Author: KN Bhat
Publication: The Pioneer
Date: May 4, 2009
URL: http://www.dailypioneer.com/173670/Pasayat's-Gujarat-saga.html
Supreme Court's Justice Arijit Pasayat could
have left an old petition pending till May 1, by when polling would have been
over in Gujarat. It would not have caused any loss to anybody. There must
have been weighty reason for the court to ignore the Zahira Sheikh lesson
Those who are responsible for protecting life
and properties and ensuring that investigation is fair and proper seem to
have shown no real anxiety. Large number of people had lost their lives. Whether
the accused persons were really assailants or not could have been established
by a fair and impartial investigation. The modern-day 'Neros' were looking
elsewhere when Best Bakery and innocent children and helpless women were burning,
and were probably deliberating how the perpetrators of the crime can be saved
or protected. Law and justice become flies in the hands of these 'wanton boys'.
When fences start to swallow the crops, no scope will be left for survival
of law and order or truth and justice. Public order as well as public interest
become martyrs and monuments."
This quote is just a sample from the first
(April 2004) of many crusading judgements by Jutice Arijit Pasayat of the
Supreme Court while dealing with appeals against the Gujarat High Court's
decision acquitting the accused in cases relating to the Gujarat riots of
2002. Justice Pasayat had no doubt that the State Government was guilty.
The basis for such extremely serious observations
was the affidavits of 'star witness' Zahira Habibullah Sheikh and a few others
who claimed to be 'eye witnesses' to the horrendous crime at Best Bakery.
On the basis of the affidavits - sworn statements
in writing - the heart of the seasoned judge visibly melted and pity manifested
itself partly as poetry. He directed the trials to be shifted out of Gujarat.
At once the Government of Gujarat and the State judiciary were pronounced
untrustworthy on the strength of words allegedly written by Zahira Sheikh
- neither tested by cross-examination nor corroborated.
The State of Gujarat made another effort for
reconsidering this verdict on the grounds, among others, that in the appeals
there was not even a prayer for transferring the cases out of the State. The
Supreme Court, through Justice Pasayat (May 2004) condemned the efforts in
the strongest of words - even the counsel were not spared. With respect, a
correct attitude against frivolous litigation.
Let me now quote from the order of the Supreme
Court of December 2004: "From the documents annexed, it appears that
Ms Zahira Habibullah Sheikh has submitted an affidavit to the Vadodara Collector
through her lawyer that the statements she gave earlier in the Fast Track
Court (Vadodara) were true statements. The necessary corollary is that what
has been stated by her in her affidavits, which form part of the record of
this Court, were not correct and are false affidavits." So the State
of Gujarat, the entire judiciary there and the counsel who boldly did their
job were all condemned on the basis of the false affidavit of this 'star witness'.
The court was indeed misled.
Following the special inquiry ordered by the
court, proceedings were initiated against Zahira Sheikh and she was sentenced
to one year's imprisonment with a fine of Rs 50,000. In addition, her ill-gotten
assets were ordered to be seized. The following excerpts from the judgement
of March 8, 2006 by Justice Pasayat are worth reading:
"At the outset, it has to be noted that
we have not gone into the questions as to whether Teesta has done anything
wrong in the process. It was for Zahira to explain whether she was either
telling the truth or making false statement. Merely stating that she was acting
as a puppet in the hands of Teesta is not sufficient...
"Whatever be the fate of the trial before
the court at Mumbai where the trial is stated to be going on and the effect
of her statement made during trial shall be considered in the trial itself.
Acceptance of the report in the present proceedings cannot have any determinative
role in the trial. Serious questions arise as to the role played by witnesses
who changed their versions more frequently than chameleons. Zahira's role
in the whole case is an eye-opener for all concerned with the administration
of criminal justice. As highlighted at the threshold the criminal justice
system is likely to be affected if persons like Zahira are to be left unpunished.
Not only the role of Zahira but also of others whose conduct and approach
before the inquiry officer has been highlighted needs to be noted. The inquiry
officer has found that Zahira could not explain her assets and the explanations
given by her in respect of the sources of bank deposits, etc, have been found
to be unacceptable. We find no reason to take a different view."
This much of profound wisdom has always been,
and is, part of our legal and judicial system. What is apparent may not often
be real. Timely reminder of this in early-2004 would have saved the Supreme
Court from eternal embarrassment. However, a proper corollary to this realisation
should have been annulling all the earlier pronouncements founded on the affidavits
of Zahira Sheikh and others.
Occasionally thereafter Gujarat riot-related
issues - the trial of Godhra and other cases - came up before benches presided
over by Justice Pasayat. While dealing with them, about a year ago, the Supreme
Court, faced with unfolding facts in conflict with beliefs and ever-evolving
confusing versions, appointed a Special Investigation Team headed by Mr RK
Raghavan, the former director of CBI, to investigate several aspects of the
Gujarat riot cases.
What is, however, important is that the SIT
submitted its report to the Supreme Court in a sealed envelope. The court
gave a copy each to the Counsel for the State and to the amicus.
According to the partially leaked report,
the SIT found that the affidavits used in the proceedings - perhaps those
of Zahira Sheikh and others - were stereotyped. The finding appears to be
that the affidavits were prepared at the instance of someone behind the scene
- totally supporting Justice Pasayat's conclusions in the December 2006 judgement.
It would have been a fitting finale if Justice Pasayat, who almost single-handedly
tried to do justice to the victims of the riots as well as to the cause of
our justice delivery system with such zeal, were to direct follow-up action
against those who took the Supreme Court for a ride.
However, on April 27, 2009 -a bench headed
by Justice Pasayat was presented with another affidavit - this time by an
IPS officer alleging, in substance, that Chief Minister Narendra Modi and
63 senior officers had personally encouraged the riots. The court ordered
the SIT to examine the complaint despite the very issue relating to the killing
of the former MP in Gulbarg Society being the subject matter of a pending
criminal case - one of the cases since directed to be heard by fast track
court.
If Zahira Sheikh could lie for a price, so
could a disgruntled police officer for some other consideration - say, a post-retirement
assignment as a Governor. There must have been weighty reason for the court
ignoring the Zahira Sheikh lesson. However, given the ongoing general election
and the influence that the pronouncement could have on the electorate, use
of extra caution would have been appreciated. The petition that was being
considered was several months old. It could have waited till May 1, when polling
in Gujarat would have concluded, without any loss to any one.
This was not to be the end of the Gujarat
saga. On May 1, the court headed by Justice Pasayat, while disposing of a
Writ Petition of 2003 by the National Human Rights Commission and connected
matters, directed several riot-related cases to be sent for speedy trial after
taking into account new facts, evidence and culprits unearthed by the SIT.
The court, while rejecting the request for trial outside Gujarat, entrusted
the responsibility of fair trial to Mr Raghavan, who will have a say in the
appointment of prosecutors. He is authorised to deal with witness protection
and even unruly behaviour near the courts, if any. Yes, the State High Court
is not entirely sidelined.
One may recall that in the 'havala' cases
of 1995 also the Supreme Court had taken care to give every conceivable detailed
direction to every one concerned.
Justice Pasayat in the March 2006 judgement
said: "By not acting in the expected manner a Judge exposes himself to
unnecessary criticism. At the same time the Judge is not to be innovative
at pleasure. He is not a knight errant roaming at will in pursuit of his own
ideal of beauty or of goodness, as observed by Cardozo in The Nature of Judicial
Process." Maybe Justice Pasayat could be held guilty on both counts -
but he will be missed.
- The writer is a Senior Advocate in the Supreme
Court.
