The judge, the prosecutor and Best Bakery

The verdict is out and it inspires no confidence, either in the police or in the judiciary.

In one of the most gruesome incidents of the post-Godhra carnage in Gujarat, 14 people were burnt to death on 1 March 2002, in a bakery in Baroda city, two hours drive from Ahmedabad. Two separate First Information Reports (FIRs) were lodged with the city police, one on the day of the incident by one Raizkhan Amin Mohammed Pathan and another on 4 March by Zahira Sheikh. Amidst much controversy and allegations of bias and abuse of authority, the police collected evidence for the trial, which was conducted at the Baroda Fast Track Court No 1, set up to deal with riot-related cases. On 27 June 2003, after 44 days of trial, the Baroda court acquitted all the 21 accused. It took 15 months for the Fast Track Court to deny justice to the victims. The court, incidentally, was set up with the active support of the Union Law Minister, Arun Jaitley, who is also a Member of Parliament representing Gujarat. While letting the accused go scot-free, additional magistrate and presiding judge, Justice HU Mahida, was kind enough to observe, "The Best Bakery massacre is a blot on the cultural city of Baroda".

This trial will be remembered for long, and not just because of Justice Mahida's incisive and diverting analysis of issues altogether irrelevant to the case at hand, nor even because all the accused were set free. There are many other reasons why it will go down in history, and none of them offers any reassurance about the conduct of the Indian police and the judiciary. Among the scandalous aspects of the trial were that the witnesses for the prosecution were subjected to intimidation and that the police was negligent in its investigation. Amazingly, the Public Prosecutor (PP) Raghuvir Pandya, who led the case, had fought an election on a Bharatiya Janata Party (BJP) ticket.

The trial

The statistics pertaining to the trial are alarming. Of the 120 witnesses listed by the investigating authorities, more than one third failed to depose. Of the 73 who did depose more than half, 41, 'turned hostile'. And, of the 32 who stuck to their original statements during the deposition, six were doctors from Sayaji Rao Hospital who did the post mortem and the remaining 26 were police officials.

It was, therefore, a classic concoction, where the civilian witnesses, including the complainant and star witness, Zahira Sheikh, turned hostile. Irrespective of whether the witnesses were under duress or not, the judge did not find such numbers suspicious and worth at least an adjournment, if not more. That the Public Prosecutor too did not ask for an adjournment and seek more time from the court reinforces the judge's avowed stand that, "The courts actually are courts of evidence and not courts of justice".

The failure of the Public Prosecutor to point out the consistency in the statements of Zahira Sheikh, time and again, over a period of 14 months and her sudden and dramatic retraction during her deposition to the court, clearly indicates his dual role as the "defence counsel" and raises questions about what exactly Pandya's 'brief' was. It must be noted that there was minimal interaction between the PP and the star witness prior to and during the trial to the extent that on the day of her testimony, Zahira Sheikh had to struggle to even identify 'her lawyer'.

A question that remains unanswered is why the draconian Prevention of Terrorism Act (POTA) was applied in the Godhra case but not in the Best Bakery case. The police have arrested more than a 100 people under POTA, in connection with the former case. What was so seditious about the Godhra train carnage that was not in the Best Bakery case? This differential invocation of POTA has been criticised by many civil liberties groups as a reflection of the state and the investigating authorities' proclivity to use the levers of the law for implementing their political game plan and stigmatising a certain community. The reason why POTA assumes significance here is that it provides full protection to witnesses. This protection was so desperately needed and yet so wilfully denied to the witnesses of the Best Bakery massacre and all other riot related cases.

As civil liberties and human rights groups have acknowledged, punishing mob violence involves a great many procedural and substantive issues. But these obstacles should not be a smoke screen to cover the dereliction of the legal mechanism. There can be no denying the fact that the legal system does not function independently of the social, political and institutional environment in which it exists. This is a major reason for the procedural diligence or a lack of it, in particular cases. As the Congress leader and Supreme Court advocate, Kapil Sibal puts it, "A credible legal system requires upright investigators, independent public prosecutors, and judges of impeccable integrity who inspire confidence. But, sensitive investigations, especially in cases of mob violence, with political overtones, are often guided by considerations other than upholding the rule of law. Investigators with pre-determined objectives are handpicked by the government. Investigators, obliged by law to prosecute the accused, proceed instead to ensure their acquittal. The victim of crime also becomes a victim at the hands of the investigator".

In Gujarat, the office of the Public Prosecutor has been politicised no end, and the roster of PPs, right from the Chief Prosecutor downwards, and even the most minor riot-related case, has been handed over to lawyers with saffron affiliations. As the 1984 anti-Sikh riots and the post-Babri Masjid demolition riots in Bombay have amply demonstrated, in most instances, public prosecutors in cases involving mob violence are wedded less to the vindication of the majesty of law and more to the ideological commitment of their political patrons. The state chooses not to recognise the guilt of the accused and the judge is reduced to being a helpless spectator to witness after witness turning hostile. If the past is any indicator, then the present mess was only to have been expected.

The lapses in the filing of the FIRs, is an index of how the process of justice has been compromised in the cases arising from the riots in Gujarat. The process of investigation into any offence is set in motion by the recording of an FIR under section 154 (1) of the Criminal Procedure Code, 1973 (CrPC). According to the Supreme Court,

"It [FIR] is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial and can hardly be over-estimated from the standpoint of the accused. In any criminal trial the FIR unquestionably plays a pivotal role".

As Vrinda Grover, legal scholar and an advocate fighting on behalf of the 1984 anti-Sikh riot victims says, "Lacunae, discrepancies and contradictions in the document would impinge upon the investigation as well as gravely affect the trial and its final outcome".

In the Best Bakery case, Zahira Sheikh filed a complaint naming all the accused. She was however, not given a copy of the FIR by the police, in violation of Section 154 (2) of the CrPC. On 3 March 2002, she went to the police station and found that the FIR registered by the police was false, as it stated that the victims were burnt in their sleep.

For the registration of FIRs, victims of the Gujarat killing had to turn towards the same police force which had, at best, been an indifferent bystander and at worst had instigated or actively colluded in the killing and looting of Muslims. What the victims got, inter alia, were nameless FIRs which were factually incorrect and incomplete. In certain instances they were filed by the police themselves to pre-empt any complaints from the accused/victims. In addition, the police delayed the presentation of the FIRs to the magistrate (which, though not illegal, gives enough leeway to tamper with and fabricate evidence) and also refused to give the accused and victims copies of the report.

The investigation

Nine days after Fast Track Court No 1 delivered its judgement, Shehrunnissa Sheikh, Zaheera Sheikh's mother, whose husband was among the 12 killed in the attack on the bakery, said, "Trembling with fear, I lied in court". The reasons for this public confession are not far to seek. To cite just one reason, the officer in charge of the investigation of the Best Bakery case was Inspector PP Kanani of the Department of Crime Branch, who has been repeatedly named for his involvement in the brutal harassment of Muslims in a number of areas in Baroda city (Taiwada, Bawamaanpura, Memon Colony and Panigate), during the carnage.

Litres of ink can be spent in writing about the inefficiencies and malafide intentions of investigators, but the listing of a few of the most glaring discrepancies will suffice by way of illustration. The police failed to carry out an identification parade of the accused. They delayed in recording the statements of informants and witnesses. There was a conscious and deliberate attempt to shield mob leaders and chief instigators who have been repeatedly named by informants. Police intentionally ignored corroborative material, which in fact could amount to concealment of evidence, such as video footage of the carnage, post mortem reports, witness statements, and so on. There was no proactive attempt by investigators and the police to stay in touch with, record the threat perceptions of, and reassure and protect witnesses, as a result of which they were abandoned and at the mercy of the perpetrators. And the authorities failed prepare a site plan that essentially describes and illustrates in detail the scene and the sequence of events, which is useful during the trial stage.

The Best Bakery case, thus, was just a replay of the cases relating to other politically significant riots of the past, with a new set of actors. Almost two decades ago, the Justice Ranganath Mishra Commission, enquiring into the anti-Sikh violence of 1984, noted similar lapses and dereliction of duty on the part of the police. The commission had rightly warned that shoddy police investigation might prejudice the trials even before they began. The commission noted,

When oral reports were recorded they were not taken down verbatim and brief statements dropping out the allegations against the police or other officials and men in position were written.

Apprehending this subversion of legal procedure, civil liberties groups had petitioned the Supreme Court of India, seeking a Central Bureau of Investigation (CBI) inquiry into the carnage-related cases. Revealing yet another example of travesty of justice in India, the cases in Gujarat have been 'fast-tracked', but that petition with the apex court is still pending a decision, and is today for all practical purposes redundant. It was not without reason that the National Human Rights Commission (NHRC) had recommended that 12 of the cases, including the Best Bakery case, be handed over to CBI for investigation. Some of the other cases are:

None of the carnage cases in Gujarat has been handed over to the CBI and the Best Bakery investigation and verdict is perhaps a foretaste of what may well be in store for the other cases involving a much larger scale of killings. From the pattern of official conduct, right from the day of the violence to the subsequent sins of omission and commission, it is obvious that the conditions were systematically created to ensure that the cases fall apart in court. The outcome was expected.

The judgement

However, what surpasses all this in irony is the judgement itself. There is of course little that a judge can do if the investigation has been so shoddy that the case cannot stand. But that does not excuse impropriety in the judgement itself. In the 24-page over-wrought judgement, Justice Mahida has no doubt lambasted the investigation because "not an iota of evidence was found against the accused" which allowed the real culprits to go "scot-free". But he did not stop at this. Instead, in a 64-paragraph judgement, he took it upon himself to spend more than 20 paragraphs to pontificate on history and sociology. The judgement makes an excursus into the British policy of divide and rule, before taking a detour into the policy of reservation for minorities. It then proceeds towards other obiter dicta. The judgement is riddled with gratuitous statements, observations and speculations with little immediate relevance to the case. In fact, only eight pages out of 24 are devoted to establishing a context and rationale for violence.

It will be useful to cite a few of the observations made by the learned judge on various matters:

• The policy of industrialisation, following the example of Soviet Union, helped create conditions for communal riots.

• …keeping vote banks in view, the frequent yoke of reservations has been troublesome for the country…it is a reality that because of reservations, violent riots keep breaking out.

• The disputed happenings were a reaction to the Godhra episode, but the enduring and everlasting cause for communal riots is the enduring policy of divide and rule of the British.

• When police arrive on the scene of a riot, they arrest curious bystanders, with the result that prosecution is riding a dead horse, which can never pass the finishing post.

• At the time of the Mahabharata, great men like Bhisma Pitamaha and Dhronacharya had sided with unrighteousness, only so that the country may not be divided.

• The Aryan people came into this country from the North Polar area. Muslims came from Persia and with Ghazni, and Parsis from Iran.

• It needs to be said that if one's identity and loyalty do not lie toward one's land, one is likely to be destroyed.

• The word Dharma Nirapeksha (or secularism) has come to connote freedom without rules. Freedom without rules means licentiousness.

Clearly, the judge was not just whiling away time in making such remarks, which though irrelevant to the case itself are entirely in keeping with a particular politically prominent view of India, its history and its people. When judges choose to use the bench for preaching the politics of their patrons, the judgements are scarcely going to be erudite from the point of view of jurisprudence. Predictably, Justice Mahida seemed to be blaming the British for not being able to carry the trial further. According to him,

The British started the judicial system based on circumstantial evidence where the court is just an umpire. So, conviction depends on the authenticity of the evidence, and even if 100 criminals go scot-free not a single innocent shall be punished. It is for the government to find out the actual culprits and not the court. The courts actually are courts of evidence and not courts of justice.

The civic response

The investigators, the prosecutors and the judge failed the victims. But what did civil society do all the while. It is pertinent to note that 11 days after the judgement, Zahira Sheikh said, "There was no one with us. Even our own people did not stand by us".

There is certainly a feeling of helplessness, which has slowly but surely crept into the minds of a large number of the victims and witnesses. Civil society needs to be alive to this feeling and take steps to rebuild the confidence lost due to a persistent persecution by the state. One crucial factor that needs to be recognised is that witnesses do not constitute a homogenous group. Differential socio-economic background is a major determinant in perspective and patterns of behaviour among witnesses. There have been reports about internal disputes even within the families of witnesses. As a result they have conflicting expectations from civic groups which intervene in such matters.

Civil society, no doubt, played a commendable role in relief and rehabilitation during the Gujarat riots, but rehabilitation does not end with material support. It is a far more comprehensive idea that involves imparting a sense of safety and security. To that extent, ensuring justice is a sine qua non of rehabilitation. The failure of law, compounded by the failure of justice, has made this task doubly difficult. The struggle has been and will continue to be long and arduous in the face of the persistent efforts of the state to annihilate whatever little spaces that citizens have to voice their concerns and claim their rights.

In a sense, the Best Bakery verdict exemplifies the inadequacies of civic engagement in the investigative and trial process. The formal right to equality before the law can have any substantive meaning, only if, civil society can find ways to neutralise the legal effects of social inequality and state-sponsored discrimination. According to former bureaucrat and social activist Harsh Mander, "The Best Bakery acquittal is the proper time for reflection, to put corrective measures in place before it becomes a pattern. Should miscarriage of justice go unchallenged? The challenge is as big as the Emergency".

There are many issues regarding the enforcement of law and the administration of justice that needs to be addressed in the public sphere. There are state-instituted anomalies in the legal process that need to be rectified urgently, if, justice is not to be irredeemably compromised. To cite a case in point, while the public prosecutor for the Godhra case is remunerated at the rate of INR 7000 per appearance, the majority of the public prosecutors in the riot-related cases receive a relatively modest INR 400 per day. The fact that this differential remuneration has not yet become an issue of concern speaks volumes about the emphasis that the civil society places on justice.

On other issues connected with the issue of justice, while there have been forceful interventions, these are not characterised by unanimity of opinion or consensus. Thus, even as one school of thought subscribes to the view the government should be pressurised into seeking an appeal against the verdict, Rohit Prajapati of the People's Union of Civil Liberties (PUCL), Baroda, is inclined to be more cautious and has a counterview. He argues, "The state government is not interested in appeal in the first place. They will resort to technicalities like waiting for the government pleader's report till the time lapses. However, more contentious is the fact that appealing would mean that the current judgement is being accepted and then appealed against. But we do not accept the judgement in the first place. Besides that will have a dangerous precedence. We want a re-trial and that should be preferably outside Gujarat".

Social activist and senior journalist, Kirit Bhatt is trying to inspire the lawyers in Baroda to seize the opportunity and take up riot cases for launching a movement for civil liberties and human rights. Bhatt, who was deeply involved in the struggle during the 1975-77 Emergency, also feels that there is a possibility of re-trial outside Gujarat. In his view, the case for re-trial outside the state is backed by precedence. The 'Baroda dynamite case', initiated during the Emergency, was tried in Delhi, the CBI justifying the action on the ground that even though the site of the incident was Baroda, the case had national ramifications.

Meanwhile, civil society perceptions have taken a new post-Best Bakery turn. Activists feel that its greatest strength so far has been its greatest weakness too. A blind faith in the law informed their agenda of action and intervention. After the June acquittals, the confidence of the activists in the legal system has been shaken. However, at this juncture, they face a constraint in publicly deriding the process because of the sensitivity to victims and witnesses, especially in the context of Narendra Modi's re-election as the chief minister of the state. Under these circumstances, the only hope in an otherwise politically hopeless situation is the remote possibility of redress by the courts. That said, the peace and rights groups can be criticised for their silence and lack of foresight on matters such as the large-scale illegal detention of minorities and the lack of protection to the witnesses, which characterised the investigations and hence determined the outcome of the trial.

And all these flaws are compounded by the fact that the struggle is unequal. While the state is concerted, systematic and persistent in its persecution, civic groups have been rather individualistic, scattered and infrequent. Such a response presents an apology for a struggle when opposed by state repression.

Of the other institutions of civil society, the media has not quite lived up to expectations. PUCL's Rohit Prajapati also blames the lack of a good team of activist lawyers at the local level for the outcome. According to him, "When the dice is so heavily loaded against the victims and almost the entire legal fraternity at the local level, right from the public prosecutor, police investigator till the MLA are involved, the only way justice could be meted out is if the media plays a bigger role". There is some merit to this observation. After all, the Supreme Court did take notice of media reports-of starvation deaths all over India to extend the Food For Work period from June 30 to September 30. While Best Bakery did manage to get the media attention and did stir the national psyche, there are many more cases in rural Godhra (such as Pawagarh, Kinjiri, Lunawada), Ramol (suburban Ahmedabad), among others. Under such circumstances, it is important to travel to the interiors, capture the voices of victims of violence, build alliances, work out a co-ordinated strategy, highlight them nationally and internationally and lower the threshold of tolerance for such gruesome acts.

The polity

Among the most prominent defaulters have been the political parties. The Congress, the main opposition party has been surprisingly inactive in the city of Baroda. During the period leading up the trial, the Congress did not raise any questions as regarding the manner in which the investigations were being conducted. In fact, the BJP's Madhu Shrivastava, the sitting member of the state's legislative assembly from the Waghodia constituency where the bakery is situated, has been accused of intimidating the witnesses and has for a close cousin, Chandrakant Shrivastava, the current Congress Corporator. The party has been disappointingly tepid in its response. After the judgement was delivered, all that the Congress did was to call for an appeal against the decision and issue a statement condemning the outcome. The left parties too restricted themselves to expressing their disappointment in this "test case" of legal enforcement. None of the Gujarat branches of these national parties have held even a single meeting or demonstration against the judgement. Other than the de rigueur expression of disappointment and press releases, there has been nothing from political parties at the national level. In fact, the Congress is widely reported to be debating the dividends of dyeing itself saffron for the upcoming general elections. It may also be restrained by its own tainted past, particularly the 1984 Sikh persecution which was not very different from Narendra Modi's handiwork.

Meanwhile, the preponderance of national heavyweights elected from Gujarat in the central ministries dealing with domestic affairs is unparalleled. Besides the Law Minister Arun Jaitley, there is the Deputy Prime Minister and Home Minister LK Advani, who represents the Gandhinagar parliamentary constituency, which partly covers Ahmedabad city. Haren Pathak, the Union Minister of State for Home Affairs (ie Advani's second-in-command in the Home Ministry) is also a member of parliament from Gujarat. The extent to which executive power can be brought to bear on the process of investigation and justice cannot be underestimated, especially since when there is such an urgent need to protect one of the BJP's most important state governments.

The concrete steps

What eventually happens to the Best Bakery verdict will, for the present, remain one of the imponderables of the Indian system of justice. But in the meanwhile, civil liberties groups, as the lobby most committed to the ends of justice, need to ensure that a repetition of this farce is minimised to the extent possible. The concrete steps that could be taken towards this end are:

1. Work towards bridging the wide gulf that the law has created between the prosecution and the investigators and act as conduit between them for exchange of relevant information.

2. Advocacy for establishment of a statutory witness protection programme on the lines laid out in Section 30 of POTA and the UN Handbook for Victims of Abuse of State Power, 1985.

3. Advocacy for de-linking the bodies responsible for maintenance of law and order and investigation.

4. Campaign for special public prosecutors. Even though the government is unlikely to give in to this demand easily, it is important to raise it and maintain the pressure through media advocacy.

5. Identify private prosecutors in necessary cases who will assist public prosecutors (though at the latter's discretion). They could play an important role in pointing out the procedural and strategic flaw of the PPs and also create necessary documentation so as to provide a copy of the suggestions to the concerned magistrates as well.

6. Campaign for transferring cases out of Gujarat, wherever necessary, by moving the Supreme Court. Minimally, cases that are being tried in blatantly partial courts need to be transferred internally within the state of Gujarat to different not-so-partial courts.

7. In cases where witnesses are turning hostile the Public Prosecutors need to be reminded about the utility of Section 154 of the Indian Evidence Act, 1872.

8. Cases need to be classified as per their severity (where it has not been done) and allocated to lawyers depending upon their proven competence.

9. Criminal courts need to be reminded that justice is the larger objective and evidence appreciation is merely a step towards this goal.

10. Questioning the discriminatory invocation of POTA as part of the process of challenging the legitimacy of the act per se.

There are lessons to be learnt from the few groups that have done exemplary work in confidence building among witnesses. They are handling more than 18 riot-related cases in rural Godhra and not a single one of their witnesses has turned hostile. The key to such confidence, as one of the activist puts it, is the need,"…to be a part of the family of the witnesses, share their joys and sorrows. That is the only way enough confidence could be instilled to make the witnesses and the victims come out with the truth".

The victims of the carnage are nowhere near the end of the battle. They encounter difficulties every day. The state has found innovative ways to discriminate against them, be it in the form of withholding municipal conveniences such as electric connections or through electoral injustice, such as exclusions from voters' lists. Before another similar investigation and consequent verdict erodes any residual confidence among the victims, trials in other cases need to start.

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