the Maharashtra High Court upheld their conviction and the punishment of life imprisonment that they had received. Justice seemed to have been done in at least one case among thousands in the pogrom unleashed by the Sangh Parivar on the Muslim community under the watch of the then chief minister of Gujarat, Narendra Modi.
It was this release that was challenged in the Supreme Court in a series of writ petitions filed by women political activists, an educationist, a retired woman IPS officer and, later, by Bilkis herself. It was defended to the hilt by both Gujarat and central governments. Finally, on January 8, 2024, Justices B V Nagarathna and Ujjal Bhuiyan delivered their much awaited judgment and ordered that the 11 rapist-murderers be sent back to jail within 15 days and did much to restore the hope that struggles for justice could succeed.
The judgment described the crimes of these convicts as ‘grotesque and diabolical’, the Gujarat government was sternly admonished for many acts of omission and commission. However, the remission itself was rendered null and void on the basis of an extraordinary set of circumstances which led the judges to opine “We strike down the remission orders on the ground of usurpation of power by Gujarat government.’
The extraordinary circumstances which led to this pronouncement were as follows: in 2019, Radheshyam, one of the accused approached the Gujarat High Court for remission and his plea was struck down on the grounds that it could only be heard in Maharashtra by the court that had convicted him. The Gujarat government did not file a review petition against this order. Instead, Radheshyam approached the Maharashtra High Court for remission. His plea was rejected by the magistrate of the CBI court that had convicted him along with his co-accused. It was also rejected by the police officer investigating the case. After this, Radheshyam and the Gujarat government approached the Supreme Court in 2021 to allow the plea for remission to be heard by the Gujarat High Court without informing the court of what had transpired earlier both in Gujarat and in Maharashtra. The bench hearing their case ruled that not only was the Gujarat High Court competent to hear the plea for remission but that it could be considered under the government’s remission policy of 1992 rather than its revised policy of 2014 under which those convicted of capital crimes could not be granted remission. This was, however, possible under the 1992 policy.
After obtaining this judgment, the Gujarat government rushed through all the procedures necessary to give these convicts remission throwing norms and established principles to the wind.
The January 8th judgment came to the conclusion that the earlier 2021 judgment by the Supreme Court had been obtained by fraudulent means because important facts had been concealed from the court by both Radheshyam and the government of Gujarat. It said “We have held that the Order of this court dated May 13, 2022 to be a nullity and non est in the eye of law. Consequently, the exercise of discretion by the Gujarat government is nothing but an instance of usurpation of jurisdiction and an abuse of discretion…This is a classic case where an Order of this court has been used for violating the rule of law. Therefore, without going into the manner in which the power of remission has been exercised, we strike down the Orders of remission on the ground of usurpation of powers by the Gujarat government not vested in it. The Orders of remission are hence quashed on this ground also.”
It is important to underline the fact that the Supreme Court held that the government of Gujarat had been complicit in its support to the criminals from the very beginning which had led to the case being transferred to Maharashtra in the first place and also that it had been an accomplice in the fraud perpetrated on the Supreme Court itself in 2021. The central government had rendered its full support on its part.
No representative of the governments of Gujarat and the centre has expressed any regret after the stinging indictments by the Supreme Court.
The real Manuvadi face of the BJP must be exposed. The impunity with which its supporters commit heinous crimes against women and against humanity itself must be recognised. The identity politics that creates such hatred between groups of people that they not only condone but celebrate crimes committed by their own against the others must be opposed.
(January 10, 2024)
