(A comment on the Indian Supreme Court judgement on the Best Bakery Case)
–Basil Fernando, May 2007
…[B]ullshitters, although they represent themselves as being engaged simply in conveying information, are not engaged in that enterprise at all. Instead, and most essentially, they are fakers and phonies who are attempting by what they say to manipulate the opinions and the attitudes of those to whom they speak. What they care about primarily, therefore, is whether what they say is effective in accomplishing this manipulation. Correspondingly, they are more or less indifferent to whether what they say is true or whether it is false.
–Harry G Frankfurt, On Truth, (Alfred A Knopf, New York; 2006).
The Supreme Court of India’s 2004 judgment in what is popularly known as the Best Bakery case is a great intervention to deal with the manipulation of information, a common feature of criminal trials in many countries where basic elements of criminal justice–police investigation, prosecution and judicial decision making–have become dysfunctional to varying degrees. The historical importance of the judgment lies in that India’s apex court decided it could not sit and watch the bullshitting of the three institutions responsible for the administration of justice. The court rightly noted that, “The present appeals have several unusual features and some of them pose very serious questions of far reaching consequences.” These consequences relate to the issues of witness protection, improper conduct of trial by the public prosecutor, the role of the investigating agency and the judiciary being a ‘passive recorder’.
Far from an exercise in bullshitting, a criminal trial involves questions of great importance for the individuals involved as well as the whole society. For the individual complainant, witness or accused, the trial is a matter of justice. If information is manipulated during the trial, resulting in a distortion of what has actually happened, injustice is served. For society, the trial is a test of faith in the justice system. If the system is seen to deal with crimes through the manipulation of information rather than a committed statement of facts, the credibility of the system is undermined. Moreover, manipulative habits enter into the process of criminal investigation, prosecution as well as judicial intervention. The trial in such cases becomes nothing but a game, a parody. When this process of criminal trials is commonly understood in society, unscrupulous individuals will take to crime. Organized crime then becomes an important and decisive factor in societies, to the extent that attempts to reform both the process and the institutions are hampered. Ordinary citizens gradually lose faith in the judicial process. From what we have witnessed in many countries around Asia, this leads persons to make use of extralegal avenues to settle their grievances. It is inevitable that the criminal justice system breaks down under these circumstances, and it is no easy task to restore it again.
It is this process of bullshitting–manipulation of information–that the Supreme Court tried to confront in the Best Bakery case, which stems from one of the greatest tragedies in the recent history of India. It began with an incident of a fire, which was manipulated to create the impression that there was a deliberate attack on the Hindus by Muslims. This manipulated information was used to ignite an organized political campaign, which included committing horrific crimes with the support of organized criminal elements. The ensuing violence in the state of Gujarat led to the death of over 2000 Muslims, as well as serious damage to the property of many others. This well-crafted crime soon came to the attention of the Indian and international community. The entire state of Gujarat came under severe worldwide condemnation.
This condemnation led to the second stage of information manipulation, which took place through subtle and secret forms of interfering with the investigation into the violence, followed later by interference into the prosecution as well. The entire criminal investigation procedure indicated an attempt to influence the outcome of the trials through ensuring an absence of evidence. As the Supreme Court remarked in its judgment, ‘witnesses are the eyes and ears of a court’. If witnesses are prevented–through direct or indirect police action–from providing relevant information, the court is deprived of an essential component of the criminal justice procedure. Many persons who could have given details of what happened during the Gujarat pogrom were not interviewed and nor was all the material evidence gathered.
In fact, many witnesses were too intimidated to come forward. Among those who had come forward, some–such as Zahira, key witness in the Best Bakery case–retracted their initial statements. There was no witness protection mechanism in place by either the police investigators or the prosecution. Instead, the message sent to the witnesses was that they would be taking grave risks by speaking out.
The public prosecutors in Gujarat, as in many Asian countries, took this manipulated situation as an unavoidable circumstance and pleaded that the prosecution defects were due to the absence of evidence; what could they do if witnesses did not come forward to give evidence? They seem to have overlooked the principles of justice that allow prosecutors to question investigators about their submitted reports and to spotlight any flaws. The prosecutors also had an obligation to look into witness protection, especially after witnesses turned hostile. It was their responsibility to ask whether witnesses were told they would receive state protection or if practical measures were taken to protect those witnesses who did come forward. Prosecution officials genuinely committed to searching for the truth could do much to ensure that justice is served, including asking for the trial to be transferred to a more secure location and seeking the assistance of medical professionals in dealing with traumatized victims. If the prosecution is part of the process of manipulation however, it is enough to simply blame the witnesses and investigators.
In a similar manner, courts of law can also avoid responsibility by buying into the no evidence game. On the surface this can come across as impartiality, which is one of the basic requirements of the judiciary. To silently witness the investigation and prosecution’s neglect of their basic duties cannot however, be claimed as impartiality. Instead, it indicates cynical partiality towards falsehood. To use the final power of the courts to declare the accused innocent on the basis of an inherently manipulated process is radically different from the basic function of the judiciary. It is unfortunate that political power often leaves the judiciary a silent partner to its crimes in many Asian countries. The courts before which the Gujarat massacres were tried were such partners.
India’s Supreme Court could have easily taken part in this manipulation of information. It could have taken refuge under legal technicalities, such as a delay in the filing of appeals. Or, it could have reverted to the no evidence argument. Such decisions would cause little surprise, given the number of cases decided by apex courts throughout Asia in this manner. The Supreme Court of India however, firmly established that excusing the manipulation of information is not what courts are for, be they trial courts or apex courts. The Supreme Court took on the duty of a trial judge to actively participate in the trial before him. This involved questioning the retraction of witnesses, the absence of cross examination on the part of prosecutors and the faulty police investigation. Such questioning would make the court an intelligent umpire at the trial rather than a disinterested or passive recorder. Any disinterest or passivity is in fact only a façade; a judge cannot be truthfully unaware of the manipulated information that is being placed before the court. If the court wants to prevent an erroneous result, it will interfere with such manipulation.
The Supreme Court judgment in the Best Bakery case is of profound importance because the reality it tries to counter is common not only in India, but in many parts of Asia. Deliberately flawed trials conducted by the very institutions meant to ensure fair trial is a major threat not only to justice, but also to human security. The bullshitting of these institutions must be exposed by all concerned with justice as well as organized crime. While in many countries there is much talk and a few brave promises on defeating organized crime, in fact the issue has yet to be seriously addressed. It is simpler than usually imagined. The solution to crime does not lie in the streets. It lies in the justice process; in saving the criminal investigation process, the prosecution process and the subsequent trials from acquired habits–often institutionalized–in manipulating information.
