Justice, Justice and The Best Bakery Case

Justice, Justice and the Best Bakery Case
Author(s): Rajeev Dhavan

Source: India International Centre Quarterly, Vol. 30, No. 2 (MONSOON 2003), pp. 1-11
Published by: India International Centre
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Rajeev Dhavan
Justice, Justice and the Best

Bakery Case
I
"Justice, Justice, you shall pursue". Reflected also in other legal

cultures, this injunction in the Book of Deuteronomy (Book 16 v.
20) reminds us-even exhorts us-that the pursuit of justice is
not confined to compliance with the 'law' but striving towards what
is truly just. The Best Bakery case tests this challenge. Following the
Godhra train massacre in February 2002, communal riots spread in
various places in Gujarat. Murder, mayhem, arson, looting and killing
continued unabated for some time. There is more than one indictment
from various reports that Chief Minister Modi' s administration stood
by-ineffectually letting this happen. One of the ghastly incidents
that occurred was at the Best Bakery. Fourteen persons-including
eleven Muslims and three Hindu employees-were burnt alive around
8 pm on 1st March 2002. The police intervened twelve hours later.
Many witnesses saw all this happen but were fearful for their lives-
lest vengeance be added to wrath with greater severity. It is easy to
think of Best Bakery as one incident in a riot. But it is not. It is a case of
murder-merciless, vicious and uncompromisingly cruel.
The Best Bakery case tests the ability and capacity of the Indian
legal system to confront communal murder and bring the 'murderers'
to justice. Over the past twenty years this has become an issue.
Following the Delhi riots in 1984, Sikhs were massacred with the
complicity of the party in power and an administration reluctant to
make timely preventions. In 1992 the Babri Masjid was destroyed as
the world watched on the media; and as many BJP politicians too
2 I India International Centre Quarterly
watched from a terrace. Such destruction could not have happened

without the complicity of Chief Minister Kalyan Singh's government
in Uttar Pradesh, and the Congress government in 'misjudging'
the situation. In 2002 the post-Godhra riots confirmed perceptions
that fundamentalist 'Hindu' governments in power in the States
would allow minorities to be massacred, not provide them with
remedial assistance and fail to prosecute the murderers and assailants
properly.
What flows from this is devastating for Indian governance.
Already besieged in more ways than one, a psyche has entered into
the minds of Muslims, Christians and also perhaps other communities
that they are not just vulnerable, but that they will not get justice
from the Indian legal system. This feeling has been reinforced many
times over by the murder of Revd. Staines in Orissa, and Justice
Wadhwa's safe but unsatisfactory report. But, in that case what
followed was an effective prosecution to bring the culprits to book,
five years later in September 2003, to show that a wrong can be
disciplined. Justice Srikrishna's balanced report on the Bombay Riots
of 1992-3 indicted many, including officials and their higher-ups.
Recently, British courts refused to extradite Nadeem in the
Gulshan Kumar murder case, precisely because English judges felt
that a Muslim may not get due justice in Indian courts. A similar plea
has been made by Indian Muslim fugitives in Portugal. This question
can no longer be shelved. Can Indian justice deal justly with cases
concerning the minorities, especially Muslims? Or, on the face of it, is
there convincing proof that the State administration is ineffective and
prone to shield the perpetrators of ghastly communal crimes?
It is necessary to pause, if briefly, to consider whether punishing
the communally guilty is the answer in order to restore secular sanity.
Or is the state being as blood thirsty in revenge as the perpetrators of
these crimes are in their execution? I hesitate on this larger question
of how truth and reconciliation can heal societies divided by hate.
But whatever is the answer to those larger questions of managing
love and hate in a society, we must assume that society cannot permit
people to place a premium on inhuman killing sprees without a finger
being pointed at them-so that they evade the disciplining process of
accusation, trial and punishment. Still less, civilised secular
governance cannot be permitted to protect such murderers, support
their cause, and directly or indirectly join the communal fray.
RAJEEV DHAVAN I 3
II
A mongst others, Zaheera a girl thirteen years of age, was a

errified and traumatised witness to what happened on the
ate£ul night of March 2002. Of the fourteen persons murdered,
two were dragged onto the streets and killed. Inside twelve charred
bodies were found-including those of two children. They were
roasted alive. Zaheera saw it happen-having escaped to the roof with
her mother and others. It was Zaheera's statement that formed the
basis of the police report. There was no dearth of evidence. Of 120
witnesses, only 73 deposed. Forty-one turned hostile including
Zaheera, her mother, sister and two brothers. In the end, 21 persons
were accused. All of them were acquitted.
The trial proceeded at break neck speed-using what is now
known as the 'fast track' procedure. Such 'fast tracks' should be used
by the railways, not the justice system. 'Fast track' procedures should
be to prioritise cases so that they are taken up first. The purpose of
'fast track' procedure should not be to prompt the judge to accelerate
justice so that 'speed' rather than 'justice' becomes the objective of
the proceedings. Started on the 9th May, the entire trial finished by
the 27th June-with several witnesses being examined on the same
day. Faced with the amazing volte face of so many witnesses, the judge
refused to waver from the accelerated speed limits he had, perhaps,
set for himself. There is a myth-wrongly perpetrated by the recent
Malimath Report on criminal justice (2002)-that an Indian judge is
only a neutral spectator to criminal trials. In fact, this is not so. In his
pursuit of justice, the presiding judge can undertake local inspection,
examine witnesses, recall witnesses and summon any person as a
witness (Sect. 310-1 Cr.P.C.). This is not just a power but his duty.
Who, then, was responsible for the massacre at Best Bakery?
Justice H.U. Mahida who delivered the judgment in Best Bakery had a
clear reason for acquitting all the 21 accused. While accepting that the
massacre was a "blot on the cultural city of Vadodra", he found not
"an iota of evidence" to indict the accused. But Judge Mahida had
reportedly more to say. To him all this was the fault of the British,Ml.d
his Indian successors (meaning Prime Minister Nehru, but not quite
saying this). Where Judge Mahida failed as a judge, he sought to play
instead historian, social commentator, reformer and pontiff. For him,
" ... the overall question of communal riots in India is a fall-out of the
divide and rule policy bequeathed by the British". His grudging
political comment-obviously directed at Nehru-was that Indian

rulers" ... accepted the partition and waited for the Britishers to go so
that they could jump on the kursi (chair) and, neglecting burning
issues, became world figures".
Surely this is the Bhartiya Jana ta Party (BJP) and Rashtriya Sewak
Sangh's (RSS) rhetoric on how Nehru ruined India for self-
aggrandisement. This does not have a place in a judgment in a trial
on murder. But the judge was relentless and added that it was a "major
mistake by blindly copying the Soviet system to make India a highly
industrialized state". The relevance of this is not entirely clear.
According to the judge, this led to the consequence that India's
"villages started to crumble and cities began to overflow with people".
For him, the solution lay in "shifting (people) from the industrial sector
to the agricultural sector (which) ... could to a large extent help in
keeping communal riots under control." This, then-according to the
judge-is the answer ! Provoked by his own wisdom, the judge went
on to name India's vote bank-based affirmative action 'reservation'
policies for part of the blame, and to suggest that such affirmative
action should be confined to the physically challenged. The judge
also felt it necessary to commend the Parsi community as the "pride
of the country" for their progress, without being hindered by caste or
communal hurdles. All this in a judgment concluding a murder trial !
If taken seriously, what is the sequitur to all this? If the judge is
taken seriously, riots will continue until people are sent back to the
villages and the policy of industrialisation is reversed. But, what
follows? The suggestion is that justice in communal riot cases is not
possible until that happens. Which people are to be sent back? The
Muslims and/ or Others? Having found a judicial niche for political
statements, the judge speaks further. He states that the Indian legal
system produces "courts of evidence" and not" courts of justice". This
is to justify his decision that no evidence was available against the 21
accused. Unfortunately, this is also a policy-if not a political
statement. Welcomed by the BJP, such a statement is reinforced by the
Malimath Committee Report of 2003, which states that India should
move towards Europe's investigative system of justice rather than
follow the inherited British adversarial system. This is not really an
issue. There are many things in the 'Malimath' package on confessions
to the police being admissible and the conduct of. a trial, which have
been rightly criticised as being violative of international norms of
criminal justice. Judge Mahida is actually wrong. India's criminal
RAJEEV DHAVAN I 5
justice system gives the presiding judge in a criminal case considerable

powers to examine and investigate. The fact is that Justice Mahida-
following his fast track and unerring instincts to go in the wrong
direction, did not exercise any of these powers. He allowed the case
to get caught in a groove so that it was virtually abandoned by the
prosecution and the judge to its fate.
The Best Bakery case must make us pause. Justice Mahida seems
to have behaved more like a pontiff than a judge. If there is no evidence,
an acquittal follows. But, is that the end result? A judge faced with
the relatives of innocent victims retracting from statements made to
the police must surely suspect that something was wrong. However,
the judicial antennae did not go up. Read as a whole, Judge Mahida
seems to have gone further to lecture on partition, Nehru's ambition
to be a world leader (without mentioning him by name),
industrialisation, the reservation programme and the Parsi
community-echoing a mixture of mixed popular sentiments of which
many appear political, if not party-political. Within this broad canvas,
the previous governments are to blame-implying perhaps that the
Congress was to blame rather than the BJP. Within a narrow canvas,
he blames the prosecution (but not directly) who blame the witnesses
who were scared. This is not 'best justice' but a terrible legal
nightmare-from which a Kafkaesque spoof can be written -except
that it is not a spoof but a disturbing reality.
III
T he Best Bakery judgement was followed by a storm of protest.

Newspaper editorials dubbed it as 'Charred Justice' (Statesman:
1 July 2003), 'Fixing Witnesses' (Hindu: 1 July), 'Justice
Blindfolded' (Hindustan Times" 30 June), 'Speedy Injustice' (Times of
India: 30 June)' 'Half Baked Justice' (Hindustan Times: 4 July) 'A
mockery of the law' (Hindustan Times-18 July 2003). Broadly these
reflected what most people thought of what had happened. Soon after
the judgment was delivered, the National Human Rights Commission
(NHRC) moved into the fray. Earlier, in March 2002, the NHRC (then
led by its Chairman, Chief Justice J.S. Verma) took the view that the
administration was not taking effective action-broadly pointing to a
communal approach by Modi's government in handling both the
peace and rehabilitation process. More significantly, the NHRC took
the view that the prosecution of these cases should be done by the
Central Bureau of Investigation (CBI) and not the State government's
police. In order that this should happen, the concurrence of the Union
Government at the Centre and Modi's BJP government in the State
was required. But, this was obviously not what either of these
governments wanted, belonging as they did to the BJP. There was an
election in the offing. Modi' s government seemed content to deal with
the riots and their aftermath in a partisan way and keep the
investigation under its control. On this, the Union government
obviously concurred.
The NHRC pursued its criticism of the Modi government till
about July 2002; and then it went relatively cold. Why this was so is
not entirely clear. The only way in which the control of the
investigation could be taken up by the CBI was if the courts ordered
it. But the Gujarat government did not want even the NHRC to
investigate. In March-April 2002, attempts to prevent the NHRC
investigation were eventually scotched by the Supreme Court, in a
transfer petition to take the case out from Gujarat High Court to the
Supreme Court. Beyond that, control of investigations remained with
the Gujarat government. Meanwhile, three significant cases were filed
before the Supreme Court by Mallika Sarabhai, followed by one by
Mahasweta Devi and others, and by the PUCL. A pointed relief was
sought for a CBI investigation. There were other reliefs for proper
food, shelter and protection, and not to close the camps. Somehow,
the Supreme Court never got round to hearing these pleas until it
was too late. In some the pleadings were defective, but in others they
were not. It is possible that the Supreme Court, having got drawn
into a Presidential Reference between July-October 2002 on the
holding of the Gujarat election, did not want to interfere when
elections were imminent or taking place. But, whatever its reasons,
the Supreme Court forbore. It was a forbearance that cost the cause of
justice. The NHRC's suggestion of a CBI investigation should have
been followed through.
Let us return to the events from July 2003, after the Best Bakery
judgment was delivered. In early July, Zaheera and other witnesses
spoke out. They said that they retracted their statements because they
were pressurised by specific persons; they were afraid. This is entirely
plausible. A witness who belongs to a particular area has nowhere
else to go. They cannot emigrate into oblivion; and even then, they
could be pursued. For the witnesses in the Best Bakery case, Vadodara
RAJEEV DHAVAN I 7
was their home. They were afraid that they would be picked upon;
even murdered. This was not just a retraction following losing a case.
What was now coming out was the real story behind acquittal.
Criminal elements had interfered with justice. Seeing that this was
not an empty assertion, the NHRC, now led by former Chief Justice
of India Mr. AS. Anand, sent an investigative team, which verified
the facts to conclude that oppression and tampering with witnesses
had taken place.
So far, the Gujarat government (which had, as the prosecuting
government, theoretically lost the case) did nothing. They simply stood
by applauding-through individual comments by party and other
supporters-that justice had been done. The Gujarat government
could have appealed to the High Court; but they failed to do so. It
was left to the NHRC to move the Supreme Court on 31July2003 to
place its findings before the Supreme Court; to consider the case for a
re-trial, protection of witnesses, moving the case out of Gujarat and
other remedial directions. This came up for criticism. It was argued
that the NHRC was a mere busybody and had no locus standi to
approach the Supreme Court.
All this was based on a wrong appreciation of the NHRC's role.
Set up in 1993 and headed by an ex-Chief Justice of India, it is the
statutory duty of this Commission to examine human rights'
violations. This does not mean that just because a case has gone
through a judicial process, the NHRC, or for that matter public opinion,
is silenced. To ensure the prosecution of criminal cases remains a
function of the NHRC. After the Bijbehara incident in Kashmir, the
NHRC upbraided the government for a faulty court martial and its
refusal to disclose judicial papers to the NHRC. In the Best Bakery
case, the NHRC had the benefit of the Court records and its own
investigations in July 2003 to confirm its view that justice had been
interfered with. Under the Protection of Human Rights Act 1993, the
NHRC can intervene in proceedings. The NHRC's petition was both
proper and necessary. Nor can it be said that the Supreme Court did
not have the jurisdiction to hear the case. It has extensive jurisdiction
to protect fundamental rights (Article 32) and to hear any case under
a special jurisdiction (Article 136). So both attacks on the NHRC's
petition (namely its lack of _locus and the Supreme Court's lack of
jurisdiction) were unjustified.
What the NHRC petition did do was to galvanise the Gujarat

government to appeal to the Gujarat High Court while the NHRC
petition was before the Supreme Court. This arose out or the politics
of embarrassment. Even Modi' s re-elected BJP government felt some
shame on being exposed. In fact, it is Modi's government that is on
trial. But, the Modi government's petition to the Gujarat High Court
was a damp squib. It did not ask for a re-trial. If it was only an appeal,
the scope was limited. On the evidence as it stood, there would be yet
another acquittal. But, what was wrong was the evidence itself. This
counter strategy of the Modi government's appeal was fully exposed
in the hearing before the Supreme Court on 12 September 2003 when,
during arguments, the Supreme Court chastised the appeal as
fundamentally deficient. The 'Modi' appeal was just an awkward
reaction-pretending to do justice when there was no intention of
doing so.
The Supreme Court is now seized of the Best Bakery case. It is
not for the Supreme Court to hear the case. It can lay down directions
about what it is to be done. The Court was severe with the Modi
government during hearings. On 12 September 2003, Chief Justice
Khare is reported to have said:
I have no faith left in the prosecution and the Gujarat govern-
ment. I am not saying Article 356. You have to protect people and
punish the guilty. What else is raj dharma? You quit if you cannot
prosecute the guilty.
These are both brave and courageous observations. But, they
cannot be torn out of context. The Chief Justice was not recommending
emergency rule, under Article 356 of the Constitution, to dispense
with Modi's governance. He was making the scathing observation
that governments which cannot maintain constitutional imperatives
must be adjudged incapable of constitutional governance. While
political trajectories chased some of the Chief Justice's comments to
urge that the Modi government should be sacked, the real issue was
what needed to be done in the immediate future to ensure best justice
in the Best Bakery case. No doubt, the judiciary will find a satisfactory
solution even it it means ensuring the protection of witnesses, and
ordering a fresh trial. Surely this cannot be before Justice Mahida,
who seems to have behaved more politically than politicians and less
judiciously than judges.
RAJEEV DHAVAN I 9
IV
I f we are to pursue 'justice' and, yet again, justice, what does this
second justice mean? At the first level of 'justice', the Best Bakery
trial proceeded day-to-day at speed to acquit those against whom
'not an iota of evidence' was found. But, the second level of justice
requires examining what precisely had happened. In the Best Bakery
case, there is no doubt that a terrible murder of the innocents took
place. It was not in some secluded place-as many murders are. It
was done in front of a large number of people who saw what was
going on. The community that saw the murders was aware of who
had committed it. The accused were mostly from the area and known
to the locals. But, having taken the first step to indict the guilty, the
witnesses (some young and tender in years like Zaheera) were scared.
The contention that it is impossible to convict murderers in riot cases
is as absurd as it is a gross failure of justice. There is something
seriously wrong in suggesting that cold-blooded murders committed
in public are impossible to detect and prosecute. If the views of Judge
Mahida, the Modi government and other's are accepted, we must
simply accept the terrifying suggestion that riot murders and crimes
are without effective remedy.
Apart from the Modi government being relentless in its pursuit
of injustice, the Union Government has seen this opportunity to
introduce a Criminal Law (Amendment) Bill 2003, to permit pretrial
evidence. This Amendment ordains that evidence, if given to the police
is presently not admissible as evidence, it is to become admissible as
evidence if the statement is ma\}e before a judicial magistrate. This
Amendment seeks to implement aspects of the Malimath Committee
report in bits and pieces, without considering its general consequences
on criminal justice as a whole. India's criminal justice jealously guards
the right of the accused not to be trapped by his own words to the
police or magistrates, before the trial. In this, it is different from other
common law systems. The reason for this is that the Indian police are
not to be trusted. Since the influence of the police and others is all-
pervading, witnesses are scared into making confessions because they
are tortured, or may be tortured or prevailed upon. In the new proposal
of the government, the witness is taken before a judicial magistrate.
This will not alter the situation. Scared witnesses will remain
intimidated by future consequences to make statements against
themselves.
1O I India International Centre Quarterly ·
What the Union government is trying to cash in on with reference

to the Best Bakery case is that had the earlier statements of Zaheera
and others been made to a magistrate, they might have been admissible
to avoid the consequens:e of acquittals that followed in that case.
Instead of dealing with the Best Bakery case, the Union government
is making legal capital out of misfortune. The Best Bakery case has
become an excuse for more onerous laws, to reduce civil liberties
protections, and to make an onerous virtue out of mal-necessity.
Since at least 1984, the integrity of Indian secularism has come
to be questioned. This is not because communal riots have taken place.
These have taken place earlier. What is new is the active or passive
involvement of the government, its officers, its armed personnel and
police in the riots. The apparatus of the State itself becomes communal
to participate and permit the frenzy of hate-especially against the
minority communities. Of what worth is a secular state which cannot
behave in a secular way-to defend the minorities from not just
oppression but atrocity? In the case of Gujarat, the complicity of the
State has been documented many times over.
After Godhra, arson roamed the neighbourhood, death stalked
the streets, rape, murder, mayhem and pillage was imprinted in the
localities where the Muslim minorities lived. This was communal
violence at its worst-comparable to the merciless killing of Sikhs in
Delhi after the assassination of Mrs. Gandhi. On 11th March 2002,
Sahmat's report described the events as 'ethnic cleansing'. What
happened went beyond communalism to take the form of genocide.
By the 19th to 22nd March 2002, the National Human Rights Commission
(NHRC) spoke of the massive breakdown of law and order. The
government stood by-watching without sufficient intervention. The
Kamal Chenoy Report followed.
Then came an indictment by Amnesty on 28th March 2002, on
the irresponsibility and complicity of the State in excarcerbating the
problem. The Women's Group Report of 31 March 2002 by Syeda
Hameed and others recorded the ghastly stories of the 'survivors'.
Several reports followed. In April 2002, the Human Rights Watch
group directly implicated the police. On 10 May, the Women's Forum
Report reported on the genocide in Dahod. The Second Citizen's
Report of 31May2002 examined the genocide and its aftermath. The
NHRC's Final Report of 21May2002 recommended-amongst other
suggestions-a CBI inquiry. The Independent Assessment Report of
Muchkund Dubey and Syeda Hameed confirmed the worst stories
RAJEEV DHAVAN I 11
and worst fears. The government's complicity in not providing proper

support, shelter and rations, with its premature closing down of camps
was documented by Harsha Mander's Report. A Peoples Tribunal,
headed by Justice Krishna Iyer, recorded the testimony of frightened
people and the indelible ghastliness of their memories.
Amidst indictments of the miserable failure of secular governance
in Gujarat after Godhra, the Best Bakery case throws up the challenging
accusation that India's system-in which is included investigation,
prosecution and trial of Justice-simply cannot provide justice to its
minorities-even in obvious cases of riots. This is not because things
go wrong in the individual case but because the 'State' itself is
committed to ensuring that such justice will not be given. If this view
gains ground, India's secular foundations are deeply in peril.
Democracy produces both accountability and majoritarianism.
Combined with the rule of law, constitutional governance seeks to
ensure democratic and secular justice. Holding and winning elections
fulfils one aspect of constitutional governance. Electoral victory is only
the basis for future governance, but this does not exhaust its mandate.
Beyond this lies justice, justice and again justice-without which
governance itself is incomplete.

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Justice, Justice and the Best Bakery Case

Author(s): Rajeev Dhavan

Justice, Justice and the Best

"Justice, Justice, you shall pursue". Reflected also in other legal

watched from a terrace. Such destruction could not have happened

A mongst others, Zaheera a girl thirteen years of age, was a

political comment-obviously directed at Nehru-was that Indian

justice system gives the presiding judge in a criminal case considerable

T he Best Bakery judgement was followed by a storm of protest.

What the NHRC petition did do was to galvanise the Gujarat

What the Union government is trying to cash in on with reference

and worst fears. The government's complicity in not providing proper

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