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PUCL, Sept. 2003

Law and disorder

-- By KG Kannabiran

(The Statesman)

THE court has acquitted the accused in the prosecution for murder, arson and looting in the Best Bakery case. Did the court fail the victims? What are the essential prerequisites for assigning blame to the court? The basic precondition for a successful prosecution is an impartial and independent investigation into the crime. An equally independent prosecuting agency is a sine qua non for a functioning criminal justice system. The chapter on investigation proceeds on the assumption of an independent and impartial investigation into reprted crimes. The provisions of the Code dealing with the powers and duties of the public prosecutor emphasise his independence.

The Supreme Court’s catena of cases emphasises the importance of the role these two agencies are entrusted with if criminal justice is to make any sense. The major ruling premise is that the government should respect the law it expects its citizens to obey. This respect should be manifest in its compliance with the scheme of legislation, setting down norms and the consequences of their breach.

The Constitution is the charter for the existence of the State and the Union and any breach of its terms brands the government as a lawbreaker. It also breeds contempt for the law on the part of lawbreakers the government sponsors and encourages. This occurs when the politics of the party in power takes precedence over the Constitution and the law. It happened when the Emergency was invoked in 1975 and in 1984, when members of the Sikh community were targeted and killed. It also happened in Gujarat in 2002, when a large number of Muslims was massacred.

Best Bakery, owned by a Muslim family, is located on Dabhoi Road in Hanuman Tekri on the outskirts of Vadodara. The family moved into this predominantly Hindu locality approximately six months before this incident would take place. On 1 March 2002, a mob of more than 500 people launched its first attack on the bakery at 8 pm. Police help was sought over the telephone. The policemen arrived at about 9.30 pm and left without making any security arrangements either for the bakery or for the locality and people living there.

The real mayhem started after the police left. After the Godhra incident, the few Muslim families living there had moved out of the locality. The Sheikh family, however, had remained because of the assurance of safety given by Jayanti Chawla, an influential person of the locality. Ironically, Chawla joined the attack along with members of the locality whose names were duly reported. Fourteen persons were killed including three Hindu employees whose stomachs were slit open before their corpses were thrown into the fire.

Zahira Habibullah Sheikh has sent the details in writing to various human rights organisations including the National Human Rights Commission and the Concerned Citizens Tribunal. With regular visits from sympathisers assurances of support, members of the victimised family were able to reveal the details of what exactly had transpired. Living amidst a hostile majority and with the Assembly election having returned the same set of people to power, minority victims are bound to live in fear of reprisal. And fear is a constant companion, particularly when the victims happen to be the key witnesses in a trial.

What happened to Best Bakery and to the family who owned it as well as to hundreds of other people in Gujarat after the Godhra incident, was part of a premeditated programme to carry out the systematic destruction of life and property.

The scale of the crime planned is mind-boggling. The crimes committed cover all the provisions in the Chapter On Offences Against The Human Body and those of Offences Against Public Tranquillity with the ancillary offences of trespass, dacoity and arson. These offences occurred in 18 districts of Gujarat almost imultaneously. All were part of a single decision and direction. A crime of this dimension and magnitude the courts had never been called upon to adjudicate. They were thus not equipped even to visualise the trial of offenders who had committed crimes covering two chapters and more of Macaulay’s Penal Code. Can we blame the court for the acquittal, when on the evidence produced, there is no way of holding anyone guilty?

Criticising the Court will lead to two consequences. We will be absolving Narendra Modi and his men in the Cabinet for the crime. Secondly, we will be confirming the existing uniform view that the present principles governing criminal justice are inadequate and need wholesale substitution.

Let’s consider the second question first. While it is true that a judge is very often heir to all the ills afflicting society, in the conveyor belt of criminal justice, he comes last. His decision is preceded by investigation into the crime and it is here that the entire system is in a shambles. What happened in Gujarat cannot be rectified by piecemeal efforts for the simple reason that there was de facto suspension of the Constitution and the laws while the carnage was taking place, facilitated by the declaration of a bandh on that day. The state government, its police and administrative bureaucracy were either actively involved or guilty of deliberate indifference. The trial court instead of passing strictures against the police could have accused them of being members of unlawful assembly, for that, in fact, was what they were. They were also perpetrators of other crimes. They do not qualify as public servants for protection against prosecution, because helping criminal gangs congregate unlawfully and abetting crimes of arson, loot and rape are not part of their duties as public servants.

This is what happened in Gujarat. Against this colossal impunity, very blatantly supported by the Centre, what can any court do? Moreover, the intransigent shielding of impunity appears to be a major exercise in governance. We are living in times in which crime against targeted groups is provoked by the political leadership and its goons with the full connivance of the police.

Which brings us back to the first question. Here again, as in the 1984 riots in Delhi and the post-Babari Masjid riots in Mumbai, we are confronted with a situation where the prosecution and the accused are not in an adversarial relationship. The trial no longer represents a conflict of interests between the miscreants in the dock and the state. The investigating agency, the prosecution and the accused and the latter’s lawyer work in tandem. The result is acquittal, as in the Best Bakery case. In the latter, it was evident that the government wanted the accused to be acquitted to vindicate their political line. The court was a helpless witness to this stifling of
justice.

In the 1984 anti-Sikh riots, out of a sample survey of 126 cases, 118 ended in acquittal. Nobody cared to find out how many of the 15 committees, commissions and other bodies set up had successfully completed the task entrusted to them or whether they had been allowed to function freely. This quest for justice is what is expected of all the institutions under the Constitution. All steps to expose government complicity in the crime must be brought out in the court proceedings. In a criminal trial, punishing the guilty and acquitting the innocent are public duties covered by Article 21. The state and its instrumentalities cannot turn themselves into a pack of wolves.

It is in such situations that the commitment of these institutions to the Rule of Law and the Constitutional value system are put to the test. It needs bold initiatives at every level by interpreting laws to offer redress to victims. It would be unfair to contend that existing laws are inadequate and thereby evade the responsibility of rendering justice to those seeking it. It is here that bold initiatives and not a vacuous rhetoric of sympathy, should come from the Supreme Court to help the lower courts to adjudicate crimes of this magnitude. This is a situation where Article 142 can be
enforced effectively. Victims of atrocities require an assurance that justice will ultimately be done.

Otherwise, these judicial proceedings are little more than humiliations heaped upon a people who have lost their loved ones, their property and the very meaning of their existence — the very opposite of what was promised by the Constitution.

In the carnage, two High Court judges were attacked. No suo motto action
emanated either from the High Court or the Supreme Court. Neither the judiciary nor members of the profession responded to this challenge to justice and Rule of Law. When the law fails to support the people’s right to self-defence, their only recourse in situations of genocidal violence is equally violent reprisal. Our points of view and political stances should not be allowed to negate everything the Constitution stands for. I think it was Justice Patajali Sastry who pointed out that the Constitution was not intended to be operated by one political party alone but others as well who
were contenders for power. The admonition was heeded neither by Indira Gandhi and her supporters nor by the present ruling party that used to be a bitter critic of Gandhi’s style of governance.

(The author is the President of PUCL.)

 

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