How Bilkis Banos Lawyer Wrested The Highest Compensation For Rape In India

This interview includes graphic accounts of violence.

NEW DELHI — On 3 March 2002, Bilkis Bano was gang raped and 14 members of her family murdered in one of the worst episodes during the Gujarat riots in 2002. India’s Prime Minister Narendra Modi was the Chief Minister of Gujarat at the time.

At the time, Bano was 19 years old and pregnant with her second child. Her three-year-old daughter was killed before her eyes. As local policemen went to extraordinary lengths to cover up the horrific crime, Bilkis started receiving death threats. For the next several years, her family led a nomadic existence, moving from place to place for their safety, but continued their fight for justice.

It took six years for 11 men to be sentenced to life in prison for rape and murder. One policeman got a sentence of three years in prison for tampering with the First Information Report (FIR). It took ten more years for five other policemen and two doctors to be convicted for attempting to cover up the crime.  

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Now, 17 years later, Bano’s lawyer Shobha Gupta asked the Supreme Court to award exemplary compensation to her and for disciplinary action against the convicted policemen.

On Tuesday, the court ordered the Gujarat government to pay Rs 50 lakhs as compensation to Bano, a house in a place of her choosing, and a government job.  This is the highest compensation ever given to a rape survivor in India.  ”The Supreme Court has acknowledged the pain that I have endured for 17 years,” Bilkis said on Wednesday. “That is important to me.” 

Following this landmark judgement, HuffPost India spoke to Gupta, the Supreme Court advocate who has represented Bilkis since 2003.

Gupta, who runs her own law firm in Delhi, does a lot of pro-bono work. She has fought for juvenile justice reform, reducing water-logging in the capital, and better food quality in midday meals.

While this is a landmark judgement, Gupta told HuffPost India that  the compensation granted to Bilkis should have been higher.

“The compensation you are granting should be monumental. It should be loud and clear. So loud that it resounds in everybody’s ears. A figure of one crore would have rung loud and clear. For the victims, it would say don’t worry we are here. For the perpetrators, it would say don’t you dare to do it again. For all state governments, it would be a note of caution,” she said.

What comes to your mind when you think of the Bilkis Bano case?

This is the gravest possible case of rape and communal violence. Imagine a 19-year-old mother, who is pregnant, gang-raped, and her daughter’s head is smashed on a rock in front of her eyes. Can you imagine what that young girl must have gone through?

You will not find any other case which has such gruesome acts upon an individual and her entire family followed by a series of crimes to stop her getting justice. This is something that we don’t talk about very often in public, but it is part of the file, the chargesheet and her statement, which say police personnel threatened to give her a poisonous injection if she named the accused.

Is this the highest compensation ever given to a rape survivor?

Yes. I have researched all the judgements threadbare. We knew we had to ask the court to go — not a few — but several notches higher. We asked the court to consider several factors — the nature of the crime, the deliberate failure of the state machinery and the kind of nomadic life she was forced to live.

They (Bilkis and her husband) have not lived a normal life. They could not educate their children in one place. They could not have a neighbourhood. They did not have a livelihood. They are dependent on charity and help from NGOs. All because the state failed. She got no protection, no rehabilitation. She lost every single female member of her family.

Every single one?

Yes, every single one—mother, sister, cousins, maasis. There was no emotional bank balance left around her. No womanhood. 

What was the highest compensation before this?

Z versus State of Bihar, a 2017 case, which was before the then Chief Justice of India, Justice Dipak Misra , who awarded Rs10 lakh compensation in addition to three lakh compensation which she got under Section 357 of CrPC (Criminal Procedure Code) as a statutory provision. That is the highest I could find in matters of rape and communal violence.

What were the legal arguments for higher compensation?

Part 1 is the gang rape and communal violence. Part 2 is that the people who are meant to protect citizens, meant to protect law and order, were doing something completely contrary. They were ensuring that the culprits are never punished. Now, you might say that the  compensation for Part 1 of the crime has to come from the private accused. But how could Part 1 take place if the state functionaries were doing their job. How can you allow a communal riot to take place? People roaming around in open vehicles, armed with swords, saying ‘Muslims ko maar denge.’

This is a big moment because the compensation addressed both parts of the crime. For Part 1 and Part 2, the state had to compensate in the public law remedy as well as the private law remedy.

How did the state machinery fail?

Bilkis suffered because Somabhai, the SHO (Station House Officer), manipulated the complaint — that’s a finding by the courts. The police did not conduct the medical examination for rape, for minor injuries, a day later. She was not taken to identify the dead bodies. This is the language used by the High Court (Bombay), “The investigation team is the villain of this case.”

What did state police personnel do to cover up the crime?

This is the chargesheet of the police (CBI) — I’m not adding anything to it.  Saleha’s body was not found. It was there in photographs (taken by Gujarat police after Bano filed her complaint), but then it disappeared. This was Bilkis’s first-born child. She could not perform her last rites.

Villagers bought 90 kgs of salt, shifted the bodies from the place of incident to some other place, dug a pit and all the dead bodies were stacked one on top of the other. This was done on the instructions of police personnel who were later convicted. The pit was in a thick jungle, with a narrow lane, where jeeps could not go. The idea was to frustrate her complaint.

(Bilkis’s case was handed over to the Central Bureau of Investigation (CBI) and the matter was transferred from Gujarat to Mumbai in 2003). 

Frustrate her complaint?

Bilkis had said that a few jeeps came, 400 to 500 people came. The police were saying how could all that happen since no jeep can come to this place. When the CBI opened the pit, the bodies were all beheaded. The purpose of beheading was to ensure that the bodies were not identified. The CBI found the skeletons and skulls.

The divine justice is that they put so much salt, that instead of dissolving, the bodies and the clothes were preserved. When the CBI opened up the pit, they found the skeletons and skulls. The act of the police team is so horrific.

Did you suggest a compensation figure to the court?

The figure which I had in mind was a minimum of one crore. The state was very miserly in suggesting five lakh because it was an exceptional case. When the court was asking me about my figure, before I could respond, they said Rs 10 lakh. The court asked me and I said I’m looking for minimum one crore. They said Rs 50 lakh plus house plus job.

I understand that if you get a job, and a reasonable house, not a one-room tenement, that should be good. It was either one crore or this kind of settlement. This package is a better deal because it rehabilitates her completely.

When was this hearing?

Yesterday.(April 23)

So right before the compensation was made public?

Yes.

Were you ecstatic or okay with the final amount?

I’m not even okay.

Really?

Justice should not only be done, but must also be seen to be done. The Bilkis case, we have not just fought for Bilkis, but for all Bilkises.

The compensation you are granting should be monumental. It should be loud and clear. So loud that it resounds in everybody’s ears. A figure of one crore would have rung loud and clear. For the victims, it would say ‘don’t worry we are here’. For the perpetrators, it would say ‘don’t you dare to do it again’. For all state governments, it would be a note of caution.

The compensation figure is a landmark one. Don’t you feel that way?

Talking about myself, I’m grateful to the court, but I’m not overjoyed. The cumulative gruesomeness makes this one of the gravest cases. The police completely eroded the rule of law. Will Bilkis’s faith in a policeman in uniform ever be restored? Can anyone breach a woman’s body whenever he wants?

If you want to show how disturbed you are as a court, then the compensation should always be astronomical. And it should be recovered from the erring people. It is the responsibility of the state to figure out how to do it.

How did you feel when the 2002 Gujarat riots happened ?

I felt shattered. How could it happen? There are killings, rapes and gross inhuman acts. Every single woman member of Bilkis’s family was raped and murdered. There was unnatural sex with even the male bodies. Everybody’s lower garments were down. There is a functioning state government. How is this happening? As a citizen, how does that not change you?

Were you under any pressure from the state government in Gujarat with regard to the case?

Never.

What was the most challenging aspect of the case?

Drafting the writ petition against the closure of the case was taxing for me. There are some judgements which say that you cannot file an Article 32 writ petition against a judicial order (a magistrate in Gujarat closed the case in 2003). But the long route of statutory provisions, appeals and other things would have cost us so much of time. And time lapse in criminal matters means that you are done.

What did you do?

We took the decision to file the writ and convince the judges that Article 32 should be entertained in a matter like this because you cannot allow so much time to be consumed by the process of law. Fortunately, the judges did not get too technical and relegate us to that long procedure. That was a big thing. We were also able to show that the major plank of closure is the police saying that the accused are not traceable, but that she had named every single accused.

Who were they?

Can you believe that they were her neighbours? She knew them by name — elderly people — and they raped her. She had grown up in front of them. If you read her complaint — in Gujarati one says bhai — so with every single name she is using the term bhai. “Please don’t do this, I’m pregnant. Please don’t do this, I’m your sister.”

What was was your high point in the case?

The CBI chargesheet was a huge victory. Reading it is immensely painful. The fact remains that one set of state functionaries completely misused their position, cheated Bilkis and breached her constitutional rights. At the same time, another set of state functionaries bring back the facts and in such a loud manner.

They looked at every single minute thing. That Saleha’s photo was there but her body was missing. That the photographs of dead bodies showed liquid coming out from vital parts, lower garments were down, but there was no post-mortem for rape. The examination of villagers, who said — yes, I sold the 90 kgs of salt, yes, I dug the pit.

The CBI chargesheet restores faith that if state functionaries do their jobs correctly, it makes a huge difference. 

Were you ever overwhelmed by the case and how long it took?

No. When it came to Bilkis, my heart and soul was completely into it. I feel protective about her. There was a sense of responsibility that you have to get it.

There was some discussion about getting a senior lawyer to argue for compensation and disciplinary action bits before the Supreme Court, but I wanted to do it. I’m living this matter since ages. The pain and concern is there. I don’t need to turn pages to tell the facts to the court. It is imprinted in my mind. It has become part of my life. All this is reflected in the job that you do.

Are you happy at the conclusion?

I’m happy because Bilkis is feeling happy.