This lesson will study the Supreme Court judgment of 2004 in more detail and discuss its significance.

As mentioned above, after both the Gujarat trial and high courts acquitted the accused in the Best Bakery case, appeals were filed at the Supreme Court. On 12 April 2004, the Supreme Court directed a retrial under the jurisdiction of the Bombay High Court, on the basis that truth had become a casualty in the initial trial. The Bombay court subsequently sentenced nine of the accused to life imprisonment on 24 February 2006.

A. Significance of judgment

The following essay by Basil Fernando underlines the important role to be played by courts in the trial process.

Courts cannot allow bullshitting with justice
--Basil Fernando, May 2007

...[B]ullshitters, although they represent themselves as being engaged simply in conveying information, are not engaged in that enterprise at all. Instead, and most essentially, they are fakers and phonies who are attempting by what they say to manipulate the opinions and the attitudes of those to whom they speak. What they care about primarily, therefore, is whether what they say is effective in accomplishing this manipulation. Correspondingly, they are more or less indifferent to whether what they say is true or whether it is false.
--Harry G Frankfurt, On Truth, (Alfred A Knopf, New York; 2006).

The Supreme Court of India's 2004 judgment in what is popularly known as the Best Bakery case is a great intervention to deal with the manipulation of information, a common feature of criminal trials in many countries where basic elements of criminal justice--police investigation, prosecution and judicial decision making--have become dysfunctional to varying degrees. The historical importance of the judgment lies in that India's apex court decided it could not sit and watch the bullshitting of the three institutions responsible for the administration of justice. The court rightly noted that, "The present appeals have several unusual features and some of them pose very serious questions of far reaching consequences." These consequences relate to the issues of witness protection, improper conduct of trial by the public prosecutor, the role of the investigating agency and the judiciary being a 'passive recorder'.

Far from an exercise in bullshitting, a criminal trial involves questions of great importance for the individuals involved as well as the whole society. For the individual complainant, witness or accused, the trial is a matter of justice. If information is manipulated during the trial, resulting in a distortion of what has actually happened, injustice is served. For society, the trial is a test of faith in the justice system. If the system is seen to deal with crimes through the manipulation of information rather than a committed statement of facts, the credibility of the system is undermined. Moreover, manipulative habits enter into the process of criminal investigation, prosecution as well as judicial intervention. The trial in such cases becomes nothing but a game, a parody. When this process of criminal trials is commonly understood in society, unscrupulous individuals will take to crime. Organized crime then becomes an important and decisive factor in societies, to the extent that attempts to reform both the process and the institutions are hampered. Ordinary citizens gradually lose faith in the judicial process. From what we have witnessed in many countries around Asia, this leads persons to make use of extralegal avenues to settle their grievances. It is inevitable that the criminal justice system breaks down under these circumstances, and it is no easy task to restore it again.

It is this process of bullshitting--manipulation of information--that the Supreme Court tried to confront in the Best Bakery case, which stems from one of the greatest tragedies in the recent history of India. It began with an incident of a fire, which was manipulated to create the impression that there was a deliberate attack on the Hindus by Muslims. This manipulated information was used to ignite an organized political campaign, which included committing horrific crimes with the support of organized criminal elements. The ensuing violence in the state of Gujarat led to the death of over 2000 Muslims, as well as serious damage to the property of many others. This well-crafted crime soon came to the attention of the Indian and international community. The entire state of Gujarat came under severe worldwide condemnation.

This condemnation led to the second stage of information manipulation, which took place through subtle and secret forms of interfering with the investigation into the violence, followed later by interference into the prosecution as well. The entire criminal investigation procedure indicated an attempt to influence the outcome of the trials through ensuring an absence of evidence. As the Supreme Court remarked in its judgment, 'witnesses are the eyes and ears of a court'. If witnesses are prevented--through direct or indirect police action--from providing relevant information, the court is deprived of an essential component of the criminal justice procedure. Many persons who could have given details of what happened during the Gujarat pogrom were not interviewed and nor was all the material evidence gathered.

In fact, many witnesses were too intimidated to come forward. Among those who had come forward, some--such as Zahira, key witness in the Best Bakery case--retracted their initial statements. There was no witness protection mechanism in place by either the police investigators or the prosecution. Instead, the message sent to the witnesses was that they would be taking grave risks by speaking out.

The public prosecutors in Gujarat, as in many Asian countries, took this manipulated situation as an unavoidable circumstance and pleaded that the prosecution defects were due to the absence of evidence; what could they do if witnesses did not come forward to give evidence? They seem to have overlooked the principles of justice that allow prosecutors to question investigators about their submitted reports and to spotlight any flaws. The prosecutors also had an obligation to look into witness protection, especially after witnesses turned hostile. It was their responsibility to ask whether witnesses were told they would receive state protection or if practical measures were taken to protect those witnesses who did come forward. Prosecution officials genuinely committed to searching for the truth could do much to ensure that justice is served, including asking for the trial to be transferred to a more secure location and seeking the assistance of medical professionals in dealing with traumatized victims. If the prosecution is part of the process of manipulation however, it is enough to simply blame the witnesses and investigators.

In a similar manner, courts of law can also avoid responsibility by buying into the no evidence game. On the surface this can come across as impartiality, which is one of the basic requirements of the judiciary. To silently witness the investigation and prosecution's neglect of their basic duties cannot however, be claimed as impartiality. Instead, it indicates cynical partiality towards falsehood. To use the final power of the courts to declare the accused innocent on the basis of an inherently manipulated process is radically different from the basic function of the judiciary. It is unfortunate that political power often leaves the judiciary a silent partner to its crimes in many Asian countries. The courts before which the Gujarat massacres were tried were such partners.

India's Supreme Court could have easily taken part in this manipulation of information. It could have taken refuge under legal technicalities, such as a delay in the filing of appeals. Or, it could have reverted to the no evidence argument. Such decisions would cause little surprise, given the number of cases decided by apex courts throughout Asia in this manner. The Supreme Court of India however, firmly established that excusing the manipulation of information is not what courts are for, be they trial courts or apex courts. The Supreme Court took on the duty of a trial judge to actively participate in the trial before him. This involved questioning the retraction of witnesses, the absence of cross examination on the part of prosecutors and the faulty police investigation. Such questioning would make the court an intelligent umpire at the trial rather than a disinterested or passive recorder. Any disinterest or passivity is in fact only a façade; a judge cannot be truthfully unaware of the manipulated information that is being placed before the court. If the court wants to prevent an erroneous result, it will interfere with such manipulation.

The Supreme Court judgment in the Best Bakery case is of profound importance because the reality it tries to counter is common not only in India, but in many parts of Asia. Deliberately flawed trials conducted by the very institutions meant to ensure fair trial is a major threat not only to justice, but also to human security. The bullshitting of these institutions must be exposed by all concerned with justice as well as organized crime. While in many countries there is much talk and a few brave promises on defeating organized crime, in fact the issue has yet to be seriously addressed. It is simpler than usually imagined. The solution to crime does not lie in the streets. It lies in the justice process; in saving the criminal investigation process, the prosecution process and the subsequent trials from acquired habits--often institutionalized--in manipulating information.

B. Issues raised by the judgment

The following extracts from the Supreme Court judgment highlight key issues relating to justice and fair trial.

Judges as participants, not spectators

"Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a Court of law in the future as in the case before it. If a criminal Court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. Courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators."

"The Courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses. Section 311 of the Code and Section 165 of the Evidence Act confer vast and wide powers on Presiding Officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. They have to monitor the proceedings in aid of justice in a manner that something, which is not relevant, is not unnecessarily brought into record. Even if the prosecutor is remiss in some ways, it can control the proceedings effectively so that ultimate objective i.e. truth is arrived at. This becomes more necessary where the Court has reasons to believe that the prosecuting agency or the prosecutor is not acting in the requisite manner. The Court cannot afford to be wishfully or pretend to be blissfully ignorant or oblivious to such serious pitfalls or dereliction of duty on the part of the prosecuting agency. The prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness."

In other words, judges are required to take an active role to ensure that they learn the truth in every case. It is also the responsibility of the judges to ensure that the prosecutors are doing their duty adequately. Moreover, as noted below, judges should also make use of the powers given to them in law to ensure justice is served.

"The power of the Court under Section 165 of the Evidence Act is in a way complementary to its power under Section 311 of the Code. The section consists of two parts i.e (i) giving a discretion to the Court to examine the witness at any stage and (ii) the mandatory portion which compels the Court to examine a witness if his evidence appears to be essential to the just decision of the Court."

"There is no restriction in the wording of Section 391 either as to the nature of the evidence or that it is to be taken for the prosecution only or that the provisions of the Section are only to be invoked when formal proof for the prosecution is necessary. If the appellate Court thinks that it is necessary in the interest of justice to take additional evidence it shall do so. There is nothing in the provision limiting it to cases where there has been merely some formal defect. The matter is one of the discretion of the appellate Court. As re-iterated supra the ends of justice are not satisfied only when the accused in a criminal case is acquitted. The community acting through the State and the public prosecutor is also entitled to justice. The cause of the community deserves equal treatment at the hands of the Court in the discharge of its judicial functions."

Witness protection

"Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial."

"[T]his Court in Mrs. Maneka Sanjay Gandhi and Anr. v. Ms. Rani Jethmalani (1979 (4) SCC 167), emphasised the necessity to ensure fair trial, observing as hereunder:
…It causes disquiet and concern to a court of justice if a person seeking justice is unable to appear, present one's case, bring one's witnesses or adduce evidence. Indeed, it is the duty of the court to assure propitious conditions which conduce to comparative tranquillity at the trial. Turbulent conditions putting the accused's life in danger or creating chaos inside the court hall may jettison public justice."

"'Witnesses' as Benthem said: are the eyes and ears of justice. Hence, the importance and primacy of the quality of trial process. If the witness himself is incapacitated from acting as eyes and ears of justice, the trial gets putrefied and paralysed, and it no longer can constitute a fair trial."

"Time has become ripe to act on account of numerous experiences faced by Courts on account of frequent turning of witnesses as hostile, either due to threats, coercion, lures and monetary considerations at the instance of those in power, their henchmen and hirelings, political clouts and patronage and innumerable other corrupt practices ingenuously adopted to smoother and stifle truth and realities coming out to surface rendering truth and justice, to become ultimate casualties."

"The State has a definite role to play in protecting the witnesses… As a protector of its citizens it has to ensure that during a trial in Court the witness could safely depose truth without any fear of being haunted by those against whom he has deposed. Some legislative enactments like the Terrorist and Disruptive Activities (Prevention) Act, 1987… have taken note of the reluctance shown by witnesses to depose against dangerous criminals-terrorists. In a milder form also the reluctance and the hesitation of witnesses to depose against people with muscle power, money power or political power has become the order of the day."

These are strong statements regarding the importance of both witnesses and their protection. They are particularly relevant in India as well as other countries of Asia, where witnesses and complainants are routinely threatened and harassed. [For a detailed study of witness protection in Asia, see HRCS Lesson Series 47: Victim and witness protection].

Administration of justice

"Public interest in the proper administration of justice must be given as much importance if not more, as the interests of the individual accused. In this courts have a vital role to play."      

"While dealing with Section 311 this Court in Rajendra Prasad v. Narcotic Cell thr. Its officer in Charge, Delhi (1999 (6) SCC 110) held as follows:
"…A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a Public Prosecutor during trial, either in producing relevant materials or in eliciting relevant answers from witnesses. The adage "to err is human" is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as a lacuna which a court cannot fill up… After all, function of the criminal court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better"."

Indeed, the principle of administration of justice is frequently overlooked or forgotten amidst the internal dynamics and technicalities of individual cases. Thousands of cases throughout India, as well as elsewhere, are testament to this, whether through inordinate delays, a lack of evidence or witness intimidation. And yet, trials should be the practical application of justice in a wider sense, a means to add to existing jurisprudence.

Questions For Discussion

1.    Discuss the importance of the various issues highlighted by the judgment.
2.    How are judges viewed in your country? What is the most serious problem plaguing the judiciary?
3.    Are you aware of any witness protection schemes put in place by governments?
4.    Discuss how you could make use of such a Supreme Court judgment in your own country to campaign for changes in the justice system.