Trigger warning: The article mentions rape.
Advocate Shobha Gupta was only seven years into the legal profession when she was roped in by the National Human Rights Commission (NHRC) to represent Bilkis Bano, the survivor who was gangraped during the 2002 Gujarat riots, and also witnessed the murder of her family members.
Almost two decades later, Gupta described the recent decision of the Gujarat government to grant remission to the 11 men convicted in Bano’s case as wholly unnecessary.
"We have failed as a society for her," she added.
Opining that remission could not be allowed to frustrate the concept of awarding a severe punishment for a heinous crime, she said,
"It cannot turn everything upside down. Here in this case, this remission comes on the fact of the whole punishment. When it comes to the criminal justice system, if you are committing a serious crime, you have to undergo a serious punishment — it is making a mockery of it."
Gupta said that though Bano, who she has known for over two decades, suffered a lot, immense support came to her in many ways to ensure that she finally got justice.
“This is one saga of extreme atrocities, extreme violence, crime beyond words, comprehension and imagination. But at the same time, it is the saga of immense, incomprehensible strength shown by this girl, the bravery. I always say that we draw strength from her,” said Gupta.
According to Gupta, when Bano learnt about the decision, she was numb.
The family called Gupta when the news of the remission started doing the rounds. Unaware of the development, the lawyer assured them that the review against the conviction had been dismissed in 2019 and there was no information of a curative petition having been filed in the Supreme Court.
The confirmation of the development has prompted sleepless nights ever since.
“What do I say about Bilkis? We all are in a disturbed condition. You put in all this, ensure justice, you fight till the last court. You succeed to get the conviction upheld. Highest ever compensation in a matter because of the gruesomeness and the exceptional facts of the case, and then to come back to a minimum sentence undergone?”
Bano's legal team had earlier contemplated a special leave petition against the order of life imprisonment, but upon discussion, realised that Bano had a life beyond the case, and should be allowed to live in peace.
“Now going for another round of appeal for a harsher punishment, she would have had to live under the pain, the process for good long years. Let her live a life. Let her at least allow her to learn to live her life in peace.”
Bano was on anti-depressants for a considerable part of her legal journey, Gupta revealed, adding that she struggles to be in a crowd even today.
“She did not accept a job which was granted by a Supreme Court order because she just can’t be among people. And so we did not challenge it further, because the matter deserved a much harsher punishment than life imprisonment. We did not wish to go because we wanted peace to come to her,” the lawyer said.
The remission, therefore, comes for Bano as a “very unfortunate” and a “completely unnecessary” event.
“It should have been avoided. We failed as a society for her. It is a feeling of shame to face her. Have you ensured light at the end of the tunnel for it come on my face like this? I have a shame written. I cannot face her. I would feel very guilty facing her."
She explained that for someone like Bano, it was not easy to relive the experience every time she went to court or was asked about narrating the incident.
“See it is not easy for a rape victim...Somebody had caused such a severe harm to your privacy, bodily integrity, to your soul — what not. And to live with that pain continuously and reiterate it to get justice. To face people. Each time to tell someone that this happened to me, somebody came and did like that. You suffer all that, why? Because you believe justice will be done and the wrongdoer will be booked. Booked for what? Booked for namesake? If people can come out like this to stare at your face?” asked Gupta.
With the last court of the country dismissing not only the SLPs of the convicts, but also their review petitions, the lawyer countered the allegations of it being a false case.
She said there were reasoned judgments of the trial court and the High Court, running into hundreds of pages.
“The matter was argued for months altogether and now they have the audacity to say we do not know if the crime was committed or not or we were wrongly framed. So what she should do? How should you again establish it was not a false case made out by me, that I was not lying that my relatives were killed?” questioned Gupta.
Besides the voluminous nature of the case material, Bano's case also brought with it immense attention from all corners, instilling a great degree of sensitivity among lawyers like Gupta.
Given the various factors surrounding the case, it was also a challenge to succeed at different fora.
"You start investing yourself beyond what you do in routine cases...Your investment in the matter is much beyond that and there is some in-built commitment also, which is again beyond what you do in routine cases because you know...all crimes are crimes against the state, crimes against the society.”
Gupta said that in Bano's case, reading the facts of “exceptional violence” was nightmarish and akin to living the violence that was perpetrated against her.
Although legal professionals go through conditioning through different cases, Gupta still felt "shaken".
“Those facts live with you for long. That is very saddening. It affects you as a person also. All lawyers and judges — everybody is a human being. It would be untrue to say it doesn’t affect us. It does affect us. And it affects you very badly.”
As a “reasonably young lawyer,” Gupta, who had only seen seven years in the legal practice, came across the case in 2002. She was taken aback by all the media attention around the case.
“And then you can’t afford to go wrong, because stakes are high qua the individual, qua society. It has a telling effect.”
Bilkis was about 19 or 20, and pregnant for 5 months when she was gangraped and her family members murdered. During the commission of the crime, she was running helter-skelter with her family divided and running for their lives.
“The very fact of having seen so many people armed in a violent mob is scary enough. A dark night in a forest area. This again is enough to make somebody die. She then suffered. Seeing a relative die in front of your eyes a normal death, makes life miserable,” said Gupta.
The lawyer believes that her client’s survival could not have been possible without divine intervention.
“We take care of pregnant women like kids or like [they are in ] an air bubble. That is kind of care that we give to a pregnant woman. In this case, she was a young woman pregnant with her second child. Then she was gangraped. You are seeing your relatives, be it mother, or other relatives being murdered in front of you. Immediate relatives. I am seeing in news seven, but there were 14 relatives. She was the sole person who survived. In your presence, other female relatives were being gangraped. You are being gangraped. Then all 14 were murdered. Left with not a thread on the body. She survived only because of divine intervention, possibly because she became unconscious and they thought she is dead like the others. So something I believe - there was divine intervention that she had to remain alive.”
Gupta is still shaken at the thought of Bano regaining consciousness amidst the dead bodies of her relatives.
"How did you collect the courage to get up from there and search for some hope to keep you alive? What was that instinct? From there to the hilltop. Taking clothes from a dead body. Then searching for help. It is beyond words, beyond comprehension. A fight, strength — what was that? And even if you ask her or somebody asks her about reasons about what was pushing her, she won’t have an answer," said Gupta.
Gupta felt that Bano's case has shaped the way she looks at cases relating to women’s issues.
“By default, I am a women’s rights activist. But I never had the answer why I am so. The Nirbhaya case makes me teary-eyed even today. Once, I was watching television with my mother and I saw on the news that a six-year-old girl had been brutally raped. I started howling. My mother asked why was I crying like that. I said I did not know, but the news was causing extreme pain to me. And this when I already had a good number of years in practice, and I worked for women causes a lot,” shared Gupta.
Gupta runs We The Women of India, which she started after the Hathras case, and offers pro bono work to women and girls.
On why she felt so much pain for other women’s causes, she said,
“Back then, I though to feel change you have to suffer, otherwise others don’t make your heart bleed. This was my answer and till date I was satisfied with that answer. But today (it is different). May be it was this case because I actually started dealing with this matter from a young age and it might have changed me as a person. I don’t know. Possibly that has changed me.”
Gupta said that not undoing the decision on remission would be another failure on society's part.
“I am very sure that it would be undone. And the major stakeholders, State, Centre or CBI... have a duty to guarantee my right under Article 21 and ensure that it is not tinkered by anyone. I am more than sure that one of them will move court or State would recall its executive decision or re-constituting the committee. But they must undo this mistake, or else the court should take suo motu action.”
The fight, she said, was not of Bano's alone, but of the entire society, as everyone wants to live peacefully in a safe society at the end of the day.
“And that is why this uproar. That is why people are so disturbed. So when the fight is for the whole society, then we must all come together and stand around her and tell her you might be the reason, the person directly involved in it, but we are equal sufferers. You have done your bit and now the society and State will do. You allow yourself to live peacefully. This message must go to her by each one of us.”
In addition to the “dejection” that the remission move had brought for Bilkis, Gupta wondered,
“I don’t know if they ever thought they were doing serious damage to the whole society. It is very unfortunate, should have been avoided. It feels like something died inside."
Bilkis was gangraped in during the riots and her three-year-old-daughter was among those killed by a mob in Limkheda taluka of Dahod district in Gujarat.
The Supreme Court had ordered a Central Bureau of Investigation (CBI) probe into the case after Bano approached the NHRC. When Bano complained of death threats by the accused, the apex court in 2004 directed the trial to be transferred from Godhra in Gujarat to Maharashtra.
In January 2008, a Special CBI Court convicted 13 accused, of which 11 were sentenced to life imprisonment on the charge of gangrape and murder.
In May 2017, the conviction order was upheld by the Bombay High Court.
The Supreme Court in 2019 also directed the State of Gujarat to provide ₹50 lakh compensation to Bano, in addition to a government job and accommodation.
The Gujarat government released 11 convicts as per its remission policy reportedly due to the “completion of 14 years” in jail and other factors such as “age, nature of the crime, behaviour in prison and so on”.