A fair trial is a human rights issue, believes National Human Rights Commission Chairman Justice Dr Adarsh Sein Anand.
In an exclusive interview with rediff.com, the former Chief Justice of India said he wants to save justice from the cloud that has come over it in the celebrated Best Bakery case.
On Thursday, in an unprecedented move, the Commission filed a special leave petition in the Supreme Court under Article 136 of the Constitution seeking a retrial in the Best Bakery case on grounds of miscarriage of justice on account of intimidation of witnesses and victims. The NHRC also sought a transfer of four other serious cases relating to the Gujarat riots of 2002.
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The NHRC's petition, filed after a fact-finding team visited Gujarat and submitted a report to the Commission, urges the Supreme Court to set aside the judgment of the trial court in the Best Bakery case and seeks directions for further investigation by an independent agency and retrial of the case in a competent court located outside Gujarat.
Justice Anand emphasised that by doing so the NHRC is not focusing on the accused or the punishment given, or not given, in a particular case. The NHRC just wants the Supreme Court to make corrections in the manner of police investigation, process of trial, and protection of witnesses and victims of crime.
"The move is not asking for punishment to the accused in the Best Bakery case," he clarified. "We are asking the Court to look into the [question of a] fair trial."
Justice Anand said he is looking to the Supreme Court to lay down guidelines for a fair trial. "Why in case after case are criminals not punished? Where are we going [wrong] in the judicial process? And what is wrong with the criminal justice delivery system?
"We have moved the Supreme Court for the sake of credibility of the criminal justice delivery system, which is under a cloud after the judgment in the Best Bakery case."
In its special leave petition, the NHRC has contended that:
- The concept of a fair trial is a constitutional imperative recognised in Articles 14, 19, 21, 22 and 39-A as well as by the Code of Criminal Procedure 1973.
- Article 14 of the International Covenant on Civil and Political Rights, which has been ratified by India and is now part of the Protection of Human Rights Act 1973 recognises the right to fair trial as a human right.
- When the right to fair trial is violated, it not just violates certain Fundamental Rights under the Constitution, but also violates human rights.
- Whenever a criminal goes unpunished, it is society at large that suffers because victims gets demoralized and criminals encouraged.
The NHRC has also requested the apex court to exercise its powers under Article 142 of the Constitution to lay down guidelines and directions in relation to protection of witnesses.
The other cases whose transfer to courts outside Gujarat has been sought are the Godhra train carnage trial, the Gulberg Society riots case, the Naroda-Patia riots case, and the Sardarpura case.
Asked about the likelihood of sharp criticism of the NHRC's moves and motives by the Bharatiya Janata Party and Gujarat Chief Minister Narendra Modi, Justice Anand said, "Allegations will not be correct because the NHRC is active in the case of Akshardham, Nadimarg in Kashmir, the Vaishnodevi attack case, and in the issue of the rights of Kashmiri Pandits too. I want a fair trial in all these cases. The reports are under preparation and will be studied and serious follow-up will be done."
Asked why the Commission, or any other organisation, had never before cared to ask in so forceful a manner for a review of similar cases, he said, "We are not asking the Court to give punishment to the acquitted people. We are raising the bigger issue of a fair trial. Even in this case we never expected that most of the witnesses will not stand by their earlier statements. This is the right time to ask the apex court to review the police investigation system. Something must be wrong somewhere and we are asking [the Supreme Court] to look into it."
Earlier in the day, Chief Minister Modi, when contacted before the NHRC filed its special leave petition, refused to comment directly on the organisation. "There are more than 5,000 riots cases in Gujarat," Modi told rediff.com and in only two cases has the Gujarat government gone in appeal against the trial court's judgment.
"If I had been a reporter, I would study the scores of similar cases of riots, their investigation, and the judgments. I would find out whether there is anything different or unusual in the Best Bakery judgment. It is time to study the judicial system of India. Don't try to find Modi in everything."
Told about Modi's comment, Justice Anand said simply: "It was imperative to act. It was an obligation on us to act. We have done our duty."
