QUEST FOR JUSTICE

A significant intervention by the Supreme Court in the Best Bakery and other Gujarat riot cases on a petition by the National Human Rights Commission has raised the hopes of the victims, who have been terrorised into silence, of a fair trial.

NARENDRA MODI has a very low threshold of tolerance for criticism. At a personal level, the manner in which the Gujarat Chief Minister chooses to deal with criticism need not be germane to his public conduct or persona. But the yawning gap between the demands of propriety and his attitude towards empowered constitutional authorities is perhaps a different matter, suggesting a basic aversion to the democratic ethos.

Less than a year since he entered into a public spat with the Election Commission of India, complete with unseemly personal references and elaborate simulations of offended hauteur, Modi finds himself embroiled in another dispute with a constitutional body. And the arguments being advanced in his defence are a faithful reprise of themes heard last year. That Gujarat is by no means the living hell for minorities it is made out to be; on the contrary, it is among the most progressive and dynamic States in the country, and the minute scrutiny that the Modi government is being put through is an affront to the collective dignity of the Gujarati community.

For sheer effrontery there could be nothing in recent years to match Modi's recent letter to President A.P.J. Abdul Kalam, outlining these themes. Provoked by the decision of the National Human Rights Commission (NHRC) to petition the Supreme Court over the acquittal of all the accused in last year's Best Bakery carnage in Vadodara, Modi wrote in evident ire to the President, deploring the effort by vested interests to block Gujarat's "path of progress" by "exaggerating ... stray incidents". Gratuitously, the damage that was supposedly inflicted on the federal system was cited as adequate grounds for presidential intervention: "Our country has a federal structure and this federal polity has to ensure that the Centre and the States, judiciary and the legislature work in harmonious environment. Nothing can be more harmful to democracy than the efforts of some groups to weaken the collective strength of the democratic institutions."

The President was obliged to act, Modi urged, since the clamour that was being created on the world stage by "external forces and non-governmental organisations" was "tarnishing the image of the country and questioning (sic) its democratic strength". Not just the President, but indeed the entire country should, in the circumstances, "stand up and uphold the truth".

What arsenal could Modi hope to deploy in his cause of upholding Gujarat's and with it, India's honour? Nothing more lethal it turns out than some well-thumbed statistics from the crime records bureau. Modi urged the President to direct the compilation of statistics on all cases of "terrorist or extremist attacks, group clashes and communal violence" since Independence. And out of all these, the public should be told how many cases led to the filing of charge-sheets and given a breakdown of the prosecutions that were launched and acquittals that were handed down.

In this narrative of politics, according to Modi, Best Bakery was no aberration, but an event that was integral to the performance of India's institutions since Independence. What to any fair-minded observer may have seemed an alarming sign of creeping institutional bias against a minority community was for Modi part of the natural order of things. By implication, then, the entire cycle of violence that began with the Godhra carnage last year was nothing exceptional: merely a part of the time-honoured tradition of social conflict resolution that has been enshrined over five decades and more. The victims of the Gujarat violence cannot expect justice simply because several others have suffered similar injury in the past. And if any individual, political organisation or constitutional body should choose to speak up in the cause of justice in Gujarat, that would only suggest a selective conscience and an inherent social bias.

When the Godhra carnage happened, Prime Minister Atal Behari Vajpayee showed remarkable acuity in identifying its basic cause. His attention focussed at a different point of the compass, he appealed to the Vishwa Hindu Parishad to call off its agitation over the Ram temple at Ayodhya. The VHP refused and instead issued a call for a day of demonstrations and protest in Gujarat. Vajpayee did not specifically demand of Modi that he bring the guilty of Godhra to book and ensure the security of all citizens of Gujarat, perhaps because he assumed that in a constitutional order, there was no need to state the obvious.

Speaking over the state-controlled radio channel on the evening of the Godhra carnage, Modi unburdened himself of a rather different notion of constitutional accountability. It was not the authority of the state and the law that would be brought to bear on the criminals of Godhra but the fury of the mob. And the target would be not the perpetrators of the heinous crime, but an entire vulnerable minority. "I want to assure the people that Gujarat shall not tolerate any such incidents," he said. "The culprits will get full punishment for their sins. Not only this, we will set an example that nobody, not even in his dreams, thinks of committing a heinous crime like this."

At a conference of Chief Ministers in May 1968, shortly after independent India's first outbreak of widespread communal violence, certain measures to control the menace were approved. These included the "full use of the provisions of law, particularly sections 153A and 295A" of the Indian Penal Code, for dealing with incitement to violence in written or spoken word. That intent has remained largely frozen on the parchment it was inscribed on. Chief Ministers since have often overtly professed helplessness in controlling outbreaks of violence while covertly promoting it for political ends. But everybody who has studied India's tortured history of communal strife has concluded with rare unanimity that Modi's record of culpability has been the worst.

As the cycle of retaliation went into play, Vajpayee denounced the events in Gujarat as a scar on the nation's conscience. Home Minister L.K. Advani wrung his hands in despair, but said little. It was only before an audience in faraway London several months later that he said what was evident to all: that the events in Gujarat were a "disgrace".

These sporadic words of good sense by the BJP's senior leaders were of course hedged around with several qualifications, some of them verging on endorsement of Modi's actions. In the wake of the NHRC announcing its intent to petition the Supreme Court over Best Bakery - and other key cases in Gujarat - Bharatiya Janata Party spokesmen have shed even this residual element of ambiguity in favour of full-throated partisanship against the autonomy of constitutional bodies. The NHRC risked being seen as "anti-Hindu", fumed the BJP's parliamentary whip and spokesman V.K. Malhotra. Gujarat had suffered the trauma of nearly "400 incidents of communal riots" during successive Congress(I) regimes, with few of the guilty being prosecuted and fewer convicted. The NHRC was doing little in the case of the Marad atrocity in Kerala where eight people had been killed by marauding criminal mobs, said Malhotra.

A group of Ministers from Gujarat also met senior members of the Union Cabinet with a list of grievances. The NHRC's decision constituted an unseemly rush to judgment, they said, since the Gujarat government itself intended to appeal the Best Bakery acquittals in the High Court. The constitutional watchdog of human rights had shown an alarming sense of disdain towards the fundamentals of federal politics and effectively given a vote of no-confidence in the judicial system, they complained

The BJP's interventions are only rather loosely grounded in facts. The references to terrorism in Kashmir and the Marad atrocity fail to account for the vigorous prosecution of the latter by the Kerala police and detentions without trial and encounter killings that are standard practice in the fight against terrorism. They also betray a curious political morality, and an anxiety to excel rather than efface the worst abuses of the law and the judicial processes in the past.

In taking up the NHRC's special leave petition on August 8, a three-Judge Bench of the Supreme Court, headed by Chief Justice V.N. Khare, decided that it provided an appropriate occasion for a generalised inquest into India's criminal justice system. In order to avoid a conflict of jurisdictions with the Gujarat High Court, which was concurrently expected to hear the State government's appeal, the Supreme Court determined that it would treat the NHRC petition and application as a public interest petition.

Just days earlier, Chief Justice Khare had, in a case involving succession rights within the Christian community, issued an ex cathedra admonition of Parliament for its failure to enact a uniform civil code for the country. In removing contradictions based on ideologies, he opined, a common civil code would promote national integration. These observations, expectedly, engendered a torrent of comment, both in the realm of politics and in the media. Unlike in past years, the BJP has in this round of the debate not quite managed to steal the mantle of gender justice and equality before the law irrespective of community. The BJP and its affiliates are now required to explain how they can operationalise the uniform criminal code, which has already been written into the statute. To say that it has been flouted almost as a matter of routine in the past is simply no option.