Monday, December 20, 2004

PIL: Review of the Judgement of Transferring the Best Bakery case

PIL: Review of the Judgement of Transferring the Best Bakery casePublic Interest Litigation ( PIL) for the review of the Judgement of Transferring the Best Bakery case from Gujarat to Maharashtra

K. G. Acharya ( Free lance journalist and a
Gandhian and Ambedkarite human rights activist)
187/ 5235 Sanmati Society
Pant Nagar, Ghatkopar, Mumbai - 400 075
Cell No. 982995440, Land line Tel. No. : 25119890
Date: 17 December 2004

To
The Honourable Chief Justice of India
The Supreme Court of India
New Delhi – 110 001

Respected Sir,

Subject: Public Interest Litigation ( PIL) for the review of the Judgement of Transferring the Best Bakery case from Gujarat to Maharashtra for retrial I, K. G. Acharya, the petitioner have been observing that many politicians with vested interests and in the garb of an impartial NGO are engaged in media trial in the Best Bakery case, by distorting some and suppressing some other facts to suit them. If the people believe that this untruth has resulted in a possible human error in delivering judgement by the S preme Court, I am afraid, it will have extremely s rious consequences on the judiciary, secularism, communal harmony, democracy and all of our nation’s activities.

The petitioner, therefore, is to request the Honourable Supreme Court, very humbly, to review its earlier judgement of transferring the Best Bakery case from Gujarat to Maharashtra for retrial by taking into consideration the submissions, made herein, very carefully. Since, I, the petitioner, am not an advocate, if the language in the petition is not in keeping with the usual petitions, I beg your pardon and very humbly request you to take into consideration only the contents in the true spirit of delivering a judgement. Please consider this letter as a PUBLIC INTEREST LITIGATION or whatever else it is called in legal terms, but give this instrument due consideration on its merits.

The petitioner is to pray that if convinced by his submissions, the Supreme Court quash its earlier judgement, as a sequel to later developments, and order a stay for the proceedings going on at present in the additional Session Judge, Mr A M Thipsay’s court at Mazgaon, Mumbai.

The Supreme Court took the extraordinary decision of transferring the Best Bakery case out of Gujarat to the Mumbai High Court in April 2004, as a sequel to the petitions of Zaheera Sheikh, Teesta Setalvad and her NGO, Citizens for Justice and Peace and also the National Human Rights Commission ( herein after referred to as NHRC). The petitioner is convinced that full facts are not brought before the Honourable Supreme Court by the petitioners Teesta Setalvad of the Citizens for Justice and Peace and Zaheera Sheikh, an illiterate, poor young girl of 19 years, who has said that her signature was taken by Teesta Setalvad by cheating her by telling that the (petition) papers, in English language, which Zaheera has not learnt, were regarding her Best Bakery property. The other petitioner, the NHRC had not applied its mind to ascertain the truth and the bonafides of the above petitioners and was swayed by the media reports as it did many times in the past as explained in this application in later paragraphs.

Since the case is extremely sensitive, which is clear from the fact that Justice Mr A M Thipsay, in charge of the retrial, is receiving threats and attempts are made to poison the accused persons in Mumbai jail, the petitioner thinks, it is his humble duty to bring before the Court the following facts, which have tremendous bearing on this case, and which he knows well and pray for their due consideration by the court.

The petitioner is to bring to the notice of the Honourable Supreme Court that the credibility of the above persons and the above organisations is doubtful, taking into consideration the following facts, which might be unknown to this Honourable Court so far. The petitioner submits :

(1) Zaheera Sheikh, Teesta Setalvad and her organization, Citizens for Justice and Peace and the NHRC are not reliable, trustworthy and their credibility is very low and thus their affidavits submitted to the Supreme Court might be also so. He, therefore strongly feels that the Honourable Supreme Court has erred in its judgement of transferring the Best Bakery trial outside Gujarat. The media carried out an extra-judicial trial in a sub-judice matter and he feels that the Supreme Court Judges have also unknowingly been swayed by it. He has therefore submitted arguments to vindicate this statement also.

(2) Zaheera Sheikh has turned hostile very frequently. She is a poor girl of only 19 years and very susceptible to fall a prey to monetary allurement and /or bribe. It cannot be said without investigation by impartial enquiry that only her recent turning hostile after the Supreme Court judgement in April 2004 makes her unreliable but not that before the judgement. Zaheera Sheikh has alleged that Teesta Setalwad, her associate, industrialist Raees Khan and her organization Citizens for Justice and Peace had kept Zaheera as hostage, in confinement for seven months, without allowing her to see her mother and doctor and threatened to kill her and compelled her to tell lies in the court for the sake of religion ( “ tumko kaum ke liye zooth bolana padega”) . Zaheera has said that she would not speak untruth in the holy month of Ramzan.

Zaheera Sheikh’s allegations are extremely serious in nature and must be thoroughly investigated by an impartial agency. The enquiry may be conducted by the Central Bureau of Investigation or a Special Investigation Team ( SIT ) monitored or headed by a retired Supreme Court or High Court judge selected by a panel of leaders of the ruling party and the opposition party in the parliament.

(3)Though the allegations were not made so far in a court, Teesta Setalvad approached the Mumbai High Court for an anticipatory bail and approached the Supreme Court also following which the Supreme Court has issued a notice of Contempt of Court to Zaheera, the Gujarat Government and the NHRC.

The fact that Teesta Setalvad asked for anticipatory bail reveals her guilty consciousness and the fact that the allegations were so serious that she could have been arrested under 153 A or any other column or Act of the IPC.

Now, Sehrunissa, the mother of Zaheera Sheikh, too, has alleged during the retrial in Mumbai Court of Justice Mr A M Thipsay on December15, 2004 that Teesta Setalvad and her assoiciate Raees Khan had threatened her with death. It is not justice to disbelieve Zaheera and her mother when allegations are made against Teesta Setalvad and believe in them when allegations are made against Teesta Setalvad’s opponents, without investigation and impartial enquiry.

(4) The allegations made by Zaheera Sheikh and her mother, Sehrunnisa against Teesta Setalvad mean that Teesta Setalvad and her NGO, Citizens for Justice and Peace have misled the Honourable Supreme Court by willfully submitting false affidavits and have virtually manipulated the trial to suit their partisan political predilections.

Under the law, giving or fabricating false evidence with the intent to procure conviction of capital offence punishable with imprisonment for life or imprisonment, is punishable under the Indian Penal Code. The extra judicial role of such an NGO, the Citizens for Justice and Peace, is dangerous. If criminal justice is sought to be exploited and abused in the above manner, an innocent person may go to the gallows making mockery of administration of justice in the country.

5) The credibility of Teesta Setalwad and the NGO Citizens for Justice & Peace as regards their honesty, integrity and sense for justice is very low. In justification of the statement, the petitioner submits as follows:

(a) Bringing Zaheera Sheikh and her family members to Mumbai by special car from Vadodara and keeping all the persons in confinement for 7 months in Mira Road flat and Versova flat is very expensive. Filing petition in the Supreme court is also a costly affair. Teesta Setalvad’s magazine “ Communalism Combat “ has very small circulation. The magazine is not visible in public libraries and stalls in public places. The NGO, Citizens for Justice and Peace has miniscule membership; it has not held any public meetings with large attendance; it holds, perhaps, only closed door meetings. To arrange press conferences is also very expensive. In the backdrop of these facts, there are doubts and suspicion regarding the sources of the huge funds required for the above activities of Teesta Setalvad and her NGO, Citizens for Jutice and Peace.
(b) Teesta Setalwad had joined Asghar Ali Engineer and Archbishop Fr. Evan Dias in blaming Hindutvavadi leaders, the BJP, the RSS etcetera in the St. Michael’s Church at Mahim, Mumbai on a Sunday, according to news in the Times of India ( referred herein after as ToI) of Sunday October 18, 1998 in the wake of rape of 3 nuns on September 22, 1998 in Zabua in Madhya Pradesh. Later on after the investigation it was found that the rapists were a gang, which included 12 Christians and a Congressman, but no RSS men as alleged.

The criminals are undergoing imprisonment now, but Teesta Setalvad has no courtesy to apologise for making false allegations and maligning Hindu organisations. Teesta Setalvad is not a Christian and had no routine business to go to the church with Asghar Ali Engineer, another Muslim. The October 1998 issue of “Communal Combat”, edited by Teesta Setalvad has given news about the rape and blamed the Hindu organization for that. It is curious and very much suggestive that the concerned article about the incident is missing from the archives of the magazine and is not sent to the petitioner by e-mail as promised by concerned authorities of the magazine, despite reminder.

The rape incident was used in subsequent elections in MP, Rajasthan and Delhi to malign Hindu organizations and the BJP. Christian schools had declared “bandh” in Mumbai and a Morcha of School children from Don Bosco school was taken. One should think whether school children should be used to protest rape.

After the police investigation was completed and the Christian rapists were arrested, the media ignored the news about the rapists completely. This one incident, alone, is a concrete proof to show that Teesta Setalvad is an anti-Hindu activist and an anti-BJP politician and not a human rights activist as claimed.

( c ) Teesta Setalvad wrote a book for teachers of the Don Bosco School, Borivli, Mumbai, and circulated it in the school, in which she criticized Shivaji Maharaj in many ways and referred to his caste. This was in September 2001.The fact is that Shivaji Maharaj is known and highly revered throughout the country and particularly in Maharashtra for fighting the Moghal ruler, Aurangzeb, who had imposed Jiziya tax only on Hindus, and not for his cast. As a result, teachers and parents of the school children protested and the school authorities had to withdraw the controversial book intended to poison the minds of young children to fulfil her heinous design. Astonishingly, Teesta Setalvad had not got the names of the publishers and the printers of the book, printed on the book, to escape from the clutches of the law. Teesta had not taken permission of the education department to publish the book. Unfortunately no NGO came forward to take Teesta Setalvad to task for violating rules.

( d ) In the article, THE POLITICS OF TEXTBOOK( ToI – 24-10-1999), Teesta Setalvad is reported to have said: “Textbooks in Gujarat call Muslims, Christians and Parsis foreigners. They detail the ills of Christianity, the greed of the Pope and the sensual pleasures enjoyed by the Catholic clergy.” All the above allegations of Teesta Setalvad are false.

( e ) When the Union Minister for Railways Laloo Prasad Yadav ordered an enquiry into the burning of the Sabarmati Express in Godhra, and when contacted by the ToI, Teesta Setalwad of Citizens for Justice and Peace said, “The railway ministry had earlier abdicated its responsibility of independently investigating the incident which was warranted under the Railways Act.” She stated that this inquiry was “long overdue”. (ToI- 3-9-2004). According to the article, “Godhra probe: Lalu is wrong“, by Arabinda Ghose in the weekly Organiser( 26-9-2004), it is clear that the probe ordered by the railway minister Lalu Prasad Yadav was illegal and politically motivated. One term of reference in the Probe is to find our whether the karsevaks were traveling without ticket. This type of enquiry is never made, when accidents take place.

( f ) Teesta Setalvad, Javed Akhtar, Alec Padamsee, Anil Dharker and the NGO Citizens for Peace and Justice met relatives of those killed in the coach S-6 of the Sabarmati Express on 27 February 2002 after 20 months on 5-10-2003, pretended that they were the victims’ sympathizers, brought them to Mumbai, arranged a press conference in Mumbai and provoked them to speak against the BJP, the VHP and other Hindu organizations and yatras organized by these organisations.

The Godhra victims were also used to demand ban on future Yatras in general and the proposed Yatra of March 15, 2003 to Ayodhya, in particular, by Hindu organizations.

That the yatra turned out to be peaceful proved that Teesta Setalvad’s demand was just an attempt to malign Hindu organization.

Teesta Setalwad, Secretary of the NGO Citizens for Justice and Peace said that a petition demanding transfer of the case outside Gujarat for retrial would be filed by the Godhra victims within the next few days, with the support of the NGO ( ToI – 6-10-3). It is to be noted that the Godhra victims did not do this.

The monthly magazine “Communalism Combat”, edited by Teesta Setalwad, and another NGO Sahamat propagated an appeal to the Central government to stop Karsevaks going to Ayodhya on March 15, abusing Sangha parivar as communal and fascist. In Their press note names of Mahesh Bhatt, Javed Anand ( husband of Teesta ), Nikhil Wagle, Praful Bidwai, Shyam Benegal etc were written (Maharashrtra Times – 21-8-2002). In an appeal to UP chief minister Mulayam Singh Yadav and Dy. Prime Minister L.K. Advani, the Citizens for Justice and Peace demanded ban on the October 15 Ratha Yatra alleging outbreak of communal violence and insecurity among the minority community (the Free Press Journal, herein referred to as FPJ – 14-10-2003).

It must be noted that the VHP Yatra was very peaceful, despite provocation by organizations like the Citizens for Justice and Peace. The ToI reported it as “flop”.

( g )Teesta Setalwad, secretary of the NGO, Citizens for Justice and Peace complained in her affidavit that prosecutors were either leaders or members of the RSS or the VHP in Gujarat. (ToI, Ind. Ex. and FPJ – 18-10-2003) This was improper, since the RSS and the VHP are not banned organizations. If objection to these organizations can be upheld on the ground that they speak for Hindus, then the bonafides of anti-Hindu
Citizens for Justice and Peace automatically become doubtful. Teesta Setalvad’s argumet amounts to mean, using the same yardstick, that the background of the Honourable Chief Justice, V.N. Khare, who had worked for Indira Gandhi, the Congress Prime Minister in the 1975 Corruption case, filed by Raj Narain, in which Indira Gandhi lost and was unseated in Parliament also makes him disqualified to consider the case. It must be noted that Teesta Setalvad had engaged the lawyer, advocate Mihir Desai, to plead for her and Zaheera Sheikh, is anti-Hindu. He refused to plead for Zaheera Sheikh after she made allegations against Teesta Setalvad. If pro-Hinduism of advocates of one party in the litigation makes them unreliable or incredible or disqualified for the case, then anti-Hinduism of advocate Mihir Desai must also be considered so. It must be noted that Mihir Desai had attended a meeting at Prabhadevi, Mumbai in which the VHP, Bajrang Dal and the Sangh Privar were severely criticized for Zaheera Sheikh’s retracting her statements.

( h ) Teesta Setalvad and her NGO, Citizens for Justice and Peace were using the Gujarat riots to spew venom against the RSS, the VHP and the BJP by using a section of the media in their favour, though it is reported that some Congressmen, the ISI of Pakistan and some Islamic fundamentalists were also involved in the riots. This is clear from a few of the following news reports:

( i ) The Godhra train carnage on February 27, 2002 was an “ act of terrorism planned at the behest of Pakistan to foment communal riots all over the country”, according to a study report. The study, conducted by a five-member team led by Justice D S Tewatia, former Chief Justice of Calcutta High Court, for the Council of International Affairs and Human rights, released in New Delhi described the Godhra incident as an act of international terrorism planned and executed in connivance with the jehadi forces. Haji Bilal, Mohammad Husain Abdul Rahim Kalota and a few more Congresmen were involved in the plan to burn the Sabarmati Express at Godhra ( FPJ- 27-4-2002, Navabharat, Hindi daily- 30-5-2002, Loksatta-27-4-2002).

( ii )According to Jamiat Ulama-I-Hind most Congress corporators actively participated in the riots. JUH secretary Farooqi has a list of 25 Congress leaders from Gujarat which included former Congress minister, a sitting MLA and a former MP. Farroqi acused Congress workers of committing sins of commission and omission during the riots ( ToI – 10-8-2003).

( iii ) Teesta Setalvad herself had said in March 2002 that in the attack on former MP Ehsan Jaffery’s house, a Congress member was among the mob ( FPJ – 30-3-2002).

(iv) The fact that Congress governments in Maharashtra, Rajasthan and Punjab refused to send police force to Gujarat, to control riots, though the Gijarat government was ready to spend full money for their deployment, shows that the congress was not interested in curbing the riots, but was interested only in making a political capital out of riots.

( j ) According to the editorial in the Free Press Journal Teesta Setalvad had come to access crores of rupees in the 1998 general election. In the editorial of the Free Press Journal dated November 5, 2004 again a reference to the suspicious sources of funding for multi-crore advertisements against the BJP in newspapers is made pointing out a finger to Teesta Setalvad.

( k ) Teesta Setalwad approached DCP, G. D. Pol in zone 5, Dadar, Mumbai and asked him to file FIR against VHP general secretary Praveen Togadia under sections 153A, 153B, 295A,298 and 505 for his alleged inflammatory speech at a meeting of the Rashtriya Vichar Manch at Nardulla Tank Maidan on March 16. ( ToI- 14-5-2003 ). The speech was not as alleged by Teesta Setalvad and no untoward incidents took place after the speech.

( l ) Javed Akhtar and Alyque Padamsee and Vijay Tendulkar, all members of the Citizens for Justice and Peace had congratulated Ashok Gehlot, the chief minister of Rajasthan, through a letter (IE-May 10, 2003), for banning trishul and not allowing Togadia to enter Rajasthan though Court had allowed him to enter. According to a news (ToI- May 9, 2003), Additional district and sessions judge Ajay Kumar Jain, trident is not a weapon; and so he granted anticipatory bail to VHP activists accused of displaying trishuls, banned in Rajasthan under Arms Act. Thus the venom spit by above members of the Citizens for Justice and Peace is an attempt to malign Hindus, their leaders and their organizations. It must be noted that these persons had never criticized “ Lathi rally” of Laloo Prasad Yadav in bihar. (12-5-3-Indian Express ), the rally with bows and arrows of more than 1000 activists of Communist Party of India (Maoists) in Kolkata ( FPJ- 16-12-2004) and rifle rallies of Naxalites in Andhra Pradesh.

( m ) Alyque Padamsee, an activist of the Citizens for Justice and Peace, had said recently that he does not know Mumbai, but knows Bombay. He has no objection for renaming Calcutta as Kolkata, Madras as Chennai and Trivendram as Thiruanathapuram.

( n ) Vijay Tendulkar, an activist of the CJP, had said at a speech in Pune and then in Dapoli in Maharashtra in November 2003, that if he is given a gun, he would shoot Narendra Modi. This reveals the bonafides of the organization CJP.

(o) At a press conference in Mumbai in February 2004, Asghar Ali Engineer, member of the NGO, Citizens for Defending Constitutional Democracy and Secularism, at a press conference, said in Mumbai “ BJP has polarized the country and came to power by attacking minorities, secularism and Indian pluralism” ( FPJ – February 26, 2004). All such utterances of members of the Citizens for Justice and Peace reveal that it is an anti-Hindu, anti-BJP organization.

( p ) One can have freedom to have his views and have an organization, but to form an organization and pretend that it is citizen’s organization, a non-political one and that also for peace and justice is certainly deception and cheating. The petitioner adds that this NGO is not registered under any act and its membership is not open for citizens though the word “citizen” is therein. Further, it does not have any Constitution of its own. The petitioner prays that the Supreme Court take this into consideration and decide the bonafides of the organization “ Citizens for Justice and Peace”.

( 6) The credibility of the NHRC is also very low. To justify this the petitioner submits herewith:

(i) The fact that the NHRC took suo moto action against the Gujarat government when the Gujarat police killed Ishrat Jahan Sheikh, the terrorist of the Pakistan based Lashkar-e-Toiba, banned in India and many other countries, and her two other associates in Ahmedabad on June 15, 2004 clearly shows that either the NHRC has prejudice against the Gujarat Government or that it does not apply its mind properly and commits grave errors. In either case the NHRC loses its bonafides and credibility in giving justice and safeguarding human rights of citizens.

(ii) The credibility of NHRC received a severe blow when it was pulled up by the Kerala High Court in May 2001, while ordering status quo on a petition filed by the Kerala state against the order of the NHRC to give compensation of Rs 10 lakhs to an ISRO scientist, accused in spy case involving two Maldivian women in 1994

(iii) The NHRC did not take notice of the statement of a key witness, Lal Mohammed Sheikh, who turned up at the Circuit House, Vadodara, when the NHRC team was present there on July 8, 2003. He had refuted the allegations made by Zaheera Sheikh and her mother while sticking to his statement that those acquitted had, in fact, saved his life. It must be noted that even before the Additional Sessions Judge Abhay Thipasay of the retrial court in Mumbai, he continued to stick to his earlier words, unlike Zaheera, in whom the NHRC had full faith. (ToI- 9-7-03, 10-12-4)

(iv) The NHRC, under the chairmanship of the former chief Jusice of the Supreme Court J. S. Verma, had opposed the POTA, an act against terrorism without reading it, whereas the present chairman, Mr A.S.Anand, also a retired Judge of the Supreme Court, stated that POTA does have provisions to prevent its misuse, as soon as he took over as the chairman of the NHRC. Two persons can have different opinions. But can the same statutory organization, like the NHRC have different opinions? And what about the opinions of other members of the NHRC? Can they all not have a meeting to express one common opinion? The contradiction within the NHRC also makes it lose its credibility and bonafides.

(v) The former chairman of the NHRC, J.S. Verma had opined that right to information exists according to the Constitution. But when I lodged 2 complaints of human rights violations to the NHRC, it did not register them and did not reply and answer why one of the complaints was not registered, despite many reminders. In the case of one complaint, with registration no. Case No. 512/25/2004-2005/UC, which I sent on July 20, 2004, the NHRC has not replied to my query sent on November 11, 2004, as to what follow up action was taken by the NHRC, since it was not shown on its website.

(vi )The NHRC erred in ignoring that in many other cases, the accused were let off because witness turned hostile as in the Best Bakery case. For example in Dabgarwad mass burning case of Ahmedabad, in which eight Hindus were burnt alive and all the Muslim accused were acquitted. There are two other cases – of Signal Faliya and Safi school of Godhra – where the Muslim accused were acquitted. NHRC’s remark of “miscarriage of justice” may be applicable to many other gruesome cases. Trying to Transfer only the cases in which Muslims are victims shows the bias of the NHRC and amounts to creating a separate judicial system for Muslims, which is against the recognized accepted principle of secularism in the country ( FPJ- 15-7-3).

( vii ) The NHRC has initiated criminal cases against police officers, who were awarded gallantry awards by the President of India in recognition of their gallantry in fighting terrorism successfully in Punjab. The police officers had done their duty in fighting terrorism neglecting their children and families.

( viii ) In March 2003, Rajasthan police shot dead three workers of the VHP and injured 7 workers, when they were doing puja near a temple, despite the opposition of police to do so. The police were not allowing the puja, since they wanted a Moharum procession to pass the temple area. Notwithstanding the illegality of the police order opposing the puja, the police could have used teargas shells to disperse the gathering of Hindus instead of firing and shooting and killing them. Similarly in west Bengal, the police fired and shot dead some Ramsevaks in the same month. I complained to the NHRC on the 24 March 2002. But the NHRC did not register my complaint or reply to reminders why the complaint was not registered.

( vi )On December 10, 2002, the petitioner complained to The Secretary, National Human Rights Commission, New Delhi about the story that he read on the website http://www.outlookindia.com/fullpopuptop.asp?
fodname=20021202&fname=State+Gazatte&sid=6
written by Amarnath Tewary in Outlook. It was about a most wanted criminal of Patna, the capital of Bihar State, Sultan Mia, who abducted a married woman, Kanchan Mishra, in broad daylight from the heart of the city, took her to a mosque and forcibly married her. The NHRC did not register the complaint nor did it give reply as to why it was not registered. However, the National Women's Commission took note of the complaint either suo moto or after somebody else lodged it.

But, when a Pakistani woman, Shahnawaz, arrested for illegally staying in India without valid visa or passport, who was raped by a jail constable, attracted the attention of the NHRC, who immediately sent notice to the home ministry on July 29, 2002.

( x ) The NHRC had asked the Gujarat government to provide it with a list , community-wise, of persons killed in police firing and arrested. I sent a letter of protest to the NHRC highly objecting to it since it was against secularism and capable of dividing the people on communal basis and without any benefit. The NHRC did not reply to the letter.

There are many instances as above, illustrating how the NHRC is harsh to securitymen, policemen, Hindus and soft towards terrorists, Pakistanis and Muslims. This is very important in the present Best Bakery case.

( 7 ) The credibility of the media, engaged in extra – judicial trial in the Best Bakery case, is also very low. To substanciate this, the petitioner submits herein as under:

( I )Former chairman of the Press Council of India and former Judge of the Mumbai High court, Mr P.B. Sawant disclosed that many of our journalists are on the pay - roll of international agencies. The agencies are out to destabilize the country. He was speaking at the annual general meeting of India Language Newspaper association’s 58 th annual meeting in July 1999. Though five years have passed, the situation might not have improved, it has in fact worsened. Mr P. B. Sawant said, a few years ago, the chief of the CIA, the American intelligence agency had stated in the American Senate with proof that the CIA had appointed some Indian journalists as their agents. He said, “the journalists write to propagate the views of their masters and Indian language newspapers follow them.”

Most of the English language newspapers preferred not to take note of his speech for obvious reasons. In fact, they should have taken very serious note of the allegation, written editorials on it and initiated a debate if they had interest of the nation in their heart. This, automatically, vindicates what Justice P.B. Sawant had stated.

( i )The Honourable Chief Justice of India Justice R. C. Lahoti said during the Law Day function of the Supreme Court Bar Association on November 26, 2004 in Delhi that “Media is tarnishing the image of judiciary”. If a person with judiciary in his heart can say so, is it wrong if a person with the pride of Gujarat in his heart says that the “Media is tarnishing the image of Gujarat?’

iii) Former Chief Justice of the Supreme Court, Justice V.N. Khare said that he was very much anguished over the manner in which media “ scandalized” three judges of the Karnataka High Court by linking them to Mysore sex scandal without basis. He said he could not sleep for many days as a result. Now if the Honourable judges of the Gujarat High Court could not sleep as a result of transferring the Best Bakery case out of Gujarat, who is responsibe?

(iv) The Chief Justice of the Lucknow Bench of the Allahabad High Court Justice S.H.A. Raza said in September 2001 that though freedom of expression is essential in democracy, the press must give importance to giving views and news in a balanced manner in nation’s interest( Navabharat- Hindi-24-9-2001).

(v) Chairman of the Press Council of India Justice K Jayachandra Reddy made a veiled attack on the media for “biased” coverage of the Gujarat riots and asked it to “strictly adhere “ to the norms set by the Council. He asked the media to be “trouble shooters” and not “trouble makers” ( FPJ 7-4-2002). There are many other points to prove the low credibility of the media.

8 ) Gujarat High Court’s observation regarding “ Plot in Zaheera’s claims” . The Supreme Court has erred in not believing in the Gujarat High Court and transferring the case outside Gujarat for retrial. The fact that the Supreme Court has given notice to Zaheera and the NHRC about contempt of court following Zaheera’s frequently turning hostile in her depositions vindicates the Gujarat High Court’s contention that Zaheera was not worth relying upon. The transferring a case outside the High Court of a state is an extraordinary decision and must be not only on merits but also appear to have been on merits.

The Division Bench of Justice B. J. Sethna and Justice J. R. Vora of the Gujarat High Court, in their judgement dismissing the appeal challenging the acquittal of 21 accused and seeking retrial, were critical of the role of the NGO, CJP. The bench had said, “ We are not prepared to believe that Zaheera turned hostile because she was threatened.” The Gujarat High Court bench had said, “ There seems to be a definite design and conspiracy to malign people by misusing this witness, Zaheerabibi, who is hardly 19 years old and can easily fall a prey to anyone and play into the dirty hands of anti-national elements.”

The NHRC and the Honourable Supreme Court did not agree to the above contention of the High Court bench, but upheld that Zaheera’s turning hostile in the High Court was proper. Now since Zaheera has turned hostile, again, the fact creates doubts in her credibility and destroys the very foundation on which the Supreme Court’s verdict of transferring the case outside Gujarat was based. As a result, the Supreme Court should, now, the petitioner prays, review the judgement and order stay for the trial going on in Mumbai at present.

( 9 ) The Supreme Court has erred in criticizing the Gujarat High Court for making “ irresponsible remarks against activists, including Teesta Setalwad, and even against the NHRC.”

This is clear from (i) activities of Teesta Setalvad as stated in my submissions above and (ii) serious charges made by Zaheera Sheikh and her mother against Teesta Setalvad for turning hostile and speaking lies for the sake of religion ( “ kaum ke liye tuze zooth bolna hoga”), and the fact that the NHRC has also lost its credibility as stated above, and particularly because it took suo moto action against the Gujarat government when the Gujarat police killed three Lashkar-e-Toiba terrorists with deadly weapons nd a lot of ammunition in Ahmedabad on June 15, 2004. The NHRC had clearly exposed its prejudice against the Gujarat Government. It is this prejudice that made the NHRC demand the transfer of the case outside Gujarat.

( 10 ) After the judgement of the Supreme Court many competent senior lawyers and retired judges, at a discussion of their panel in a programme, criticized the judgement of transferring the Best Bakery from Gujarat to maharashtra for retrial. Many said that “ the Supreme Court was more emotional than judicial.” Many said that the verdict was “ not in accordance with the Constitution of India.” K. T. S. Tulsi, former additional solicitor general of India, who was also the defence counsel in the case, alleged that due to the “media trial”, the Supreme Court judges had not allowed evidence to be presented before it by the state government or the accused, despite his appeals. The case has not been decided according to or on the basis of evidence. It may have been based on newspaper reports .” Senior advocate R. V. Bhasin said, “ The Best Bakery case is a mixture of law, facts and politics. The press should not be ridiculed, but if a Supreme Court judge is affected by media reports, then he does not deserve to be in that position.” Bhasin also added that the Supreme Court violated the Constitution of India. He criticized the judges’ reference to fiddling Nero.

S. M. Soni, former justice of the Gujarat High Court said that the courts, instead of being swayed by media reports, should take punitive action against any interference with the judicial process. Soni also blamed the former Chief Justice of India heading the NHRC for not following the judicial norms by approaching the Supreme Court, instead of the High Court, when Best Bakery accused were acquitted by a session’s court in Gujarat. He also added, “ The decision to transfer the case was not on grounds of merit or evidence. The case, instead of being transferred to Maharashtra, could have been referred back to the Gujarat High Court.” ( ToI - 18-5-2004)

( 11) That the Supreme Court was swayed by the media reports is also clear from the fact that there were many similar cases when criminals were acquitted for lack of evidence. This fact was not considered by the Supreme Court. This was because the media did not consider such cases as it did in the case of Gujarat. For example, all accused in the Radhabai Chawl buring in 1992 case were acquitted. All the accused were Muslims in this case, and so the media did not highlight these and the anti-Hindu NHRC did not take suo moto interest in those. I have illustrated how the NHRC is anti-Hindu earlier.

( 12 ) The Vadodara fast-track court Judge H. U. Mahida, now retired, has challenged any court to convict anybody without evidence. He said he had not gone out of way to favour or oblige anybody in the case but had to acquit the guilty, simply for want of evidence. He clarified that unlike a civil judge, a sessions court judge had no inherent powers and he had to go only by the evidence placed before him during the trial ( FPJ- 10-6-2004).

( 13 ) In the backdrop of Zaheera Sheikh, turning hostile and accusing Teesta Setalvad, that she forced Zaheera to speak untruth in the court, some editors have remarked that the complete system of human rights and the Supreme Court are now on trial. What the editors have said may be the view of a large section of people and it must be noted that in democracy like that in India, the people are more supreme than the Supreme Court and therefore whatever decision the court takes must not only deliver justice, but also appear to do so. In case it rejects the petition, it must give sound reasoning to do so. Otherwise motives will be attached to the verdict.

( 14 ) The petitioner humbly prays for :
( a ) an order for stay in the proceedings of the retrial in the Mumbai court of additional sessions Judge, Justice Mr A M Thipsay. Or alternatively, an order for enquiry into activities, funds, membership and accounts of the NGO Citizens for Justice and Peace and all aspects of its office bearer Teesta Setalwad, concerned with the case, including the allegation that Teesta Setalvad and her associate Raees Khan threatened Zaheera Sheikh and her mother as alleged. And then again proceed according to the findings.

The enquiry may be conducted by the Central Bureau of Investigation ( CBI) or a Special Investigation Team ( SIT) monitored or headed by a retired Supreme Court judge selected by a panel of leaders of 2 major political parties in the parliament, since this is a matter, which can have grave consequences on the country.

If it is found that Teesta Setalvad really threatened Zaheera Sheikh to turn hostile which made the Honourable Supreme Court take the unprecedented step of transferring the Best Bakery case from Gujarat to Maharashtra for retrial,

( i ) an order for maximum punishment for Teesta Setalvad and her NGO, Citizens for Justice and Peace, according to law, in the interest of judiciary in the country;

( ii ) a remark censuring the NHRC for humiliating the Gujarat High Court and conceding the demand of the NGO, CJP, without carefully applying its mind to the judgement of the Gujarat High Court; If Zaheera Sheikh is found guilty, an order for proceeding for contempt of court against Zaheera Sheikh for turning hostile and for perjury, committed not only after the Supreme Court judgement but also before the judgement.

( b ) order for punitive legal action against the media for carrying out extra – judicial trial and interfering with the judicial process, when the matter was sub-judice. ( c ) any other order that this Honourable Court feels deem fit to pass.

Yours most humbly,
K. G. Acharya

No comments: