A judicial stricture

In a severe indictment of the Gujarat government and High Court, the Supreme Court orders fresh investigation of the Best Bakery case and the retrial of the case in Maharashtra.

in New Delhi

IT is not uncommon for the Supreme Court to come to the aid of an individual when his or her fundamental rights are at stake owing to the actions of the state. But the court's April 12 judgment in the Best Bakery case was unique in that it not only indicted the Gujarat government for failing to take action against the perpetrators of the post-Godhra violence of March 2002, but deplored the Gujarat High Court's January 12 decision upholding the trial court's acquittal of all the 21 accused in the case. The court ordered fresh investigation of the case and its retrial by a court under the jurisdiction of the Bombay High Court, as a result of its loss of faith in the Gujarat government and the Gujarat High Court in ensuring a fair retrial within the State under the present political dispensation.

Allowing the appeal of Zahira Sheikh, a key witness to the Best Bakery incident in which 14 persons were burnt alive, nine of them belonging to Zahira's family, in Vadodara in March 2002, the Supreme Court Bench comprising Justices Doraiswamy Raju and Arijit Pasayat described the acquittal as a fraud on the legal process.

The basis of the highest court's decision to interfere in the verdicts of lower courts can be found in its explanation of what constitutes a fair trial and how significant it is for protecting human rights. Fair trial, the Bench said, would obviously mean a trial before an impartial Judge, a fair prosecutor and an atmosphere of judicial calm. It also involved the elimination of all kinds of bias and the absence of threats and use of force against the witnesses to pressure them to give false evidence, it explained.

The Bench enumerated other principles of fair trial. Fair trial for a criminal offence involves not only the technical observance of the frame and forms of law, but also the recognition and just application of its principles in substance, to find out the truth and prevent miscarriage of justice. It said that it was inherent in the concept of due process of law that condemnation should be rendered only after the trial in which the hearing was a real one, not a mere farce or pretence.

"Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an overhasty, stage-managed, tailored and partisan trial," the Bench warned.

The High Court had come to a definite conclusion that the investigation carried out by the police was dishonest and faulty. "That was and should have been per se sufficient justification to direct a retrial of the case," the Bench ruled.

It added: "If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The Public Prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the court. The court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice... . There was really no seriousness in the State's approach in assailing the trial court's judgment."

The court expressed its shock over the manner in which the State government came to the aid of the perpetrators of violence against the minority community during the riots. Although the Bench made a general observation, the inference was obvious. It said: "The modern-day `Neros' were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these `wanton boys'. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice."

The Bench agreed that just because an affidavit had been filed stating that the witnesses had been threatened, as a matter of routine, additional evidence should not be permitted. It, however, cautioned that when the circumstances, as in this case, clearly indicated that there was some truth or prima facie substance in the grievance made, the appropriate course for the courts would have been to admit additional evidence for final adjudication.

The Bench clarified that whenever additional evidence was accepted, retrial may not be a necessary corollary. However, on the facts of this case, the Bench justified its direction for retrial in Maharashtra as "inevitable", as it found ample evidence of subversion of the justice delivery system and no congenial atmosphere prevailing in Gujarat. It requested the Chief Justice of the Bombay High Court to fix a court of competent jurisdiction for the retrial.

The Bench directed the Gujarat government to appoint a new Public Prosecutor, who would conduct the trial on a day-to-day basis in consultation with the victims and witnesses. It deemed it appropriate to accord such liberties to the complainants in view of the "unusual factors noticed in this case". All expenses necessary for the trial shall be initially borne by the State of Maharashtra but shall be reimbursed by Gujarat, the Bench ruled.

A corollary of retrial would be re-investigation. The Bench asked the Director-General of Police, Gujarat, to monitor the re-investigation with the urgency and sincerity the circumstance warranted.

A significant aspect of the April 12 verdict is the Supreme Court's keenness to correct the gross misgivings created by the High Court judgment delivered by Justices B.J. Shethna and J.R. Vora. The Bench even expunged and deleted certain objectionable portions of the judgment that cast aspersions on the National Human Rights Commission (NHRC) and Citizens for Justice and Peace, the human rights body which encouraged Zahira Sheikh to speak out.

The Shethna-Vora Bench quoted at length the contention of Sushil Kumar, counsel for the accused, that it was highly improper on the part of NHRC Chairperson Justice A.S. Anand to call the trial court's judgment an instance of miscarriage of justice, a reference that might amount to "contempt of court". It also attributed to Sushil Kumar the question whether the NHRC should directly approach the Supreme Court against the trial court's acquittal.

Sushil Kumar, who was counsel for the accused in the Supreme Court, too, denied that he ever made the remarks attributed to him by the High Court. The apex court found Sushil Kumar's revelation intriguing. It said in unmistakable terms: "The High Court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted references to personalities and their legitimate moves before competent courts - the highest court of the nation - despite knowing fully well that it could not deal with such aspects or matters."

Whatever the final outcome in the Best Bakery case, the Supreme Court's intervention has sent clear signals to those in power and to the lower courts that it would not remain a silent spectator to deliberate defiance of principles governing the rule of law and due process.