Will the Supreme Court's decision in Bilkis Bano case be implemented?

Amalendu Upadhyaya
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Bilkis Bano case convicts absconding

Supreme Court of India

The Chief Justice of India talks a lot, but does he have the guts and backbone to do this?

By Justice Markandey Katju

In my article given below I had mentioned about the 11 persons convicted of horrendous crimes on Bilkis Bano and her family, 7 of whom, including her 3 year old child, were brutally murdered and she herself, though 5 month pregnant, was gangraped in the 2002 Gujarat 'riots' ( which were really organised massacre of Muslims ). These persons had been found guilty and given life sentences by the Court, but they were released prematurely by the Gujarat Govt on 15.8. 2002.

The Supreme Court by its verdict of 8.1.2024 quashed the Gujarat Government's release order, holding the Gujarat Government to be complicit in an illegality, and directed that they be re-arrested within 2 weeks.

In my article I expressed my doubt that the Supreme Court verdict of 8.1.2024 will be complied with, as the BJP Gujarat Govt is apparently sympathetic to the convicts ( as evident from the fact the Court in its verdict of 8.1.2024 held the Gujarat Govt to be complicit in their illegal release, and also from the fact that the 11 convicts were garlanded by the VHP, a sister organisation of the Sangh Parivar, on their release on 15.8.2022 ).
Hence the Gujarat police, which obeys orders of the state govt, will not take serious steps in implementing the Supreme Court order but only pay lip service to it.

And my apprehension has proved true. The 11 convicts are not traceable, and their relatives and friends are tight lipped about their whereabouts.

If a contempt of court notice is issued by the Supreme Court, the Gujarat Govt and its officers will say that they have great respect for the Court, etc etc, and offer all kinds of specious excuses, e.g. that they are making all efforts to comply with the Court's order but the convicts are absconding. However, they will increase and renew their efforts, blah, blah, blah.

There are many instances of Court orders being ignored.

Thus, in the Cherokee Indians case, Worcester v. Georgia (1832), Chief Justice of the US Supreme Court John Marshall infuriated President Andrew Jackson by insisting that Georgia laws that purported to seize Cherokee lands on which gold had been found violated federal treaties. Jackson is famous for having responded: "John Marshall has made his decision, now let him enforce it ", and the judgment was never enforced.

Nearer home, the Doshipra graveyard verdict of the Supreme Court in 1981 was never implemented, probably because it was in favour of Shias, and hence if implemented might antagonise the Sunnis, who are about 85% of UP's Muslim population, whose votes were crucial in elections.

The Sabarimala judgment of the Supreme Court was never effectively enforced.

The Supreme Court judgment in the Judges case held that if the Collegium's recommendation for appointment of a judge was reiterated it must be accepted by the government. Yet in many cases, this direction has not been complied with.

The Pakistan Supreme Court's verdict of 4th April 2023 that elections to the Punjab Legislative Assembly must be held on 14th May was simply thrown into the waste paper basket.

I was asked in an interview by a Pakistani journalist what should be done when court orders are not obeyed by the Pakistan Govt. I replied that the Chief Justice of Pakistan should publicly declare that all courts in Pakistan will remain closed until the govt says that it will abide by court verdicts.

The same should be done by the Chief Justice of India too. He talks a lot, but does he have the guts and backbone to do this?

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

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