Bilis Bano who was 21 and pregnant when she was gang raped a woman who had to witness the rape of her mother and the murder of her daughter has finally got Justice a second time around and this time too from the Supreme Court I’m badat y with the moo story today we’ll
Be looking at the big supreme court judgment that has ordered that the men who raped bisbano and who were convicted for both gang rape and murder must go back to prison the Supreme Court has actually in its judgment made the skaing indictment of the Gujarat government the Gujarat government has been described as
Having usurped powers Beyond its jurisdiction the Gujarat government has been accused of being complicit in the misrepresentation of facts and the suppression of facts before The Supreme Court to that end the Supreme Court today has actually nullified an earlier order by the Supreme Court saying that the Supreme Court was misled and the
Gujarat government was complicit in that misleading just to remind our audience of this case 11 convicts were Leed early they walked out of jail after an executive decision of the Gujarat government they were garlanded they were given sweets one of the members of the panel that decided to release them early
Told us at Mojo’s story that they were after all quote unquote sanskari brahmins men of culture who deserved some relief there are wide ranging implications to the supreme court judgment today which spends a lot of time also talking about the rule of law and what the the duties of the Supreme
Court are when the state fails joining us now is our newsmaker today Justice Deepa Gupta Justice Gupta is not only one of the senior most legal minds of this country but also somebody who was the judge who awarded the historic 50 lakh compensation to bill kisano the
First of its kind such compensation to a victim of gang rape thank you very much sir for your time today I want to start by asking asking you your first impressions the Supreme Court’s verdict is strongly worded it nullifies uh another judgment by the Supreme Court itself it’s a scathing indictment of the
Gujarat government’s decision making uh what is your big takeaway see first of all may I start with the clarification that judgment where we awarded uh rupes 50 lakhs to bilit Bano was authored by just ranjan gag I was a part of the bench but it was just ranan gagy who had
Auth okay one of the judges one of the yes uh as far as this judgment is concerned it’s really a welcome step I you know ever since this remission took place I’ve been a bit you know worried as to where we are moving to and this judgment you mentioned in in your
Introduction that it talks about the rule of law and that for me is more important than individual cases because if law you see if democracy is to survive if we are to live like a democracy rule of law is essential rule of law is the Bedrock of democracy and
There can be no rule of law when there’s no equality and uh therefore this judgment is and you know I’ve hdly gone through the 253 pages I won’t say I’ve studied them analytically but it’s because I just got them about a couple of hours back and since uh but just nagaratnam
Judgment reads very well it’s very Analytical in its approach and uh there are two very important aspects of the Judgment one is the manner in which the order earlier ORD was passed by the Supreme Court I think the biggest hurdle in the way of this bench was the earlier order passed
By Justice by the earlier bench comprising of two judges I think it was Justice Rog and just Vikram wherein they had tell that the appropriate government to decide the matter is this fell uh this was well totally against what is mentioned in section 422 432 and 433 of the criminal proced of
The earth while criminal procedure I should say not being replaced by a new Criminal procedure which says that the appropriate government is the government where the matter is tried yeah and in this case as we are all aware bilis Bano case was tried in Mumbai because it was
Transferred from Gujarat to Mumbai and and the reason given for transfer was that she may not get Justice in Gujarat so therefore it was transferred to Mumbai you know most people will not go through the Judgment in detail but what has really you know worked is or what
Has really influenced this judgment is that this gentleman who came to the court earlier last year in which the order was passed he had earlier gone to the Gujarat high court and the Gujarat High Court had said that we have no jurisdiction the it is the only the
Mumbai court and the Mumbai state which will have jurisdiction personed that judgment he applied for remission before the before the Maharashtra government and the report started coming against him yeah without disclosing these facts to the uh Supreme Court he filed another petition and as rightly pointed out by Justice naram and
Jus buya and the Judgment he did not challenge the order which had rejected his uh uh his earlier petition that it should be governed by the Gujarat law and therefore they held that it is that judgment was a obtained by fraud and misrepresentation and not to that extent uh while the Gujarat
Government is certainly criticized in this order do you believe that the previous audit of the Supreme Court is also a matter of disappointment or do you believe the Supreme Court simply did not have enough facts before it I think uh they did not may not have
Had enough facts but once the review was filed I wish they had taken a different view you know once the review was filed They Knew by that time all the facts were they may not have had the facts when the Judgment was given so at the time of review you wish the Supreme
Court had responded differently yeah I would have I all I can say that if I was the judge I would have responded differently to each his own that’s that’s that’s a big statement uh let’s talk talk a little bit about uh what happens now when you read the Judgment I
I you know I try to read as much of it as much of it as I could before this interview uh the judge says the judges say that they wrestled with do these men go back into prison and they said on a point of law firstly to apply properly
For remission they have to be in jail they have to apply to Maharashtra and therefore they have to be in jail they have given them two weeks to surrender is there still a chance going by the law that from Maharashtra you could have a decision down the road similar to that of
Gujarat uh see why not I I I I I can’t you know I can’t foresee what decision the governments will take yeah but uh it will be a bit difficult because this judgment is based on the earlier 1992 Gujarat policy now the Gujarat policy will not be applicable the
Maharashtra policy will be appal I have not studied the Maharashtra policy and the court has also given some indicators you see as sitting as a court it could not prejudge the issue as to what the Maharashtra government should do when the remission case of remission and rightly so no court can direct that
Nobody should be granted remission or should not be granted remission it is for that authority to decide but they’ve laid down certain parameters they’ve also said that it uh you know and that was an earlier judgment too but theyve reiterated that uh in matters like this the opinion of the judge who conducted
The trial cannot be brushed aside what has happened in this case that the Maharashtra judges judgment Bombay High Court the judgment and even the CBI did not support the case for release but somehow everybody in Gujarat by and large everybody said okay release them release them so it was released so I
Think it may be a bit difficult for them to get it Rel get released especially in view of the other observation made even with regard to in what cases I’m not sure B have not studied it because if the later policy subsequent to Justice mad Loo’s judgment in s’s
Case is followed then in gang rape cases remission becomes impossible unless you have served 28 years in jail not 40 I was just going to say that that at least going through the Judgment I but I’m not really St you to be fair I not studied the Maharashtra policy without studying
That uh I can’t give anything so I don’t know if the policy is different no sir I was just responding to that the Maharashtra policy of 2008 also talks about 28 years in prison then they may have it then they may find it very difficult to find get
Remission okay let’s talk about the larger message you know you think of this this woman uh who was 21 even 19 by some accounts when she was gang rap but 21 is what cited in the court documents um seeing her daughter murdered gang raped herself they break her arm I I
Remember meeting her with a fractured arm watching her mother helplessly gang raped many members of her family are are also killed uh you were part as you mentioned of a bench that awarded her a historic compensation of 50 lakhs she spent most of her life fighting now
She’s had to spend the last two to three years fighting again and there is a worry that there might still be a flurry of review petitions we don’t know actually what’s going to happen uh legally what what has to happen immediately see as far as review petitions are concerned you can’t take
With the right of the agreed party to file review petition if they have a right they have a right they can file that they can file a Curative I don’t know what all they’ll do but uh you know but when you talk of cases and cases over 45 years in the judicial profession
You got you get sort of you know desensitized to a little bit you apathetic towards many cases but this was was one of the very few cases when you read the file you really felt that this was a case of the rather extreme nature and that brings me back to the
Point what justice ragar ratnam has again said pointed out that one of the points which might be taken into consideration while considering remission is whether this is an individual crime or a crime against Society yeah I would definitely term this as a crime crime against Society it was not an individual crime
It was a crime against Society against humankind it was a crime against the Constitution our constitution talks of the promise of fraternity fraternity is not nothing else but brotherhood how does this crime fit into that concept of Brotherhood it’s a crime against Society against Constitution against all principles which we hold you know
True to to ourselves I was going to ask you that that you know you were part of a bench that co-wrote this historic compensation what what did you feel do you remember your feelings at that time when you all decided to give her this historic first of its kind compensation
See I had the though I never really took part in the bench matter was agenda I was also also had the opportunity to uh read the other judgment with by I and I when I went through this judgment you know because there was also I think uh if I’m not mistaken there was
Also in her appeal maybe an uh I’m not 100% sure but I think there was maybe a request for enhancement of the Judgment uh announcement of the sentence to death which we were I mean not at all considering that but this competent that is why 50 lakhs 50 lakhs I don’t think
Any court has ever awarded in any matter criminal matter so you can think you can just imagine why what the court felt about the matter so yeah I don’t I mean I wouldn’t like to comment on my judgment otherwise more than that fair enough let’s come back to today’s
Judgment there is a very very interesting and important focus on the rule of law and the role of the Judiciary and the Judgment says that the rule of law means whenever or wherever the state fails in its Duty the court would step in that’s one thing it says
Then it goes on to say that the court must do so unmindful those concerned with the rule of law must remain unmindful and unruffled by the ripples caused by these decisions now these are very important lines in the Judgment you know they make the case much more than
The case of one bisbano they’re making a larger statement on Justice and the role of courts in a democracy when you read these statements when you hear them what goes through your mind on the message that’s being sent see see it’s this last 8 10 paragraphs of the Judgment where
Justice nagaratna talks about the rule of law which take this case outside the realm of a litigation between bilis Balo and the accused and brings it in the case into the realm of a matter of how courts should deal with matters yeah see I talked earlier also when we look at
Our Constitution and we look at the Preamble what have we promised to ourselves first of all we promised Justice you know social economic and political yeah now when when we talk of Justice when we talk of a India being a democracy can there be any justice can there be any
Democracy without a free and Fairless Judiciary a Fairless free Judiciary is an integral it’s just an inherent intrinsic part of of democracy and if we are to be fair and fearless you know and even when we take oath as judges that I shall discharge my duties
To the best of my abilities without fear or favor affection of people many times you know when the founding fathers drafted these o each word very was very you know crafted and thought of without fear of favor without fear of the government without fear of the peers
Without fear of the media without fear of uh anybody of the bar anybody yeah you decide you see all of us don’t think the same way I may have a certain perception somebody else may have a certain other perception the same on the same facts two judges can take to a
Different view but as long as the view is taken honestly fearlessly there’s no problem with it the problem comes when if there is a if there is some impression that it is done for reasons other than the merits than the what is in the case so I think what justi as
Nagaratna has said is reiterating what is has been said very often but she’s deci said it very eloquently she said it in a case where it needed to be said and maybe it’s an opportune time for it being said when you say that there is no democracy without a fair and fearless
Judiciary um do you think that there is a lesson or rather illusion or a reference somewhere to a Spate of hotly debated recent verdicts from the Supreme Court see Bara I may have my differences of opinion as I told you you know I always have always felt you know judges also
Belong to different streams of thought there are Judges who are termed as liberal judges there judges who are termed as conservative judges the let judges who go by the letter of the law there are Judges who sort of want to expand the horizons of the law now to
Each his own you can’t really and today we’re not into the judgments I’m not going to talk about judgment but yes for me it is not the Judgment so much which worry me it’s when courts fail to respond and I’ve been saying it repeatedly I’ve said it when I’m talking
With you also earlier yeah when heis scopus petitions are not taken up for ears on end that is fine in the Kashmir verdict I’ll not go into the merits of the Kashmir verdict of 370 may have been I’m not going into that but what has worried me is that the court has
Abdicated his duty to decide a very important question raised that a state could not have been reduced to a union territory and they’ve done it only on the basis of a statement made by the solist general now I feel that in matters like this the court should not
Say that we will not decide they should have decided it one way or the other the decision I may or may not agree with it but the decision should have been taken so basically you’re saying that by the the court and I know we’re shifting gears for one moment but I think uh
Today’s verdict and its comment on rule rule of law allows us to do that you’re saying when it comes to the Kashmir verdict you were disappointed that the court didn’t even get into didn’t into even get into a key area of law uh which is changing statehood uh to the level of
Union territory and it should not have Sid stepped that decision making what it decided it shouldn’t have ducked that question yeah that is my view you see decisions can be you know genuine decision the court has to take many things I’m not into the correctness of the decision I’m not going to challenge
It but having said that I’ve heard both I’ve heard F on your channel and I’ve heard Ron’s uh lecture I agree with them partly but I don’t fully agree with them also but having you know that’s why I say everybody has his own views and I’ve heard uh justice call also
Talking to you for so it’s been interesting conversations and when conversation happens discussion happen and there’ll be a new point of view I there no problem with that but uh it’s not but what has worried me most in the Kashmir decision is the decision of the Court not to take a decision
Yeah and and and you believe that it did that on this fundamental question of can can a presidential notification decide to change no not that I I only only whether a state can be reduced to the you know can tomorrow him I belong to Himachal can they reduce Himachal to
Union territory and say okay we’ll govern it so not F naran’s opposition which is on the notification you believe you believe that the Supreme Court by not getting into the correctness or the legality or the constitutionality of how J&K was uh taken from State to Union territory by sidest stepping that
Question it abdicated its Duty on that one key Point yeah and also by the delay by the very delay matters like this should never be delayed so inordinate so final question to you justice Gupta the biggest takeaway for you from the verdict today the most important takeaway there two three I think one
Is this you know just I mean it’s sends the message of rule of law that nobody that nobody is above the rule of law and secondly it’s also brings sucker you know sometimes it’s very important more than law it brings sucker to bilis and many like her yeah who may not
Have and to a community at large see these are things which are very very important cas are sometimes you know that’s why when I talk of sometimes you take decisions even looking at the larger aspects of the matter yes and uh you know another very important from the from the legal Point
May not be from you know people’s perceptions is the manner in which she has dealt with another coordinate two judge B judgment and how that does not apply and she’s given three reasons and all three in my opinion are absolutely correct well I think uh for for for
Those of us who’ve been following this case for years but even as as women today uh you know this is a this is a very important and meaningful judgment but as you point out and I think that’s the real key uh it it it has gone beyond
The Ambit of an individual called bilis Bano uh to the larger fundamental existential philosophical question that democracies must address themselves and wrestle with every day what is the duty of a state and what is the role of a Judiciary when the state fails that Duty I’m quoting verbatum from the Judgment
In fact when I say that um thank you sir thank you thank you so much thank you take care take care sir thanks Moo’s story has always made a commitment to its viewers to go to where the story is and as you can see here we
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