“The public prosecutor appears to have acted more as a defence counsel than as 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,” a division bench consisting of Justice Doraiswamy Raju and Justice Arijit Pasayat said while ordering reinvestigation and retrial by a new public prosecutor of Vadodara’s Best Bakery case (April 12, 2004).
Image Courtesy: Facebook/Aseem Sawhney
Some measure of outrage has been expressed at the chilling appointment of a lawyer who represented the main accused in the gang-rape, torture and killing of an eight-year-old girl in Jammu and Kashmir’s Kathua to a government post. Aseem Sawney has been appointed additional Advocate General of the state. The state is now under Governor’s rule and therefore responsibility, or blame, needs to be pinned on to the Centre for this act.
This is not the first time, nor will it be the last, that the post of law officer of the state government has been subverted by the powers that be. Levels of subversion have meant that the independence and integrity of public prosecutors have often been compromised.
In Gujarat, after the genocidal carnage of 2002, the subversion was at its worst. The role of the public prosecutor was truly subverted by the state, with persons with distinct allegiance to the outfits who perpetrated the hatred and violence against the minorities being appointed public prosecutors! These officers then did not oppose the bail of those accused of mass, targeted crimes and worse, proceeded to subvert trials. The suo motu Inquiry by the National Human Rights Commission headed by former chief justice, JS Verma pointed to the subversion of the post of public prosecutor in the state.
Coming back to Jammu and the Kathua rape case, the lawyer claims he is not appearing in the Kathua case anymore. A government role for a man who defended the Kathua accused has provoked sharp reactions. Former chief minister, Ms Mufti today targeted her former alliance partner in tweets. The former Chief Minister said it was “ironic” that the appointment had been made on the World Day for International Justice.
“Rewarding those who defend alleged murderers & rapists is abhorrent & a shocking violation of the spirit of justice. Such a move will only serve to encourage the rape culture rampant in our society. Expect the @jandkgovernor to intervene,” she posted.
The little girl belonging to the Muslim Backerwal nomads, was kidnapped in the first week of January, kept in a small local temple, drugged, starved and repeatedly raped for days. She was finally strangled and her head was bashed in with a rock, but only after one of the men begged to be allowed to rape her one last time.
After eight people were arrested, including retired government official Sanji Ram, senior BJP leaders in the state, including lawmakers, openly backed the accused and called for a CBI inquiry to prove their innocence. The men are now being tried in Pathankot in Punjab.
Subversion of the criminal justice system in Gujarat: Role of the public prosecutor
Since 2003, when Citizens for Justice and Peace (CJP) took up first, the Best Bakery case, and thereafter intervened in the NHRC case (concerning trials that are now being reinvestigated by the SIT), it has highlighted the subversion and dubious functioning of the public prosecutor in Gujarat. In detailed affidavits submitted to the apex court between October 2003 and May 2007, CJP has constantly exposed the designs of the state of Gujarat in deliberately subverting the position of public prosecutor by appointing men who had overt sympathies with the ideology of the RSS and the BJP. These lawyers, instead of functioning as officers of the courts to safeguard the Indian Constitution, served the interests of the ruling party and the accused. They assisted courts in granting hasty bail to mass murderers within months of the crime.
Chetan Shah, Ahmedabad. First appointed public prosecutor in the Gulberg Society massacre case in 2003, he had previously appeared for the accused in this and the Naroda massacre cases. Witnesses made an application to the then state law minister, Ashok Bhatt, in September 2003, which was also produced before the apex court. Shah was replaced by his junior, VP Atre. Thereafter he appeared for the accused in the Naroda Patiya case.
During the Supreme Court proceedings, Harish Salve, amicus curiae, had, in his written submissions dated March 22, 2007 filed in the Supreme Court, stated that “the state of Gujarat does not have significant reply to the allegations (made by victim survivors and CJP) that the appointment of public prosecutors was done in a manner inconsistent with the rights of the victims under Article 21 (right to life) and in breach of the duty cast upon the state under the Code of Criminal Procedure.”
Vinod Gajjar, Ahmedabad. He was appointed by the state of Gujarat in 2006 to appear on its behalf before Judge ML Mehta, additional sessions judge, Delhi, who was appointed by the Supreme Court to scrutinise the voluminous case records in the NHRC case. Gajjar had previously appeared for some of those accused in the Gulberg Society massacre case.
Dilip Trivedi, Mehsana. He was (and probably still is) the general secretary of the state VHP and heads the organisation’s 12-member lawyers’ panel. He appeared for the state in matters relating to the Sardarpura carnage, in which 33 persons were burnt alive on March 1, 2002, where all 46 accused were released on bail. (A day after they were released some of them allegedly attacked a mosque). When the witness complainants filed an application in the Gujarat high court objecting to Trivedi’s role, additional public prosecutor, SJ Dave said the government would consider the appointment of a special public prosecutor but it would not make a firm commitment. Trivedi was removed from the Deepda Darwaja case (one of the two major incidents in Mehsana district) and replaced with Rajendra Darji. Thereafter, after the Supreme Court’s monitoring of the trial, he was removed.
Bharat Bhatt, Sabarkantha. He was the public prosecutor in 2002 but he was also the VHP’s district president. He is on record as saying that he has been doing his best to help the accused in 2002 riot-related cases (in the Tehelka exposé following its sting ‘Operation Kalank’).
Avadhoot Sumant, Vadodara. In early August 2003 he had demanded that the Gujarat high court initiate contempt proceedings against the NHRC for calling the Best Bakery case verdict of July 2003 a miscarriage of justice. Three days after his public declaration to this effect, Sumant was appointed assistant public prosecutor in the case.
Sanjay Bhatt Vyas, Vadodara. Vadodara’s assistant public prosecutor is the nephew of Ajay Joshi, VHP’s city unit president in 2003. An advocate himself, Joshi was a defence counsel in the Best Bakery case.
Piyush Gandhi, Panchmahal. The president of Panchmahal’s district VHP unit in 2002-03 and a member of the VHP’s lawyers’ panel appeared as public prosecutor in the district’s carnage cases and obtained acquittals in three trials between July and November 2002.
Raghuvir Pandya, Vadodara. As prosecutor for the city police in 1996, he contested elections to the Manjalpur Corporation from Ward 20, Kesariya (south), Vadodara, on a BJP ticket. During the Best Bakery trial in April-May 2003, before the fast track court of Judge HU Mahida, all matters were handled by the then public prosecutor, Mr Gupta. But at the time of interrogation of witnesses (who had turned hostile) Raghuvir Pandya was suddenly appointed public prosecutor.
HM Dhruva. A sudden and recent appointment to the SIT panel of prosecutors in April 2009, as reported in The Indian Express, Ahmedabad. Dhruva previously appeared as public prosecutor when the Godhra train fire case was being tried under the Prevention of Terrorism Act (POTA) and where, during proceedings, he demonstrated a clear bias against the accused. According to information received through a Right to Information (RTI) application filed in 2006-07, Dhruva, as special public prosecutor in one of the Godhra cases, officially received fees amounting to more than Rs 92 lakh, eight or nine times what was earned by prosecutors in other 2002 trials. Thereafter Dhruv appeared as defence lawyer for the Sardarpura accused.
Arvind Pandya, Ahmedabad. The state government’s counsel before the Nanavati-Shah Commission, who cast aspersions on the judges. According to him, Nanavati is after money and Shah is sympathetic to “them” (Tehelka, ‘Operation Kalank’).
Following the further investigations directed by the Supreme Court (in 2008), a different kind of subversion was resorted to. Lawyers for the defence, that is the accused in the mass carnage trials (Sardarpura, Naroda Patiya, Naroda Gaam, Gulberg, deepda Darwaza) were indirectly rewarded by giving them plum legal postings in other cases. The lawyer for the accused in the Gulberg case, Mitesh Amin is today the Gujarat state’s public prosecutor in the High Court.