An unseemly controversy

Print edition : February 11, 2005

Members of the Bharatiya Janata Party Yuva Morcha protest in New Delhi against Justice U.C. Banerjee's report on the Godhra train fire. - V.SUDERSHAN

The controversy surrounding the Banerjee Committee report on the Godhra incident highlights the need to develop high-quality scientific institutions that could help the judiciary arrive at the truth.

INDIAN polity cannot sink lower. The debate over former Supreme Court Judge U.C. Banerjee's report on the Godhra train tragedy of 2002 is proof that many elements in our public life will not hesitate to exploit the deaths of innocent citizens to their advantage. What is more unfortunate is that a former Judge of the highest court in the land is caught in the crossfire between political adversaries determined to capitalise on the loss of 59 lives.

The controversy surrounding the Banerjee findings demonstrates once again the need for eminent men, who had held high public office, to steer clear of Commissions that reek of politics. There is very little to believe that Justice Banerjee had been influenced to give the kind of report he has now given on one of India's most poignant incidents in the recent past. It is not arbitrary and has been based on the valuable assistance given by experts. The timing of the report, more than its conclusions, has possibly incensed those who had a high stake in what the Judge had to comment upon. To put the record straight, the timing itself may not have been intentional, as the Railways notification appointing Justice Banerjee had clearly contemplated an interim report.

Railway Minister Lalu Prasad has not concealed his desire to use it to his advantage during the forthcoming Bihar poll. As I write this column, the Election Commission (E.C.) is yet to pass an order on this. It is the temerity of this colourful politician from Bihar that is likely to incite Bharatiya Janata Party (BJP) feelings further, and persuade that party to damn the Judge. Altogether, this is an undesirable development that is going to cast aspersions on the political neutrality of the judiciary, even though it is only a former Judge who is involved here. Former Union Law Minister Arun Jaitley has complained that Justice Banerjee's appointment had short-circuited the Chief Justice of India. If this is true, it is again a practice that is not desirable, if not something that can be condemned. Such appointments without approaching the apex court should be made only in public interest and after the latter turns down a request for a name from the executive. This can at best be a healthy convention and not something which law can mandate.

Justice Banerjee has spurned the theory of an external attack on the train carrying kar sevaks coming back from Ayodhya. He believes that this was a clear of case of accidental fire from within. This puts paid to the theory that the train carriage had been set on fire with petrol by miscreants, who either had thrown it from outside or had committed the mischief after entering the carriage. The Banerjee report has found broad support from the conclusions arrived at by an independent panel of experts (a group of chemical, mechanical and biomedical engineers) who did their study under the auspices of the Hazards Centre.

Lalu Prasad, while announcing the appointment of the Banerjee Committee in July 2004, had referred to the May 2002 findings of the Gujarat Forensic Science Laboratory (GFSL) that had discounted the theory that some inflammable fluid had been thrown into the compartment from outside. The GFSL reportedly went by two significant facts: the bottom of the coach in question had suffered little damage, and the intensity of the fire inside the coach, judged from the damage to objects, was extremely high. The GFSL had further said, according to Lalu Prasad, that there was hardly any evidence of the use of any corrosive fluid to set the coach on fire.

The case has been charge-sheeted by the Gujarat Police and is pending trial. Inspector-General of Police (IGP) Rakesh Asthana who investigated the case has stuck to the conspiracy theory advanced by the charge-sheet. Contrary to the Railway Minister's account of the GFSL findings, Asthana says that the GFSL did find evidence of the use of a substantial amount of petrol to start the fire. It is not also his case that the fire was caused by an object thrown from outside. While it is possible that the source was purely internal, this did not mean that this was a pure accident as the Banerjee report makes it out to be. The Special Investigation Team (SIT) probe that he led, according to Asthana, had established that the miscreants who set the coach on fire had gained forcible entry through the vestibule connecting it to the adjoining coach, poured petrol and immediately made good their escape through a rear door. It is now anybody's guess as to how far the prosecution will be able to prove this version of the gruesome incident at the trial.

Arun Jaitley has also come to the rescue of the Gujarat Police. He is intrigued by Justice Banerjee's refusal to countenance the police evidence of purchase of a huge quantity of petrol at a Godhra petrol pump on the night before the incident and it being stored in a guesthouse, where two meetings were held supposedly by anti-social elements to hatch the alleged conspiracy. Jaitley lambasts the Judge for not talking to the chief of the SIT, which investigated the case and his failure to obtain the GFSL report before releasing his interim report. I am sure that before he submits his final report, Justice Banerjee will take care of this criticism, if only to enhance the acceptability of his conclusions as a plausible piece of evidence before the trial court.

WHERE does the truth lie? Who is distorting the actual facts? It is difficult to pinpoint the culprit. Strong personalities are involved in the episode, and at least two of them, Gujarat Chief Minister Narendra Modi and Lalu Prasad enjoy little credibility. The professionalism of otherwise upright public servants is the usual casualty in such important but controversial investigations. I am reasonably certain that the Gujarat Police investigation has been thorough and does not carry any padding. This is too serious an incident that will permit any liberties with facts. It is an entirely different matter if it suffers the same fate as the Best Bakery case from witness caprice. Let us leave it to the trial Judge to ferret out the facts.

I am only sorry for Justice Banerjee who has unwittingly allowed himself to be drawn into a controversy. I agree with Jaitley when he questions why a former Supreme Court Judge agreed to go into an incident that is the subject matter of a charge-sheet and is also a matter before a commission of inquiry led by Justice Nanavati and Justice Shah. Incidentally, the wisdom of appointing a commission while a criminal investigation is in progress is highly debatable. It leads to ridiculous situations.

We saw this happening in the case of the Rajiv Gandhi assassination. There, we saw not one, but two commissions, led respectively by Justice Verma and Justice Jain. This was in addition to the SIT, which did the criminal investigation and laid a successful charge-sheet. There was initially a thin line of distinction between the charter of the two commissions, and it was Justice Verma's clear head that salvaged the situation to some extent.

I personally believe that the probe ordered by the Railway Ministry into the Godhra train fire was unwarranted, and whatever it sought to establish could have come out during the criminal trial or in the proceedings before the Nanavati-Shah Commission through expert witnesses. When politics of expediency triumphs over ethics, we can hardly avoid situations like the one we now see in respect of Godhra.

Lalu Prasad's reference to the GFSL report in order to support his decision for a departmental probe is significant. He seems to believe that the forensic laboratory had been objective and scientific in coming to its conclusion that the cause of fire in the railway coach was purely internal. This is small mercy! The faith that he reposes in a State organisation, wittingly or unwittingly, warms my heart, at a time when law enforcement agencies in the country are under severe attack for a total lack of political neutrality and therefore credibility. This is how it should be, if we are serious about enhancing the quality of criminal investigations in our country.

Readers may not be aware that a State Forensic Laboratory is a useful aid to the State Police in all major investigations. Its neutrality is maintained to an extent by making it part of the State Home Secretary's establishment and not of the Director-General of Police (DGP), whose clout could influence laboratory findings on which vital investigations turn. This arrangement has, however, been tinkered with from time to time. For instance, in Tamil Nadu, the laboratory was once under the IGP (before a DGP came into being), only to be transferred to the Home Secretary for a while, before being brought back under the control of the DGP. It is now a stable outfit reporting to the Home Secretary. I suppose this is the layout in almost all the States.

The Godhra episode highlights the need to develop such laboratories into high-quality scientific institutions whose reports are solidly based on unimpeachable test procedures. Any amount of investment in terms of equipment, research and qualified manpower to make them first-class organisations is worth the cause. Political insularity of laboratories is an absolute must, if their reports are to assist courts in arriving at the truth. I am not very sure whether the judiciary has ever had an occasion to examine this. It will be most appropriate for each High Court to invoke somehow its jurisdiction to go into the working of a laboratory in its geography and prescribe norms of testing and reporting that are not easily tampered.

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