The Court struck down the Gujarat government’s shameful decision to release the 11 men convicted of brutally raping Bilkis Bano—and killing her child. It restored a measure of justice in this landmark case that symbolises the horrific violence of 2002.
Researched by: Nirmal Bhansali
What happened to Bilkis Bano?
The Gujarat riots: A Muslim mob set fire to a train packed with Hindu activists in February, 2002—killing 59 people, mostly women and children. The tragedy sparked an orgy of retaliatory violence. Tens of thousands Hindus tore through Muslim areas—raping, looting and killing. In the end, 1,100 were dead, 600 missing and 100,000 became refugees overnight. The Gujarat government—led by Narendra Modi—did very little to stop the carnage.
The horrific attack on Bilkis Bano: She was 19-years-old at the time—with a three-year old daughter and pregnant with her second child.
- As news of the anti-Muslim violence spread, Bano fled her parents’ village along with 17 others—including her daughter, mother, a pregnant cousin, younger siblings, nieces and nephews, and two men.
- Their luck ran out on March 3—when they were accosted by two men in jeeps.
- Bano says: "They attacked us with swords and sticks. One of them snatched my daughter from my lap and threw her on the ground, bashing her head into a rock."
- Bano was repeatedly raped, as was her cousin—who had delivered her baby. She was killed along with her newborn.
- In the end, only Bano and two other little boys survived, according to BBC News—although The Wire calls her the lone witness.
Point to note: Many of the men were neighbours—some of whom Bano had seen almost daily since childhood: “Years later, Bilkis said that what rankled her the most about her memories from that day was the fact that men she had known since her childhood were the ones who brutalised her so mercilessly.”
The trial: Nineteen men were charged in the case—including 6 police officers and a government doctor who conspired to cover up the crime. In 2008, 11 were finally convicted of rape, murder and unlawful assembly. Point to note: Bano secured the very first conviction for rape during communal violence in independent India.
The sentencing: In 2011, the CBI petitioned the Bombay High Court to award a death sentence for three of the convicts—arguing this was a “rarest of rare” case. It was rejected but the Court upheld the life sentences awarded by the special court. In 2019, the Supreme Court directed the Gujarat government to give Bano Rs 50 lakh in compensation.
So how did these men get out of jail?
The plea: In April 2022, one of the convicts—Radheshyam Bhagwandas Shah—filed a Supreme Court petition asking for an early release. The legal grounds offered:
While life imprisonment means that a convict is sent to prison for life, the law gives the Union and state governments power to reduce a person’s sentence. Under Section 433A of the Code of Criminal Procedure, governments have the power to set a life convict free if they have served a sentence of minimum of 14 years. The Union and the state have the power to lay down the conditions to reduce a sentence.
Shah argued that he had already spent 15 years and four months in prison.
The key ruling: In its ruling, the Court made two critical decisions. One, it ordered his application to be heard in Gujarat—where the crime was committed—and not Mumbai—where he was sentenced. Two, it also said that the merits should be decided by Gujarat’s previous early release policy framed in 1992—which was in effect when the convicts were sentenced.
Why this matters: In the 1992 policy, the nature of the crime is not a factor in considering a plea for early release. However, in 2014, Union government changed the rules—prohibiting reduction of sentences for prisoners convicted of rape or murder—and for crimes investigated by the CBI.
The release: The Gujarat government then formed a 10-member committee to consider the pleas for early release of all 11 convicts. It was headed by the collector of Godhra—and included five BJP party members, including two MLAs. They unanimously decided in favour of the convicts. On August 15, the 11 men walked out of the Godhra jail—in a very special celebration of India’s 75 years of independence. They were greeted with garlands and laddus:
Ok, so what did the Court say?
The case: The three-judge bench ruled on a number of petitions challenging the remission—brought by Bilkis Bano—and others such as former IPS officer Meeran Chadha Borwankar, Trinamool leader Mahua Moitra and lawyer Asma Shafique Shaikh.
The convicts’ arguments: Their lawyers made a number of claims in defence of the remission—such as:
- The Court does not have the right to review the order—as per the Constitution.
- Having been granted remission, the convicts have the legal right to “reintegrate into the society.”
- Alternatively, having been granted remission, the Court has no right to take away their freedom.
- The convicts had “earned” their release due to good behaviour.
In its unanimous ruling, the Court brushed aside all these arguments. It focused instead on jurisdiction and rule of law.
One: The judges set aside that 2022 Supreme Court ruling—which opened the door to remission—by asking the Gujarat government to make the call. According to this Court, their predecessors were fooled by the convict Radheshyam Shah—who suppressed the fact that the Gujarat High Court had dismissed his petition—twice! The Gujarat Court had ruled that his remission ought to be decided in Maharashtra—where he was convicted. According to this 2023 ruling, the 2022 judgement was based on incorrect facts—and as a result of “fraud.”
Two: Gujarat never had the authority to approve the release of the convicts:
[T]he Bench held that Maharashtra would be the appropriate government for considering remission. This is because, even though the crime occurred in Gujarat during the 2002 Godhra riots, the trial of the convicts was transferred to a special Maharashtra Court on Bano’s request. The accused were convicted and sentenced to life imprisonment in Maharashtra, not Gujarat.
The judges pointed to previous SC rulings that affirmed the same and “noted that the parliament intentionally maintained this definition in the statute to cover cases where the trials were transferred to another jurisdiction.”
Three: The Gujarat government had abused its “discretionary powers” by granting remission—and had “usurped” the powers of the Maharashtra government. The Court flatly asserted that Gujarat was “complicit and acted in tandem” with the convict:
If really State of Gujarat had in mind the provisions of law and the judgments of this Court, and had adhered to the rule of law, it would have filed a review petition… and impressed upon this Court that it was not the 'appropriate Government'... Instead, the State of Gujarat has acted in tandem and was complicit with what the petitioner-respondent No.3 herein had sought before this Court. This is exactly what this Court had apprehended at the previous stages of this case... transferring the investigation... to the CBI and the trial to the Special Court at Mumbai.
Four: The en masse release of convicts—on a “festive occasion”—was wrong. Each case should have been considered separately. The judges also reiterated a number of strict criteria for granting remission.
Five: Last not least, the Court declared that the rule of law trumped the convicts’ right to liberty: “There can be no rule of law if there is no equality before the law. And rule of law and equality before the law would be empty words if their violation is not a matter of judicial scrutiny.”
The ‘missing’ convicts: The 11 convicts have been given two weeks to surrender themselves. But at least nine of them are “missing” from their village. Their families told Indian Express that they have not been home for months and they have no clue as to their whereabouts—“This, even as neighbours and shopkeepers at the busy village square attest that nearly all the convicts were publicly seen until Sunday.”
Maharashtra to the rescue? The fate of these men now lies in the hands of the Maharashtra government. The Court has indicated that they can once again seek early release—but only once they are back in prison. One of the convicts had approached Maharashtra in 2019. At the time, the state government sought the opinion of the CBI and the special court judge who convicted them. Both opposed the plea for remission. It isn’t clear what the present government will do.
The bottomline: Responding to the verdict, Bilkis Bano said: “It feels like a stone the size of a mountain has been lifted from my chest, and I can breathe again. This is what justice feels like.” Amen.
SC Observer has a very good overview of the judgement. The Telegraph has more quotes from the ruling—while The Hindu looks at the issue of mass remission. Indian Express has Bilkis Bano’s reaction and what’s next for the convicts. Our 2022 Big Story has the most details on the case—and the remission. The Leaflet has more on the arguments made by the petitioners. Also in SC Observer, the legal tug of war over remission policies.