Justice Markandey Katju: Two questions on the Bilkis Bano case

Justice Markandey Katju

By Justice Markandey Katju–

(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)

In the 2002 ‘riots’ in Gujarat — which was really a massacre of Muslims — a large number of Bilkis Bano’s family members were brutally murdered. She, at the time five months pregnant, was gang-raped by the same mob and left to die.

Though the court awarded a life sentence to the perpetrators of this heinous crime, they were prematurely released by the Gujarat government on India’s Independence Day (August 15) in 2022 and later garlanded in the local Vishwa Hindu Parishad (VHP, or World Council of Hindus) office.

Fortunately, the Supreme Court of India reversed this order on January 8, 2024, and directed that the convicts be sent back to jail within two weeks.

Two issues remain:

1. The Gujarat government released the convicts on August 15, 2022, after which they were felicitated at the VHP office. Since then, they have remained free. Will they ever be found? One wonders whether the BJP government in Gujarat, which, according to the Supreme Court, was complicit in their release, will make any serious effort to trace them. They may be hiding anywhere in Gujarat, or may have fled to another state, or even from the country. The Gujarat police will follow the instructions of the state government, and may be lukewarm in this endeavor.

The state government may turn a Nelson’s eye to the Supreme Court order, and give all kinds of excuses for failure to comply with it.

2. This was a case deserving the death sentence. Why were life sentences awarded to them? In Bachan Singh vs State of Punjab, 1980, the Supreme Court said that death sentence should only be awarded in the ‘rarest of rare’ cases. Surely Bilkis Bano’s case certainly fell into that category, considering its horrendous, monstrous, gruesome, outrageous, and fiendish nature.

It would seem that some judges in India are kind, soft-hearted and merciful by nature, and shrink from giving a death sentence even in appropriate cases. In my opinion, however, this is dereliction of duty.

I would remind them of Bheeshma Pitamah’s upadesh (teaching or advice) to his grandnephew Yudhishthir in the Shantiparva of the Mahabharat.

After the 18-day war at Kurukshetra had ended and Yudhishthir was going to be the next king, he approached Bheeshma Pitamah for advice on how to conduct himself as a king. Bheeshma Pitamah said, “O Yudhishthir, I know that you are forgiving, compassionate and merciful by nature, but the state cannot be governed in this manner. You have sometimes to be strict, and award harsh punishment to offenders.”

Our judges should keep this admonition of Bheeshma Pitamah in mind while imposing sentences.

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