Supreme Court’s Justice Arijit Pasayat could have left an old petition pending till May 1, by when polling would have been over in Gujarat. It would not have caused any loss to anybody. There must have been weighty reason for the court to ignore the Zahira Sheikh lesson. We are reproducing this wonderful article published in http://Dailypioneer.Com by Supreme Court’s senior advocate Shri KN Bhat.

“Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments.”

This quote is just a sample from the first (April 2004) of many crusading judgments by Justice Arijit Pasayat of the Supreme Court while dealing with appeals against the Gujarat High Court’s decision acquitting the accused in cases relating to the Gujarat riots of 2002. Justice Pasayat had no doubt that the State Government was guilty.

The basis for such extremely serious observations was the affidavits of ‘star witness’ Zahira Habibullah Sheikh and a few others who claimed to be ‘eye witnesses’ to the horrendous crime at Best Bakery.

On the basis of the affidavits — sworn statements in writing — the heart of the seasoned judge visibly melted and pity manifested itself partly as poetry. He directed the trials to be shifted out of Gujarat. At once the Government of Gujarat and the State judiciary were pronounced untrustworthy on the strength of words allegedly written by Zahira Sheikh — neither tested by cross-examination nor corroborated.

The State of Gujarat made another effort for reconsidering this verdict on the grounds, among others, that in the appeals there was not even a prayer for transferring the cases out of the State. The Supreme Court, through Justice Pasayat (May 2004) condemned the efforts in the strongest of words — even the counsel were not spared. With respect, a correct attitude against frivolous litigation.

Let me now quote from the order of the Supreme Court of December 2004: “From the documents annexed, it appears that Ms Zahira Habibullah Sheikh has submitted an affidavit to the Vadodara Collector through her lawyer that the statements she gave earlier in the Fast Track Court (Vadodara) were true statements. The necessary corollary is that what has been stated by her in her affidavits, which form part of the record of this Court, were not correct and are false affidavits.” So the State of Gujarat, the entire judiciary there and the counsel who boldly did their job were all condemned on the basis of the false affidavit of this ‘star witness’. The court was indeed misled.

Following the special inquiry ordered by the court, proceedings were initiated against Zahira Sheikh and she was sentenced to one year’s imprisonment with a fine of Rs 50,000. In addition, her ill-gotten assets were ordered to be seized. The following excerpts from the judgement of March 8, 2006 by Justice Pasayat are worth reading:

“At the outset, it has to be noted that we have not gone into the questions as to whether Teesta has done anything wrong in the process. It was for Zahira to explain whether she was either telling the truth or making false statement. Merely stating that she was acting as a puppet in the hands of Teesta is not sufficient…

“Whatever be the fate of the trial before the court at Mumbai where the trial is stated to be going on and the effect of her statement made during trial shall be considered in the trial itself. Acceptance of the report in the present proceedings cannot have any determinative role in the trial. Serious questions arise as to the role played by witnesses who changed their versions more frequently than chameleons. Zahira’s role in the whole case is an eye-opener for all concerned with the administration of criminal justice. As highlighted at the threshold the criminal justice system is likely to be affected if persons like Zahira are to be left unpunished. Not only the role of Zahira but also of others whose conduct and approach before the inquiry officer has been highlighted needs to be noted. The inquiry officer has found that Zahira could not explain her assets and the explanations given by her in respect of the sources of bank deposits, etc, have been found to be unacceptable. We find no reason to take a different view.”

This much of profound wisdom has always been, and is, part of our legal and judicial system. What is apparent may not often be real. Timely reminder of this in early-2004 would have saved the Supreme Court from eternal embarrassment. However, a proper corollary to this realisation should have been annulling all the earlier pronouncements founded on the affidavits of Zahira Sheikh and others.

Occasionally thereafter Gujarat riot-related issues — the trial of Godhra and other cases — came up before benches presided over by Justice Pasayat. While dealing with them, about a year ago, the Supreme Court, faced with unfolding facts in conflict with beliefs and ever-evolving confusing versions, appointed a Special Investigation Team headed by Mr RK Raghavan, the former director of CBI, to investigate several aspects of the Gujarat riot cases.

What is, however, important is that the SIT submitted its report to the Supreme Court in a sealed envelope. The court gave a copy each to the Counsel for the State and to the amicus.

According to the partially leaked report, the SIT found that the affidavits used in the proceedings — perhaps those of Zahira Sheikh and others — were stereotyped. The finding appears to be that the affidavits were prepared at the instance of someone behind the scene — totally supporting Justice Pasayat’s conclusions in the December 2006 judgment. It would have been a fitting finale if Justice Pasayat, who almost single-handedly tried to do justice to the victims of the riots as well as to the cause of our justice delivery system with such zeal, were to direct follow-up action against those who took the Supreme Court for a ride.

However, on April 27, 2009 —a bench headed by Justice Pasayat was presented with another affidavit — this time by an IPS officer alleging, in substance, that Chief Minister Narendra Modi and 63 senior officers had personally encouraged the riots. The court ordered the SIT to examine the complaint despite the very issue relating to the killing of the former MP in Gulbarg Society being the subject matter of a pending criminal case — one of the cases since directed to be heard by fast track court.

If Zahira Sheikh could lie for a price, so could a disgruntled police officer for some other consideration — say, a post-retirement assignment as a Governor. There must have been weighty reason for the court ignoring the Zahira Sheikh lesson. However, given the ongoing general election and the influence that the pronouncement could have on the electorate, use of extra caution would have been appreciated. The petition that was being considered was several months old. It could have waited till May 1, when polling in Gujarat would have concluded, without any loss to any one.

This was not to be the end of the Gujarat saga. On May 1, the court headed by Justice Pasayat, while disposing of a Writ Petition of 2003 by the National Human Rights Commission and connected matters, directed several riot-related cases to be sent for speedy trial after taking into account new facts, evidence and culprits unearthed by the SIT. The court, while rejecting the request for trial outside Gujarat, entrusted the responsibility of fair trial to Mr Raghavan, who will have a say in the appointment of prosecutors. He is authorised to deal with witness protection and even unruly behavior near the courts, if any. Yes, the State High Court is not entirely sidelined.

One may recall that in the ‘havala’ cases of 1995 also the Supreme Court had taken care to give every conceivable detailed direction to every one concerned.

Justice Pasayat in the March 2006 judgment said: “By not acting in the expected manner a Judge exposes himself to unnecessary criticism. At the same time the Judge is not to be innovative at pleasure. He is not a knight errant roaming at will in pursuit of his own ideal of beauty or of goodness, as observed by Cardozo in The Nature of Judicial Process.” Maybe Justice Pasayat could be held guilty on both counts — but he will be missed.