The Telegraph
Since 1st March, 1999
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Legal eagles dismiss Gujarat plea

New Delhi, Sept. 14: The legal community has reacted sharply to the Gujarat government’s plea in the Supreme Court that in “riot situations” it is difficult to prove guilt and its attempt to hammer in the point by arguing that none has so far been convicted in the 1984 anti-Sikh riots.

“This is a totally absurd argument to advance…. In fact, individual crime is the most difficult to prove,” said senior counsel Rajeev Dhawan.

“Say, for example, in an individual murder case where there is no eyewitness and no proof, it is extremely difficult for the prosecution to prove the guilt beyond doubt. Whereas, it is the opposite in a riot situation, which is witnessed by hundreds.

“It depends on the prosecution to strengthen the case with proper protection to the witnesses and coherently compiling the case,” Dhawan added.

“The failure of the prosecution, which is exactly what happened in the instant Gujarat riot cases, cannot be passed on as the weakness in our criminal justice administration system,” the senior lawyer argued.

Of the 43 witnesses in the Best Bakery trial, 37 turned hostile and all 21 accused were acquitted. Fourteen people were burnt to death in the bakery at Vadodara on March 1, 2002.

Dhawan said the existing criminal law is good enough to tackle such situations and “debates” on change in law “are wasteful exercises”.

The apex court virtually silenced such debates when it dismissed the Gujarat government’s plea in the Best Bakery case as an “eyewash”, with Chief Justice V.. Khare censuring chief minister Narendra Modi. Khare added that the court had no faith in the prosecution and Modi’s government that they would bring the guilty to justice.

Additional solicitor-general Mukul Rohtagi, who presented the unusual plea on behalf of the Gujarat government, was not available for comment.

Former Delhi High Court Chief Justice Rajinder Sachar opined that “if criminal cases dragged on” for years, “it could be difficult for a witness to recount and recollect the incident” as evidence. This has often happened in trials of anti-Sikh riot cases after Indira Gandhi’s assassination in 1984.

Justice Sachar cited the example of a woman witness in a Delhi case, who “after 16 years (of the incident)” could not vouchsafe for her initial statement, resulting in the acquittal of a politician.

“In such a situation, there might not be even coercion of the witness. One might not have been threatened to take back the statement, but the mere prolonging of the case could result in such a situation where a witness might not testify her own statement on oath later,” he said.

But Sachar argued that “this does not mean the prosecution would not prepare the case properly”.

A “vigilant judge” would immediately act on the “hostile witness” and probe the witness in the courtroom itself, he added.

“If I were the judge, I would have done exactly that,” Justice Sachar said, pointing out that the judge did not do so in the Best Bakery case.

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