Among the important components of the right to a fair trial is the right to be tried before an independent and impartial tribunal established by law. There can be no fair trial before a biased court; that much is well understood. Recent developments in the Supreme Court, however, indicate this is an incomplete notion of fairness. The court has given a clear signal - in its hearings of the Best Bakery case - that while the accused must have all the necessary conditions to defend himself, the fair administration of justice demands that victims must also feel reassured that justice has indeed been done.

In the gruesome Best Bakery killings that took place in Vadodara in March 2002, 14 persons lost their lives during very public riots; yet the trials that followed could not convict anyone for these murders. Both the fast track court as well as the High Court acquitted all 21 persons accused in the Best Bakery case for insufficient evidence after 37 out of 73 witnesses, including key witness Zaheera Sheikh, turned hostile. Since then, the Supreme Court has ruled on the application of Zaheera Sheikh, the principal witness and survivor, seeking a retrial outside Gujarat of those accused and acquitted by the trial court; this is an assuring step. In their order of 12 April 2004, Justices Doraiswamy Raju and Arijit Pasayat have ordered a retrial and reinvestigation of the case, this time in Maharashtra.

The retrial, which has come up for hearing in Mumbai before Judge Abhay Thipsay is bound to raise legal questions regarding the rights of the accused, in particular the question of double jeopardy (being tried more than once under the same accusation). But the Supreme Court judges have observed that it is the unusual circumstances and the exceptional nature of the case that has attracted judicial opprobrium. Exceptional situations merit exceptional measures by the judiciary, and the Supreme Court has taken an unusual, although legally controversial, step to order a retrial in this case. The SC observed that a multiracial, multilingual, and multi-religious society like ours "necessitates protection against discrimination on the ground of caste or religion; taking lives of persons belonging to one or the other religion is bound to have dangerous repercussions - and may tend to - undermine the unity and security of the nation".

If the circumstances were unusual, what could lower court judges have done in pursuit of justice that they normally could not do in other trials? The apex judges wrote that the High Court should have used several provisions in law to elicit more information, and observed that "the (lower) Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice".

The Supreme Court in its order has passed strictures against all the principal actors in the case, the High Court, the trial court, the public prosecutor and the investigating agencies. It has reminded the High Court that any restrictive interpretation of the law would constitute a miscarriage of justice and that its duty is to be more proactive in the dispensation of justice - "the courts have to take a participatory role in a trial. They are not expected to be tape recorders to record whatever is being stated by the witnesses". This is a very critical observation because the Supreme Court is here advising the High Court that it is not only supposed to be a neutral party but should have the attitude and determination to protect the interests of the victims. Chastising both the prosecution as well as the High Court the Supreme Court states that Section 311 and 391 of the Criminal Procedure Code and Section 165 of the Evidence Act confer vast powers on Presiding officers of Court to elicit all necessary materials by playing an active role in the evidence collecting process. These provisions allow judges to recall and re-examine witnesses, provides for additional evidence to be taken if necessary for the fair administration of justice.

The High Court should have used several provisions in law to elicit more information; the SC observed that "the (lower) Court can neither feel powerless nor abdicate its duty to arrive at the truth and satisfy the ends of justice".
Slamming the role of the investigating agency and the public prosecutor, the judges said that the acquittal is no acquittal "if it is unmerited and based on tainted evidence, tailored investigation, unprincipled prosecutor and perfunctory trial and evidence of threatened/terrorized witnesses". The Supreme Court found that it was a lapse on the part of the investigating agency and the prosecutor because the victims and the injured witnesses were not examined, and on the other hand six relatives of the accused were examined.

Consequently such findings led the Supreme Court to direct the state government to appoint another public prosecutor, who may be suggested by the affected party, because "in view of the unusual factors noticed in this case to accord such liberties to the complainants' party would be appropriate". The investigating agency was also directed to act under Section 173 (8) of the Code, which permits taking cognizance of further investigation and further evidence by the court. Finally, using its powers under Section 406 of the Code the Supreme Court ordered retrial by a court under the jurisdiction of the Bombay High Court.

The cases have also highlighted the issue of protection to witnesses and victims, who were allegedly forced to give false testimonies in the trial court under duress, threat and intimidation. Recently it has been realized that the rights and interests of witnesses and victims need to be incorporated and institutionalized within the Indian legal system in order to ensure that the ends of justice are served. The National Human Rights Commission, in its Special Leave Petition, requested that the Supreme Court lay down guidelines and directions in relation to protection of witnesses and victims in criminal trials, which can be adhered to both by the prosecution and law enforcement agencies as well as the subordinate judiciary.

The proactive role for the judiciary that the Supreme Court appears to be encouraging, however, raises questions of fairness to the accused, especially in other cases where the public attention or outcry may be far less. The Court has passed no order on the merits of the case, and the accused retains all his rights as well as the right to appeal any verdict. But can the outcomes be fair if victims nominate prosecutors, and judges blur the distinction between arbitration and investigation by participating themselves in the latter? The SC's ruling insists that outcomes from such processes can be fair, even when the judiciary's bounds are thus expanded.