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 Page 1 of 43Manchester Metropolitan University June 2005
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 Page 2 of 43Manchester Metropolitan University June 2005
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 Page 3 of 43Manchester Metropolitan University June 2005
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 Page 4 of 43Manchester Metropolitan University June 2005
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 Page 5 of 43Manchester Metropolitan University June 2005
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 Page 6 of 43Manchester Metropolitan University June 2005
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 Page 7 of 43Manchester Metropolitan University June 2005
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 Page 8 of 43Manchester Metropolitan University June 2005
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 Page 9 of 43Manchester Metropolitan University June 2005
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 Page 10 of 43Manchester Metropolitan University June 2005
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 Page 11 of 43Manchester Metropolitan University June 2005
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 Page 12 of 43Manchester Metropolitan University June 2005
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 Page 13 of 43Manchester Metropolitan University June 2005
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 Page 14 of 43Manchester Metropolitan University June 2005
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 Page 15 of 43Manchester Metropolitan University June 2005
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 Page 16 of 43Manchester Metropolitan University June 2005
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 Page 17 of 43Manchester Metropolitan University June 2005
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 Page 18 of 43Manchester Metropolitan University June 2005
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 Page 19 of 43Manchester Metropolitan University June 2005
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 Page 20 of 43Manchester Metropolitan University June 2005
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 Page 21 of 43Manchester Metropolitan University June 2005
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 Page 22 of 43Manchester Metropolitan University June 2005
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 Page 23 of 43Manchester Metropolitan University June 2005
(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 Page 24 of 43Manchester Metropolitan University June 2005
“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 Page 25 of 43Manchester Metropolitan University June 2005
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 Page 26 of 43Manchester Metropolitan University June 2005
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 Page 27 of 43Manchester Metropolitan University June 2005
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 Page 28 of 43Manchester Metropolitan University June 2005
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 Page 29 of 43Manchester Metropolitan University June 2005
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 Page 30 of 43Manchester Metropolitan University June 2005
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 Page 31 of 43Manchester Metropolitan University June 2005
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 Page 32 of 43Manchester Metropolitan University June 2005
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 Page 33 of 43Manchester Metropolitan University June 2005
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 Page 34 of 43Manchester Metropolitan University June 2005
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 Page 35 of 43Manchester Metropolitan University June 2005
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 Page 36 of 43Manchester Metropolitan University June 2005
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 Page 37 of 43Manchester Metropolitan University June 2005
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 Page 38 of 43Manchester Metropolitan University June 2005
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 Page 39 of 43Manchester Metropolitan University June 2005
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 Page 40 of 43Manchester Metropolitan University June 2005
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 Page 41 of 43Manchester Metropolitan University June 2005
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 Page 42 of 43Manchester Metropolitan University June 2005
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