An Ahmedabad Sessions Judge has concluded hearing prosecution arguments over the quantum of punishments to be awarded to the 24 convicted in the >Gulbarg Society case relating to the cold-blooded killing of 69 persons on February 28, 2002 in the heart of Ahmedabad. The focus will be on whether the 11 found guilty under Section 302 of the Indian Penal Code (IPC) will be awarded the death penalty. The Special Investigation Team (SIT) has pressed for the capital sentence. It is now for the judge to take the call, after hearing the pleas of the convicts, and decide whether the killing fell in the rarest of rare cases meriting death.
The >Godhra riot cases are a landmark in India’s history of criminal justice. There are two basic issues here which demand serious reflection. Should it have taken 14 years for the wheels of justice to reach this terminus? Will the imposition of ultimate penalty deter criminals in the future from perpetrating such savagery on innocent fellow citizens? While both are relevant to any democracy, they assume special significance for us in India, where we are dismayed by rising street violence and the endless stories of subjectivity, sloth and corruption in agencies and institutions such as the police, prosecution and judiciary. Statistics of crime may not tell the whole story, but the intensity of popular impression will.
Lessons for all The Gujarat happenings took place in 2002. The State police investigated nearly a hundred cases, some major, and many smaller in dimension. After political parties in the Opposition and some non-governmental organisations protested against what they alleged were biases in the Gujarat Police investigation, and the National Human Rights Commission echoed similar sentiments, >the apex court appointed the SIT in 2008 and assigned to it nine of the more important cases. After assiduous investigation, the SIT started filing charge sheets at periodic intervals starting late 2008.
The fact these cases took more than five years — actually eight in a few instances — to come to fruition in the court is testimony to the fact that even if an investigating agency does its job swiftly and efficiently, processes in the court take an enormous amount of time. Several factors, including some tendentious cross-examination by the defence counsel and a mountainous workload on judges, contribute to this situation in which victims have to wait inordinate length of time for justice. I am told that in one pending case, the defence propose to file a list of more than 500 witnesses on its behalf. This, after the prosecution had examined its numerous witnesses and made all of them available for cross-examination by the defence counsel. This is obviously a condemnable dilatory tactic, seen in a majority of cases all over the country. Many presiding officers of courts are themselves lax in permitting this ruse, although they are well within their rights to put down the practice. A number of committees and commissions have gone into this without actually succeeding in offering measurable relief to the victims through expeditious trial.
More than this near-harassment in the court, it is the maltreatment in police stations that is galling for many crime victims. It is an open secret that a large number of police stations in India just refuse to register crimes because of the fear that free registration of crime would boost crime figures and generate the impression of a lack of control over crime. Such a practice is normally at the instance of the governments themselves. More appalling is the fact that when a police station does condescend to draw up a First Information Report, such action would necessarily have to be preceded by the greasing of the palms of the Station House Officer and his staff. There are only slight signs of a willingness to change on the part of policemen, who rationalise their misdeed by pointing fingers at the ballooning corruption on the political firmament and in the higher echelons of the police hierarchy. The average citizen is therefore convinced that he cannot expect justice from any of the three components of the criminal justice system. Naturally, he rationalises that there is nothing wrong in taking recourse to extrajudicial avenues. In his eyes, the latter ‘deliver’ justice swiftly, that too only for a small service charge! This is a dangerous situation. Unchecked, the dim view of the state’s capacity to help avenge any injury caused to a law-abiding Indian is bound to strike at the roots of constitutional governance.
SIT model as a template There are lessons to be drawn from the SIT’s experience in Gujarat that could help improve the plight of crime victims. The semblance of victory in Gujarat was achieved against great odds. Gulbarg by itself stands out for the more-than-marginal vindication of those who screamed for justice and those who supported them fearlessly and single-mindedly, like civil society and the SIT. How this was made possible is an interesting study.
The SIT was the brainchild of a humane, innovative and fair-minded Supreme Court Judge, Arijit Pasayat. He saw it as a neutral body that would not bypass the state apparatus but still carry enough outside talent to ward off charges of partisanship. He knew that the principal task in the situation caused by the unfortunate Gujarat riots was to lend enough credibility to the independent labour that the SIT had to put in without fear or favour. Of the nine cases handed over to the SIT, eight have been concluded, and only one, Naroda Gaon, is left. The SIT was able to get conviction in seven of these occurrences, a signal achievement in riot cases, something that any investigating team can feel proud of. The apex court’s close yet gentle monitoring, the State government’s willingness to provide the infrastructure, and the dedication of the lower staff of the SIT performing the daily chores in the field all contributed greatly. Viewed in this perspective, the Gujarat SIT is a model for other investigations.
Importance of witness protection One factor greatly helped to promote the cause of justice to victims. This was the apex court’s fiat to the SIT that the latter should ensure total protection to witnesses who came forward to testify, first before the SIT and later in the courts. India, unlike many other countries, especially the U.S., does not boast of a solid and foolproof witness protection scheme. As a result, the accused have a field day to use muscle power to browbeat crucial witnesses. This was not allowed to happen in the Gujarat cases handled by the SIT. An elaborate plan of action was drawn up and a team led by a senior officer oversaw the arrangement. Whatever the critics of the SIT may say, one thing they cannot allege is any indifference to protecting the victims and others who came forward to be examined. I have heard this from a scholar at Princeton University who came all the way to study what kind of justice had been delivered to the victims. This commends itself to be duplicated all over the country. It does require a lot of resources. More than that, it needs a large heart on the part of those who control the administration.
Mind you, the preliminary investigation done by the Gujarat Police in all these cases before the SIT took over cannot not be brushed aside as inconsequential or biased. The early unearthing of crucial evidence by the State police was certainly an aid to the SIT in building the superstructure. I look upon the SIT — despite all its real and manufactured shortcomings — as a bold experiment launched by a dynamic Supreme Court judge, a gamble which paid off. This offers hope for future investigations of the kind the SIT had to do in Gujarat.
Is all the above a drop in the ocean? I am afraid it is so. The criminal justice system in the country is still mired in unforgivable politicisation and graft. A momentous exercise by the Centre in collaboration with the States can greatly help. This requires the kind of political will that has not been seen yet.
R.K. Raghavan is a former CBI Director and current Chairman, SIT Gujarat.
