I knew a judicial magistrate in Kerala who got a trifle upset when his parish priest was produced before him as a murder accused. He regained his composure in a minute, recorded the statements, and passed the custody order. All the same, his momentary discomfiture proved to be the undoing of his judicial career; it drew adverse remarks from the High Court.
The bench is no place for passion. “The law,” said Aristotle, “is reason free from passion”. Philosophers of law have viewed passion as subordinate to reason. Much so, when you are dispensing justice.
Yet there are times when judges get emotional, though not to the point of being moved to tears, as they show in Bollywood. When confronted with gross injustice and long-enduring agony, it requires superhuman effort to stay stoical.
In Bilkis Yakub Rasool, Justices B.V. Nagarathna and Ujjal Bhuyan have achieved that. They didn’t look at the woman’s plight, nor uttered a word of sympathy. Yet they delivered her justice, the greatest gift within their power.
A woman protesting against the release of men convicted of raping Bilkis Bano in August, 2022 | AFP
Pardon the word play, but Bilkis Bano has been living a ‘court life’ for two decades. She was chased and mass-raped by men whom she knew as her neighbourhood bhais and chachas. They killed her kin in front of her eyes, smashed her child to death. Yet she had to go to the court to get a case filed.
Twenty years on, she is still living out of court. It is the only arm of the state that heard her out when those raping bhais and chachas came out of jail to mock at her. In 20 years of her youthful life she had to wage half a dozen court battles, right from the local magisterial, through the sessions and high courts of two states, to the Supreme Court. The state, which was bound to protect her life and liberty under Article 21, was often aiding the other side. At the start, it aided them by refusing to file an FIR; in the end, it aided them by remitting their punishment.
Naturally, the cold gaze of the court through 250 pages of well-reasoned judgement is on the state. The judges focused on three things—one, the condoning attitude of the state while one of the convicts was perpetrating fraud on the court; two, usurpation of one state’s power by another state; and three, the temerity of the state to even disregard a court order asking the convicts to pay a nominal fine.
Let’s take one and two together. Though the crime had been committed in Gujarat, the trial and the conviction took place in Maharashtra. It followed that the authority who had the power to remit the sentences was the Maharashtra state. As much was repeatedly told to the convicts by many an authority, yet Gujarat usurped the power of Maharashtra to order remission after one of the convicts misled the Supreme Court to obtain a favourable order. Indeed, it exposed chinks in the judicial armour, too—how easy it is to mislead the wise judges.
The third point is of pettiness. The convicts had also been imposed monetary fines, failing to pay which they would have had to spend a few months beyond their life terms, remission or no remission. The convicts failed to ‘remit’ even those few thousand rupees, yet the state agreed to ‘remit’ their sentences. Indeed, they hastily paid after the remission was challenged.
In the end, Bilkis Yakub Rasool affirmed a new notion of law: when the state fails, the victim can step in to seek punishment for crime.
Anyway, all’s well that ends well. Or, is it? The villains will be back in jail soon, and may next approach Maharashtra for remission.
Your next battle, Bilkis!
prasannan@theweek.in