A judicial crackdown

The Supreme Court, in response to a petition filed by the NHRC in the Best Bakery case, comes down heavily on the Gujarat government and takes measures to ensure a free and fair re-trial.

in New Delhi

IF justice delayed is justice denied, justice hurried, as the acquittals in the Best Bakery case showed, is justice buried. As the Supreme Court begins to monitor the reopening of the Best Bakery case, it appears it would require extraordinary efforts to undo the miscarriage of justice at the Fast Track Court of H.U. Mahida at Vadodara, as a result of sloppy investigation and prosecution by the Gujarat police.

On June 27, the trial court, established to speed up trials in sessions cases involving serious offences, acquitted all the 21 persons accused of killing 14 Muslims, citing lack of evidence against them, as almost all the witnesses had turned hostile during the trial. The killings took place during the anti-minority pogrom that followed the Sabarmati Express tragedy in Godhra. The Supreme Court, granting permission to the National Human Rights Commission (NHRC) to file a special leave petition (SLP) seeking the quashing of the trial court's judgment and the retrial of the case, had issued notices to the Central and Gujarat governments on August 8 (Frontline, August 29). As the State government had filed an appeal in the Gujarat High Court against the trial court's judgment on August 7, the Supreme Court wanted to await the outcome of the case in the High Court, before proceeding further on the NHRC's SLP.

Although there were doubts about the Gujarat government's seriousness in appealing against the trial court's judgment in view of its timing - it was filed just a day ahead of the hearing by the Supreme Court of the NHRC's SLP - the Supreme Court did not want to bypass the jurisdiction of the Gujarat High Court just on the basis of fears that a fair trial was not possible within the State. But the Supreme Court Bench, comprising Chief Justice V.N. Khare and Justices S.B. Sinha and Brijesh Kumar, had revealed on August 8 its resolve to monitor the case in the High Court so that the proceedings did not prove to be an eyewash.

As the hearing on the NHRC's SLP resumed in the Supreme Court on September 12 and 19, it was clear that the court's monitoring had its desired impact. On September 12, the Supreme Court Bench flayed the Narendra Modi-led Gujarat government for filing an "eyewash" of an appeal in the High Court.

Expressing his disapproval of the way the appeal was drafted, the Chief Justice told Additional Solicitor-General Mukul Rohatgi, who appeared for the Gujarat government: "I have no faith left in the prosecution and the Gujarat government. I am not saying Article 356. You have to protect people and punish the guilty. What else is raj dharma? You quit if you cannot prosecute the guilty. It is not your personal property. If you cannot protect the property of the people you cannot continue."

Responding to the Chief Justice's strong remarks, Rohatgi said: "It was not an earlier system in which the Chief Ministers depended on the mercy of others. He is elected democratically." The Chief Justice retorted: "Democracy does not mean you will not prosecute anyone."

The Bench directed the State Chief Secretary and Director-General of Police (DGP) to be present in the court on September 19 to explain who had drafted the appeal. The Additional Solicitor-General invited the wrath of the Chief Justice by submitting that in the last 40 years several riots had occurred in the country and none of the rioters had been punished as no prosecution had ended in conviction. He gave the example of the 1984 anti-Sikh riots case, in which no one could be punished. The Chief Justice shot back: "Just because nobody had been punished for the last 40 years, it does not mean that we should shut our eyes." The Additional Solicitor-General had no answer when the Chief Justice asked him whether he wanted the accused in the riot cases in Gujarat too to go scot-free.

The remarks embarrassed the Bharatiya Janata Party government in Gujarat, which soon faced demands from the Opposition to quit in deference to the indictment. A beleaguered BJP took solace in the fact that the Bench's remarks were meant only to have some moral influence, and not to serve as a binding decision.

On September 19, when the Bench heard Chief Secretary P.K. Laheri and DGP K. Chakravarthi, it was clear that the court's unique intervention in the case had begun to show positive results. The DGP admitted to the Bench that the Vadodara Police Commissioner had told him that the witnesses in the case had been coerced and won over by the accused and, as a result, they turned "hostile" during the trial. The DGP's admission implicitly revealed that the State police failed in its duty to protect the witnesses in the crucial case.

This was in contrast to the claim that the State government made in its affidavit in the case in response to the notice it received from the Supreme Court. The government pretended as if it was not aware of any threats faced by the witnesses. The affidavit said: "Neither before nor pending trial any of the witnesses had complained to the police or the State government about the threat or coercion extended to them. It appears that the so-called threat or coercion to Zahira Habibullah Shaikh and her mother Seharunnisha Shaikh came to the knowledge of the petitioner [the NHRC] and others through a media report."

In its reply to the affidavit, the NHRC brought to the notice of the Supreme Court the fact that witnesses continued to face threats in the State, despite the court's strictures. It cited the instance of the wife of the former Congress(I) Member of Parliament (who was killed in the riots) being booed by an unruly mob, which also attacked her car, after she deposed before the Nanavati Commission inquiring into the riots.

Although the Bench was concerned with the prevailing atmosphere in the State, which militates against free and fair trial, it perhaps wanted to wait and watch, and give one more opportunity to the State government to make amends consistent with its concern that the hearing of the appeal in the High Court does not turn out to be an eyewash.

The State government promised the Bench that the State's Advocate-General had been asked to amend the appeal which would be filed before the High Court soon, and that the Advocate-General. himself would argue the case. The Bench was told that the government, in consultation with the Advocate-General, was in the process of appointing special public prosecutors to conduct the prosecution of the other cases, which would be supervised and monitored by an officer of the rank of Inspector-General of Police.

Media reports have raised questions about the objectivity of the prosecutors entrusted with the handling of the riot cases, as many of them are closely identified with the Sangh Parivar. The Bench decided to assist the prosecution and monitor the case through a senior advocate as amicus curiae. All these steps, hopefully, would make the State government more accountable in ensuring fair trial.