Lesson from the case
BY TEESTA SETALVAD
On April 12, 2004 a verdict of the Indian Supreme Court jolted a complicit system out of its slumber. A division bench of the apex court ordered re-trial of the famed Best Bakery case and transferred the case out of Gujarat, to Maharashtra. Not only did this verdict make judicial history, it also offered hope to millions of Indians for whom hurt, alienation and indifference had become an everyday reality. Suddenly there seemed reason, once again, to call India their own.
This historic verdict set the next stage for the struggle for justice in Gujarat. An unrepentant state government (of Gujarat) applied for a modification of the apex court’s order in a disguised review petition to which the court gave a fitting reply on May 7, 2004. Thereafter, the stage was set for a special court to be designated and the trial to begin.
Between June 2004 and October 4, 2004, two hurdles blocked the trial from getting underway. One, the alleged inability of the Gujarat police to arrest the absconding accused. Two, the dogged refusal of the state of Gujarat to accept the spirit of the Best bakery judgement and relinquish control over the appointment of the public prosecutor who would handle the trial. A unique aspect of the judgement of Justices Doraiswamy Raju and Arijit Pasayat of April 12 was that it reclaimed from the state in which was still vested the carriage of the prosecution to its conclusion, the right to appoint the public prosecutor without taking into confidence the wishes of the victims of this carnage.
On two occasions, the first on September 9, 2004 and thereafter, did we, on behalf of the victims, need to approach the Supreme Court to assert this right, as the state of Gujarat continued to contest the essence and spirit of the Best Bakery verdict. Finally, despite all efforts of the Gujarat government, the appointment of the special public prosecutor and assisting lawyers took place in keeping with the spirit of the Best Bakery judgement, i.e. keeping in view the wishes of all the victims of the incident. This was because the apex court directed that this be so.
Despite these attempts to deliberately prolong the start of the re-trial in Mumbai, charges were framed by Judge Abhay Thipsay on September 24, 2004 and the re-trial began on October 4, 2004. Following the examination of formal prosecution witnesses in the first weeks, independent eyewitnesses to the Best Bakery massacre had begun testifying on October 27, 2004. Among these were Tufel Ahmed, Raees Khan Pathan and Shehzad Khan, all workers in the Best Bakery who were eyewitnesses to the night-long attack on March 1-2, 2002 and who also suffered severe injuries in the renewed attacks and homicide on the morning of March 2. All these witnesses withstood rigorous cross-examination and even identified some of the accused.
It was at this critical juncture that one more serious, high-pitched and blatant attempt was made to de-rail the ongoing trial in Maharashtra. Less than a month after the commencement of the re-trial in the premises of the Mazgaon Court in the formerly working class locality of south central Mumbai, on November 3, 2004, Zahira Sheikh, the young face of this tragedy who had somehow come to symbolise this struggle, in a press conference held in the presence of two lawyers in Vadodara, actually declared herself as a hostile witness.
Apart from the unfortunate allegations that she hurled both at me and my colleague from Citizens for Justice and Peace, Rais Khan, which we have both denied and ourselves sought an open and high-level inquiry into, Zahira Sheikh, in effect, re-affirmed the testimony she had given before the fast track trial court in Vadodara on May 17, 2003 and disclaimed all facts contained in her sworn affidavit made before the apex court in September 2003.
Once more, in the struggle for justice for the victims of the Gujarat genocide, we witnessed a no-holds-barred bid to not simply de-rail the ongoing Best Bakery re-trial in Mumbai, but to seriously discredit the judicial and constitutional processes that had made history by ordering re-trial and transfer in the first place. Within days of Zahira Sheikh’s press conference, the chief minister of Gujarat, Narendra Modi raised questions about the functioning of non-governmental organisations! The same chief minister had, following the verdict of the apex court in April this year, passed disparaging remarks against former Chief Justice of India, Justice VN Khare, as also the NHRC. (Modi had waited until Justice Khare’s retirement from the bench in May 2004 to let loose his fury!)
It is the circumstances behind Zahira Sheikh’s latest turnaround, the forces behind it typified in the timing of the Vadodara press conference, soon after three independent eyewitnesses had not only deposed without fear and favour but also identified some among the accused, that pose a serious challenge to the Indian criminal justice system headed by our apex court. They indicate clearly the combined desperation and determination of the forces behind Zahira to, at any cost, subvert the corrective process of justice in this country.
Barely two days after the shock of these developments, I, both in my individual capacity and on behalf of the CJP, approached the apex court praying for a high-level inquiry into the circumstances behind which a star witness was made to turn hostile even as the trial was taking place in Mumbai.
In this application and a subsequent affidavit filed in the Supreme Court on November 30, 2004, we have raised the issues of grave public importance arising out of the circumstances behind the blatant attempts by officials of the Gujarat state and its administration, be it the collector of Vadodara, Bhagyesh Jha or the commissioner of police, Vadodara, Sudhir Sinha, in being silent spectators while a key prosecution witness was giving a press conference against the prosecution case while the trial was afoot and her deposition was scheduled for the next day. In fact I have stated that the application being made by us, as a citizen’s group in raising these questions, ought to have been made by the state of Gujarat itself, i.e. the prosecution in this case whose first concern it should be that one of its key witnesses had turned hostile!
The affidavit expresses concern about the efforts by officials of the Gujarat state to actively hamper free and fair trial and prevent the truth from coming before the trial court. This offence (of tampering with witnesses) has been committed in the context of the general state of affairs prevalent in the Gujarat under the current political dispensation despite the historic judgement of the Supreme Court ordering a re-trial and transferring the case outside the state, a verdict which was aimed at correcting a grave miscarriage of justice. The said issues of public importance involve the question of free and fair trial without tampering of evidence and a respect for the rule of law.
Specifically, we have questioned the timing of Zahira Sheikh’s press conference on November 3, 2004 held under the protection of the Gujarat police in Vadodara, the very state that is the prosecution in the re-trial, worthy of note as summons had been issued for her appearance in the trial court in Mumbai for the very next day, i.e. November 4, 2004. This application also provides details of the rehabilitation and care provided to Zahira Sheikh and her family by me personally, and organisationally by the CJP, since their shift to Mumbai in July 2003. It also points out that the first time that Zahira had, after recording her police statement on March 2 and 4, 2002, deposed before an authority was before Justice JS Verma, former Chief Justice of India and former chairperson of the National Human Rights Commission, on March 21, 2002 at the Vadodara Circuit House. Here, she (Zahira) submitted her memo to the Commission. In this memorandum too she had named nine accused and asked for justice.
Thereafter, at the Bawahir Hall, Vadodara, on May 11, 2002, both Zahira Sheikh and Sehrusnissa Sheikh deposed before the Concerned Citizens Tribunal headed by Justices VR Krishna Iyer, Justice PB Sawant and Justice Hosbet Suresh. Zahira Sheikh reiterated her statement. There is a video-taped recording of this testimony before the Concerned Citizens Tribunal available with me. Thereafter she submitted an affidavit sworn on oath before the Nanavati-Shah Commission dated May 20, 2002. During the Chief Election Commissioner’s visit to Vadodara on August 10, 2002 – to review whether or not early elections called by Gujarat chief minister Narendra Modi were justified or not – Zahira Sheikh, it is reliably learnt, reiterated her stand in an in-camera taped hearing before the then CEC, James Lyngdoh, once again detailing events as she claimed to have witnessed them.
After shifting to Mumbai and her press conference under the aegis of the CJP on July 7, 2003, Zahira Sheikh gave a detailed statement to a full bench of the NHRC on July 11, 2003, which was recorded personally by the chairperson, Justice Anand, in English, after closely questioning her in Hindi. This statement has been heavily relied upon by the NHRC in its petition before the Supreme Court, Writ Petition (crl) No.109 of 2003 filed on August 1, 2003, wherein this august body also prayed for re-trial and transfer of the present case.
The reason for enlisting these instances yet again before the apex court was to show that it is clear that the interventions in this matter by the NHRC, the Supreme Court and even smaller and insignificant bodies like the CJP was because in this case, (as in other cases related to Gujarat before the SC), there appeared clearly to be a miscarriage of justice in the first trial, and that this miscarriage had much to do with the conduct of the investigation and prosecution wherein, amongst other things, many key witnesses were not sought to be examined.
It appears appropriate at this stage to re-visit the historic Best Bakery verdict and examine the premises that led the apex court to arrive at its conclusions. It was on the principle of fair trial taking into account the triangulation of interests between that of the accused, victims and society that the findings in the judgement were arrived at. It was the rule of law and due process that was ensured when re-trial was ordered.
The transfer of the case outside of the state of Gujarat was not granted by the Supreme Court only because of the alleged threat perception experienced by Zahira Sheikh but so that the main objectives of free and fair trial are met, the objects being to convict those guilty and protect the innocent. At para 39 of the judgement (2004(4) SCC 158 at 187) it has been held: "Since the fair hearing requires an opportunity to preserve the process, it may be vitiated or violated by an over-hasty, stage-managed, tailored and partisan trial."
In the fast track court in Vadodara, key prosecution witnesses were simply not examined. These include five eyewitnesses and three other witnesses. Eight doctors, who could testify to the condition of the bodies and injuries received, were simply not called in by the prosecution. Of the many prosecution witnesses examined, at least five were close relatives of the accused. Many of those eyewitnesses who were examined turned hostile. There have been questions raised about the atmosphere in the courtroom and the professionalism and independence of the public prosecutor, borne out by the conduct of the prosecution. Of the 73 witnesses examined in the first trial, 37 turned hostile. The first to turn hostile were members of the Habibullah Sheikh family.
In the course of the re-trial in Mumbai, so far 41 witnesses have been summoned by the prosecution. Of these, a mere seven have turned hostile. Of these seven, five belong to the Habibullah Sheikh family, while the other two are panch witnesses. Though the outcome of the ongoing trial needs a thorough appreciation of the quality of evidence (and it would be a trifle premature to make such an appreciation at this stage), one key intent behind the apex court’s historic verdict has been served. Thorough and due free and fair process of law is being followed and despite blatant attempts to disrupt the re-trial, the trial is proceeding on course.
The Supreme Court had in its judgement also commented on the dire need for legislative measures against tampering of witnesses. Relying on section 406 of the Code of Criminal procedure, the apex court had stated, "Justice must not only be done but must be seen to be done." The failure of the lower courts to interrogate witnesses who had turned hostile and ascertain the truth, the failure of the public prosecutor in putting all facts before the court are what made the court come to a historic decision. No such complaint can be made about the re-trial in Mumbai. Not only is the interrogation thorough but it is more than likely that many issues will reveal themselves as the trial progresses.
In fact, before the matter came up before the Supreme Court bench that delivered the historic verdict, in the petition filed by the National Human Rights Commission on September 19, 2003, the director general of police, Gujarat, K Chakravarthi had been summoned by the apex court and his statement was recorded by Justice Khare and others. His statement related specifically to the role of the police after witnesses in the Best Bakery trial were turning hostile in Vadodara in May-June 2003.
In the verdict of the apex court in the Best Bakery case, the court made critical observations on the responsibilities and failures of the Gujarat police as an investigating agency. Sharp remarks were also passed on the overall situation in Gujarat where bloodshed was condoned and a non-remorseful administration watched silently. Recent attempts to blatantly interfere with corrective judicial measures indicate that not much has changed in the hearts and minds of the current administration.
This is the key and abiding issue that has once again arisen through this re-trial. Zahira Sheikh’s press conference of November 3, 2004 is nothing short of an attempt to disturb and disrupt the re-trial that was underway and being carried out so well. The fact that the top echelons of the Gujarat state administration have been involved in this blatant attempt to disrupt the re-trial is grave. The role of top rungs of the Gujarat police and state intelligence, in shepherding the family around, hiring one of the senior-most criminal lawyers from Mumbai for the family at commercial rates, raises serious questions.
It is under these specific circumstances that the apex court will evaluate the role of the Gujarat government, a state gravely indicted by the Supreme Court for the carnage in Gujarat, to reach behind the scenes, and target and tamper with the one family that had come to be seen as the symbol of the struggle for justice.
When the matter came up for hearing on December 6, 2004, Justices Arijit Pasayat and Sema of the Supreme Court issued notice to Zahira Sheikh asking her to explain why she should not be hauled up for contempt of the Supreme Court. Much more critically, the apex court directed the Gujarat state to declare its stand on whether it considers Zahira Sheikh’s action contempt of court or not. January 3, 2005 is the date on which the stand taken by Zahira Sheikh and the state of Gujarat will become known. January 10, 2005 is the next date for court hearing.
These shocking developments indirectly confirm the findings of the apex court that led to the transfer in the first place. They are, in essence, nothing short of a blatant attempt by the Gujarat state to not only disrupt the trial but to, in actuality, discredit both the Supreme Court and constitutional bodies like the NHRC. That is, nothing short of a blatant attempt to subvert a historic attempt by the country’s apex court to correct what was a major miscarriage of justice with the larger design to discredit the Constitution and the judicial process itself.
What is at stake behind these recent developments is not simply the fate of the re-trial in the present case but also the Bilkees Bano case and moreover, the cases of the Godhra, Gulberg, Naroda, Ode and Sardarpura massacres that are still pending before the Supreme Court for decision on pleas of re-investigation and transfer. (See accompanying story.)
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