By Teesta Setalvad
(This is the article that appeared in Malayalam weekly Mathrubhumi that lead to Chief Justice remark on February 19th, 2008 against Teesta Setalvad.)
Come February-March 2008, six years down after post independent India’s worst ever communal carnage, victims, perpetrators and masterminds not only roam free but have now, obtained redoubled electoral legitimacy. In year 2002 itself, those accused who were politically powerful and monied in caste and monetary terms obtained easy bail from Gujarat’s courts. (the Citizens for Justice and Peace has placed a tabulation of over 600 bail orders on the record of the Supreme Court demonstrating this and Tehelka’s Operation Kalank has some further evidence in this regard). In sharp contrast, six years down, 84 persons accused of the Godhra coach fire —- most of the accused are innocent having just been picked up on the basis of cooked up police witnesses, one is a boy 100 per cent blind!!–still rot in Gujarat’s jails years after the incident.
The fact that many of them are ill, one is blind; the fact that their families have been reduced to penury and indignity while the main accused and masterminds of the post-Godhra carnages not only roam free but rule Gujarat by action and word, raises the niggling, troublesome question once again. Discriminatory justice. Can a discriminatory system of justice be viable in principle, given what our Constitution espouses? What does this reality mean in practical terms, given that today we also face the challenge of another kind of terror, internationally supported bomb terror? Can such a blatantly discriminatory scheme of dispensation of criminal justice win the faith of each and every system, particularly a community that is at the receiving end of such a system.
Bail is a natural and normal remedy for any accused according to our system of criminal jurisprudence. Even draconian laws, anti terror laws that have questionable provisions on bail, simply do not allow for sustained and continued detention of persons in this fashion. How then can Indian democracy, booming in its growth rate, shining with the glitter of development explain away the dark crevices of sustained institutionalised torture and prejudice?
Some interesting points in this shameful tale are: Godhra Hindu Victims of the S-6 Coach of Sabaramati Express also asked for Transfer of the Godhra Trial Out of Gujarat in SC. In October 2003 Hindu victims of the Train Burning Filed a case for Transfering the Godhra Trial out of Gujarat. It was following this application by CJP that the Godhra Trial was stayed by the SC in November 2003.
There has been no bail order for the Godhra accused since October 2004 from the Courts.The last bail order was granted by the Gujarat High Court on October 30, 2004. The court has simply not heard any bail applications since. One of the 22 absconding accused, a maulvi, was implicated in the crime by an accused/witness, Sikandar, who stated that the maulvi was allegedly seen on the terrace of a Masjid at Godhra (ostensibly planning the conspiracy) although it was later established that the Maulvi was in Maharashtra and not even in Godhra on the relevant day. There were many serious discrepancies in the arrests, glaring inconsistencies that have been pointed out to the state, which simply refuses to address these concerns.
Worst of all, after a change of government at the center in 2004 and the repealment of POTA, the Central Review Committee after examining the issues at hand, ruled that POTA is not applicable to Godhra, May 2005.
Legal provisions under POTA allow for the review of individual cases by a central review committee to prevent misuse of the Act and its draconian provisions. A decision by the Central Review Committee on May 16, 2005 ruled that none of the alleged offences in the Godhra case warranted the invocation of POTA. However, the committee’s decision has not been taken into consideration by either the Gujarat government or the POTA court. Matters relating to bail for the accused, especially in view of the decision by the Central Review Committee, have been brought before the apex court. However these too have faced repeated delays.
Finally, the Supreme Court permits Accused to File Writs for Bail, No Bail after Six Hearings. Following an order of the Supreme Court in late 2006, giving liberty to all accused to file for bail while hearing the matters relating to the findings of the Central POTA Review Committee, seven separate such applications have been filed. Despite six-seven hearings in the matter, the matter has not been seen fit to be heard.
Tomorrow the matter comes up before the Supreme Court. Will justice be done?
In the ultimate analysis, genuine secularism and constitutional governance must mean that issues of mass violence, accountability, transparency, impunity for mass murderers and government officials, are not merely the stuff of election campaigns but the basis on which the balance sheets of our public servants and representatives are drawn. Only then would we have made the transition from a purely electoral democracy to true constitutional democracy.
Judiciary Watch
Once more a serious denial of basic fundamental rights has been caused today by the delay caused by either insensitive or unaccountable listing procedures of the registry of the apex court of India, the Supreme Court.
As a result, 84 of those allegedly accused of the Godhra train burning (one of whom is near hundred per cent blind) have been denied their personal liberty for six years. Bail is the fundamental prerequisite inalienable fundamental right to any and every accused under Indian criminal law and civilized form of jurisprudence. Even draconian anti-terror laws that are severely contested because they vest untested powers on the police and executive, do not ever condone custody for such a long time.
Here’s the Chronology of the Godhra Bail Matters before the Supreme Court
Chronology:
22.2.07. Through an order of outgoing SC Judge Justice BP Singh, the SC ruled that the Godhra accused could fie bail applications before the SC. The matter being considered was the Report of the Central POTA Review Committee that had held that the provisions of the POTA legislation could not be applied to the Godhra case.
10.4.2007 Bail applications are filed in the SC
9.4.2007. Matter is listed by the Registry but not heard because the Court is hearing the All India Judges Association Matter. Plus the summer vacation is after two days. The SC thus directs hat the bail applications should be listed for ” final disposal” on 18.7.2007 after the vacation. What happens after these directions? After the vacation and on SC’s reopening on 18.7.2007, there is no sign of the matter.
First week of August 2007. The matter is again listed on a miscellaneous day at which point, accused reps and counsel travelling at their own cost from Godhra again point out to the court that this matter must be listed on a non-miscellaneous day so final arguments can be completed.
For two and a half to three months no matters are listed as Judges are sitting on the Constitution Bench. Thereafter though matters are shown as pending on the SC list o November 18-19 they are not listed by the Registry.
21.11.2007 Matter is again mentioned by legal reps of the bail accused after which Court asks Registry to list.
First Week of December 2007. Again Bail Matters that are clubbed with POTA Review Committee Matter are listed on a miscellaneous day which means that arguments an never be completed.
12.12.2007. Matters are shown as listed before the Chief Justice and Panchal. Hence again reps of bail accused mention the matter on 11.12.2007 pointing out that since Justice Panchal hails from Gujarat and his brother is a Public Prosecutor for the state of Gujarat, the matter could not be before him. The Court agrees. Again, what does the Registry do?
12.12.2007. Fully knowing the circumstances behind which the matter had been mentioned on 11.11.2007, the Registry still lists the matter before Justices Agrawal and Singhvi. (Justice Singhvi had heard the POTA REVIEW COMMITTEE matter earlier and hence would face similar issues as Justice Panchal). Sure enough, the next day Justice Singhvi says ” not before me.” One more chance to argue the matter and get bail for the victims is lost.
12.12.2007. Agitated, the reps of the bail accused mention the matter again the same afternoon before the Chief pointing out this repeated problem from the registry. The CJ directs that the matter should be mentioned in the second week of January after which he would constitute a special three judge bench and list it for the third week of January.
17.1.2008 Unmindful it appears of the CJ’s order, the Registry lists it on Thursday which may be a non miscellaneous day but which also means that arguments will spill over to the following week. In the first instance the matter is shown as listed before Justices Bhan, Sinha and Mathur. Late the evening before, that is on Wednesday 16.1.2007 it is shown as appearing before the CJ, Ravindran and Panchal. What does it mean that the Registry again lists it before a Judge who cannot hear the matter. On
17.1.2008 Once again, the CJ says it would be posted next week or at the earliest. Personal liberty is denied and no questions ae asked as to what is going on within the Registry of the highest court in the land.
Can no questions be asked about the systems in operation in the Supreme Court of India?
Which matters get automatic priority and which do not?
Which matters suffer because of the delays and interim orders of the Supreme Court?
Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned?
If we can ask no questions, we will receive no answers.
The time has come to question the basic accountability procedures of the highest court in the land.
Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations?
If so, where then do we turn?
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Civil rights activist Teesta Setalvad was awarded Padma Shri in 2007