The 'Best Bakery' Case: Zahira Habibulla H. Sheikh and Another Vs State of Gujarat and Others...

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The “Best Bakery” Case: Zahira Habibulla H. Sheikh and Another Vs State

of Gujarat and Others.1

A. Introduction

On 6 June 20052 the Supreme Court of India extended until

30 Sept 2005 the term of the Bombay Special Court

conducting the retrial in the case of Zahira Habibulla H.

Sheikh and Another v State of Gujarat and Others, known as the “Best

Bakery Case”. The judge conducting the retrial, Special

Judge A. M. Thipsay, had sought a further extension to

the trial following the expiry on 31 May 2005 of the

original five-month extension granted by the Supreme

Court on 31 December 2004.3

The case was transferred to the Bombay High Court for

retrial on the order of the Supreme Court, pursuant to

its judgment of 12 April 2004.4 It is one of over two

thousand and thirty cases5 in which charges were

originally brought in various criminal courts in the

1 Zahira Habibulla H. Sheikh and Another v State of Gujarat andOthers, 2004 SOL Case No. 2952 Zahira Habibulla H. Sheikh and Another v State of Gujarat andOthers, AR 446/2004, 6 June 20053 Ibid., AR 446-449/ 2004, 21 February 20054 Supra, n.15 See National Human Rights Commission, Delhi, India, Annual Report2002-3, Para. 3.18; see also National Human Rights Commission, NewDelhi, India, Case Number 1150/6/2001-2, Proceedings dated 16 June2002Annapurna Waughray of 43Manchester Metropolitan University June 2005

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State of Gujarat as a result of the communal violence

that erupted in the State in 2002.

This note is confined to consideration of the original

trial court judgment of 27 June 2003, the Gujarat High

Court judgment of 26 December 2003, the Supreme Court

judgment of 12 April 2004 and the interventions of the

National Human Rights Commission.

B. The Substance of the Case

The case arises out of the communal violence that

occurred in the State of Gujarat in 2002 in the wake of a

fire in Coach No. S-6 of the Sabarmati Express train on

27 February 2002 near Godhra railway station when fifty-

six Hindus, mostly women and children, were burnt alive

and more than forty injured.6 During the ensuing violence

between one and two thousand people, mostly Muslims, were

killed7 and thousands of homes and businesses were6 See National Human Rights Commission Vs State of Gujarat andOthers, Special Leave Petition (Crl.), 2003. The cause of the trainfire remains disputed. In 2002 the Government of Gujarat appointedthe Nanavati-Shah Commission to inquire into the riots. In September2004 the Minister of Railways in the new Congress-led governmentestablished the Banerjee Committee, under retired Supreme CourtJustice U.C. Banerjee, to inquire into the train fire. TheCommittee’s preliminary report of January 2005 concluded that thefire was probably “accidental.” The Committee was initially due tocomplete its investigations and submit its final report by September2005. On 24 September 2005 the Committee was asked to submit allrelevant documents and records to the Nanavati-Shah Commission whichis due to take the matter up for hearing commencing 14 October 2005.7 Government of India official figures put the number of deaths atover 900; see House of Commons Hansard Written Answers, 10 June 2002(Pt 25), Column 814W. Unofficial estimates put the number of deathsat over 2000; see Amnesty International, “Justice, the victim –Annapurna Waughray of 43Manchester Metropolitan University June 2005

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destroyed. Over one hundred thousand people were

internally displaced into relief camps.8 According to both

India’s National Human Rights Commission and independent

human rights organisations, Muslim girls and women were

particular targets of attack through acts of rape and

other humiliating crimes of violence.9

The circumstances of the case are not in dispute; per the

Supreme Court, “it is nobody’s stand that the [Best

Bakery] incident did not take place.”10 During the night

of 1-2 March 2002 the Muslim-owned “Best Bakery” business

in Hanuman Tekri, Vadodora, Gujarat, was besieged,

attacked and set on fire by a large crowd. The attack

was stated to be in revenge for the deaths of the

Sabarmati Express train victims.11 Fourteen people trapped

by the mob in the Best Bakery building (eleven Muslims

and three Hindu bakery workers) were burnt or beaten to

death and six injured.12 Zahira H. Sheikh, daughter of

the bakery owner and aged eighteen years at the time, was

the main eye-witness to the attack in which neighbours

Gujarat state fails to protect women from violence”, Summary Report;AI Index: ASA 20/002/20058 House of Commons Hansard Written Answers, 10 June 2002 (Pt 25),Column 814W9 See National Human Rights Commission, New Delhi, India, Case Number1150/6/2001-2, Proceedings dated 31 May 2002, Paras. 10, 20 and 32;see also Amnesty International, “Justice, the victim – Gujarat statefails to protect women from violence”, Summary Report; AI Index: ASA20/002/200510 Supra n.1, Para. 7211 Ibid., Para. 412 Ibid.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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and members of her family, including women and four

children under the age of five years, were killed.

Between 27 March 2002 and 21 April 2002, following police

investigation, twenty-one individuals were arrested.

Charges were filed against them on 24 June 2002. The

accused denied all charges.13 The trial took place in

June 2003 in the Vadadora Sessions Court in Fast Track

Court No.1. By judgment of 27 June 2003 all the accused

were acquitted by the trial court.14

At the trial thirty-six of the seventy-three prosecution

witnesses, including the injured witnesses and the eye-

witnesses, retracted their statements. Three eye-

witnesses denied that they had ever made statements to

the police. The key prosecution witness, Zahira H.

Sheikh, denied the contents of her statement made to the

police on 2 March 2003 but admitted that the signature

below the statement was hers. Shortly after the

verdict, on 7 July 2003, Zahira H. Sheikh gave a

statement to the press to the effect that she had been

threatened and coerced into resiling her statement

against the accused at trial, and indicating her

intention to petition for a re-trial outside Gujarat.15

13 State of Gujarat v Rajubhai Dhamirbhai Baria and others, Fast TrackCourt No.1, Vadadora of Gujarat State in Sessions, Case No 248/2002of the Additional Sessions Judge; Judgment of 27 June 2003, Para. 1814 Ibid., Para. 6915 See Press Statement released by Citizens for Justice and Peace,Mumbai, 7 July 2003Annapurna Waughray of 43Manchester Metropolitan University June 2005

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In July 2003 the National Human Rights Commission

petitioned the Supreme Court to set aside the judgement

of the trial court and to direct re-investigation and

retrial of the case outside the State of Gujarat on the

grounds that the victims had not been able to depose

freely and that therefore the trial was unfair. A

similar Special Leave Petition was filed in August 2003

jointly by Zahira H. Sheikh and Citizens for Justice and

Peace, a human rights non-governmental organisation (NGO)

involved in reporting incidents, recording the

testimonies of victims and witnesses and assisting with

recourse to the judicial process. In August 2003 the

acquittals were appealed by the State of Gujarat to the

Gujarat High Court.16 On 26 December 2003 the Gujarat

High Court dismissed the appeal and confirmed the

acquittals. On 12 April 2004 the Supreme Court of India

ordered the transfer of the case to the Bombay High Court

for re-trial.

On 3 November 2004 Zahira H. Sheikh gave a further press

conference claiming that she had been threatened and

coerced into cooperating with the retrial by Citizens for

Justice and Peace.17 Subsequently, in January 2005, an

Inquiry was ordered by the Registrar General of the

16 State of Gujarat v Rajubhai Dhamirbhai Baria and others, Crl AppealNo. 956/2003; Crl Misc. Application No. 9677/2003; Crl Misc.Application No. 9825/2003;

17 See “The Indian Express”, 6 December 2004: “Best Bakery WitnessFaces Contempt Charges, Investigation”; see also “Express India”, 8November 2004: “Zaheera – Victim or Opportunist?”Annapurna Waughray of 43Manchester Metropolitan University June 2005

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Supreme Court to establish whether Zhaira H. Sheikh was

in any way threatened, pressurised, lured or induced to

make or resile from any particular statements and, if so,

by whom. In August 2005 the Inquiry Committee concluded

that Zahira H. Sheikh had not been subject to threats,

inducement or coercion by Citizens for Justice and Peace

but that it was highly probable that financial

inducements and possibly threats were responsible for her

resiling from her original statement in the trial court

in Vadadora.18

At the time of writing the retrial in the Bombay High

Court is ongoing.

B.

I. The Judgment of the Vadadora Court of Sessions19

At the trial in June 2003 the Vadadora Court of Sessions

identified the following issues to be decided (i) whether

it was proved that on the night of 1-2 March 2002 an

armed mob gathered unlawfully in furtherance of common

intention to cause damage to the life and property of the

Muslim community, burning the Best Bakery building and

committing murder and causing injury (ii) whether the

charges against all or any of the accused, of having

taken part in the Best Bakery incident, were proved (iii)18 Supreme Court of India, Inquiry Report in Criminal Appeal Nos 446-449/2004., Zahira Habbullah Sheikh and Anr v State of Gujarat & Ors, 27 August 200519 Supra, n.13 Annapurna Waughray of 43Manchester Metropolitan University June 2005

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what order should be made.20 Judgment was given on 27

June 2003.

As to (i) the court held that “[t]he motive of the mob

was to cause damage to life and property of persons of

the Muslim community… as a reaction to the Godhra train

carnage”,21 further, that it was proved beyond doubt from

the evidence that the mob had resorted to destruction,

loot and arson and that fourteen persons lost their lives

in the disputed incident.22 As to (ii) the court held

that there was “not even an iota of evidence produced on

record of the case linking the accused persons or any of

the accused to the crime”,23 furthermore that “judicial

scrutiny of the evidence” produced in the case showed

that “false evidence ha[d] been got up against falsely

accused persons.”24 As to (iii) the court ordered

acquittal of the accused on the basis that the case

against them was not proved and further ordered

cancellation of their surety and their release from

jail.25

At trial thirty-six of the seventy-three prosecution

witnesses retracted their statements to the police. The

20 Ibid., Para. 2321 Ibid., Para. 2522 Ibid., Para. 3423 Ibid., Para. 3424 Ibid., Para. 45. See also Para 52: “Not even the least acceptableevidence, which may associate the accused persons produced in thiscase with the charge levelled against them is produced on the recordof this case.”25 Ibid., Paras. 69-71Annapurna Waughray of 43Manchester Metropolitan University June 2005

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balance who did not were only formal witnesses such as

doctors who had treated injuries. In its judgment the

Sessions Court stressed that it was not within its

purview to identify the true offender(s) if not the

accused, but rather to decide on the basis of the

evidence whether the accused persons produced by the

police were the true offenders.26 The police were

criticised for poor investigation of riots generally and

in this case, in the absence of the actual but unknown

perpetrators, for having accused innocent persons chosen

from among the nearby population and passersby to the

incident.27 Furthermore, the Court held that there were

reasons to believe that the police had fabricated the

evidence of the “star witness” Zahira Sheikh.28 On these

grounds the Court held that no importance could be given

to her statement. Moreover, she herself did not support

her “alleged” statement and “none of the witnesses

supported the police statements in Court”.29 It appears

from the judgment that the defection of such a large

number of prosecution witnesses from their earlier

evidence was indicative in the Court’s view of the poor

quality of the police investigation and the inherent

weaknesses of the prosecution case rather than of any

shortcomings in the conduct of the trial or in the

management of the witnesses.26 Ibid., Para. 48. The Court expressed the view that “[t]he Court ofJustice in [a] real sense is not the Court of Justice but the Courtof Evidence.”27 Ibid., Para. 4928 Ibid., Para. 4129 Ibid.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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In conclusion the Court held the disputed incident to be

“the reaction of (sic) Godhra carnage”30 and went on to

identify the causes of the communal riots as “(1) the

communal tense situation (2) failure in industrial policy

(3) uneasiness due to reservations”.31 In its judgment it

blamed the communal situation on the legacy of English

imperialism and called for greater patriotism and

national loyalty among India’s citizens as well as

greater emphasis on agriculture in development programmes

and reconsideration of the reservations policy.32 It also

expressed an expectation that incidents of communal

violence such as the Best Bakery incident, which it

described as a “shameful thoughtless incident”, should be

avoided in future.33

On 7 August 2003 the State of Gujarat filed (i) an

appeal34 against the judgment and the acquittal order (ii)

two Applications for permission to adduce additional

evidence in the form of witness affidavits and

30 Ibid., Para. 5731 Ibid., Para. 54. The Constitution of India allows for affirmativeaction policies on behalf of designated disadvantaged sectors ofsociety by way of “reservation” of a percentage of public sector jobsand higher education places for individuals who are members of suchgroups.32 Ibid., Paras. 55-6533 Ibid., Para. 6734 Supra, n.16. There is a 90-day limitation period for filing anappeal in the State of Gujarat Annapurna Waughray of 43Manchester Metropolitan University June 2005

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documentary evidence, and for an order for retrial and

quashing of the entire proceedings.35

II. The Judgement of the Gujarat High Court 36

The Appeal was heard in December 2003, Judgment was given

on 26 December 2003 and Reasons on 12 January 2004. In

dismissing the State’s applications for permission to

bring further evidence on record and for an order for

retrial, the Gujarat High Court presented the accused as

victims of a tainted process. The Court was critical of

the investigating agency and the police, alleging that

the defendants had been falsely accused and false

evidence concocted against them to detract from the

failure of the police to apprehend the true

perpetrators,37 while the public prosecutor was criticised

for the weakness of the prosecution case and the

consequent suffering of the accused.38

35 State of Gujarat Vs Rajubhai Dhamirbhai Baria and others, CriminalMisc Application No. 9677/ 2003; Criminal Misc Application No.9825/2003. The application was so badly drafted that the State ofGujarat was directed by the Supreme Court to amend the application. 36 State of Gujarat Vs Rajubhai Dhamirbhai Baria and Others, CriminalAppeal No. 956/2003 with Crl. Misc. Application 7677/2003 and Crl.Misc. Application 9825/2003, Judgment of the Gujarat High Court 26December 2003/ 12 January 200437 Ibid., Para. 14: “We are at pains to note that in the instantcase, right from the beginning, the investigation carried out be thePolice was absolutely dishonest and faulty. When the police did notfind the real culprits, then they have falsely involved therespondents in this case as accused, who were none els but theneighbours of the victims.”; see also Paras. 18, 2038 Ibid., Paras. 17, 19Annapurna Waughray of 43Manchester Metropolitan University June 2005

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The Court asserted its powers as an appellate court under

the Criminal Procedure Code to order retrial, provided

there is a case for retrial,39 but declared itself:

“fully satisfied that this is not a case where retrial should be ordered.”40

The Court specifically rejected the submissions of

learned Advocate General Shri Shalat, for the State of

Gujarat, that retrial should be ordered on the grounds

that the original trial was not satisfactory, it was not

a full and fair trial, and the witnesses had not deposed

fearlessly before the Court:41

“We are of the considered opinion that there is nothing on record to

show that [the witnesses] had not deposed fearlessly and that the trial

was not fair.” 42

Referring to the retraction of their statements by a

large number of the trial witnesses and Zahira H.

Sheikh’s post-trial allegations of coercion and

intimidation, the Court categorically dismissed

39 Criminal Procedure Code 1973, Section 136(i)40 Supra n. 34, Para 541 Ibid., Para. 4: “In support of his submission, learned AdvocateGeneral submitted that (i) one witness after another resiled fromtheir statements giving rise to a reasonable suspicion that they havebeen coerced into doing so; (ii) the …Court and the Prosecutors havenot put proper questions to the witnesses who were declared hostileas to ascertain why they were resiling (iii) neither the court northe prosecutor had taken any care….to see that [Zahira] does not turnhostile.”42 Ibid., Para. 26Annapurna Waughray of 43Manchester Metropolitan University June 2005

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suggestions that the trial witnesses including Zahira had

been threatened or intimidated,43 noting that “there may

be more than one reasons (sic) for the witnesses resiling

from their so-called statements made before the police”44

and instead stated its “reasonable apprehension” that

Zahira had been mis-used by “anti-national and anti-

social elements”45 intent on wrongly defaming the State of

Gujarat for unspecified ulterior motives.46

On the conduct of the investigation by the police the

court held that:

“It is clear from the evidence that when the police was (sic) not able to

reach the real culprits they decided to involve the innocent

neighbours…as accused persons by preparing false documents and

witness statements” 47

The Court repeated the trial court’s criticisms of the

prosecution case and its findings that the true

perpetrators were not among the accused; yet despite the

acknowledged failings of the police, the Court dismissed

as without basis arguments that the trial should have

been held in camera when one witness after another

43 Ibid., Para.744 Ibid., Para. 645 Ibid., Para.746 Ibid. “….. we have reasonable apprehension in our mind that thereis a deep-rooted conspiracy of mis-using this witness Zahira, victimof the unfortunate incident, by some people, with an ulterior motive,and unfortunately poor people, like Zahira and others, have easilyfallen in their pray (sic).”47 Ibid., Para 20Annapurna Waughray of 43Manchester Metropolitan University June 2005

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resiled from their statements, alternatively that it

should have been adjourned, or that hostile witnesses

should have been recalled and re-examined.48 Commenting

that no-one, including the state, should be allowed to

take advantage of its own wrong,49 the Court held that

“Retrial cannot be ordered on the ground that the prosecution did not

produce the proper evidence and did not know how to prove their case” 50

In its view, the trial judge:

“rightly came to the conclusion that the prosecution has miserably

failed to prove its case against the accused and the police

investigation….is absolutely faulty” 51

Further:

“Any order of retrial would cause serious prejudice to the accused who

have suffered so far economically as well as mentally”52 and further

“whose personal liberty is at stake.” 53

On the Applications to submit further evidence, the Court

accepted the argument of Defence Counsel Mr. Sushil Kumar

that the appeal stood to be decided on the basis of the

evidence at trial and that it would be a misuse of the48 Ibid., Paras. 7-1049 Ibid., Para 3650 Ibid., Para 3351 Ibid., Para. 1852 Ibid., Para. 1953 Ibid., Para. 17Annapurna Waughray of 43Manchester Metropolitan University June 2005

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Court’s powers under the 1973 Criminal Procedure Code to

take additional evidence into consideration in deciding

the Appeal.54

The Court declined to express an opinion on the locus standi

of the National Human Rights Commission55 to challenge the

original trial judgment and acquittal order before the

Supreme Court by way of a Special Leave Petition, on the

grounds that as the matter was pending before the Supreme

Court it would not be proper to do so.56 In relation to

its own authority to hear the State Appeal, the Court

dismissed arguments that it was precluded from hearing

the appeal simply because the case was pending before the

Supreme Court, holding that:

“merely because the case is pending before the Apex court, that fact itself

should not debar us from hearing and deciding the State Appeal”57;

further, that so to argue [would be] “undermining the

independence of this Court.” 58

The Court also dismissed arguments that the State of

Gujarat had been pressurised to file the appeal, that the

Court was under undue pressure from the Supreme Court to

decide the appeal and that due to media pressure the

54 Ibid., Paras. 36-3855 Ibid., Para. 1: The judgment records that the locus standi of theNational Human Rights Commission was challenged by Mr Sushil Kumar,Senior Defence Counsel. 56 Ibid.57 Ibid.58 Ibid.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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Court was incapable of “decid[ing] the appeal on merits and strictly in

accordance with the law prevailing…in the country.” 59

C. The Interventions of the National Human Rights Commission

The National Human Rights Commission (hereafter “the

Commission”) is an autonomous statutory body constituted

under the Protection of Human Rights Act 199360 and

operating in accordance with the Paris Principles on the

status of national institutions.61 It has been entrusted

with powers62 to inquire suo moto or on a petition

presented to it by a victim or any person on his (sic)

behalf, into complaints of (i) violation of human rights63

or abetment thereof (ii) negligence in the prevention of

such violation, by a public servant;64 to intervene in any

proceeding involving any allegation of violation of human

rights pending before a Court with the approval of such

Court;65 to review the Constitutional and legislative

safeguards for the protection of human rights and

59 Ibid., Paras 2, 3.60 PHRA 1993 Section 3; The Act was deemed to have come into force on28 September 1993: PHRA Section 1(3).61 UN General Assembly Resolution of 20 December 1993, “National institutions for the promotion and protection of human rights”; A/ RES/ 48/13462 PHRA 1993 Section 1263 Human rights are defined in Section 2(d) of the Act as “the rightsrelating to life, liberty, equality and dignity of the individualguaranteed by the Constitution or embodied in International Covenantsand enforceable by Courts in India”.64 PHRA 1993 Section 12(a) 65 Ibid, Section 12 (b)Annapurna Waughray of 43Manchester Metropolitan University June 2005

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recommend measures for their effective implementation;66

to make recommendations for the effective implementation

of international treaties and instruments on human

rights;67 and to perform such other functions as it may

consider necessary for the promotion of human rights.

The Commission has its own investigations team and

similar powers to a civil court including summoning and

enforcing the attendance of witnesses and examining them

on oath; discovery and production of documents; receiving

evidence on affidavits; requisitioning any public record

or copy thereof from any court or office; issuing

commissions for the examination of witnesses or

documents.68

On 1 March 2002 in response to media reports and an email

request, the Commission took suo moto action on the human

rights situation in Gujarat by requesting the Chief

Secretary and the Director General of Police of the State

of Gujarat to provide, within three days, information on

the measures being taken and in contemplation to prevent

further escalation of the situation which was resulting

in continued violations of human rights.69 A further

Notice on 6 March 2002 recorded the Commission’s

disappointment at the failure of the Gujarat State66 Ibid, Section 12 (d)67 Ibid, Section 12 (f)68 NHRC http://nhrc.nic.in, retrieved 1 July 200569 National Human Rights Commission, Case Number 1150/6/2001-2,Proceedings dated 1 March 2002. The Commission referred to newsitems reporting on the “communal flare-up in the State of Gujarat”which suggested “inaction by the police force and the highestfunctionaries in the State to deal with the situation.” Annapurna Waughray of 43Manchester Metropolitan University June 2005

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authorities to provide, in a matter of such urgency and

significance, even a preliminary report indicating the

action taken so far, on the grounds that “as most of the

State machinery [was] busy with the law and order

situation it would take some time to collect the

information and compile the report.” The Commission

expressed its expectation of a “comprehensive response at

the earliest.”70

(i) The Preliminary Comments and Recommendations of the Commission

On 1 April 2002, following the visit to Gujarat between

19-22 March 2002 of a Commission fact-finding team which

included the Commission Chairperson, Justice J.S. Verma,

and receipt of the State of Gujarat’s Report of 28 March

2002,71 the Commission issued Preliminary Comments and

Substantive Recommendations72 to the Central and State

Governments in relation to law and order, relief camps

and rehabilitation. The Commission noted the serious

implications of the Gujarat violence for the country as a

whole, and the “grave questions of fidelity to the

Constitution and to treaty obligations” which arose.73 In

its Preliminary Comments it reiterated the primary

70 National Human Rights Commission, Case Number 1150/6/2001-2,Proceedings dated 6 March 200271 A Preliminary Report from the Government of Gujarat dated 8 March2002 was described by the Commission as “perfunctory in character”;see National Human Rights Commission, Case Number 1150/6/2001-2,Order and Proceedings dated 1 April 2002, Para. 1872 See National Human Rights Commission, Case Number 1150/6/2001-2,Order and Proceedings dated 1 April 2002, Paras. 20 and 2173 Ibid., Para. 9Annapurna Waughray of 43Manchester Metropolitan University June 2005

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responsibility of the State for the protection of human

rights and the clear principle of human rights

jurisprudence that the State is responsible not only for

the acts of its own agents but also for the acts of non-

State actors within its jurisdiction.74 On the question of

whether the State of Gujarat had discharged its

responsibilities appropriately, the Commission, referring

to the history of communal violence in Gujarat and the

principle of res ipsa loquitur, placed the burden on the State

Government to rebut the presumption of State

responsibility for the failure to protect the life,

liberty, equality and dignity of the people of Gujarat.75

It further observed that there was a “widespread lack of

faith in the integrity of the investigating process and

the ability of those conducting the investigations.”76

Recommendations were made on law and order including (i)

entrusting five critical cases, including the Best Bakery

Case, to the Central Bureau of Investigation;77 this was

in response to allegations of poor or wrongful recording

of First Information Reports78 (hereafter “FIRs”) and

74 Ibid., Para 20 (iii): “[I]t is the primary responsibility of theState to protect the right to life, liberty, equality and dignity ofall those who constitute it. It is also the responsibility of theState to ensure that such rights are not violated either throughovert acts or through abetment or negligence.”75 Ibid., Para 20 (iv) and (vi)76 Ibid., Para. 20 (viii)77 The cases relating to the Godhra incident, the Chamanpura (GulbergSociety) and Naroda Patiya incidents, the Best Bakery case and theSadarpura case; see supra n. 52, Para. 21(i)78 The registering of a First Information Report (FIR) is the firststage in criminal proceedings in IndiaAnnapurna Waughray of 43Manchester Metropolitan University June 2005

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influencing of investigations by extraneous

considerations or players, leading the Commission to the

view that the integrity of the process had to be

restored79 (ii) the creation of Special Courts to try

these cases on a day-to-day basis80 (iii) the appointment

of Special Prosecutors as needed and the adoption of

procedures to protect the victims and witnesses,

especially women and children, in the handling of such

cases81 (iv) the creation of Special Cells to track the

progress of those cases not entrusted to the CBI82 (v)the

setting up of police desks in relief camps to receive,

record and action FIRs83 (vi) action to identify and

proceed against those public servants who failed to act

appropriately to control the violence or to prevent its

escalation.84 The Commission also drew attention to “the

deeper question of police reform” and the need “to

preserve the integrity of the investigating process and

to insulate it from extraneous influences.”85

In its proceedings of 31 May 2002 the Commission made a

further set of Recommendations.86 It noted the

difficulties experienced by many victims in having their

79 Supra n. 70, Para. 21 (I) (i)80 Ibid., Para. 21 (I) (ii)81 Ibid.,82 Ibid., Para 21 (I) (iii)83 Ibid., Para 21 (I) (v)84 Ibid., Para. 21 (I) (viii)85 Ibid., Para. 21 (IV) (i)86 National Human Rights Commission, Case Number 1150/6/2001-2, Orderand Proceedings dated 31 May 2002, Para. 26Annapurna Waughray of 43Manchester Metropolitan University June 2005

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complaints recorded by the police87 and the observations

of its Special Representative concerning the high

proportion of arrestees who had secured bail, even for

serious offences.88 It reiterated its call for the

appointment of special courts and special prosecutors and

for the transfer of certain critical cases to the CBI.89

(ii) The Special Leave Petition and the Transfer Petitions90

On 11 July 2003 Zahira H. Sheikh approached the

Commission and made a statement to the effect that she

had resiled at trial from her earlier testimony under

threat to her life and the life of the remaining members

of her family. She requested the help of the Commission

in re-opening the Best Bakery case.91 On 31 July 2003,

following the report of a Commission fact-finding team to

Vadadora, Gujarat, the Commission filed a Special Leave

Petition” in the Supreme Court92 against the Best Bakery

trial judgment of 27 June 2002, seeking the setting aside

of the judgment and retrial of the case in a competent

court outside the State of Gujarat. The Commission also

87 Ibid., Para. 2088 Ibid., Para. 1789 Ibid., Paras. 27, 2990 National Human Rights Commission v State of Gujarat and Others, Special Leave Petition (Crl.) / 2003; National Human Rights Commission Vs State of Gujarat and Others, Transfer Petition (Crl.) No. 109/ 200391 National Human Rights Commission, Interim Directions on Gujarathttp://nhrc.nic.in/disparchive.asp?fno=59, retrieved 1 July 200592 Pursuant to Article 136 of the Constitution of India; permission tofile the Special Leave Petition was granted by Order of the Supreme Court on 8 August 2003.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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filed Supreme Court applications for transfer of four

other cases pending in different Gujarat courts, to

corresponding courts in any other state.

In the Special Leave Petition the Commission contended

that the judgment of the trial court in the Best Bakery

case was “testimony to the failure of the criminal

justice system in the State [of Gujarat] and the failure

to ensure a fair trial” 93 as enshrined in Article 21 of

the Constitution of India and in Article 14 of the

International Covenant on Civil and Political Rights 1966

to which India is a party. According to the Commission it

was apparent from the collapse of the prosecution case

that “the atmosphere in which the trial was conducted was

not conducive to the prosecution witnesses deposing in a

fair and fearless manner” and that the trial was lost

“due to the failure of the State to protect the victims

and key prosecution witnesses.”94

In the Transfer Petitions the Commission reiterated the

point that the record of the Best Bakery Case was

“testimony to the complete breakdown of the criminal

justice system resulting in a gross miscarriage of

justice,”95 arguing that “it would be a travesty of

justice if [the other] cases also go the Best Bakery way

for that would seriously impair the credibility of the93 Supra n. 90, Synopsis94 Ibid.95 National Human Rights Commission Vs State of Gujarat and Others, Transfer Petition (Crl.) No. 109/ 2003, Facts, Para. 2.8Annapurna Waughray of 43Manchester Metropolitan University June 2005

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justice delivery system and the rule of law.”96 It

contended that given the result of the Best Bakery trial

it was unlikely that the pending trials “would take place

in a free and fair atmosphere and justice done to the

victims, and that in the circumstances it was imperative

for the trials to be conducted outside the State of

Gujarat.”97 As in the Special Leave Petition, the

Commission was critical of the failure of the trial

court, faced with the retraction of their testimonies by

a large number of witnesses and having openly

acknowledged the deficiencies in the police

investigation, to order further investigations before

concluding the trial, noting that “ a criminal trial is

not a mere formality” and that when an offence is

committed it “becomes the duty of the court to ascertain

the truth and render justice. Failure to do so results in

miscarriage of justice.”98 The Commission also criticised

the Government of Gujarat for failing to heed its

recommendations of 1 April 2002, and for the closure of

nearly half the cases originally registered.

D. The Best Bakery Case: The Judgment of the Supreme Court

In its judgment of 12 April 2004 ordering the

reinvestigation, retrial and transfer of the Best Bakery

case to Bombay High Court the Supreme Court described the

96 Ibid., Facts, Para 2.1397 Ibid., Grounds, Para. III98 Ibid., Grounds, Para. VII (i) & (ii)Annapurna Waughray of 43Manchester Metropolitan University June 2005

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case as “without parallel and comparison” and that on the facts

of the case a direction for retrial was “inevitable”.99

Allowing the National Human Rights Commission’s appeals,

the Supreme Court directed:

(i) Re-trial by a court of competent jurisdiction

under the jurisdiction of Bombay High Court,

nominated by the Chief Justice of the Bombay High

Court

(ii) The appointment of another public prosecutor by

the State of Gujarat, the victims and witnesses to

have a say in the appointment in view of the

unusual factors in the case

(iii) The fees and all other expenses of the public

prosecutor and an assistant lawyer of his (sic)

choice to be paid initially by the State of

Maharashtra and thereafter reimbursed by the State

of Gujarat

(iv) The State of Gujarat to ensure the transfer of all

documents and records to the court nominated by

the Chief Justice of the Bombay High Court

(v) The State of Gujarat to ensure the production of

the witnesses before the said court whenever

required, and to provide necessary protection so

that they can depose freely without any

apprehension of threat or coercion

(vi) The State of Maharashtra to provide additional

protection at the request of any witness 99 Supra n.1, Para 73Annapurna Waughray of 43Manchester Metropolitan University June 2005

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(vii) All trial expenses to be borne initially by the

State of Maharashtra, to be reimbursed by the

State of Gujarat

(viii) The Director General of Police, Gujarat to

monitor the reinvestigation, if any, to be taken

up with urgency and utmost sincerity.

(ix) The expunging of paragraph 3 of the judgment of

the Gujarat High Court except the last limb of the

sub paragraph therein.100

(x) The return to custody of those accused who were

not on bail at the conclusion of the trial,

existing bail orders to continue.101

In its judgment the Supreme Court identified significant

flaws in the conduct and management of both the trial and

the appeal hearing, and made a number of important

general comments on the functions of the criminal justice

system, the duties of courts, the right to fair trial and

the treatment of witnesses.

Commenting on the justice system and the right to fair

trial, the Supreme Court observed that the main purpose

of the judicial system is the “discovery, vindication and

establishment of truth”.102 Since the object of a

criminal trial is to “mete out justice, convict the

guilty and protect the innocent”, the trial should be a

100 Ibid., Paras. 75-78101 Ibid., Para. 85102 Ibid., Para. 30 Annapurna Waughray of 43Manchester Metropolitan University June 2005

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“search for truth and not a bout over technicalities.”103

Furthermore, a trial which is primarily aimed at

ascertaining truth has to be fair to all concerned. This

“involves a delicate judicial balancing of competing interests……the

interests of the accused and the public and to a great extent that of the

victim have to weighed not losing sight of the public interest involved

in the prosecution of persons who commit offences.”104

Thus, the Court held, it is not only the accused who must

be fairly dealt with; victims, their family members and

relatives all have an “inbuilt right” to be dealt with

fairly in a criminal trial, and denial of a fair trial is

as much injustice to the accused as is to the victim.

Threatening witnesses, forcing them to give false

evidence and failure to hear material witnesses will all

result in an unfair trial.105

The Court was highly critical of the original police

investigation into the Best Bakery incident, describing

it as:

“perfunctory and anything but impartial without any definite object of

finding out the truth and bringing to book those who were responsible

for the crime.”106

103 Ibid., Para. 38104 Ibid., Para. 30105 Ibid., Para. 36106 Ibid., Para. 68Annapurna Waughray of 43Manchester Metropolitan University June 2005

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The public prosecutor appeared to the Court to “…

have acted more as a defence counsel than one whose

duty was to present the truth before the Court” and

the Trial Court “in turn appeared to be a silent

spectator, mute to the manipulations and preferred

to be indifferent to sacrilege being committed to

justice.”

The Court observed that although the acquittals had been

upheld by the High Court,

“if the acquittal is unmerited and based on tainted evidence, tailored

investigation….perfunctory trial and evidence of threatened / terrorised

witnesses, it is no acquittal in the eyes of the law and no…..credibility

can be attached [to it].”107

Overturning the findings of the High Court, the Supreme

Court held that a faulty investigation is not the fault

of the victims or witnesses;108 where the investigation is

defective “the court would not be right in acquitting an

accused person solely on account of the defect; to do so

would be tantamount to playing into the hands of the

investigating officer if the investigation is designedly

defective” (italics added).109 The innocence or guilt of

the accused persons in the Best Bakery case could have

107 Ibid., Para. 64108 Ibid., Para. 60109 Ibid., Para. 61Annapurna Waughray of 43Manchester Metropolitan University June 2005

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been established, the Court said, by a fair and impartial

trial.110

The Court was particularly critical of the High Court’s

refusal, having clearly concluded that the initial

investigation was faulty, to admit the application for

additional evidence and to order a retrial. On this point

the Supreme Court took a diametrically opposite position

to that taken by the trial court and the High Court:

“The High Court [came] to a definite conclusion that the investigation

carried out by the police was dishonest and faulty. That was and

should have been per se sufficient justification to direct a re-trial of the

case.”111

The Court also held that the High Court had erred in

concluding that the appeal could only be decided on the

basis of the evidence previously before it. It had then

compounded the error by recording that the affidavits

adduced as to the need for permitting the additional

evidence were not truthful. The Supreme Court held that

this was a matter for assessment of evidence when

admitted.112 Under the 1973 Criminal Procedure Code and

the 1872 Indian Evidence Act the courts have wide

discretionary powers to “take necessary steps if …fresh

110 Ibid., Para. 69111 Ibid., Para. 70112 Ibid., Para. 71Annapurna Waughray of 43Manchester Metropolitan University June 2005

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evidence is essential to the just decision of the

case.”113 These powers should be exercised with caution;

the Supreme Court stressed that “there cannot be

straight-jacket formula or rule of universal

application,”114 and as the provisions under the Code are

by way of an exception the Court has to carefully

consider the need for and desirability to accept

additional evidence. However, given that the “function

of the original court is administration of criminal

justice and not to count errors committed by the parties

or to find out…who among the parties performed better,”

if “proper evidence was not brought on record due to any

inadvertence, the court should be magnanimous in

permitting such mistakes to be rectified.”115 Appellate

courts also have power to accept additional evidence if

the court thinks it necessary in the interests of justice

to do so, and furthermore this power is not limited to

cases where there has been “merely a formal defect.”116

Nonetheless, the adducing of additional evidence will not

necessarily lead to the conclusion that the judgment of

the trial court was wrong. That decision is arrived at

after assessing the original evidence before the trial

court and the additional evidence.117 Neither is it the

113 Ibid., Para. 44. See also Paras. 46-49; sections 311 and 391 of the Criminal Procedure Code 1973 together give the courts power to seek and to take into account such evidence, including additional evidence, as is necessary to enable them to arrive at a just decision. 114 Ibid., Para. 73115 Ibid., Para. 51116 Ibid., Para. 49117 Ibid., Para. 59Annapurna Waughray of 43Manchester Metropolitan University June 2005

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case the case that whenever additional evidence is

accepted, retrial is a corollary.118 But in the instant

case, in view of the nature of the additional evidence

sought to be adduced and the perfunctory manner of the

trial, the Court held that:

“a retrial is a must and essentially called for in order to save and

preserve the justice delivery system unsullied and unscathed by vested

interests.”119

As to the location of trial, the Court reaffirmed the

principle that justice should be done but should also be

seen to be done. Thus where the Court is fully satisfied

that a fair and impartial trial is impossible in a given

case and there is a reasonable apprehension that justice

will not be done, an out-of state trial may be

directed.120

On the question of witnesses, the Court dealt at length

in its judgment with the importance of witnesses.

Quoting Bentham, the Court stated that witnesses are the

“eyes and ears of justice.” Where witnesses are

incapacitated from acting in this way, for whatever

reason, a fair trial is no longer possible. The State is

under a duty to protect witnesses in the broader

interests of society, especially in sensitive cases; as a

118 Ibid., Para. 73119 Ibid.120 Ibid.,Para. 74Annapurna Waughray of 43Manchester Metropolitan University June 2005

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protector of its citizens it must ensure that witnesses

can depose safely during trials without fear of

repercussions. 121 The Court made reference to the

numerous experiences of courts faced with witnesses

turning hostile due to threats, coercion, or for

financial or political gain, the cumulative effect of

which is to undermine and destroy public confidence in

the administration of justice leading to anarchy,

oppression and injustice and the breakdown of the rule of

law.122 The Court specifically called for the

introduction of legislative measures prohibiting

tampering with witnesses123 and for the constitution of an

impartial agency “comprising persons of unimpeachable

integrity to perform functions akin to those of the

Director of Public Prosecutions in the UK,” including the

administration of Witness Protection Programmes.124

In the instant case the Court rejected as untenable the

reasons given by the High Court for the non-examination

of eye-witnesses and injured relatives at trial, and was

also critical of the examination of one witness by the

trial prosecutor earlier than the date fixed.125 The trial

court should have recalled and re-examined the hostile

witnesses pursuant to its powers under the 1973 Criminal

Procedure Code and the 1872 Indian Evidence Act. The

121 Ibid., Para. 41122 Ibid.123 Ibid.124 Ibid., Para. 57125 Ibid., Para. 71Annapurna Waughray of 43Manchester Metropolitan University June 2005

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Supreme Court also found the High Court’s conclusion that

Zahira Sheikh had been used by persons with “oblique

motives”, and that witnesses who filed affidavits were of

unsound mind, untruthful and capable of being

manipulated, was unsupported by any material or

reasonable and concrete basis.126

The Supreme Court took the opportunity in its judgment to

articulate its views on the role of the Courts. The

Courts, it said, have “an overriding duty to maintain

public confidence in the administration of justice.”127

This duty requires courts to participate actively in

trials rather than being merely “tape recorder[s]

recording evidence.”128 Presiding officers should play an

active role in the evidence collecting process and should

monitor and control the proceedings so that truth, the

ultimate objective, is arrived at and miscarriages of

justice prevented.129 In cases where the role of the

prosecuting agency itself is put at issue the Court has

an even greater duty and responsibility to render

justice.130 Courts also have a duty to maintain judicial

discipline. Ordering the expunging of Paragraph 3 of the

Appeal judgment which made reference to grievances

purportedly expressed at the appeal hearing about the

126 Ibid., Para. 20127 Ibid. Para. 35128 Ibid. Paras. 43, 55129 Ibid., Para. 43130 Ibid.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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role of the National Human Rights Commission,131 the

Supreme Court was critical of the failure of the High

Court in this case to maintain decency, decorum and

judicial discipline by recording unwarranted references

to persons and constitutional bodies such as the NHRC who

were not before it.132 Finally and in passing the

Supreme Court noted with displeasure the practice

increasingly adopted by the High Courts of pronouncing

final orders without a reasoned judgment (as in the

instant case), often resulting in the implementation of

the order having to be stayed by the Supreme Court

pending delivery of the reasoned judgment.133

E. Comment/ Remarks

The roles played by the National Human Rights Commission,

non-governmental organisations, the media and the Supreme

Court in the progress of the instant case all deserve

brief comment. The Indian and international media were

instrumental in bringing the immediate post-Godhra

communal violence to national and international

attention. In its Proceedings of 1 March 2002 the

Commission stated that it was taking action “on the basis

131 Ibid., Para 83; Mr Sushil Kumar, Defence Advocate, denied that he had made any such submissions concerning the role of the NHRC before the High Court during the course of the appeal hearing as reflected in the judgment.132 Ibid., Para 83. The Supreme Court ordered the expunging of Para 3 of the High Court appeal judgment.133 Ibid., Para. 81Annapurna Waughray of 43Manchester Metropolitan University June 2005

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of media reports, both print and electronic” and an email

request for Commission intervention. The Proceedings

specifically identified news reports as the source of

information about inaction on the part of the state

authorities.134 Its Proceedings of 6 March 2002 made

specific reference to media reports as a source of

information about the situation in Gujarat.135 In its

Proceedings of 1 April 2002 the Commission emphasised the

need to uphold the right to freedom of speech and

expression as articulated in Article 19(1)a of the

Constitution of India as well as in Article 19 of the

ICCPR, and it declared itself “clearly in favour of a

courageous and investigative role for the media.”136 It

also recommended that the media, especially radio, should

be requested to cooperate in efforts to identify and

assist destitute women and orphans and those subjected to

the trauma of rape.137 At the same time, having noted the

views of the Government of Gujarat in respect of the

media138 and the fact that the constitutional right to

freedom of speech is subject to reasonable restrictions

134 Supra, n. 68: “News items report a communal flare-up in the Stateof Gujarat and what is more disturbing, they suggest inaction by thepolice force and the highest functionaries in the state to deal withthis situation.”135 Supra, n. 69136 Supra, n.71, Para. 20 (xi)137 Supra n. 71, Para. 21 (III) (v)-(vi)138 Supra, n. 71, Para. 20 (ix). The Commission noted that in itsdetailed Report of 28 March 2002 the Government of Gujarat attributedthe outbreak of large-scale violence in various cities and townsacross the State to “widespread reporting both in the visual as wellas the electronic media.” The State Report also adds that commentsattributed to State officials were taken out of context by the mediaor were entirely without foundation.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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under Article 19(2) of the Constitution,139 the Commission

suggested “self-policing” guidelines should be considered

to govern the conduct of the media in volatile situations

including those of inter-communal violence in order to

avoid further inflaming the situation.

In its Proceedings of 1 April 2004 the Commission

emphasised the nature of its intervention as a continuing

process to examine, monitor and address the human rights

situation in Gujarat, similar to its intervention

following the cyclone in Orissa in 1991 and the

earthquake in Gujarat in 2001.140 However there were, it

said, fundamental differences between the Gujarat

situation and these earlier instances. The latter arose

from catastrophic natural disasters which required the

Commission to monitor the State’s performance to ensure

that the human rights of the most vulnerable were

protected. The Gujarat situation resulted from large-

scale violation of human rights. This required a

qualitatively different response from the Commission;141

in particular it required the Commission in accordance

with its Statute to monitor compliance of the State with

the rule of law and its human rights obligations.142

From the outset the Commission emphasised the

responsibility of the State to ensure that human rights139 Supra, n.71, Para. 20 (xi)140 Supra, n.71, Para.7141 Supra, n.71, Para.8142 Supra, n.71, Para. 20 (xiv)Annapurna Waughray of 43Manchester Metropolitan University June 2005

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are not violated through overt acts, abetment, inaction

or negligence, whether of its own agents or non-state

actors. It found serious failures of intelligence and

action by the State Government in relation to the events

leading to the Godhra tragedy and the subsequent

violence, particularly in view of the history of communal

violence in Gujarat. In its Proceedings of 31 May 2002

the Commission concluded that the Gujarat Government had

failed to rebut the presumption of responsibility, that

the principle of res ipsa loquitur applied and that there was a

“comprehensive failure of the State to protect the

Constitutional rights of the people of Gujarat,”143 a view

repeated in its Annual Report for 2001-2.144 The

Commission highlighted the State’s failure to take

appropriate action and to identify local factors and

players, the “uneven handling” of major cases arising out

of the Godhra incident and the subsequent wide-scale

violence, the failure of the State Government in its

report of 12 April 2002 to rebut “repeatedly made

allegations that senior political personalities were

seeking to influence the working of police stations”145

and the widespread mis-handling of complaints.146 The

Commission also described itself as “struck by the

143 Supra, n. 85, Para. 10144 National Human Rights Commission, Annual Report 2001-2, Para.3.13:“At the time of writing this report, the Commission had concluded that, in its opinion there could be no doubt that there had been a comprehensive failure on the part of the State Government [of Gujarat] to control the persistent violation of the rights to life, liberty, equality and dignity of the people of that State.”145 Supra, n. 86, Para. 10146 Ibid., Para. 20Annapurna Waughray of 43Manchester Metropolitan University June 2005

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apparent failure of the Government of Gujarat to follow

vigorously” the 1997 Guidelines to Promote Communal Harmony

issued by Central Government.147

The content and tone of the Commission’s comments on the

crisis in Gujarat reflect its teleological approach to

the interpretation of its Statute. In its Annual Report

of 2002-3 the Commission, commenting on the first ten

years of its existence, observed that it had become

increasingly necessary to construe its Statute in a

purposive fashion, “in such ways as are most compatible

with the high purposes of the Objects and Reasons of the

Act.” In this it declared itself guided by the well-

established principle that the texts of Statutes “must

not lend themselves to interpretations that defeat the

very intention of the legislation in question, or lead to

unreasonable and untenable conclusions.”148

In August 2004, pursuant to an Application by the

Commission, the Supreme Court ordered the Government of

Gujarat to establish a Cell to re-open the two thousand

cases closed by the local police, to re-investigate those

cases where further material warranted and, where it was

concluded that further investigation was not warranted,

to post on the internet the reasons for concluding that

the case should remain closed.149

147 Ibid., Para 44148 National Human Rights Commission, Annual Report 2002-3, Para. 2.4149 National Human Rights Commission v State of Gujarat, Order dated 17 August 2004, Crl.M.P.No.3741/2004 in Writ Petition (Crl.) No. Annapurna Waughray of 43Manchester Metropolitan University June 2005

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A welcome feature of the Commission Proceedings is the

apparently conscious effort to “mainstream” the issue of

violence against women and children and gender crimes.

This reflects the growing jurisprudence on crimes of

gender violence of the ad-hoc Criminal Tribunals for the

Former Yugoslavia and Rwanda,150 the Statutes of the

International Criminal Court151 (to which India is not a

party) and the so-called hybrid or Special Courts,152 and

the increasing willingness of the charter-based

mechanisms of the United Nations human rights system to

explicitly address crimes of sexual violence in the

context of situations of gross human rights abuses.153

The Commission’s recommendation of 1 April 2002 that the

media, especially radio, should be involved in the

identification of rape victims and the mobilisation of

109/2003150 See Charlesworth, H. and Chinkin, C. ‘Redrawing the Boundaries ofInternational Law’ in « The Boundaries of International Law : A Feminist Analysis » ; Manchester University Press, Manchester; 2000; Meron, T. ‘Rape as a Crime under International Law’ (1993) 87 AmericanJournal of International Law 424; Chinkin, C. ‘Rape and Sexual Abuse of Women in International Law’ (1994) 5 European Journal of International Law 1;Askin, K. ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals : Current Status’ (1999) 93 American Journal of International Law 97; Askin, K ‘Prosecuting Wartime Rape and Other Gender-Related Crimes under International Law : Extraordinary Advances, Enduring Obstacles’ (2003) 21 Berkeley Journal of International Law 288151 Rome Statute of the International Criminal Court 1998; U.N. Doc. 2187 U.N.T.S. 90 152 See Statute of Special Court for Sierra Leone, U.N. Doc. S/2002/246153 See Report of Yakin Ertürk, Special Rapporteur on violence againstwomen, its causes and consequences - Visit to the Darfur region of the Sudan, dated 23 December 2004;E/CN.4/2005/72/Add.5Annapurna Waughray of 43Manchester Metropolitan University June 2005

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counselling services, is evidence of an innovative and

creative approach to the challenge of responding to such

crimes.154 In its further Recommendations of 31 May 2002

the Commission specifically refers to the continued

difficulties faced by victims of rape and other acts of

brutality in having complaints accurately and fully

recorded by the police, a situation compounded by

insensitive police questioning and the lack of women

police officers. It notes that the State Government’s

own Report of 12 April 2002 testifies to assaults on

dignity “particularly of women and children through acts

of rape and other humiliating crimes of violence and

cruelty”155 and reiterates its view that material

collected or provided by “credible sources such as NGOs”

should be fully taken into account.156

The judgment of the Supreme Court in directing the

retrial and transfer of the Best Bakery case has been

widely described as a “landmark.” The Indian Supreme

Court has an acknowledged record of judicial activism

going back almost three decades, although Professor S.P.

Sathe in his book “Judicial Activism in India”157 argues

that its gradual evolution from a “technocratic court” to

an “activist court” can be traced back further, to the

154 Supra, n.86, Para. 21(IV) (ix)155 Ibid., Para. 10156 Supra, n. 86, Paras. 20, 32157 Sathe, S.P. “Judicial Activism in India”, 2nd Ed.; OUP, New Delhi; 2002; Chapter 1; see also S.K.Verma & Kusum (eds.) “Fifty Years of the Supreme Court of India – Its Grasp and Reach”; OUP, New Delhi; 2003Annapurna Waughray of 43Manchester Metropolitan University June 2005

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last fifty years.158 As Sathe shows, the Supreme Court

has played a central role in facilitating access to

justice in India, firstly through increasingly liberal

interpretation of Constitutional rights and secondly by

liberalising the rules on locus standi to allow greater

public participation in the judicial process.159 The

latter made possible the development of “public interest

litigation”, also termed “social action litigation” by

Professor Upendra Baxi160 whereby individuals and activist

organisations were given access to the Supreme Court on

behalf of the poor, the oppressed and the disadvantaged

to speak out against human rights violations, illegal

acts, poor governance and environmental degradation.161

Sathe also notes the use of social action litigation by

the Supreme Court “for the support of unpopular causes

and the protection of politically powerless

minorities.”162

Thus in the instant case the Supreme Court explicitly

referred to the link between access to justice and human

rights protection163 and made a number of observations on

the role of State Governments and the courts in

preserving the integrity of, and public confidence in,

158 Ibid., at 4-6159 Ibid., at 16160 Ibid., at 18161 Ibid., at 17-19162 Ibid., at 19163 Supra n.1, Para 36: “The principles of the rule of law and due process are closely linked with human rights protection. Such rightscan be protected effectively when a citizen has recourse to the courts of law.” Annapurna Waughray of 43Manchester Metropolitan University June 2005

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the judicial system.164 It warned of the impact of

crimes, which it described as “public wrongs in breach

and violation of public rights and duties,” on the

community as a whole and society in general165 and spoke

of the overriding duty of the courts to “arrive at the

truth and subserve the ends of justice.” The Court’s

vision of a justice system which, by upholding the rule

of law and preventing anarchy and social chaos,

consciously strives to serve the wider interests of

society at large, is clear from this judgment.166 Society

at large is characterised by the Court in this judgement

as a key “stakeholder” in the justice system, as entitled

to justice as is the accused:167

“The community acting through the State and the public prosecutor is

also entitled to justice. The case of the community deserve (sic) equal

treatment at the hands of the court in the discharge of its judicial

function.” 168

Thus the notion of fair trial is described as a

“triangulation of the interests of the accused, the

victim and society”, and denial of a fair trial as an

injustice to the victim and to society as well as to the

accused: “Fair trial means a trial in which bias or

prejudice for or against the accused, the witnesses or the

164 Ibid., Paras. 35, 68, 73165 Ibid., Para 35166 Ibid., Paras. 35, 46, 49167 Ibid.168 Ibid., Para 49.Annapurna Waughray of 43Manchester Metropolitan University June 2005

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cause which is being tried (italics added) is eliminated.”169

The Court went further, saying that “public interest in

the administration of justice must be given as much

importance, if not more as (sic) the interest of the

individual accused.”170 Respect for the rights and needs

of victims and recognition of the obligation of society

at large to challenge impunity for crimes such as gross

human rights violations are the hallmarks of an advanced

justice system. At the same time, as the Supreme Court

also recognised in its judgment, the fundamental right of

the accused to a fair trial as articulated Article 19

ICCPR must be respected. This search for balance between

the interests of the accused, the victims and society in

general raises the larger question, which it is beyond

the scope of this note to discuss, of the potential and

limits of prosecutorial mechanisms for pursuing

accountability for gross and systematic human rights

violations.171

Since the handing down of the trial court judgment in

June 2003, the Best Bakery case has become a focal point

of the legal response to the communal violence in Gujarat

in 2002. Without the “star witness” the prosecution case

is undoubtedly weaker. Nevertheless the retrial is

continuing and prosecution witnesses are still coming

169 Ibid., Paras. 35, 36170 Ibid., Para 42.171 See Ratner., S. and Abrams., J. “Accountability for Human Rights Atrocities in International Law – Beyond the Nuremberg Legacy”, 2nd ed; OUP, Oxford; 2001Annapurna Waughray of 43Manchester Metropolitan University June 2005

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forward for examination, including Zahira Sheikh’s aunt.

In the meantime the Bilkis Yaqub Rasool case may prove

ultimately to have greater significance in establishing

the responsibility of State Governments for human rights

atrocities and in holding individuals, including

government officials and agents, accountable for gross

human rights violations. The case was transferred by the

Supreme Court in August 2004172 for trial in Bombay by a

Special Court, the first of the four cases subject to

Supreme Court transfer orders to be transferred. It

concerns the murders on 3 March 2002 in Gujarat of

fourteen members of the same family and the gang rape of

the surviving victim, Bilkis Yaqub Rasool, who was left

for dead. The police, political party workers, civil

servants, government doctors and ministerial aides have

all been implicated in the murders and rape or in the

alleged cover-up. At the time of writing (early October

2005) the outcomes of this case and of the Best Bakery

case are awaited.

172 See “SC transfers Bilkis case to Maharastra”, rediff.com, 6 August2004, URL (consulted 23 December 2005) http://in.rediff.com/news/2004/aug/06guj.htm; “SC transfers Bilkis Bano rape case to Mumbai”, Outlookindia.com, 6 August 2004, URL (consulted 12 December 2005) http://outlook india.com/Annapurna Waughray of 43Manchester Metropolitan University June 2005

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The 'Best Bakery' Case: Zahira Habibulla H. Sheikh and Another Vs State of Gujarat and Others...

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