A warning to rights activists

IT took the US supreme court about half a century to overturn its own ruling on the abortion rights of women. It took India’s supreme court around half that time to swap its views about Prime Minister Modi’s governance style in his avatar as chief minister when the anti-Muslim carnage rocked Gujarat and the country.

Caught in the transition from one opinion to another are leading human rights activist Teesta Setalvad and two former top cops from Gujarat. The three want Mr Modi tried for alleged complicity in the pogrom, which he denies. Ms Setalvad was arrested from her Mumbai home on Saturday, taken to Ahmedabad by the Gujarat police where a magistrate put her on police remand until Friday. Ditto with former DIG-turned-whistleblower R.B. Sreekumar. He was picked up from his Ahmedabad home and remanded to police custody. Another former cop Sanjeev Bhatt is in prison in an unrelated case after he spoke up against Mr Modi. A fresh FIR has been slapped on him. Police action is expected to widen and is rooted in a decision by the supreme court that gave Mr Modi what his followers have been claiming for him — a clean chit.

Mr Modi’s name was cleared in the sense that a three-member bench last week dismissed the petition by Zakia Jafri whose husband was cut down with swords before her eyes. The court noted that the material on record had failed to show that a larger conspiracy was hatched at a higher level.

“Suffice it to observe that there is no tittle of material, much less tangible material to support the plea of the appellant… .” If anything, there was a coalesced effort by disgruntled officials of the state of Gujarat to create sensation by making revelations that were false to their own knowledge, the justices said.

Caught in the transition from one opinion to another are leading human rights activist Teesta Setalvad and two former top cops from Gujarat.

“Intriguingly, the present proceedings have been pursued for last 16 years including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for an ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law,” the court observed.

And thus Ms Setalvad and Mr Sreekumar found themselves in police custody. What did the supreme court say about the Modi administration in a 2004 observation in what is known as the Best Bakery case?

The Press Trust of India filed an absorbing report in April 2004. “Calling the Gujarat government modern-day Neros, looking elsewhere when innocent children and helpless women were burning, the supreme court on Monday issued an unprecedented order quashing the acquittal of all 21 accused in the infamous Best Bakery case and directed its retrial in a Maharashtra court.”

Allowing appeals filed by key witness Zahira Sheikh and the Gujarat government, a two-judge bench of justice Doraiswamy Raju and justice Arijit Pasayat gave the landmark order. It’s the first time an order for retrial and reinvestigation has been passed after the trial court and the high court acquitted the accused.

“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 protected,” the supreme court said in 2004.

It directed the Gujarat government to appoint a new public prosecutor. It ordered the director general of police to oversee further probe and ordered the trial be conducted on a day-to-day basis.

The governments of Gujarat and Maharashtra were advised to give adequate protection to witnesses and victims “so that they can depose freely without any apprehension of threat or coercion from any person”. The court in fact asked the Gujarat government to consult victims and witnesses before appointing a new public prosecutor.

“Though witnesses or victims do not have any choice in the normal course to have a say in the matter of appointment of a public prosecutor, in view of the unusual factors noticed in this case, to accord such liberties to the complainants party would be appropriate,” justice Pasayat said.

A free and fair trial of the case was not possible in Gujarat. “Keeping in view the peculiar circumstances of the case and the ample evidence on record, glaringly demonstrating subversion of justice delivery system with no congenial and conducive atmosphere still prevailing, we direct that retrial shall be done by a court under the jurisdiction of Bombay High Court.”

The high court had apparently described rights activists as ‘irresponsible’. In its cross hairs were Teesta Setalvad and the National Human Rights Commission.

The supreme court expunged the word ‘irresponsible’ and cautioned that the high court appeared to have miserably failed to maintain required judicial balance and sobriety. It slammed as unwarranted references to personalities and their legitimate move before competent courts.

The chronology of events right from the date of incident to the judgement of the trial court and that of the high court was suspect. “If one cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge.

“The investigation appears to be 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.”

In a stinging criticism of the public prosecutor, the court said he acted more as a “defence counsel” and added “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”.

In 2004, for the supreme court, the government and state apparatus were in the dock. In 2022, it’s the human rights defenders who have been served notice.

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