People's Democracy

Best Bakery Case: Faith Redeemed

Teesta Setalvad

THERE are rare moments when the system rises to the occasion and meets the hopes and aspirations of the bruised and the downtrodden. April 12, 2004 was one of them. In the two years since democratic India’s worst examples of state terrorism when 19 of Gujarat’s 25 districts allowed violence of the most base kind to get unleashed on innocent girls, women, men and boys, the Supreme Court of India delivered a verdict that vindicated all that had been said about the happenings in that state.

The judgement by Justice Doraiswamy Raju and Arijit Pasiath in the famous Best Bakery case is a victory not simply for the brave witnesses who underwent the process of attaining justice against all odds but is a significant and historic verdict for human rights defenders and on the whole issue of impunity for mass crimes.

It has been argued by us for many decades, led or supported by others, that the nature of community-driven division and hatred [for this is what communalism is all about] when it translates into rape and killing is tinged with irrationality and brutality of a kind that requires interventions at all levels to be made from a position of neutrality. At the specific point of time, and the months that precede and follow it, civic atmosphere gets tainted by this unreason and bias which is rooted in manipulated facts and hatred. Violence and terror become the easy and accepted weapons and means.

At such times, few wings of the system remain immune and wedded to time-tested norms of constitutional equity and non-discrimination. For the first time through the historic Best Bakery judgement there is a judicial vindication for and of this argument. By making the historic transfer of this trial outside Gujarat to Maharashtra, the highest court has deliberated upon and accepted the arguments being made over the decades – that were amplified a thousand times in the case of the Gujarat genocide – that such incidents need for the system to operationalise areas and mechanisms of neutrality to avoid subversion of the process of both fair investigation and justice, in short, due process of law.

MAKING OF POGROMS

The unfortunate instances of communal violence that have, over the past decade and a half taken the distinct character of pogroms against religious minorities, both Muslim and Christian, reveal distinct patterns and similarities. These were evident in full-blown measure in the Gujarat genocide.

The first is the months of insidious preparation by outfits committed to the politics of hatred and division who initially used hate speech and hate writing to vilify and demonise a particular section, here a religious minority and create a local climate that consents to violent crime against the demonised section. This technique which has been well-honed and also proven by over two dozen commissions of inquiry after every bout of communal violence has after the Gujarat genocide been given even more vicious dimensions. Documented cases of such a bias guiding or rather affecting the conduct of the police are now legion. Justice being delivered are rare and few.

Preparations for communal carnages now are not restricted to hate pamphlets and speeches though these form a vital ingredient to cooking up such a hate-filled atmosphere. Now, as I personally experienced and witnessed in Gujarat (see Combat March-April 2002) preparations are taking the form of full-fledged training camps of young men and women where violence is sold as the sole means to self-empowerment and weapons are openly distributed, unchallenged by wings of the state and the law and order machinery. The potent drug that informs these camps is hate anecdotes against communities wherein history is interwoven with current day politics and the demonisation legitimised.

PUSHING THE SYSTEM

The system on its own does not intervene to deliver justice, condemn discrimination and slaughter, it has to be pushed to do so. It has been rare that our system has delivered in the case of communal carnage and crime. The pogrom against Sikhs in 1984 in the capital or the post-demolition pogrom of Muslims in Mumbai have escaped judicial condemnation and correction and therein lies a tale. If the victims of earlier bouts of communal violence or pogroms did not have the satisfaction of a resounding judicial verdict in their favour, it speaks about the role of the police and the State and the existing legal and justice system. Our Constitution remains on paper. Rarely do our courts initiate suo moto action on issues of mass homicide and rights atrocities.

Within weeks of the carnage, or genocide as some of us squarely put it, citizens at different levels had petitioned the highest court in the land praying for it’s judicial interpretation of an utter constitutional breakdown in that state. Unfortunately then the courts had preferred to wait, possibly to see if correction came from the executive and legislative arms of the state.

Within six months of the carnages across several districts, two of Gujarat’s lower courts in the Panchmahals district had acquitted all accused of the slaughter of 70 human beings in the village of Pandharwada and other accused for burning alive 62 Muslims trying to escape in two tempos at Limbaidiya Chowkey in Sabarkantha district. The state of Gujarat did not file any appeals against the acquittals. The Citizens for Justice and Peace (CJP) has intervened in both massacres.

It was only after the country experienced the sensation of Zahira Shaikh’s testimony in a press conference organised by CJP, Mumbai, that the whole import of the situation in Gujarat became real and addressed by the courts.

What became transparent before the Supreme Court was not simply that a huge human tragedy had befallen Gujarat in 200[1] but the tragedy was compounded by a non-remorseful administration and executive that two years later was without guilt or remorse. All police officers who had functioned without fear or favour, and they were many, are today sidelined in Gujarat.

The role of the public prosecutor has been truly subverted by the State with persons owing distinct allegiance to the outfits who perpetrated the hatred and violence against the minorities being asked to appear for the victims! The struggle for justice meant meticulously documenting this before the courts so that any claim that we made was backed by irrefutable facts.

The issue of investigation in communal case trials being deliberately subverted by the police so that the names of the influential and powerful [politicians of the ruling party, in Gujarat the BJP, VHP and Bajrand Dal] are not recorded in FIRs, the chargesheets and all documents are unsubstantiated and repeated pleas by witnesses under section 173[8] of the CRPC for re-investigation are ignored.

These crucial issues have been addressed by the honourable judges in this historic judgement that in its 70 pages charts path-breaking territory for a revived Indian judicial system.

FILLIP TO ACTIVISTS

Another critical aspect, where we come in, both individually and as Citizens for Justice and Peace, was how the apex court has dealt with the issue of rights’ activists and groups intervening actively to be with the victims and see their fight through. The Gujarat High Court had seen fit to pass scathing remarks against us and even on this the SC has made judicial precedent. By not simply expunging the remarks but doing so actively with stern observations on baseless observations by the HC, the judgement lends credibility and strength to the whole human rights fraternity in the future.

“The Highest court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted references to personalities and their legitimate moves before the competent courts – the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters. Irresponsible allegations, suggestions and challenges may be made by parties…But such besmirching acts, meant as innuendoes or serve as surrogacy ought not to be made or allowed to be made, to become part of solemn judgements, of at any rate by High Courts, which are created as court of record as well. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy.”

Through the agony of the past two years, the role of the National Human Rights Commission (NHRC) in the Gujarat carnage must be appreciated. Both at the time of the carnage under Justice J S Verma and thereafter after the Best Bakery acquittal under the stewardship of Justice A S Anand this statutory body has done India proud. Today, the Supreme Court of India through its judicial verdict of April 12, 2004 has done India and Indian democracy proud.

Even as we revel in this first flush of victory, reports from Orissa (CC March 2004) and Rajasthan (CC March 2004) and Madhya Pradesh too are deeply frightening. The hate-driven polarisations within village, kasbah and big town society are being systematically engineered by architects of the Gujarat genocide through achingly similar preparations for violence. Apart from savouring this success we need to ponder what needs to be done there and here and everywhere else not simply to intervene for justice but for the prevention of blood into the streets.

(Courtesy: Communalism Combat; April 2004 issue)