Bilkis Bano's plea for exemplary compensation highlights how the judiciary failed her by ignoring state's responsibility
Bilkis Bano, the 2002 Gujarat gangrape and communal violence survivor, has been fighting for justice.
Bilkis Bano, the 2002 Gujarat gangrape and communal violence survivor, has been fighting for justice. In May, 2017, the Bombay High Court upheld the conviction and imprisonment of eleven men convicted of raping her and killing fourteen members of her family, while setting aside the acquittal of seven others which included doctors and policemen. In the 430-page judgment, the high court condemned the violence during Godhra and post-Godhra riots, but refrained from considering Bano’s case as a ‘rarest of the rare case’.
Almost a year later, Bilkis Bano has filed a plea demanding exemplary compensation for the sexual violence she faced in 2002. The Supreme Court, acting through a bench of Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud, sought a response from the state government by 12 March. The plea beseeches that the court revisit its law on the quantum of compensation that may be provided to Bano, given that Bano’s fundamental and constitutional rights were violated. The application suggests: “The horrendous facts of the present case and extremes of the egregious violation of fundamental rights and human rights of the petitioner would though beseech rather demand the court to raise the bar much higher.” The application for exemplary compensation also alleges that the state failed to protect Bano in the time of an emergency, and moreover, it had used all its machinery to shroud the perpetrators of the crime from the arms of the law, therefore, striking at the roots of her fundamental rights.
Bilkis Bano’s application for compensation goes beyond the usual demand for victim compensation. It should be noted that she does not ask the court, in her plea, to provide her with compensation under Section 357A of the Code of Criminal Procedure (Amendment) Act, 2008, which includes the Victim Compensation Scheme (VCS) implemented by the state governments/union territories in coordination with the central government. This includes compensation to victims of sexual crimes including rape, acid attacks, human trafficking and crimes against children. Currently, there is no uniform scheme for survivors of rape but there is a practice of giving different amounts ranging from Rs 20,000 to Rs 10,00,000 to survivors as compensation for the violation of rights and rehabilitation. But Bilkis Bano does not invoke this type of compensation at all; she demands exemplary compensation from the state.
The difference between victim compensation and exemplary or punitive damages is simple. Victim compensation is an amount of damages paid in recognition of loss, suffering or injury. For example, in rape cases, the state recognises, through the VCS, that during the rape or sexual assault cases, the survivor loses her intrinsic human rights. Exemplary compensation or punitive damages go beyond mere victim compensation, and such damages are awarded when the defendant’s wilful acts were “malicious, violent, oppressive, fraudulent, wanton or grossly reckless.” The rationale of an exemplary compensation is that the violation of rights is so heinous and gross that mere compensation is not enough; it is also mandatory to pin down accountability on the part of the defendant, and send a message to the society at large.
In a previous Firstpost piece, it is explained how Bano’s plight spanned fifteen years and how the Bombay High Court judgment of 2017 fails her by refusing to examine the nature of sexual violence she was subjected to in 2002. The judges in the case, despite several international law precedents, were reluctant to identify rape as a weapon of war and a tool to humiliate and sexually assault thousands of women during the post-Godhra riots – “It looks at the rape of Bilkis Bano and the rape of thousands of women during the post-Godhra riots, as a misfortune of communal disharmony, and in this, it normalises the crime of rape as a result of uncontrolled sexual desire, when in reality, rape is about power and subjection.”
Justices Mridula Bhatkar and VK Tahilramani were also reluctant to consider Bano’s case as a “rarest of the rare”. For them, her violation of rights did not succeed to invoke the Machhi Singh doctrine – it did not involve extraordinary cruelty, and they did not feel like the collective conscience of the society was shocked enough to implore the "rarest of the rare" doctrine. The Justices did not want to look beyond the concept of communal disharmony and did not examine Bano’s rape from the narrative of sexual violence in conflict, as popularised by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). Moreover, the case does not at all speak about state accountability.
Bano’s plea for exemplary compensation is a way to highlight how the judiciary had failed her fundamental and constitutional rights in May, 2017 by not pointing out the responsibility of the state. Bano’s application is an attempt to invoke the positive and negative obligations of the state towards survivors of the post-Godhra riots of 2002 – by saying that the state failed to protect her right to life and liberty in 2002, and additionally, utilised its machinery to protect the perpetrators of the crime.
This move is commendable by Bilkis Bano’s counsel because it endeavours to right the wrongs of the Bombay High Court judgment, and directly challenges the state of Gujarat in its failure to uphold Bano’s human rights as well as being complicit in the use of rape by its subjects as a weapon of conflict.
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