Let us make no mistake about it. The approval by the Gujarat government panel for the remission of sentences of 11 men convicted of raping Bilkis Bano, the murder of a three-year-old child, and participating in the murder of 13 others, is not just a travesty of justice. It is also a dangerous political dog-whistle. The government may yet reconsider its order. The Supreme Court may, if approached, overturn it although it gave permission for the remission application to be considered. But the damage has already been done. “Is this how justice ends?” Bilkis Bano’s poignant question pierces through the carefully constructed facades of the Indian republic. The haunting force of this question has no answer. The fact that the force of this question is not even being felt widely is a testimony to a moral numbing of the republic, and its blatant communalisation.
It is important not to let lawyerly arguments get in the way of understanding what is at stake in this remission. Unfortunately, in the Indian justice system, the way in which bail, punishment and remission are practised is shot through with wide discretion. Some rape cases, most notably Nirbhaya, attracted the death penalty; several other heinous cases like this one have not. We could argue whether remission can be granted under a policy that existed in 1992 and has since been repealed; whether the Centre’s guidelines that remission not be granted in the case of heinous crimes should apply to this case. We could argue about what a just sentence in a case like this should be. And there may be a larger debate to be had about penalties and sentencing. But this exercise of discretion is not that. This grant of remission may be enabled by these legal technicalities. But it looks like this is about a state government exercising discretionary power to subvert justice, and send a political signal.
The Bilkis Bano case was so horrific that even hearing about it produces a deep cognitive and imaginative loss, and an emotional disorientation. The crime was so graphic, the facts corroborated so many times. But we still recoil at the thought of the kind of brutality that involved rape of a pregnant woman, smashing a child to death, massacring a whole family, all by your neighbours. Against this background, what Bilkis Bano achieved was nothing short of miraculous. She fiercely exercised her agency, showed indomitable courage, against great odds: A hostile political environment, a threatening society, a broken justice system, and economic deprivation. She let justice, not the crime, define her. And in a supreme act of patriotism, reposed more faith in the Indian Constitution and its institutions than its custodians ever have. This case was the kind of straw we still clutch on to when we want to console ourselves that justice is still possible. And how does justice end? Not even the courtesy of informing Bilkis Bano that her tormentors were being released to the same neighbourhood. Relive the trauma and fear, the state implied blithely.
But there are two political aspects to this that are worth remembering. Many of the perpetrators of the 2002 violence, like in many riots before, have not been brought to justice. But there is a widespread narrative in Gujarat that even those few that were convicted were victims of a political conspiracy hatched by a combination of NGOs, activists, the Congress government and odd sections of the media. Sometimes to placate the pressure from those demanding justice some “usual suspects” who might have been innocent were rounded up and offered as sacrificial offerings in this political war. Whether this is true or not is not germane here. The point is that the BJP wants us to believe this; it is part of its “Hindus can never be terrorists, and Hindus are only victims” refrain.
This is the narrative that now justifies the government going after literally anyone who tried to secure justice for the 2002 riots victims, and punishing them for the fact that they tried to secure justice. But the real dog whistle underlying this narrative is the suggestion that the quest for justice was itself a conspiracy. This is not just an act of revenge. It is also to shore up the myth of Hindu innocence. This conspiracy will only gain more power if non-BJP governments are in power. This remission is a convenient way of signalling that the BJP will protect Hindu interests in the justice system. In a context where the police and judiciary do not command credibility, these narratives are easy to believe; it is also a ruse for not confronting those who are guilty.
This dog whistle is made all the more possible by the horrific idea that crimes of identity are not real crimes. This is the kind of thinking that obscures the violence of rape wherever it is placed in the context of community. In the case of communal violence, sexual violence has long been seen as just another instrument of political violence; but it is true of caste violence as well. Victims of violence in riots or pogroms or assertion of caste power are chosen because of their identity. For the perpetrators, the invocation of identity allows the dismantling of their conscience, and for their supporters, allows them to be treated as heroes not criminals. The inflated rhetoric of war on which radical ideologies like Hindutva and other fundamentalisms thrive makes this conflation easy. This is why it is so easy for us to garland lynchers, felicitate rapists, and take out rallies in their support.
So there is nothing perplexing about the lack of outrage on this remission, or the constant double standards we use depending on who commits the crime. We live in an age of not just greater communalisation, but also totalisation of communal identity, where even small markers of culture — music, language — are burdened with the weight of identity. In such a totalising environment, crime and justice, innocence and guilt have no autonomous meaning of their own, other than as part of a communal project.
So the answer to Bilkis Bano’s question — “Is this how justice ends?” — may be a disquieting one. Her perseverance got her a measure of justice, and allowed us to cling on to the illusion that justice was still possible. But as it turns out, as the winds of communalisation and impunity once again grow, those slivers of justice will once again be blown away. This is not how justice ends, since perhaps real justice had never started.
The writer is contributing editor, The Indian Express