Delhi: “This is very traumatic. This is troubling. This has opened up the wounds.”
Shobha Gupta, who has been a lawyer for 27 years, was visibly disturbed, as she sat down for an interview with Article 14 about the Gujarat government’s decision to release 11 men convicted for gang-raping her client Bilkis Bano and murdering 14 members of her family during the communal riots that ravaged the state in Gujarat in 2002.
Bilkis, now in her forties, was five months pregnant when she was raped in the state, run then and now by the Bharatiya Janata Party (BJP) of then chief minister and now Prime Minister Narendra Modi. Her three-year-old daughter was among the dead, her head smashed with a stone. An estimated 1,000 people—most of them Muslim were killed in the riots that erupted in Gujarat after a train carrying Hindu karsevaks was set on fire, killing 59 of them.
As she discussed the legal remedies now available to Bilkis, who fought for 17 years to see the men who raped her behind bars, Gupta said it was time for the state and society at large to step up to ensure the Gujarat government “undo” the decision taken by the state-appointed jail advisory committee, including five office bearers of the BJP and two state lawmakers because the decision had a profound impact on not just her client, but every woman in India.
“One is solidarity, and the second is opposition to the order—solidarity to Bilkis and telling the govt concerned that we are not accepting this order as a society. So, undo it with whatever you mean you have,” said Gupta.
In a statement released through Gupta two days after the men were released, Bano said she was “bereft of words” and numb”.
“Today, I can only say 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 slowly learning to live with my trauma. The release of these convicts has taken from me my peace and shaken my faith in justice. My sorrow and my wavering faith are not for myself alone but for every woman struggling for justice in the courts,” Bano said. “I appeal to the Gujarat government, please undo this harm. Give me back my right to live without fear and in peace. Please ensure that my family and I are kept safe.”
The 11 men investigated by the Central Bureau of Investigation (CBI), following an attempted cover-up of the murders by the Gujarat police, were found guilty and sentenced to life imprisonment in January 2008 by a special court in Mumbai. In the years that followed, the conviction and sentence were upheld by the Bombay High Court and the Supreme Court, which also dismissed a petition to review the case and ordered the Gujarat government to pay Rs 50 lakh as compensation to Bano and give her a house in a place of her choosing and a government job.
In October 2020, the Gujarat government told the Supreme Court that Rs 50 lakh and a job were given to Bano, but when it came to the land and the job—a peon’s post in the irrigation department on contract—Gupta said Bano was not satisfied and “loose ends have to be tweaked”. “She was not comfortable going among men. She is still in different frame of mind,” Gupta said.
Acknowledging the nature of the crimes committed and Bilkis’ long and arduous journey for justice, the Supreme Court said, “While the state eventually punished the perpetrators of the crime, the victim was left devastated after seeing human fury at its worst… Not only was she raped 22 times, her daughter aged 3.2 years, was smashed to death. Ever since the appellant has been living a nomadic life and surviving at the charity of NGOs.”
Following a petition filed by one of the convicted men, Radheshyam Shah, who said he spent 15 years and four months in jail and qualified for early release, the Supreme Court in May ordered the Gujarat government to assess within two months if he qualified for remission under the state’s 1991 policy, in effect when he was sentenced in 2008, following which the 11 men were released on 15 August. The 2014 state policy bars remission for prisoners convicted of rape and murder.
The convicted men, who returned to Randhikpur village where Bilkis continues live with her family, were greeted with garlands and sweets by members of the Hindu-right wing groups. Speaking with the news website, Mojo, the BJP MP from Godhra, CK Raulji, said that he did not know whether the men committed the crime or not, but they were Brahmins with good values.
In this interview, Gupta spoke of the “trauma” the state of Gujarat had inflicted on Bano and her family, the danger and insecurity they would have to contend with again, and why having the remission order rescinded was the responsibility of either the state government or the central government or bodies mandated by the constitution to protect human rights.
Three years ago, we sat in this office and talked about you securing the highest ever compensation (Rs 50 lakh) for a rape survivor in India. You said that it should have been a crore. Today, the men who gang-raped Bilkis are free.
It's only been three years since they started to learn to live in peace. Her eldest daughter, the one who was in her womb in 2002, wants to become a lawyer. The other day, I told Yakub to send her to Delhi and let’s make her a lawyer. To come back from this point to a remission order that permits 11 of her rapists, who have murdered members of her family, to come back to the same village she lives in—how should she deal with it? How should we deal with it? How sad is it? Is this what life imprisonment means?
At the time, we thought about appealing against lesser punishment—14 murders, five gang-rapes, a pregnant woman gang raped—we felt life imprisonment was mild and inadequate for the heinous offence.
But the thought was that let peace come, let her live peacefully now, let us accept the judgment and allow the matter to have closure. We never expected to come back to zero in three years. This is a 360-degree turnaround.
Do you mean the death penalty?
We have seen cases where the death penalty has been given for a single murder. This was a serious crime. Fourteen murders, gang rapes, the gang rape of a pregnant woman and her child thrashed on a stone and murdered in front of her eyes. What more should there be for it to be a death penalty case? In my practice of 25-26 years, this was 100% a death penalty case.
But shouldn’t remission and rehabilitation of convicts—even those convicted for rape and murder—be looked at favourably?
Absolutely. Every single accused has the right to ask for remission. You are right that we have a reformative penal system. We believe in reformation. If the person is reformed, the person can return to society and live like others. The only thing missing in this executive order is reasonability and the application of the mind to overall factors. At what cost do you allow for people to come back and when? In gross cases, gruesome crimes, and grievous offences, you must have checks and balances to ensure everyone is safe. You need to guarantee they are not a threat to society.
Earlier, by and large, life imprisonment meant 14 years. Based on that interpretation, you had remission policies saying you have finished 14 years and you can come out. The Supreme Court examined this issue, and a constitutional bench said life imprisonment means for your whole life, till your last breath. Your whole life these days could be 70 years, and half of that is 35, not 14.
No one is opposed to remission but has it been appropriately applied in this case? You can’t ignore the grievousness of the crime and the safety concerns of the victim and her family. We haven’t seen the (remission) order, but I would be amazed that considering everything, they found this to be a good case for remission. This is an unmindful decision or without the application of the mind completely on several factors?
What kind of factors?
Where will they live? It is not an urban area. They live in a small village, that too a small village, where everyone knows everyone. Would you not consider this factor as well? The state is parens patriae. The state is your guardian. The state is an umbrella for every citizen, ensure you have food, electricity, police, and a good and safe life. The state protects Article 21.
Bilkis also has a state. Bilkis is also living under the aegis of a state. What has the state ensured for her before releasing them? Why has she not been taken into confidence and asked what is your say? They have been convicted by one court, a second court, and a third court and their review (petition) were dismissed. Every single court has made serious observations against them. Do you not ask the victim that we know you have suffered for the past 20 years and you have safety concerns? The Supreme Court, while giving her the highest compensation, said she was living the life of a nomad for the past 16 years.
It is a matter of judicial record that she is living the life of a nomad, running from place to place to ensure that she is surviving. We don’t know the committee officers who passed the order, but isn’t it a constitutional duty to consider and ensure that she is feeling safe and has a sense of fulfilment?
There is a difference between remission and garlanding rapists?
I feel ashamed because we come from the same society. So, what kind of society are we? People come out on bail and parole as undertrials and convicted and they join their families and they live their lives. But we don’t see them being felicitated, honoured and respected. Families always have a reason to rejoice and no one can come in the way of that. They would hardly be bothered if the order is right or wrong. If the garlanding was by the families then why was it being showcased in public? From the few photos I saw, a whole stage was set up. It is not in your home.
It is a public celebration.
It is a public celebration. For what? They are convicted of rape and murder by the highest court in the country. My heart bleeds when I see this kind of society. A gang rape convict, a person convicted for 14 murders, comes out and is publicly facilitated and honoured. And we as a society rejoice in that. We respect these people. What is happening to our society? Even that village has women. What would women be thinking? How could women after that dare to make a complaint?
The last time we spoke, we were saying that Bilkis is someone to look up to by any woman who has suffered; to show courage and fight it out and you will get justice. So don’t lose hope. There could be ordeals, and the fight may be long, but you can still fight it out. At the end of the tunnel, there is some light.
The same Bilkis case now sends the message about why fight after all that suffering. Not just Bilkis, I do many cases and unfortunately, the whole system created constitutionally being paid by our money, works for the accused and not the victim. It is state versus accused. It is not complainant versus accused.
It is the state who takes up and fights the case. Unfortunately, on the ground, you find the victim all alone and the system is governed by men who side with the accused. After dealing with all those ordeals, putting up a brave front, fighting out a case, winning it up to the last court, if you come back to this, then why fight?
Did the Supreme Court err in directing the Gujarat government to decide on remission in two months against Radheshyam Shah’s appeal or was it just following the procedure?
We have dug up the record. Radheshyam first went to the Gujarat High Court asking for four weeks of parole for some house warming ceremony. That was dismissed. Then he filed another petition (remission) but the High Court ruled that the Gujarat policy did not apply because the investigation was done by the CBI and the case was tried by the Mumbai special court. He then filed a petition before the Supreme Court and named two parties—the state government and the central government. No names of lawyers have been shown for state or centre. We are not even sure if anyone appeared for the central government.
Since we don’t have the petition but only the order that has been passed by the Supreme Court, it appears that not much was brought to the Supreme Court. I’m not sure if it was brought that it is a case of this nature. As a lawyer, I can draft a simple petition. I’m just assuming that nothing was brought before the court.
Judgments were not attached. A lawyer can avoid filing. The Supreme Court has gone simple (sic)—you are lodged in Gujarat jail so the Gujarat manual would apply because Gujarat jail authorities give certification for conduct. There doesn’t seem to be any opposition to the order from the state and centre saying this is a case of a heinous nature prosecuted by the CBI or that the life sentence is not 14 years anymore. You don’t find all that in order.
So, we don’t know what practically happened when the matter was being argued, or who all argued. We also don’t know what was prevailing for the court to decide in two months. That urgency. The petition was filed in March, it was taken up for final hearing in May, and the order passed and in August they are out. Either they are extremely lucky that things moved very fast for them because in our cases, when you get notice served to the central and state government, getting their affidavit and reply filed, takes months, sometimes years.
Could Bilkis have filed a counter-petition to Radheshyam’s petition seeking remission?
Provided she knew about it.
Did you know about it?
We were living like Alice in Wonderland. We had no clue. Somehow, this was not even reported.
There was one Live Law report, but it didn’t seem to catch anyone’s notice. (Bilkis Bano is not mentioned). I saw it now because I was looking for the material.
On 14th (August) Yakub called and he said was there any order from the Supreme Court granting them release. I said no, not to my knowledge. I said not possible. We would have got a notice or there would have been some reporting. We did not find any curative petitions pending. I told him to relax and nothing was filed. He said, “the rumour is very strong.” and the whole village is talking about it. He asked if there was any mercy petition. I said I would have heard of it. 15th again he called. He said they are being released and asked me to check again. Now, I asked for files to be dug out from the record room and these are bulky files. We looked at every single name of the accused and checked if any matter had been filed from 2017 to 2022. By that time, we saw that one person had filed this, and the court had granted an order. We realised all this happened. Yakub said it is like a function is going on and people are distributing sweets. The whole feel of the village was different.
How did it escape everyone’s notice?
We were all in Alice in wonderland. We were all Alice. Why is it not a rule that before remission they call the victim for whom the state has taken the plunge— right from registering the FIR to doing the investigation— putting up their whole machinery—they pay salaries to many to get this thing done, for years together they fought this litigation. It was the CBI who was contesting. Is it something between the government and the accused only? How can that be? How come suddenly, after conviction, the victim becomes a stranger to the whole system? As a system, this raises so many questions. The person for whose cause the state has taken that pain and effort, how come that person can be completely neglected? It is unreasonable. You can’t reconcile or reason with this kind of situation. It is unthinkable. It is a serious miss in this case that she has not been consulted.
It was only Radheshyam who filed the petition. How did everyone else get remission?
It looks as if once the SC settled the legal question for them—-since they are lodged in Gujarat jail since the matter belongs to Gujarat, 1992 policy is applicable—and directed concerned authorities to take a decision within two months, the rest of them would have applied directly to them (commission).
But we can’t be certain.
It looks like that. Not everyone has to go to court once the court has said the 1992 policy will apply.
When did you find out? It must have been devastating.
Yes. A sense of dejection. A sense of disappointment with the system. The fact they were not bothered about her. She doesn’t exist for them. Now, would she have to put up a fight again? My first reaction was, ‘My god’. The second reaction, not again. And the last three days, honestly, I’m doing my matters, and I’m doing these interviews—sometimes you have easy days. Sometimes you have hectic days. I had hectic days—but I’m working like a machine. I’m talking to you, giving interviews, but I’m dead from inside.
You are on auto-pilot?
Absolutely. That is a fact. Something so saddening. This is the society we are living in. This is how the world is around. You, your life, your privacy, your respect for your body—it doesn’t matter to the system at all. Was it that simple for the executive - those four or five six people sitting on the committee to pass an order like that? We are talking about remission and the right of the accused to seek remission, but where is the right or concern for Bilkis to live with dignity and peace and to claim a safe environment from the state? Is it not unbalancing rights? Is it not ignoring someone's constitutional right? It is not Bilkis alone who has been told that you don’t matter. We all have been told.
Have you been able to sleep?
No. I’m not at peace. There is so much halla (noise) in my mind. It is as if I’m sitting on a volcano. Something is loudly shouting from inside, and you don’t know how to react. And there is so much for it. I wish we all had some boxing kits to deal with the situation. Just punch things.
How is Bilkis?
She is traumatised, badly shaken, extremely dejected and sad. She is not in a good state. And what to tell her kids? It is one thing that you heard from your parents or relatives that something had happened to them. But to be suddenly made to face all that and see the trauma of your parents.
How do you say to her that something has happened and you must collect the courage to fight another battle after fighting for 20 years? That is the most difficult part of all of it. What if she says why should I do it now. Assume she doesn’t do it, and no one does it, then are we okay with it?
And then after doing all this halla, it becomes one of those things we criticise and leave. Why are not the journalists speaking with the convicted men or the authorities who have passed the order, the chief secretary, the chief minister, the home minister, and the central government?
The convicted men are saying they were targeted because the Congress Party was in power at the Centre at the time. The state government has said the remissions have been granted in accordance with the 1992 policy.
There is a judgment that has come from one court, then another, and twice by the last court. They have gone by evidence and convicted them. Today, we are dealing with convicts, not the accused. They are rape convicts. They are gang rape convicts and murder convicts. They would say there is a policy, and we have remission under it and we are happy. But what is the state doing?
The state has not passed the order. It is not as if the state does not disown wrong orders. It’s not as if the state cannot say the committee has taken a wrong decision and will review it. Or make another committee. The state is not helpless. They don’t have to go by the decision. It is up to the state. I’m a firm believer. From the bottom of my heart, I am still waiting for the state to say we are relooking. Let’s talk to the state.
Since the CBI was involved and the central government was made by the party (to the remission petition), let's talk to the prime minister, the home minister. Why can't the state or central government or the CBI file an appeal? The state must ensure that she lives safely. As much as Bilkis is disturbed, I’m disturbed, you are disturbed, others are disturbed, isn’t the state disturbed? All criminal cases state versus accused. It is the state’s liability.
We don’t know if they have done it or not. It is interesting that if policies were based on the interpretation of the law that life imprisonment would mean 14 years, and therefore, there was a remission policy for the release of an accused of life imprisonment on completion of 14 years—if that interpretation has found at fault and a five-judge bench of Supreme Court says life imprisonment is till the last breath—can that policy with the wrong interpretation of law still be looked into? Even with the argument that since the crime happened in 2002 and the existing policy was 1992, it might need a relook. In 2022, would we go for a wrong interpretation of the law and rely on a policy based on a wrong interpretation of the law or the then existing interpretation of the law?
Will Bilkis fight the order?
Bilkis has legal remedies—she can go to the Gujarat High Court or directly to SC to challenge the order of remission. If I have to advise and I’m very clear on it, I would advise her to beseech the state. You may have seen her statement—in the last line she has appealed to the state of Gujarat to cancel the remission order. I would advise her to appeal to the state government, central government, and CBI. Tell them as a citizen, I have immense faith in you, please do your job. I (Bilkis) am troubled, I feel cheated by the order, this order has cheated my efforts, and my efforts have been virtually brought to dust by the order - please undo the wrong. The whole society needs to know that a few officers can commit a mistake, but as a government, they are not going to tolerate it. That would be reaffirmation not just for Bilkis but for the whole society and the lakhs of women fightings their rape cases in court.
Bilkis has suffered a lot for her to believe that people around you can protect and you do not have to be afraid of people around you—in this case, we had convicts in private person, police officers and doctors. For Bilkis, who was the accused? There were people who violated her sexually and people serving on public tax, who sided with the accused.
We did a lot to make sure to tell her a few could be black sheep but not all—don’t get afraid of seeing a uniform. The Constitution also includes her in its system and if anything happens, the state has to protect her.
If that doesn't happen?
If they also don’t do it. Will she?
In my opinion, she should be the last person who should go to court.
It’s been too much for her?
It’s not only that. To me, it is very clear, that this should be a fight by the state and the authorities who are created for this. What is the National Commission for Women?
This is not just her personal battle, but society's battle.
Absolutely. The constitution creates these commissions. Why are they not doing anything? NCW is meant for us. We have so many women organisations. Why does she have to take the plunge each time? Assume for a minute that we take away her whole family and put them away in a safe place, organise bread and butter for the rest of her lives, educate children, and she says she will go and live in la la land, and she is ok. Are we then, as a society, ok with this order? Why should we leave all the burden on her? How many times can she collect herself and do that? And why is she alone? What are we doing as a society?
What about PILs (public interest litigation) by people?
That could be difficult. What is the basis for the third person saying I want to file it for xyz reason? Third-party challenges could be difficult. But one can do. That is beseeching the court to take suo moto action. In an MP High Court decision, the judge granted bail to the rape accused and told the victim to tie him a rakhi and for him to give her Rs 11,000, and Aparna Bhatt challenged it. The victim did not come forward, the bail order was set aside, and they laid down guidelines (for progressive judgments). They (Supreme Court) undid a wrong. But in that case, Aparna did not have to go into the facts of the case—she had to say how can this arrangement be the grounds for a bail order to be passed—from a rapist to brother—that was absurd. It was an easier case for a third party to come. But there are never set formulas for these things. It depends on how you have taken up the case and how the courts have received it.
When we spoke in 2019, you spoke of a sense of closure. It has gone?
It is unzipped. What closure? Unzipped and out of the blue. It is not that you got a notice, and you were fighting it out and then you lost. Out of the blue, in a flash, you got to know they are out. So all closure has gone with the wind, washed away. It is so difficult. I can get you are very disturbed. I’m speaking with so many reporters, I’m going to court and friends, people who have nothing to do with the law, who are all very disturbed. We are dejected. We are in pain. Let’s do something for her. Let’s reach her village and tell her you are not alone. If you fear for your safety, we’ll make a chain of 40 people around your home and we’ll sit there day and night. We will keep changing these people. Let the government do nothing, let the convicted be around, let them be vultures, but we are with you. This should not just be a concern for Bilkis, her husband, and a few people around her who have always been there. She should have a larger society around her, and a sense of security. Bilkis is symbolic. Each one of us should have a sense of security. We are all Bilkis.
(Betwa Sharma is managing editor of Article 14).