The Bilkis Bano case: Our judges should keep the admonition of Bheeshma Pitamah in mind

Amalendu Upadhyaya
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The Bilkis Bano case

Justice Markandey Katju

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 and she herself, though 5 month pregnant, was gang raped

Though given life sentence by the Court, the perpetrators of this heinous crime were prematurely released by the Gujarat government on 15.8.2022, and garlanded in the VHP office.

Fortunately the Supreme Court on 8.1.2024 reversed this order and directed that the convicts be sent back to jail within 2 weeks.
However, two issues remain :

1. The Gujarat government released the convicts on 15.8. 2022, after which they were garlanded at the VHP office, and remained free.

The question is whether they will be ever found ? One wonders whether the BJP Govt in Gujarat, which according to the Supreme Court was complicit in their release, will make any serious effort to trace them out, after they were freed 17 months ago. They may be be hiding anywhere in Gujarat or have fled to another state, or even from the country. The Gujarat police will follow the instructions of the state govt, and may be lukewarm in this endeavour, since 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 death sentence to the culprits. 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 this case fell into that category, considering its horrendous, monstrous, gruesome, outrageous, and fiendish nature.

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

I would remind them of Bheeshma Pitamah's upadesh to his grandnephew Yudhishthir in the Shantiparva of the Mahabharat. After the Mahabharat war had ended and Yudhishthir was going to be the next king ( since the Kauravas had been defeated ), 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 in imposing sentences.

(Justice Katju is a retired judge of the Supreme Court of India. These are his personal views.)

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