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Is Zahira a victim or an accused?
February 25, 2006
What does it take to get a conviction? An acquittal and a retrial, it would seem. The case is full of so many whats and ifs?
What if Zahira Sheikh had not turned hostile in the first place, would there have been a conviction? This cannot be said with confidence, given the failure of the will to investigate the cases of the Gujarat riots.
Most chargesheets in the cases begin with the assumption that as a reaction to the burning of the Sabarmati Express, a faceless mob of unknown people rioted and killed several Muslims.
This itself is a recipe for acquittal. However, Zahira did turn hostile; making the task of the judge simple -- an acquittal was all that was required. There was no attempt to investigate into the question why she turned hostile; this was not only the task of the prosecution and the police but also the judge, before accepting her hostility unquestionably.
An appeal to the high court not only resulted in a dismissal of the case, but the judge drew blood against the NGOs assisting Zahira. At this stage, it was the Supreme Court that stepped in on an appeal by Zahira, who by then had made a statement that she was coerced into retracting her statement. The Supreme Court ordered a retrial outside the state of Gujarat.
We already have two significant failures of justice by now, one by the trial court and one by the high court. These were not just errors of judgement but a major miscarriage of justice. What if the Supreme Court had not ordered a retrial? Is justice so dependent on the individual point of view of an individual judge?
Be that as it may, thankfully, the Supreme Court did order a retrial. By this time and before the trial could conclude, Zahira once again retracted her statement, this time alleging the NGO and actvist Teesta Setalvad had coerced her into making a statement that he had witnessed the burning of the Best Bakery.
The trial proceeded in Justice Thipsay's court. She came to court suitably veiled. Her demeanour was a strange mix of the innocence and shrewdness. She was young, but parroted her answers as only smart street kids at traffic crossings can do. She could lie consistently.
By this time, it was difficult to believe that she was a victim. In popular imagination, she had already become the accused, accused of betraying her own community, accused of being bribed by (Gujarat Chief Minister) Narendra Modi, accused of having stashed away loads of money etc. What a remarkable transformation in less than a year from victim to villain.
However, she was still not an accused in a court of law.
Yesterday came the judgment convicting nine of the 17 accused who stood trial.
Moreover, Zahira will now be charged with the offence of interfering with the course of justice and have to stand trial.
Now one can ask the question once again, what does it take to get a conviction in this country? An acquittal, followed by a rejection of the appeal by the high court, an eyewitness who first says she saw the burning of the Best Bakery, then says she did not, then that she did and then again that she did not and finally the prosecution of eyewitnesses.
Well, is there not something very wrong with the legal system for this to happen? The case is not about whether Zahira Sheikh lied or did not lie, and trying to decipher when she lied and when she did not. It is not about whether Teesta Setalvad coerced her or did not, nor about whether Narendra Modi bribed her or did not, it's about justice for the dead.
Somewhere, we seem to have forgotten that the state of Gujarat did not do justice to the several people who died following the burning of the Sabarmati Express. The delays are enough to make anyone buy peace.
The promise of an uncertain conviction makes many think twice about going to court. The ability of those in positions of power to manipulate the system is now legendary. Whether anyone was convicted or not, the legal system was already convicted and found wanting in doing its primary function -- delivering justice.
All the factors leading to the first acquittal were predictable, yet nothing was done to prevent them from happening. It is all very well for the Supreme Court to say that the chief minister behaved like Nero and looked the other way. What did the high court do, I wonder which direction his court was facing. And petitions filed by the National Human Rights Commission in the Supreme Court in 2002 asking for witness protection, reinvestigation and speedy trial, lie in cold storage to this day.
Meanwhile, 2,000 cases are closed as being unworthy of further investigation. After a Supreme Court calling for a review of the closed cases, a review committee has called for a reopening of 1,594 cases! What a damning admission that the police and 1,594 magistrates did not do their jobs and unquestioningly accepted the closure reports.
What we have here is not one Zahira Sheikh to think about, not one sessions court judge to give the first acquittal, not one high court judge who dismissed the appeal, but a failure of epidemic proportions.
The real accused is the legal system. Who will call it to account. While the Best Bakery judgment redeems the law enforcement system to some extent, it does not absolve it of a deep indifference to justice.
While we celebrate our victories, we need to remember that not every case can go for retrial at the hands of the Supreme Court. Already, people are asking, should Jessica Lal's case be retried?
The Best Bakery story remains untold; the mystery behind the retractions and re-retractions remains unknown. A conviction of Zahira herself will not tell the story either. The question whether Zahira is a victim or an accused will remain unanswered.
For her anyway, where is the justice?
Indira Jaising is a distinguished Supreme Court lawyer.