Bilkis Bano case: Will Supreme Court restore constitutional morality?

While discussing the remission granted to the accused in the Bilkis Bano case, we must first answer the question of whether the communal violence that took place in Gujarat in 2002 was “spontaneous” or if it was waiting to happen through the systemic degradation of the ecosystem due to the long-term build-up of hate speech against the minority community. While the SC held in the Zakia Jafri case that the violence was “spontaneous”, no evidence was placed before the Court to substantiate this statement.

Let us revisit the issue as it unfolded in the SC.

In 2003, a writ petition by the NHRC to the Supreme Court (SC) pointed out that widespread communal violence had taken place in Gujarat. It also noted that the accused were being acquitted without a proper trial and requested the SC needed to intervene. In response, the SC appointed Harish Salve as amicus curiae and set up a Special Investigation Team (SIT). It asked for reinvestigation in nine cases of atrocities in nine districts. While there may or may not have been a conspiracy, one fails to understand the Court’s reason for describing the violence as “spontaneous”. Bilkis Bano had also approached the Court about the mass murder of her family members and her own gang rape. Salve was also appointed an amicus in her case. The pattern of atrocities now becomes clear.

The SC transferred the trial of the accused in the Bilkis Bano case to Maharashtra. All of them, now set free, were found guilty and convicted.

Let us now focus on the remission granted to the convicts after the completion of 14 years and five months of their sentence. Rape, by any reckoning, can never be said to be “spontaneous”. It was for this atrocity that they were convicted and sentenced to life imprisonment. We know that in law, a life sentence means a sentence for the rest of one’s natural life. However, the Criminal Procedure Code does contain provisions that permit remission after 14 years in prison.

Now comes the question of whether mass murderers and gang rapists ought to be granted remission. In any civilised system of jurisprudence, the crimes committed against Bilkis Bano would count as crimes against humanity, as they were committed during a period of communal violence against a minority community. Whether such convicts can be granted remission after 14 years is the question that the SC will have to deal with, now that it has issued a notice and a PIL by concerned citizens is calling for a quashing of the order of remission.

Guidance can be obtained from the Rome statute, which deals with crimes against humanity. There is a clear indication that such convicts can be granted a sentence of up to 30 years, depending on the gravity, brutality, and the context in which the crime occurs. India is not a party to the Rome statute. But this only means no case can be brought against India under the statute. Also, the obligation of nation states to prosecute and punish crimes against humanity would constitute customary international law.

Rape is regarded as “an impact crime”. Such a crime is committed not only against the person but also against the community she represents. It’s a message to the community as a whole and sends waves of everlasting fear through it. The message here was clear — this is revenge on you for being a member of the minority community.

The Constitution guarantees to all citizens, under Article 15, that there shall be no discrimination based on sex, caste, religion, and place of birth. It’s time that the enforcement of criminal law is judged on the touchstone of the Constitution and we wake up to the reality of selective enforcement and benefits to the accused.

There is a disturbing issue with the SC judgment of May this year, when it asked the Gujarat government to consider the application of one of the convicts for premature release — as per the state’s 1992 remission policy. Gujarat was the “appropriate government” to decide on questions like remission or early release because it was there that “the crime was committed and not the state where the trial was transferred,” the court ruled. However, the Gujarat High Court had, on another petition filed by one of the convicts, held that the appropriate government to grant remission was Maharashtra, as the trial had taken place there. That apart, the law requires that the judge who sentenced the accused persons must be consulted. This was not done. Justice U D Salvi of the Bombay HC has gone on record to say that he was unaware of the fact that remission was proposed for the convicts. He has also said that they showed no remorse even after their release. On the contrary, they were felicitated.

We are confronted here with a civilisational moral and constitutional issue. Immoral decisions cannot get the imprimatur of the SC, or any court in India. The morality of democracy in India has been damaged — I hope not beyond repair. This, in turn, has damaged our constitutional morality. The SC must also explain how and why a judgment of the Gujarat HC was quashed not in an appeal against the judgment but in a petition filed under Article 32. In Mirajkar (1966), the SC said that no judgment of any court can be challenged under Article 32 and that the appropriate remedy would be an appeal. As part of constitutional morality, can we not expect the SC to follow its judgments or, at the very least when they depart from them to tell us what is the basis of this departure? I believe that the SC will be confronted with these questions while hearing the PIL filed by concerned citizens. We can only wait.

Can we expect the SC to undo the injustice? Bilkis Bano was not heard, and it is her voice that ought to be taken into consideration.

The writer is a senior advocate and former Additional Solicitor General of India