The Best Bakery case has generated a heated debate in its wake on some of the glaring inadequacies in the existing system of judicial dispensation, with particular reference to the witness protection program. Citing the centrality of witness protection in the entire schema of fair trial, the Supreme Court has rebuked the Modi government for its inability to protect witnesses in critical riot cases. The three-judge bench comprising Justice Khare, Justice Brijesh Kumar and Justice S B Sinha suggested that the Modi government should step down if it was unable to protect its citizens and offer a fair trial, which is a fundamental function of the government in power.

The drama began with Zahira Sheikh, the prime witness in the Best Bakery case, turning hostile, along with 37 out of the 43 other witnesses. Zahira, the daughter of the Best Bakery owner witnessed the barbaric killing of 14 people, which included employees of the bakery and members of her family on March 1, 2002, in the post-Godhra carnage. The carnage, said to be the worst of its kind in the history of independent India, gained notoriety due to the overt support and complicity of the state machinery in the riot.

After a trial that lasted for more than a year, the trial court acquitted all the 21 accused because of lack of evidence. The verdict delivered by Justice H H Mahida on June 27 was challenged by an NGO, ‘Citizens for Justice and Peace’ and the National Human Rights Commission (NHRC) on the basis of discrepancies in the manner in which the case was handled. Some of the arguments in this regard are as follows:

• From the very beginning the Gujarat government was accused of being biased in the investigation of riot cases. This was due to the discriminatory treatment meted out to the Godhra and post-Godhra culprits. While the former were arrested under POTA and denied bail, the post Godhra accused were allowed to be released on bail and intimidate the witnesses. This was also reflected in the explicit support provided to securing justice for the Hindu victims while deliberately overlooking the plight of the Muslim victims, many of whom suffered at the hands of the state machinery, especially the police, and the local Hindu leaders who were accused of instigating and leading the mobs.

• The fast track court, which was set up for the purpose of trying the riot cases speedily, took a year to dismiss the case. This provided ample scope for the accused to threaten or bribe the witnesses for not giving statements against them. Zahira’s case was a classic example. A year ago, this gutsy girl had identified the perpetrators and given their names to the police. However, repeated threats to her life and honour forced her to withdraw her statement. The fact that Zahira was escorted by the BJP MLA, Madhu Shrivastav, to the court premises is worth mention in this regard. It shows the kind of pressures that the witness must have been put through. The trial court did not bother to look into the reasons why so many witnesses, including Zahira, turned hostile. Neither did it take into account the statements made by the witnesses before the police under Section 161 of the Criminal Procedure Code.

In its petition seeking retrial in the Best Bakery and some other cases (Godhra train carnage trial, the Gulbarg Society riots case, the Naroda-Patia riots case, and the Sardarpura case) outside Gujarat, for the safety of the witnesses and ensuring a fair trial, the NHRC stated that:

• The concept of a fair trial is a constitutional imperative recognized in Articles 14, 19, 21, 22 and 39-A, as well as by the Code of Criminal Procedure 1973.

• Article 14 of the International Covenant on Civil and Political Rights, which has been ratified by India, and is now a part of the Protection of Human Rights Act (1973), recognizes the right to fair trial as a human right.

• When the right to fair trial is violated, it not only violates certain Fundamental Rights under the Constitution, but also violates basic human rights.

• Whenever a criminal goes unpunished, it is the society at large that suffers, because victims get demoralized and criminals are encouraged.

Attempting to convert the petition into a public interest litigation aimed at improving the criminal justice system in India, the NHRC requested the apex court to exercise its powers under Article 142 of the Constitution to lay down guidelines and directions in relation to protection of witnesses. This encompasses crucial aspects of their safety before, during and after trial.