A significant intervention

THE National Human Rights Commission's (NHRC) decision to approach the Supreme Court seeking a retrial of the Gujarat riot cases in courts outside the State is consistent with the pro-active role it has been taking ever since the magnitude of the post-Godhra violence last year shocked public conscience. Dissatisfied with the Gujarat government's response to its demand for a comprehensive report on the incidents, an NHRC team, including its then Chairperson, Justice J.S. Verma, visited the State between March 19 and 22, 2002. The team noted that the violence had resulted in gross violation of the fundamental rights.

In its preliminary comments on April 1, 2002, the NHRC recommended entrusting the investigation of certain critical cases involving the incidents at Godhra, Chamanpura, Naroda Patiya, Best Bakery and Sadarpura to the Central Bureau of Investigation (CBI). It also recommended the creation of special courts to try these cases and the appointment of special prosecutors for the conduct of proceedings in such a manner that the traumatised condition of many of the victims, particularly women and children, was not aggravated. The State government responded by saying that an investigation conducted by the State police could not be discredited and its fairness questioned merely on the basis of hostile propaganda. It took the stand that the transfer of critical cases to the CBI would indefinitely delay the investigation and help the accused to get bail.

In the absence of the State government's request, the Centre expressed its inability to transfer the investigation of the cases to the CBI. Disagreeing with both the Gujarat government and the Centre, the NHRC pointed out that the central principle in the administration of criminal justice - those against whom allegations were made should not themselves be entrusted with the investigation of those allegations - was at stake. The Centre had the mandate of the resolution unanimously adopted by the Rajya Sabha on May 6, 2002 urging it to intervene effectively under Article 355 of the Constitution to protect the lives and property of the citizens in the State, the NHRC pointed out.

The judgment in the Best Bakery case indicates that the NHRC's apprehensions were true. The grounds on which the NHRC intervened in the current case are very convincing. The concept of fair trial is a constitutional imperative and is explicitly recognised as such in the specific provisions of the Constitution, including Articles 14, 19, 21, 22 and 39A, as well as the various provisions of the Criminal Procedure Code (CrPC). Violation of the right to fair trial is also a negation of Article 14 of the International Covenant on Civil and Political Right (ICCPR) to which India is a party. A trial that is vitiated on account of witnesses and victims of the crime having to depose in a court of law under fear of their own safety would make a mockery of the criminal justice system and vitiate the entire trial, the NHRC pointed out in its Special Leave Petition filed in the Supreme Court. Section 12(b) of the Protection of Human Rights Act (1993) empowers the NHRC to intervene in any proceedings involving any allegation of violation of human rights pending before a court, with the approval of such court.

Under Section 18(2) of the Act, the NHRC can approach the Supreme Court or a High Court for such directions, orders or writs as that court may deem necessary. The NHRC defended its current intervention, as in its view the Best Bakery case was testimony to the violation of human rights. The NHRC had petitioned the Supreme Court earlier for relief in 1996, relating to the fate of members of the Chakma community in Arunachal Pradesh. The court had then come to the rescue of the minority community, laying down the obligations of the State under Article 21 of the Constitution and the relevant international instruments relating to the status of refugees. In the current case, however, the NHRC's intervention has led to an extraordinary and unprecedented situation of the Supreme Court agreeing to monitor the trial of the riot cases in Gujarat.

The Supreme Court's intervention on August 8 means that it will monitor the hearing of the Gujarat government's appeal in the High Court against the Fast Track Court's judgment as well as the pending nine trials in connection with the four critical incidents, which the NHRC's application for transfer to other States mentioned.

The NHRC's petition is significant because it has invoked Section 406(2) of the CrPC as a "party interested" in the case, to be entitled to seek the transfer of the nine criminal cases in connection with the riots pending in Gujarat to courts in other States. As only the Supreme Court has the power to transfer cases from one State to another, the outcome of the State government's appeal in the High Court in the Best Bakery case is unlikely to have any impact on this application concerning pending cases. If the High Court revives the trial and reverses the acquittal in the Best Bakery case, the trial can take place only in Gujarat with the existing evidence and standard of investigation.

In that event, Section 406(2) of the CrPC will apply to the Best Bakery case as well, if some trial court in Gujarat begins to rehear the case, under the orders of the High Court. If, on the contrary, the High Court confirms the acquittal of the accused in the Best Bakery case, then also the NHRC could ask the Supreme Court to invoke Section 386A of the CrPC (relating to powers of the appellate court), reverse the High Court's order and direct retrial of the case.

The NHRC may have to await the outcome of the hearing in the High Court on the State government's appeal, but with the Supreme Court's monitoring of the case, the Gujarat government or the accused may have no respite in this as well as other cases. One significant outcome of the NHRC's intervention in the Supreme Court is that, finally, the Gujarat government would now be under compulsion to reveal to the court the specific steps it has taken to ensure the protection of witnesses and their families in the Best Bakery case and in all pending riot cases. These steps would then come under greater scrutiny for their effectiveness, and hopefully, the Supreme Court could lay down useful guidelines for the protection of witnesses, using the Gujarat experience.