Justice Hosbet Suresh, former Judge of Bombay High
The Supreme Court’s judgement in the Best Bakery case, ordering fresh investigation and trial outside Gujarat, is not only a severe indictment of the prevailing administration of criminal justice in Gujarat, but also a trend-setter to indicate as to what can be done by concerned citizens and a pro-active apex court in such a situation.
What happened in Gujarat was nothing but fraud — fraud on law. It was a farce of a trial. The investigation was deliberately dishonest and faulty, and perfunctory. The public prosecutor appears to have "acted more as a defence counsel" than as a genuine prosecutor. 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." It was an "over-hasty, stage-managed, tailored" partisan trial. The State remained indifferent, knowing as we do that the post-Godhra carnage in Gujarat was an organised crime perpetuated by the chief minister and his government.
Unfortunately, the high court did not understand the gravity of the situation. As the Supreme Court says: "The entire approach of the high court suffers from serious infirmities, its conclusions lopsided, and lacks proper or judicious application of mind." Even with regard to the affidavits filed for adducing additional evidence, the high court’s conclusions did "not appear to be correct and seem to suffer from judicial obstinacy and avowed determination to reject it."
In this background, the Supreme Court rightly observed: "The case on hand is without parallel" and no comparison can be made to any other case where re-trials might have been sought. This case stands on its own, as an exemplary one, "special of its kind, necessary to prevent its recurrence."
The Supreme Court had no choice but to transfer the case to another state with specified guidelines to guarantee a fair trial – fair to the accused, fair to the victim, and fair to society. Some could still question how this new trial could be fair to the accused. The Supreme Court has already answered that: "...if the acquittal is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorised witnesses, it is no acquittal in the eye of law and no sanctity or credibility can be attached and given to the so-called findings. It seems to be nothing but a travesty of truth, fraud on legal process and the resultant decisions of courts – coram non judis and non est." – Fraud vitiates everything and there can be no right rooted in fraud.
The question is, what the Court should do with the other cases where there can be no hope of getting justice, particularly to the victims, if they are allowed to be tried in Gujarat? It is the same investigating agency, it is the same prosecutors, it is the same judicial administration which is willing to be "a silent spectator, mute to the manipulations" of the prosecutor, the accused and the conniving State agencies. Logically, all these cases will have to be transferred to other states, inasmuch as, even after the apex court judgement, there is no real expression of any remorse or contrition. Nor is there any move from the Central Government to initiate any action to have the state government removed.
It is apparent that an important wing of the administration of justice – particularly the criminal justice system has failed in Gujarat, and it can legitimately be said that the state government is not run in accordance with the provisions of the Constitution.
The larger question is what should be done if such carnages/riots take place in other states, or even in Gujarat, again, polarising the administration on the side of the majority as against the minority victims? It has happened in the past, in many states. Wherever communal riots have taken place, as between two communities, in any state, the police have shown a tendency to be on the side of the majority community. This has resulted in partisan investigation, non-registration of genuine complaints, false arrests allowing the real culprits to go scot-free, ending with tailor-made trials where no justice is done to the victims.
This has happened in Bangalore (1991 riots on Cauvery River verdict between Kannadigas and Tamilians), in Bombay (1992-93, after the Babri Masjid demolition) and in Delhi (1984, attacks against Sikhs). In all these places and elsewhere where such riots had taken place, there has been no conviction of any of the majority community members or of the aggressors. Gujarat is an extreme case where the whole administration, including a part of the judicial administration has been saffronised, much before the Godhra incident. Therefore, there can be no hope of getting any fair or impartial administration of justice in such situations.
It is precisely for such reasons that we (the Concerned Citizens’ Tribunal’s Report: Crime Against Humanity, Gujarat 2002) had suggested the need to establish a Standing National Crimes Tribunal to deal with all cases of (1) Crimes against humanity, pogroms, (2) Offences in the nature of genocide, (3) Cases of mass violence and genocide, (4) Cases of riots and incidents where there is large-scale destruction of lives and property, including caste, religious, linguistic, regional, ethnic and racial violence.
We suggested that this tribunal should be an independent body with persons having judicial and legal background and experience, with powers to investigate offences through its own investigating agency. The tribunal will have the right to take cognisance of crimes as mentioned above, as soon as they occur and will have the power to arrest, try, and punish the accused as well as to compensate and rehabilitate the victims and their dependants.
The judgement of the Supreme Court in the Best Bakery case and perhaps similar verdicts in other cases, must necessarily lead to the establishment of such an independent tribunal. That is the only way for "the restoration of the primacy of citizens’ rights against the indifference and arbitrariness of state apparatuses" (The Hindu, April 14, 2004). It is hoped that the Supreme Court will make a recommendation to the government of India to appoint statutorily such a tribunal.
(Justice H. Suresh is a former judge of the Mumbai high court).
Archived from Communalism Combat, April-May 2004 Year 10 No. 97, Judgement 1