28, Apr 2017 | Teesta Setalvad
After the mass violence that shook Gujarat, India, in the early months of 2002, a shockingly high level of impunity caused Indian statutory bodies like the National Human Rights Commission (NHRC) to make scathing indictments on the state executive’s malfeasance—which continues to be a festering sore for the majoritarian juggernaut that is the Narendra Modi regime. The NHRC, headed by a former chief justice of India, Justice JS Verma, made public two reports, one dated April 1, 2002, and another July 2002, that exposed the culpability of the government of the day, the latter saying:
“…. it is the primary responsibility of the State to protect the right to life, liberty, equality and dignity of all those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence.”
The Commission added that:
“…it is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.”
Not only the NHRC but also then-Chief Election Commissioner (CEC) and even subsequent Supreme Court judgments thoroughly indicted the state government and senior functionaries, political administrative and from law enforcement. Two criminal trials, the Bilquis Bano trial and the Best Bakery case, were even transferred for trial outside the state to ensure independence of due process.
After 59 persons were burned alive by what was portrayed by agencies as a “conspiracy” against the local population, public anger had the chance to build up, and a Concerned Citizens Tribunal headed by two former Supreme Court judges concluded that the state machinery headed by politicians including the chief minister “took the tragedy of the train burning at Godhra to the rest of the state.” As many as 1,926 innocent Muslims were massacred in macabre bouts of violence from February 28 to March 3, 2002, though targeted violence continued unabated until August of that year.
The response to the Gujarat genocidal carnage was path-breaking in that civil rights groups and survivors battled for justice—punishment to the perpetrators and reparation. One significant legal initiative, the Zakia Jafri case, is an attempt to establish criminal and administrative responsibility for the crimes that took place in Gujarat in 2002. It is the case of the complainant, Zakia Jafri—the widow of a former parliamentarian who was brutally massacred on Feb. 28, 2002, when a 15,000-strong mob in broad daylight attacked the cluster of homes where the couple lived with about 32 other families (the Gulberg Society)—that the failures by the political and administrative machinery were not just departmental lapses, but actually criminal offenses that require each of the accused to be criminally prosecuted. The complainant and her legal aid team have galvanized 7,122 pages of direct evidence from the investigation papers and garnered these to make a strong argument to issue process (charge sheet) against the accused. The complaint seeks to lay out evidence to prove that the approximately 300 incidents that broke out all over the state of Gujarat and continued for over six months in 2002 (until at least the visit of the CEC James Michael Lyngdoh, who did not allow early elections) took place as the result of this wider conspiracy.
Arguments for Zakia Jafri began in the Gujarat High Court on Aug. 4, 2015. It had taken over two years for translations to take place in the High Court. Thereafter, there have been about eight hearings in all of two days each and Thursday, April 27, marks the last batch of hearings before Justice Sonia Gokhani closes the case and delivers her judgment in the High Court. Twenty-four volumes of annexures compiling this direct evidence that runs into 7,122 pages have been filed by the petitioner in the High Court. The actual criminal revision is 540 pages long.
Senior counsel Mihir Desai, MM Tirmizi and Mihir Joshi appeared for the complainant Zakia Jafri assisted by the civil rights group Citizens for Justice and Peace. [Full disclosure: The writer is also secretary of Citizens for Justice and Peace, which has supported this legal initiative.] Friday, April 28, will be the day for the Special Investigation Team, formerly headed by ex-CBI head RK Raghavan, to respond. Jafri filed a criminal revision application in the Gujarat High Court (205/2014) on March 15, 2014, after Magistrate Ganatra rejected the Protest Petition filed by her on April 15, 2013. The magistrate had rejected the petition after rigorous hearings over 25 days conducted before him from April to September 2013. He delivered his judgment on Dec. 26, 2013.
Detailed Background of the Case
Zakia Jafri filed a complaint dated June 8, 2006 concerning various aspects of the events that took place in 2002 in Gujarat. The complaint was made to various agencies, which did not take note of the same, and hence a petition was filed in Gujarat High Court, which was dismissed on November 2, 2007, against which an SLP was filed. Supreme Court asked a Special Investigative Team to investigate, and an amicus was appointed. Finally, SIT stated that the investigation was complete and therefore on September 12, 2011, the Supreme Court stopped monitoring the matter and asked SIT to file its final report before the Metropolitan Magistrate at Ahmedabad. SIT filed a final report before the Magistrate on February 8, 2012, as a closure report, and the petitioner filed a protest petition that was over 1,000 pages on April 15, 2013. (The judgment of the Magistrate accepting the closure report was given on December 26, 2013. This judgment is under revision.)
The complaint of Zakia Jafri runs about 119 pages long, making allegations against 62 persons (political functionaries, bureaucrats, police and private individuals). The allegations pertain to conspiracy, abetment, negligence, failure to perform duties by public servants and hate speech. Three reports were filed by the SIT before the Supreme Court. The first report was filed by a retired official from the federal agency, the CBI especially handpicked by the SIT set up by the Court—AK Malhotra, dated May 12, 2010; the second report by Himanshu Shukla (Crime Branch, Ahmedabad) dated November 17, 2010, and the report styled as report u/s 173 (8) (after further investigation was ordered by the Supreme Court on March 15, 2011) was dated April 24, 2011. During this historic process, Raju Ramachandran, senior advocate of the Supreme Court, who had been appointed Amicus Curiae in the case filed two reports—the first was dated January 20, 2011 and the second one dated July 25, 2011. The Supreme Court was faced with a piquant situation when the investigation team appointed by it (SIT) came to the conclusion that there was no material to prosecute the powerful accused whereas the amicus appointed by it opined to the contrary. The first accused in the complaint is the then chief minister of Gujarat, Narendra Modi. The final judgment of the Supreme Court came to be passed on September 12, 2011, and the closure report was filed on February 8, 2012.
The complainant, Zakia Jafri, was not even called by the investigating agency, as is the norm or requirement under law, despite her repeated communications to the SIT between September 2011 and February 2012. All the investigation papers were handed over to the petitioner only after a further order of Supreme Court dated February 7, 2013. Before that, senior counsel had to make several arguments before the Magistrate before getting access to 23,000 pages of the investigation papers in April 2012. After this, on April 15, 2013, the protest petition was filed.
In the course of the three-hour-long arguments made on April 27, the petitioner’s counsel outlined the case for the Court. Senior Counsel from Mumbai Mihir Desai argued that the issue before the Court is whether the events after the Godhra carnage were:
(a) spontaneous outpouring of people;
(b) which could not have been anticipated, prevented or controlled
or if it is likely that
(a) they were part of a conspiracy that was hatched by certain people in power politically and administratively to create an environment whereby targeted violence was allowed to be unleashed on the minority community where hate speeches and hate writing were continually deployed; and
(b) in carrying out this conspiracy or otherwise, certain public servants including Ministers, police, bureaucracy or other individuals aided and abetted the events.
He strongly argued that it was the petitioner’s case that those named in the complaint are guilty of the following offenses:
(i) Conspiracy (Sections 120A, 120B, 34, 149 of IPC and Section 10 of Evidence Act)
(ii) Abetment (Sections 107 to 120 of Indian Penal Code-IPC)
(iii) Failure to perform duties by Public Servants (Sections 166, 167, 217, 218, 221 of IPC)
(iv) Criminal Negligence (Section 304A of IPC)
(v) Hate Speech (Sections 153A, 153B, 504 and 505 of IPC)
It is not the case of the petitioner that the train burning was a result of conspiracy by the accused. The conspiracy was to ensure that what happened in Godhra was not confined to Godhra but also taken to other parts of Gujarat, which allowed violence to take place. The conspiracy was to ensure that if an incident of communal violence (such as Godhra) takes place, there is sufficient hatred generated that violence will explode all over the State.
The counsel further argued that the conspiracy was at four levels:
(a) To generate and allow to be generated and deepen feeling of hatred toward a particular community prior to the train incident:
The evidence for this includes (1) IB Messages and (2) Statements made in Sting operation (3) Hate Writing through VHP Pamphlets and Hate Speeches of the BJP and VHP Leaders on television and in the media
(b) The second component of the conspiracy involved the actions from the time of train burning in the morning of February 27, 2002, until the mass violence started on February 28, 2002.
This involves the following components:
(i) Telephonic conversation by the then chief minister, Narendra Modi (accused 1 in the Zakia Jafri complaint) with a leader from the Vishwa Hindu Parishad (VHP) a supremacist outfit known for fomenting intra community violence;
(ii) Statement made by the ministers of the government in the State Assembly on February 28 misrepresenting the situation and obfuscating that those returning by train at Godhra were making provocative slogans, a fact that was documented by the District Collector and State Intelligence Agencies
(iii) Statement of the chief minister while in the State Assembly
(iv) Post Mortems of Brutally Burned Bodies were allowed to be conducted in the open leading to mobs getting incited;
(v) Handing over the dead bodies of the Victims in Godhra to a private individual also from the supremacist, VHP
(vi) Parading of the bodies from Godhra to Ahmedabad and thereafter in funeral processions to further incite public anger
(vii) Violence in Sabarmati express between Godhra and Ahmedabad
(viii) Meeting held at the residence of the Chief Minister on the night of February 27, 2002, where effectively the police were asked to go slow on riots which start as a response to the train incident
(ix) Mobs Gathered at the Sola Civil Hospital who took out Funeral Processions in Ahmedabad and Districts Parading the Dead Bodies of the Godhra Train Victims
The counsel argued that no effective steps—that is, preventive measures—were taken and a Bandh call was supported by the ruling Bharatiya Janata Party (BJP). Curfew, which is the curb on movement of mobs and persons, was also not declared until very late. Even the army, which was called in, was deployed deliberately very late, it was argued.
The third leg of the argument of the subversion of the state functionaries during the violence, which was established through galvanizing, detailed evidence from the police control room records (that show distress calls from the public and the response rate from the police), distress calls from the fire brigade and the state intelligence bureau messages. Together these established the fact that the police had wilfully abdicated from their duty as is evident from a) Firing episodes
Not responding to calls; c) Not imposing curfew; d) Widespread demolition of mosques, etc.; and e) Fire brigade access (non-response of the Police to Frantic Calls received by the Fire Brigade Messages).
Finally, the fourth component in the conspiracy was Subversion of Law after Violence, and this included:
(I) Non-filing of FIRs and false FIRs filed
(II) No relief camps set up/hardly any provisions given for relief camps and no rehabilitation of victims
(III) Public prosecutors of certain ideological bent appointed to sabotage the cases
(IV) Illegal instructions given by the politicians to the police and bureaucrats
(V) The police who acted against the rioters punished while those who allowed the carnage favored
(VI) False reporting to Constitutional Authorities
(VII) Destruction of and tampering with evidence
(VIII) Misleading the NHRC, Election Commission, etc. And even the Government of India (on scale and extent of violence)
This historic case seeks to prosecute sections of the political establishment, the bureaucracy, the police and some private organizations/individuals. The case for Abetment is made at two levels: A. (a) Those who were part of conspiracy and (b) Those who were not part of the conspiracy (a) Those who abated by actions (b) Those who abated by omissions. Under Indian law, public servants are liable to be prosecuted for a) Violating the law and the Failure to perform duty and also for b) Criminal Negligence and C) Command Responsibility.
Hate speech plays a role, like anywhere else in the world, of demonizing sections of the population, and so it was allowed to do in Gujarat 2002, in India. Political leaders were directly involved in incisive speech; mass circulation newspapers in the local language, Gujarati, also indulged in such writings; any attempts by police officers to prosecute these offenses were stonewalled by the political establishment. All this also formed crucial parts of the arguments on April 27.
An intensive exercise was undertaken by the team belonging to the Citizens for Justice and Peace to garner the available evidence and ensure that it is put before the courts. The process was wracked by intimidation and threats as powerful perpetrators cracked down on human rights defenders and survivors. The direct statements and affidavits of senior police officials then serving in Gujarat, including former director general of police R.B. Sreekumar, senior cop Rahul Sharma and statement of Sanjiv Bhatt apart from the statements of two former judges, Justice Sawant and Justice Suresh, are invaluable evidence that demands prosecution. Also, the statements of former chief minister Gujarat Suresh Mehta and Vithalbhai Pandya, father of Haren Pandya, the state intelligence bureau messages, phone call records, sting operations and the Diary (Confidential Contemporary Register) of Sreekumar tell a sorry tale. Reports of Constitutional Authorities, texts and audios and videos of the hate speeches have been meticulously garnered by the team.
The Gujarat High Court verdict will be awaited. The proceedings in the Zakia Jafri case are a sore and thorough test for the systems of justice delivery in India. Will justice then be done?