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Published in the 16-30 Jun 2004 print edition of MG; send me the print edition

Best Bakery not the only case of subversion of justice

Justice V.N Khare deserves full credit for what he rightly claims as "salvaging of the criminal justice delivery system," and giving "a new dimension to criminal jurisprudence" in the Best Bakery case, as he found "a complete collusion between the accused and the prosecution in Gujrat, throwing rule of law to the winds" (The Hindu, May 2, 2004).

In their judgment on the transfer of the Best Bakery case delivered on 12 April 2004 the learned judges Doraiswamy Raju and Arijit Pasayat not only questioned the impartiality and efficiency of the investigation and the prosecution, but expressed concern over the Court's "indifference to sacrilege being committed to justice". Their lordships were constrained to observe that the trials "were reduced to mock trials or shadow boxing of fixed trials."

But the question needs to be addressed by the Apex Court as well as by those who are concerned about grave threat to rule of law and justice system, whether Best Bakery and other riot cases of Gujrat 2002 are unique or has there been a persistent pattern of subversion of justice in almost all similar riot related cases. The claim by Modi that in all previous riots in independent India, guilty have enjoyed impunity, was rightly ridiculed by their lordships, including Justice Khare, as being no basis for enjoying impunity in the present case, but the fact remains that it is this pervasive climate of impunity enjoyed by all rioters from Jabalpur 1961 to Delhi 1984 to Kanpur 2001 that emboldened the rioters in Gujrat 2002 to kill, rape, burn and loot without any fear of punishment.

While congratulating the Supreme Court for showing judicial activism at its best in a long-neglected area, I would humbly submit to their lordships to do some introspection on the role of the judiciary, including the highest, in encouraging such a climate of impunity.

The learned judges Doraiswami and Pasayat have rightly expressed their anguish and anger over "the arrogance of the State Government refusing to accept even the order of the highest court of the land" (The Hindu, May 6, 2004). However it needs to be noted that once Giriraj Kishore, Vice-President of the Vishwa Hindu Parishad, arrogantly claimed that "the judiciary is in my pocket". Notice was issued but no proceedings were started against him for contempt of the Court. In the case of Bal Thackeray's editorial writings of December 1992, attracting, Ss153A and 153B, the Supreme Court had shown greater indulgence, while dismissing the SLP (1995) against the Bombay High Court's order (1994) dismissing the PIL by the PUCL for his trial on the plea, among others, that it was unwise to "rake up" old issues (related to December 1992). Sorabjee while deploring the judgment, along with Seervai, Nariman and Palkhiwala had observed: "History teaches us that unless these pernicious tendencies are scotched they grow to become monsters later on." It is such a monster of its own making that the highest judiciary has to deal with now.

- Iqbal A. Ansari

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