September 7, 2012 2:22:55 am
The most disturbing finding in the judgment of the trial court in the Naroda Patiya mass murder case is not only the active involvement of a prominent senior BJP leader,Mayaben Surendrabhai Kodnani,who hatched the conspiracy and instigated the rioters to commit the crime,but the fact that she was sought to be shielded by the state investigating agency by making every effort to see that her involvement did not come on record. Two questions arise here: first,can the leaders of a ruling political party be allowed to indulge in crime against members of another religion? And,second,what is the role assigned to the investigating agency of the state when a serious,cognisable offence takes place?
Under the Representation of the People Act,1951,every political party in its application to the Election Commission (EC) for registration immediately gives a solemn undertaking that it shall bear true faith and allegiance to the Constitution of India as by law established,and to the principles of socialism,secularism and democracy,and would uphold the sovereignty,unity and integrity of India and on that basis obtain registration and the allotment of a symbol. The Supreme Court (SC),while upholding the imposition of Presidents Rule in the four BJP-ruled states Uttar Pradesh,Rajasthan,Madhya Pradesh and Himachal Pradesh following the demolition of the Babri Masjid,on the ground that the state governments had acted against secularism,declared that political parties should not mix religion with politics,religious tolerance and fraternity being the basic postulates of the Constitution. A few fanatic groups,masquerading as political parties,continue to incite and indulge in communal violence. A decade back,the court declared that,as the law stands,the EC has no power to cancel the registration of a political party for breach of the solemn undertaking given by it. Parliament has not empowered the EC to cancel the registration of an erring political party.
Under the scheme of the Constitution,the state is the custodian of law-and-order and the protector of peoples right to life,liberty and property. Prevention and detection of crime and prosecution of offenders are its primary duties. The Code of Criminal Procedure contemplates independent,swift and objective investigation by the police of any crime,of which it has information. If the investigating agency of the state,forsaking its duty,shields the accused,how can the prosecution succeed? This has happened in case of almost all post-Godhra killings. In fact,soon after the chain of mass murders in Gujarat,Justice J.S. Verma,the then chairman,National Human Rights Commission (NHRC),identified the cases which needed investigation by the CBI,but the state government did not agree. The law does not permit the CBI to take up investigation of an offence in a state outside Delhi without the consent of the state government.
The NHRC approached the NDA government to intervene,but it declined. The result is,as rightly anticipated by the NHRC,investigation undertaken by the Gujarat police has been found to be unfair,partisan and a farce. In the Best Bakery case,people were burnt alive in the presence of a crowd. For want of a proper investigation,the prosecution failed. While acquitting all the accused,the fast-track court (FTC) passed strictures for the state police. The nation was shocked. The NHRC moved the SC directly,challenging the acquittals. The court intervened,set aside the judgment and reopened the case,observing: 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.
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Zahira Habibulla H. Sheikh,the main eyewitness,who lost her family members,complained to the NHRC that she was threatened by powerful politicians not to depose as a prosecution witness. The SC constituted a Special Investigation Team (SIT) to conduct investigations into seven other cases,including the Naroda Patiya murders. But for this order,the conviction of the accused would not have been possible. Tacit connivance of state machinery in the crime and its deliberate attempt to protect the culprits are matters of national concern which Parliament has failed to address. It should be made mandatory for the Central government to entrust the investigation of such sensitive cases to the CBI,if so directed by the NHRC.
The sentences of life imprisonment,with conditions,awarded to the convicts in this case may prima facie appear unusual,but are not unprecedented. The SC has held that a court,while awarding life sentence instead of death penalty,may direct that the convict must not be released from prison for the rest of his life or for the term specified in its order. The general impression that imprisonment for life means only 14 years is not correct. Life sentence means till the last breath,subject to remissions. Further,the law gives discretion to the court to direct whether the sentences awarded should run concurrently or consecutively. The sentences awarded in this case are neither excessive nor illegal.
The country has always suffered on account of politically motivated communal riots before Partition,during Partition and thereafter. Riots happened following the assassination of Indira Gandhi in 1984 when Sikhs were killed,but all the culprits have not been brought to book. Again,it happened in Mumbai following the demolition of the Babri Masjid. The Justice Srikrishna Commission found the involvement of leaders of the Shiv Sena in the organised attack on Muslims,but the law is yet to take its course. The rule of law is a basic feature of the Constitution. It requires that every criminal be punished after a speedy trial.
The writer is a senior advocate in the Supreme Court,and an expert in constitutional law
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