One way or the other, history will be made when the Supreme Court of India rules upon the special leave petition (SLP) that has been filed by the National Human Rights Commission (NHRC) asking for a retrial of the Best Bakery case in Gujarat. The case itself arises out of the murder, in a variety of gruesome ways, of 14 Best Bakery workers in Ahmedabad during the post-Godhra riots on March 1, 2002. The murdered included not only the owners of the bakery but some of their wives and children as well. They also included three Hindu workers who had the temerity to work for a Muslim.
In all, 21 persons were indicted. All got off scot-free when 41 out of 74 witnesses turned hostile. These included the key witnesses, Sehrunissa and Zaheera Shaikh, the wife and daughter respectively of one of the co-owners, who was killed. Both later said they had done so because of intense fear, for while they were threatened incessantly by elements of the vhp and other Hindu bigots, literally no one had come forward to offer them even a modicum of protection or reassurance.
Seen purely from the point of view of justice, there are a score of reasons why the Supreme Court should grant the plea for a retrial. The number of prosecution witnesses that turned hostile sets a new, dismal record for the Indian judicial system. The reason this became possible was that the Gujarat police did nothing to protect any of its witnesses. As a result, goons like bjp mla Madhu Srivastava and his brother had full, unrestricted access to the witnesses. Second, the police, which should have known from the start that its witnesses would come under pressure, could have reduced the risk of their turning hostile by recording their statements before a magistrate. They have been doing precisely this in the Godhra case, where the accused are all Muslims, but somehow they 'omitted' to take this precaution in the Best Bakery case. This discrepancy alone should suffice to justify a retrial.
The NHRC's decision to ask for a retrial is therefore morally unexceptionable, but granting it would set an extremely important legal precedent. Normally, these petitions are filed by the defence in cases where it believes it can persuade the court that it was denied an opportunity to produce important evidence. The petition is also filed in a high court. In this case, the NHRC has gone straight to the Supreme Court, and it has done so on behalf of the prosecution.
In fact, it has not done even that—for the prosecution is the Government of Gujarat, which has so far "not made up its mind" on whether or not to approach the Gujarat High Court for another trial. Strictly speaking, therefore, the NHRC has approached the Supreme Court not on behalf of the prosecution but on behalf of the original complainants, Zaheera and Sehrunissa, who lost their entire families, their livelihoods, their security and their happiness. It is therefore acting as a lawyer for these hapless ladies and other victims of the massacre at Best Bakery, in taking a criminal case straight to the Supreme Court of India. The Supreme Court now has to decide whether or not to admit it.
Had the case not already been before a special court, it would have posed no problem because under Article 32 of the Constitution, the Supreme Court has original jurisdiction in all criminal and civil cases. But admitting the case now would set a precedent, and the apex court could be flooded with petitions for retrial, many with dubious moral claims to reconsideration. This is all the more likely to happen because the Best Bakery case reflects in an extreme form the severe failing of the entire judicial system. Witnesses in serious criminal trials regularly turn hostile because there is no witness protection programme, because the police seldom record their depositions before a magistrate and because they almost never prosecute witnesses who turn hostile for perjury.
Asecond consideration that the court would need to keep in mind is that witnesses who turned hostile once could do so again. If New Delhi were to see a repeat of the Gujarat fiasco, it would seriously damage the prestige of the Supreme Court. Indian democracy and the rule of the law would be the final loser.
Despite these pitfalls, I cannot but hope that the Supreme Court will live up to its tradition of activism on behalf of the poor, and admit the NHRC's petition. Were it to do so, it would strike a powerful blow for human rights, for democracy and for plain, simple justice. A horrifying crime was committed and the alleged perpetrators are going free not because the prosecution's case was found wanting, but because it could not even make its case before the court. It must be given a chance to do so. What is more, it must be given this chance in an environment that is as free from fear and prejudice as possible.
Given the recent history of Gujarat, and the fact that communal bias exists to some degree in several other parts of the country, the Supreme Court would do well to set a new set of guidelines for trying such cases in future. These are: the cases should be tried expeditiously by special courts; that they should be tried outside the state in which the crimes are alleged to have been committed, and that the investigating agency for serious communal crimes should be the Central Bureau of Investigation.