On February 19, 2008, apparently angered by the contents of an article published in the Malayalam weekly, Matrubhumi, Chief Justice KG Balakrishnan of the Supreme Court of India saw fit to chastise the author.

We reproduce the ‘offending’ article here to give readers a look at what so disturbed the honourable judge.

Come February-March 2008, six years 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 the year 2002 itself, those accused who were politically powerful in caste and monetary terms obtained easy bail from Gujarat’s courts. (Citizens for Justice and Peace, CJP, has placed a tabulation of over 600 bail orders on record at 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 whom are innocent, having been picked up on the basis of cooked up police witnesses, and one, a boy, is near 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 citizen, 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 aspects of this shameful tale are listed below.

Hindu victims of the fire in coach S-6 of the Sabarmati Express also asked the Supreme Court for a transfer of the Godhra trial out of Gujarat. In October 2003 Hindu victims of the train burning filed a case urging that the Godhra trial be transferred out of Gujarat. It was following this application by CJP that the Godhra trial was stayed by the Supreme Court in November 2003.

There has been no bail order for the Godhra accused from the courts since October 2004; the last bail order was granted by the Gujarat high court on October 30 that year. 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 centre in 2004 and the repeal of POTA, the Central (POTA) Review Committee, after examining the issues at hand, ruled that POTA was not applicable to Godhra. 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 (POTA) 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 (POTA) Review Committee, have been brought before the apex court. However these too have faced repeated delays.

Finally, the Supreme Court permitted the accused to file writs for bail; despite six hearings in the matter bail has still not been granted. Following an order by the Supreme Court in late 2006, allowing all the accused to file for bail while hearing matters relating to the findings of the Central (POTA) Review Committee, seven such separate applications were filed. Despite six hearings in the matter, the matter has still not been fully heard. The matter comes up before the Supreme Court (in February 2008). Will justice be done at last?

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 will 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 by the delay resulting from either insensitive or unaccountable listing procedures at 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 100 per cent blind) have been denied their personal liberty for six years. Bail is the fundamental prerequisite inalienable fundamental right of any and every accused under Indian criminal law and civilised form of jurisprudence. Even draconian anti-terror laws that are severely contested because they vest untested powers in the police and executive do not ever condone custody for such a long period of time.

February 22, 2007: Through an order of outgoing Supreme Court judge, Justice BP Singh, the Supreme Court ruled that the Godhra accused could file bail applications before the Supreme Court. The matter being considered was the report of the Central (POTA) Review Committee which held that the provisions of the POTA legislation could not be applied to the Godhra case.

April 10, 2007: Bail applications are filed in the Supreme Court.

April 19, 2007: The matter is listed by the registry but not heard because the court is hearing the All India Judges Association matter. The summer vacation is to begin two days later. The Supreme Court thus directs that the bail applications should be listed for "final disposal" on July 18, 2007, after the vacation. What happens after these directions? After the vacation and on the Supreme Court’s reopening on July 18, there is no sign of the matter.

First week of August 2007: The matter is again listed on a miscellaneous day at which point representatives of the accused and counsel travelling at their own expense from Godhra again point out to the court that the matter must be listed on a non-miscellaneous day so that final arguments can be completed.

For two-and-a-half or three months no matters are listed because judges are part of a larger constitution bench. Thereafter, though matters are shown as pending on the Supreme Court list of November 18-19 they are not listed by the registry.

November 21, 2007: The matter is again mentioned by legal representatives of the accused after which the court asks the registry to list the matter.

First week of December 2007:  Once again, bail matters clubbed with the POTA review committee matter are listed on a miscellaneous day which means that arguments cannot be completed.

December 12, 2007: Matters are shown as listed before the chief justice and Justice Panchal. Hence representatives of the accused again mention the matter on December 11, 2007, pointing out that since Justice Panchal hails from Gujarat and his brother is a public prosecutor for the state of Gujarat, the matter should not come up before him. The court agrees. Once again, what does the registry do?

December 12, 2007: Fully aware of the circumstances in which the matter had been mentioned on December 11, the registry still goes on to list 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". Yet another chance to argue the matter and get bail for the victims is lost.

December 12, 2007: On the same afternoon agitated representatives of the accused mention the matter again before the chief justice, pointing out this repeated problem in the registry. The chief justice 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 2008.

January 17, 2008: Unmindful, it seems, of the chief justice’s order, the registry lists it on January 17, 2008, a Thursday, which may be a non-miscellaneous day but which also means that arguments will spill over into the following week. In the first instance the matter is shown as listed before justices Bhan, Sinha and Mathur. Late the evening before i.e. on Wednesday, January 16, the matter is shown as coming up before the chief justice and justices Ravindran and Panchal. How does the registry, despite earlier objections, again list the matter before a judge who cannot hear the matter? On January 17, 2008, once again the chief justice says the matter would be posted the following week or at the earliest date. Personal liberty is denied and no questions are 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 prioritisation 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?