Bilkis Bano's Brave Fight

Gang-raped and left for dead alongside 14 members of her family in Gujarat in 2002, she has won the first-ever conviction in a riot-related rape case. S. ANAND on her journey for justice

Photo:CHERIAN THOMAS

JUSTICE HAS been a fugitive in the Republic of Gujarat, but sometimes it finds refuge in neighbouring Maharashtra. In 2006, the retrial in a Mumbai Special Court of the Best Bakery case — the burning to death of 14 Muslims on March 1, 2002 in Vadodara — involving the much-maligned witness Zaheera Sheikh, resulted in nine of the 17 accused being sentenced to life imprisonment. Now, the Mumbai Sessions Court’s verdict after the in-camera retrial in the Bilkis Bano gang rape and mass murder case reinforces the point. Thirteen of the 20 accused were convicted on charges of criminal conspiracy, rape and murder. Additional Sessions Judge UD Salvi awarded life imprisonment to 11 accused and three years’ jail for the head constable of Limkheda police station for framing a false complaint. One policeman died during the trial. This is also a landmark judgment, as Supreme Court lawyer Vrinda Grover points out: “For the first time in post-independence India, a communal riot-related rape case has seen conviction.

” Sexual violence against women has been used as a key weapon in the many communal riots and pogroms in India. Yet, as feminist legal activist Flavia Agnes says, “The scale and extent of atrocities perpetrated upon Muslim women in Gujarat far exceeds any reported sexual crime during any previous riot in the post-independence period.” According to lawyer Indira Jaisingh, “Women are targeted because they are perceived to be bearers of identity. Such violence was part of the genocide in Rwanda too.”

Bilkis was raped on March 3, 2002. Soon after news of the post-Godhra violence reached Randhikpur village in Dahod district, Bilkis, who had been at her father Abdul Issack Ghanchi’s place, was traveling with her relatives from one village to another in search of a safe refuge. On the afternoon of March 3, a gang of 30 Hindu men — wielding sickles and swords — descended on the entourage of 17 near Pannivella village. Bilkis and her relatives knew most members of the gang since they were all from their village, Randhikpur. Fourteen of Bilkis’ family were murdered. Shailesh Bhatt, one of the accused, killed Bilkis’ 3-year-old daughter Saleha — smashing the infant’s head on the ground. Bilkis, five months pregnant and 19 years old, was raped by Jaswant Nai, Govind Nai and Naresh Kumar. She was left for dead. Regaining consciousness after two hours, she says in her deposition: “I found myself naked. I saw dead bodies of my family members lying around. I got frightened. I looked around for some cloth to cover myself. I found my petticoat... I was carrying fear in my heart. I felt that I was saved by God. I went sitting and squatting up the hill. As I proceeded, I saw the dead body of [my cousin] Shamim’s newborn daughter. Many dead bodies were there. I did not try to know whose dead bodies were lying there. I stayed at the top of the hillock the entire day and night…”

BILKIS SUBSEQUENTLY sought refuge in an Adivasi home, gathered her wits, and bravely made her way to the Limkheda police station. Like in almost every other case, the derailment of justice began right here. The police threatened her, saying if she insisted on filing charges of rape the hospital authorities would administer her a “poisonous injection” and kill her. She says, “I was frightened but I told them to write what I was narrating.” The police did not. They wrote a distorted and truncated version stating that about 500 unidentified persons came and attacked Bilkis and her relatives. The FIR did not record even one of the 12 persons Bilkis named. Says Harsh Mander, social activist who has been tracking the Gujarat genocide, “This was the pattern. In most cases, the accused were not named, and instead the violence was attributed to anonymous mobs. Omnibus FIRs were filed in advance by the police, clubbing several incidents — involving sometimes hundreds of witnesses and accused — in single complaints, to render investigation completely unwieldy and confused.”

The Limkheda judicial magistrate predictably closed the case on March 25, 2003. Backed by activists and civil rights groups, Bilkis, the only survivor of the massacre, then moved the National Hunan Rights Commission. The NHRC got senior counsel Harish Salve to argue her case in the Supreme Court. The NHRC-backed Bilkis petition in the SC sought the quashing of the Limkheda magistrate’s order, an inquiry by the Central Bureau of Investigation, action against erring Gujarat police officers, and compensation. On December 18, the SC directed the CBI to take over the investigation. Soon, the results followed: the CBI arrested 12 accused by January 22, 2004; and by March that year arrested two police officers as well. The CBI’s final report also mentioned gross violations by and complicity of the Gujarat police. In May, Bilkis, facing threats, was given CISF protection. In July, Bilkis sought the transfer of the case outside Gujarat; in August 2004 the SC obliged and even sought the appointment of a public prosecutor by the Centre.

The CBI discovered several packets of salt while exhuming human remains from a mass grave in Dahod where Bilkis’ family had been buried. The CBI found that 60 kg of salt had been used in March 2002 to ensure early disintegration of the bodies; but fortunately the high moisture content in the soil countered the salt’s effect.

Justice in Bilkis’ case was achieved not merely by the transfer of the case out of Gujarat. Given the intimidation and abuse of a witness like Zaheera Sheikh in the Best Bakery case, the manner in which the team around Bilkis ensured witness protection played a crucial role. One of those involved with the case, who prefers to remain anonymous, says, “There was a broadbased team, involving a cross-section of people and activists, who gave Bilkis emotional, material and legal support for six years.” As Grover sees it, “It is clearly not enough to have a strong case. That’s the reason why convictions in such cases are few and far between. An entire cast of characters has to generate a support system to make the criminal justice system work. It becomes a movement. And Bilkis’ became a test case.” Witness protection is the duty of the State. But for Bilkis, the women’s movement and a network of activists have provided the protection.

MORE SPECIOUSLY, every effort was made in Gujarat to subvert justice with the State becoming an active colluder in ensuring injustice. Says Prashant Bhushan, senior advocate, “The communalisation of Gujarat’s justice delivery mechanism over the last several years was reflected not only in TEHELKA’s October 2007 sting. Communalisation has set in at all three levels: investigation, the prosecution that involves the police, and the judiciary itself.”

Defenders of Gujarat say that in the 1984 anti-Sikh riots cases, the first conviction happened only in 1997, and convictions in the 1992 Bombay riots came in 2007. However, as Bhushan says, “In Gujarat the problem is compounded by the fact that the entire government, from the chief minister down to the constable, is totally communalised.” Jaisingh argues that if the Gujarat government believes in justice, it should appeal against the acquittal of doctors and some policemen in the Bilkis case. “If the Modi government does not appeal, this shows its complicity,” she says.

The strongest indictment of the Gujarat government’s complicity, of course, came from the SC judgment on April 12, 2004 in the Best Bakery case, when it said, “The justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge.” The investigation was “perfunctory and anything but impartial, without any definite object of finding out the truth to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel... The role of the state government... [suggests] that there was no seriousness... in assailing the trial court’s judgment.” The SC also rapped the Gujarat High Court for failing to provide the necessary corrective justice in the Best Bakery case, saying “the entire approach of the High Court suffered from serious infirmities, its conclusions [were] lopsided”.

The same SC seems to have now turned “apathetic”, as Bhushan puts it. On November 21, 2003, the apex court stayed all proceedings in 14 cases — including the Sabarmati Express burning case at Godhra, and those of Naroda Patiya, Naroda Gaon, Gulbarg Society, Sardarpura village and Ode village — pending a decision on whether they should be tried outside Gujarat. After four years, all these cases — except Best Bakery and the Bilkis case — are in a legal limbo. The facts and figures related to the Gujarat genocide cases tell their own story. Of the 4,252 cases registered, more than 2,107 were closed within months of the carnage without even the issue of a chargesheet to the courts. More than 200 courts in 17 districts passed these completely illegal orders of closure. In around 300 cases, the accused were acquitted after trial in the early months after the carnage. Under pressure from the SC, the state government reopened 1,602 cases, but over 500 cases were again quickly shut. The price of return for Muslims was withdrawal of cases. About the same time, 239 Muslims and one Sikh were booked under POTA on charges of waging war against the country, conspiring to kill BJP leaders, and participating in the ISI’s plans of destabilisation.

This is the path Narendra Modi rode to victory. In his Gujarat, justice shall remain a fugitive. And Bilkis Bano a refugee on the run.