criticalhearing

08, May 2017

Critical Hearing
in the Supreme Court on GUJARAT GENOCIDE

20th January 2011

Background

The major issue
that the Supreme Court will decide on January 20 2011 is the issue
of the complaint against chief minister N Modi and 61 others sent,
with over 2,000 pages of official documents to be registered as an
FIR by Smt Zakia Ahsan Jafri to the Gujarat Director General of
Police on 8.6.2006. When no steps were taken to register the
offence, the complainant with Citizens for Justice and Peace
approached the Gujarat High Court with a prayer for registration of
an FIR. (Details of the complaint ad offences against all accused
can be had from

www.cjponline.org and

www.gujarat-riots.com)

The evidence that
forms the basis for the initial complaint are over three dozen
affidavits filed by policemen from the Gujarat police on the carnage
including former Director general of Police RB Sreekumar and SP
Bhavnagar Rahul Sharma. Subsequently detailed analysis of Phone Call
records and Police Control Room records obtained by CJP and
submitted before the investigating agencies and the courts have
provided further decisive evidence.

After three
benches declined to hear the matter in the Gujarat High Court, a
single Judge MR Shah, after hearing extensive arguments made by the
petitioner in 2007 dismissed the petition in November 2007. (Tehelka
had, in October 2007, exposed through Operation Kalank the extra
judicial confessions of many accused, CJP tried to get first the
Gujarat HC and then the SC to order investigation into the Tapes
which was declined; thereafter NHRC ordered CBI to authenticate the
tapes which was done though 2008).

In appeal, Smt
Zakia Ahsan Jafri and CJP filed an SLP 1088 of 2008 on which the SC
on 3.3.2008 issued notice and then, on 27.4.2009 directed the SIT
appointed by it a year earlier to probe the complaint. Shri Prashant
Bhushan was appointed amicus curiae by the Supreme Court.

(By August 2009
the SIT investigation into eight trials has been exposed foe being
superficial and worse non critical of the role of powerful accused
Â–this was revealed in the charge sheets filed in eight trials).

Now, these major
trials are nearing completion, some rectification of investigations
have been done though in our view the investigations by SIT continue
to have glaring lacunae of deliberately ignoring investigations into
the roles of powerful politicians and policemen Â–despite the
available evidence of phone records and police control room records
the SIT has consciously turned a blind eye to them. For details on
the struggle for justice do visit

www.cjponline.org and

www.gujarat-riots.com

In the parallel
investigation, SIT submitted its report on the Zakia Jafri Complaint
on May 14 2010. Thereafter former minister for home Govardhan
Zadaphiya offered to turn approver and every effort was made by the
state and the accused to derail the ongoing trials and especially
influence the course of the Zakia Jafri + CJP complaint in various
ways including slandering the groups and activists supporting the
victim survivors. This campaign was spearheaded by Pioneer (Chandan
Mitra) and India Today (Uday Mahapurkar) since September 2010.
Affidavits filed by the victim survivors in the SC, that have been
accepted by them in the depositions before the Court Â– while some
factual aspects have been clarified Â– are being singled out to
create utterly false canards against us of Â“doctoring evidenceÂ”.
(see details below on Allegations)

On October 26,
2010 when Amicus Prashant Bhushan was scheduled to give his opinion
on what should further be done with the Zakia Jafri + CJP complaint,
he was confronted by a belated application from the state of Gujarat
expressing doubts about his ability to function independently as an
amicus when he had freely expressed opinions on the Gujarat 2002
carnage including the role of the chief minister. On the day of the
hearing, when asked by the Court what he (Shri Bhushan) would choose
to do under the circumstances, Shri Bhushan recused himself after
which the Court appointed a new Amicus. Shri Rohinton Nariman
declined the CourtÂ’s request after which Shri Raju Ramachandran and
Shri Gaurav Agarwal have been appointed. Tomorrow, i.e. June 20 2011
they are expected to advise the Court on the next course of action.

In the interim
period, efforts are clearly afoot through the media, to pre-empt the
process on within the Supreme Court. On December 3, 2010 a report in
all editions of a national daily stated Â“SIT had given a clean chit
to Modi.Â” Nothing that had transpired in the SC the day before,
pointed to this, it appeared nothing short of a brazen bid to
influence public opinion, possibly even the Court. Today that is
January 19, 2011, the day before the critical hearing tomorrow, all
editions of the Times of India have carried a Â“lead storyÂ” on how a
Deoband cleric says that there is Â“No Discrimination Against Muslims
in Gujarat.Â” That is not the issue under consideration in the Zakia
+ CJP complaint. The issue is whether a grisly conspiracy into mass
murder, criminal conspiracy to take lives brutally, commit rapes,
destroy evidence and subvert the criminal justice system was afoot
in 2002 and continued to this day vis a vis the justice process!!.

It is indeed a
test case for Indian democracy and the Rule of Law how this case
goes and its outcome.

Allegations on
concocting affidavits and filing false evidence have only
been made by the State of Gujarat (accused in the State Sponsored
Massacre), Accused who are facing Trial and now by a former employee
of our organisation Rais Khan who was discontinued from services
with the CJP due to irregularities. There is at present NO
investigation into us though a Court hearing one of the trials (Sardapura
Massacre in which 33 persons were killed) has asked him to be
prosecuted for trying to derail the course of justice!!

There are a bunch
of documents on this issue that are available on the CJP website or
with us to mail you for any who are interested. Here is a brief
narrative. Victims filed affidavits through us in the Supreme Court
of India (2003). They also filed affidavits before various
international and national fora. They spoke of the heinous crimes.
From day one the State has questioned the version of the victims.
Now nine years later when the SC is monitoring some of the trials,
most witnesses who are also victim survivors have stood by their
affidavits. They have on occasion denied one or other “factual”
aspect in the affidavit relating to crime details or a rape that was
committed. Rape victims as you know deny rape for a variety of
reasons. The victim who so did so has also filed an affidavit
through another lawyer before this, in gruesome terms describing the
rape. CJP as a a whole and I in particular do not want her o be
victimised so we will be presenting this evidence in sealed cover
before the SC. The critical thing to remember is that nine years
down, we remain possibly the only group left legally supporting the
survivors. And that is why we have been made a target.

This happened
with the 1984 massacres too when politicians rode to power, “earned”
respectability and sidelined the survivors. Please also do take the
time to go through

www.gujarat-riots.com that has
listed the overwhelming evidence against Modi available on the
website.

The propaganda
spearheaded by counsel for the Gujarat government Mukul Rohatgi in
the SC began in May 2009 when he said that I had concoted the story
of Kauser Bano who, nine months pregnant had her womb slit open and
her nine month old foetus hurled and swrirled on a sword before
being brutally killed. This story that came to typify the barbarity
of the state sponsored carnage in Gujarat in 2002, was widely
exported at the time by Times of India, India Today (the same Uday
Mahpurkar that is slandering us!!), Deccan Herald among other
national and international human rights bodies. Do see the
attachment Media Rights Groups and Mass Crimes. The story of the
Gujarat carnage is the story of a whitewash by money and corporate
interests to pretend that the barbarities never happened. This is a
denial of acknowledgement for the survivors.

Finally it is
worth pointing your public editor to the Concerned Citizens Tribunal
Report headed by two former Supreme Court Judges, Justice Krishna
Iyer and PB Sawant who have dubbed Modi the “architect of a state
sponsored genocide.”

Finally and
possibly as significant as the above is the fact that the timing of
these baseless allegations comes at a time when substantive evidence
incriminating over 400 accused –powerful persons including elected
representatives and policemen –is afoot under the SC scrutiny in
Gujarat. Victim survivors are being actively supported by CJP. This
spate of suspiciously timed allegations is a bid to question the
credibility of witnesses and affect the course of justice in these
critical trials.

Other Miscellaneous Issues:

After one yearÂ’s
efforts victim survivors and legal rights groups managed to affect
the transfer of one of the judges hearing the Gulberg case. Despite
his offensive behaviour to the witnesses and victims of the massacre
it took a year for the change to be completed and the Judge to
relinquish charge in mid January 2011. The trial is at the final
arguments stage. In January 2010 victims and witnesses had filed an
application under Section 319 of the CRPC praying for Joint
Commissioner Police MK Tandon and PI Parmar to be arraigned as
accused for their criminally negligent and complicit conduct. SIT
had told the Apex Court five months ago that further investigations
into their role were being carried out. Nothing so far has been done
by SIT.

Meanwhile in
August 2010, after submitting over 300 pages of Phone Call Records
Analysis to the Nanavati Shah Mehta Commission, witnesses have filed
detailed phone call records in the Gulberg Trial.

Witnesses and
Victims have also filed over 200 pages of detailed arguments in the
Sardarpura Case in Mehsana district that saw the massacre of 33
innocent members of the minority community. In these arguments it
has been pointed out that despite an application under section
173(8) of the CRPC being made to the SIT, the SIT has failed to
investigate the arms build up and build up of provocative and
aggressive atmosphere in Mehsana district prior to the Godhra Train
Burning incident of 27.2.2002. Evidence of such build up is
available through the testimonies of witnesses, through the
annexures to the affidavits of former Gujarat State IB chief, RB
Sreekumar and through TehelkaÂ’s Operation Kalank. The reluctance of
the SC appointed SIT to probe these aspects is baffling.

Trial in the
Godhra Mass Arson Case has been completed and judgement is awaited.

Trials into the
Naroda Gaam and Naroda Patiya cases as also two trials into the Odh
massacres are on. Over 450 accused are arraigned and face charges in
the trials related to the post Godhra massacres, a first in post-indepedence
IndiaÂ’s history —Gulberg massacre, Naroda Patiya and Naroda Gaam
carnages, Sardarpura Massacre, Odh Massacre and Deepda Darwaza
killings.

SIT Investigation

Aspects of the
SIT investigation that ignored critical evidence, dropped crucial
witnesses were brought before the Supreme Court through CJP after
which Gujarat officers on the team were asked to step aside and the
one who remains asked to play a guarded role. Conduct and atmosphere
within the courtroom, a serious issue for victims of mass crimes
especially when the perpetrator dispensation had been twice elected
to power in the State compelled us to make a plea to the Apex Court
(December 2009) that court proceedings be recorded on CCTVs. This
remains pending.

Systematic
Victimization/Intimidation of Teesta Setalvad/Citizens for Justice
and Peace since 2009 (actually 2004)

Worse in the
midst of this propaganda what is being missed is that despite the
fact that victims did through their efforts and the order of the
Gujarat High Court establish the identity of their dead relatives in
2005-2006, it took an order from the Supreme Court (February 2008
and a subsequent order of the Trial Court in December 2008) that
dignified burial was finally conducted with no one being allowed to
be present in August 2010, ie six years after the brutal massacre.

The malicious
and motivated campaign against human rights activists and their
lawyers struggling for justice for the victims of the genocidal
carnage in Gujarat in 2002 is aimed at derailing the struggle for
justice. The patently false allegations of doctoring evidence are
being orchestrated at a time when crucial trials are nearing
completion and accused among whom are powerful politicians and
policemen face charges of criminal conspiracy and murder.

The allegations
against Teesta Setalvad, Secretary Citizens for Justice and Peace
and the organisation she represents as well as advocate MM Tirmizi a
lawyer who has fought tirelessly for justice were spearheaded first
by the state of Gujarat, then fuelled by a former employee and
widely publicised by Pioneer edited by an MP of the same political
dispensation that rules Gujarat.

The timings of
the malafide allegation are aimed at derailing the course of justice
and come at a time when the apex court is poised to hear a complaint
of conspiracy to commit mass murder, suppression of justice and
destruction of evidence.

The brazen
attempts need to be seen for what they are given the seriousness of
the charges against the Gujarat state and its functionaries. In 2004
too after the Best Bakery trial was shifted to Mumbai a star witness
made similar allegations. She had thereafter to serve a jail term
for perjury while those found guilty of inducing her into falsehood
escaped penal punishment. The allegations, baseless as they are
remain the same though persons making them have changed.

There is some
suggestion and strong possibilities that the Gujarat Police may try
to stage an arrest of Teesta Setalvad, and others. The background of
the case is as follows:

In a nutshell:

On Dec 27, 2005
victim survivors of the Pandharwada massacre (where officially 27
persons were massacred…actually figure is higher on 1.3.2002) who
were frustrated after the studied refusal of the state authorities
to hand back skeletal remains of their dead which were dumped
illegally by the stateÂ’s police, began the digging themselves. The
spot where they had been illegally dumped was off the Paanam river
Lunawada in Godhra district.

For months
before they started digging they had approached the authorities to
dig out their remains. There was no response. Frustrated, they
started the digging they had informed some members of the electronic
media and also Citizens for Justice and Peace( CJP). The CJPÂ’s then
coordinator Rais Khan (who is since not with the organisation
following irregularities since January 2008) who contacted its
Secretary in Mumbai. CJP through its Secretary Teesta Setalvad
clearly told them to wait at the spot till the authorities came, we
informed the Collector and SP and contacted lawyers and moved the
High Court of Gujarat the next day. The local police was informed by
fax of the frustration of the victims.

The victims and
CJP together moved the Gujarat HC the next day got our prayer for
DNA sampling from Red HILL Hyderabad The DNA sampling proved that
the victim survivors were right. Nine of the 22 skeletal remains
were found to be of the relatives of the victims of the Pandharwada
massacre.

After the initial
order in the Gujarat HC which was a breakthrough, year later the
Gujarat HC dismissed the victimsÂ’ petition asking for transfer of
investigation of the massacre to the CBI. Ironically we had pointed
out that the panchnamas related to the crimes had nowhere mentioned
the skeletal remains.

The state has
tried to say that this was never an illegal dumping but a proper
burial on Forest land off an river. Legally speaking not only has
the panchnama of the original crime of mass murder not list the
skeletal remains disproving the version of the Gujarat state and
police. Victims and rights activists have argued that Lunawada has a
large Kabrastan hence if Gujarat Police could in fact not trace
relatives, what was the need to so dump the remains rather than
according them a dignified prayer cum burial in the Kabrastan? Why
dump them in an obscure spot off the river rather than give them to
community leaders for a dignified burial?

Following in its
tradition of victimising human rights defenders and victims, the
local police lodged an FIR on Jan 1 2006 against victim survivors
and Rais Khan of the CJP. CJP gave full legal aid to them and bail
was granted and a stay against their arrest also granted by the
Gujarat High Court.

In the interim
Rais Khan has today is no more with the organisation, he was
dismissed from service. He is today under the influence been won
over by the accused in the Naroda Patiya case and powerful vested
interests in Gujarat. Inexplicably on November 24, 2010 the matter
that had been stayed by the Gujarat High Court was listed and the
stay vacated. Rais Khan surrendered and has in statement recorded
under section 164 made false accusations against mediapersons and
Teesta Setalvad.

He appears to
enjoy full immunity and security within the state of Gujarat.