30, Oct 2021 | Teesta Setalvad

It is not often that the battle against aggressive communalism, the sustained mobilization that precedes brute and targeted violence and includes hate speech and hate writing, the deliberate debilitation and paralysis of preventive and pro active measures of law and order that minimize the spread of reprisal violence and protect lives and properties, gets sustained and validated through courts of law. In the south Asian context, majoritarian communalism fed in an insidious manner by its minority prototype has the unique characteristic to deteriorate into authoritarianism, even fascism. Be it Sri Lanka, Pakistan or India events past and present are testimony to this. In the cases of all countries of the region, communalists of the majority find ready partners with fundamentalists of the minority.

For over four decades now, aggressive communalism has made deep inroads into the pillars of the Indian republic, executive, legislature and even the judiciary. The calculated, and bloody mobilization of an ostensibly religious kind by India’s main opposition party from the late 1980s was purely political; it consolidated a rigid vote-bank of middle and upper class Hindus while demonizing the minority vote bank as the raison d’être for its existence. This section of Indians, fortuitously a numerical minority still substantial number at 27-30 per cent of the overall vote, have aggressively celebrated the bloody attacks on minorities and its critics even as the this rath yatraled by LK Advani had a bloody trail en route (Hubli, Karnataka, Jaipur, Rajasthan, Surat, Gujarat among others). Writers and commentators have analysed this phenomenon as the republic’s descent into proto-fascism, with forces of the Hindu right, the Bharatiya Janata Party –the parliamentary wing of the Rashtriya Swayamsevak Sangh and its more modern avatars, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal (BD) manipulating institutions of democratic governance. Our administration, our police, even our Courts barely withstood the systematic onslaught.

It is in this unique context that the battle for acknowledgement, justice and accountability for the well-orchestrated state directed and executed crimes of 2002 in Gujarat needs to be understood. For over 11 years now, a steely band of survivors, backed by groups of civil and legal rights groups and activists have extracted, for the first time a degree of acknowledgement, transparency and accountability from an indifferent system. One hundred and sixteen life imprisonments pronounced to, among others, policemen, powerful politicians (one former minister) and strongmen of outfits of the VHP and BD, is a success story in its own right.

What the  Zakia Jafri protest petition filed on April 15, 2013 attempts is to take this battle for accountability several steps further, and deeper. In carving out a substantial case of criminal conspiracy planned and executed by the state’s chief minister who is also its home minister, this unique and historic legal intervention, apart from the individual cases of the 59 accused involved raises serious questions about a) the systemic build up of communal mobilization and inaction by state agencies and actors; b) the lacunae in monitoring and check on hate speech, hate writing, pamphleteering; c) the state and government’s specific response to a tragedy like Godhra on February 27, 2002; d) contemporaneous records that reveal government’s intent to contain  the impact and spread of violence; e) transparency in summoning assistance from the military /paramilitary forces; f) comparative analysis of districts & commissionerates worst affected by violence (15) and those that held their own (SPs/DMs refused to bow down to political masters); g) role of whistleblowers in pinning down accountability from political masters; h) the role of survivors/activists/ legal and civil rights groups; i) the role of the media in covering the build up and fall out of mass crimes.

Gujarat in early 2002 was sitting on a communal cauldron, carefully stoked since October-November of 2001.  Records of the State Intelligence Bureau (SIB) that are well-documented parts of the protest petition (annexures to the affidavit of former SIB Gujarat chief, RB Sreekumar) as well as responses received from the office of the chief minister during the course of the investigation clearly establish that sustained efforts to keep districts and cities of Gujarat on the boil were afoot (reference pgs 178, Paras 426-442 of the protest petition). Significantly the newly sworn in chief minister, Narendra Modi who had been brought in by the party’s national leadership after a series of bye-election losses in September 2001, is at the helm of the law and order machinery as the state’s home minister but does little to act against this communal mobilization. SIB warnings include detailed notings of the aggressive anti-minority speeches being made by BJP party leaders as also persons belonging to the VHP and BD. One such comment recorded would prove to be prescient, “Yeh andar ki baat hai, police hamaari saath hai.” (stated by one Prahlad Patel on his way upstate to Faizabad-Ayodhya). Despite this climate and warnings, Godhra with a poor record, is left unguarded and unprepared. Despite platoons of the military and paramilitary being not far away (at Vadodara), they are not galvanized. When the Sabarmati Express arrives five hours late at the Godhra station on the fateful day, February 27, 2002, Godhra and many parts of Gujarat were already sitting on a communal tinderbox.

It is how the Godhra tragedy is deliberately manipulated that requires a careful and dispassionate study for all those concerned with non-partisan governance. The first information on Godhra received by the chief minister, home and revenue department from the district magistrate, Jayanti Ravi details the sequence of events – aggressive and provocative sloganeering by kar sevaks that caused a mob of Muslims to gather and pelt stones. This reasoning that explains, partially at least how and why a crowd gathered when the train stopped after it had left and the chain was pulled, is thereafter deliberately and consciously obliterated by the government in official statements and releases. The chief minister in the assembly around 1 p.m that afternoon hints at a sinister and Machiavellian conspiracy. ( paras 50-54 at pages 37-39 of the protest petition and paras 127-174, pages 71-92 of the protest petition ).

But it is other jigsaws in the puzzle that have fallen into place during the analysis of investigation papers and preparation of the protest petition that point to the chilling manoevres by men and women in positions of governance to abdicate their oath to the Indian Constitution and consciously allow a chain of criminal actions to spiral out of control, that bear careful understanding and discussion. Between 9 a.m. when news of the tragedy at Godhra has been received and 10.30 a.m. when an official meeting of home department officials is called by the chief minister, phone call records (that were deliberately ignored by the Special Investigation Team, SIT) show that the chief minister was in close touch with Jaideep Patel (accused number 21 in the criminal complaint). Jaideep Patel, far from being a man from officialdom, is actually a strongman of the VHP, the state’s general secretary. Despatched to Godhra soon after these telephone conversations it is the same Jaideep Patel who thereafter attends an official meeting at the Collectorate at Godhra (para 69, page 45 of the protest petition) and to whom the chief minister orders the 54 dead bodies of Godhra victims to be handed over. It is a VHP man who is given the responsibility of transporting these bodies to Ahmedabad in a motor cavalcade that causes violence in its wake (paras 73-81 at pages 47-50 of the protest petition) and Jaideep Patel who hands them over to the authorities at Sola Civil Hospital, Ahmedabad. Jaideep Patel thereafter is also charged with being an instigator of mobs to violence at Naroda Gaam, the next day, February 28, 2002. This close contact between the chief minister and Jaideep Patel, both accused in the Zakia Jafri criminal complaint dated 8.6.2006 continues right through till February 28, 2002 when the massacres at Naroda and Gulberg are being executed. At 15:26:06 hours, Jaideep Patel calls the chief minister at his official number and has a conversation lasting 141 seconds. Jaideep Patel’s is one of just three calls on this number. Incidentally all the official office and residential numbers of the chief minister for both days show a shockingly low number of calls, raising more questions than they answer. The mobile number of the chief minister has been left deliberately uninvestigated by the SIT (para 106, page 61 of the protest petition)

After this surreptitious indications of the criminal conspiracy that was to unfold, the chief minister, then health minister, Ashok Bhatt, minister of state for home, Gordhan Zadaphiya and Jaideep Patel are in touch and a controversial decision to conduct postmortems on the bodies of the unfortunate Godhra victims, in the open at the railway yard, in full public view of an aggressive crowd of VHP persons, baying for blood, is taken. Chief minister who is accused number 1 in this protest petition is present at Godhra at the railway yard while these illegal post mortems are allowed.  (paras 473-477, pages 211-212 of the protest petition)

Law and procedure are exacting about whom bodies of such calamities are to be given; they require to be in the safe keeping of the police authorities (in this case the Godhra police where the case was registered) until claimed by relatives to whom they need to be handed over with due procedure. Photographs of gruesome/gory are strictly prohibited from being displayed or published. (para 480, page 214 of the protest petition). Not only were the gory charred remains displayed but they were allowed to be widely publicized in violation of Section 233, 4 (vi), Volume III of the Gujarat Police Manual.

The narrative behind this legal journey is in itself an exploration into systemic efficacy and response. Zakia Jafri, widow of quarterised, burned and slain former parliamentarian Ahsan Jafri first filed this criminal complaint before the Director General of Police, Gujarat. The man to hold this position by 8.6.2006, the date of the complaint, was none less than many times promoted despite being indicted Commissioner of Police, Ahmedabad PC Pande. When the Gujarat police failed to register an FIR, she along with the Citizens for Justice and Peace, approached the High Court and later, when relief was denied further, the Supreme of India. On April 27, 2009 the Supreme Court, seeing merit in the issues raised by the complaint handed it over to the already appointed Special Investigation Team (SIT) under former CBI director, RK Raghavan.  The investigations by the SIT resulted in four reports, three before the Supreme Court. While the SIT, despite contradictory findings concluded there was no evidence against any of the accused, the amicus curiae (friend of the court) senior counsel Raju Ramachandran said to the contrary. His report dated July 25, 2011 told the Supreme Court that there was a clear case for the prosecution of Modi and three others, at least. Based on this contrary advice, the Supreme Court on September 12, 2011 told the SIT to file its final report after considering the amicus’ contrary view and, in the event of this being no different from its conclusions before the Supreme Court, specifically entitled Zakia Jafri to a complete set of the investigation papers to file a competent protest petition. After a battle of five years, the complaint that began with a plea for registration of an FIR had now proceeded to the stage of a charge sheet being filed against the accused.

SIT did not change its conclusions and filed yet another report stating that no criminal charges were made out. As questionable, was its adamant refusal to comply with the Supreme Court’s order dated September 12, 2011 and give all the investigation papers to Zakia Jafri. The 514 page protest petition is an elaborate testimony to the reasons behind the SIT’s refusal to comply. Its own investigation papers have provided a wealth of further evidence of the callous complicity at the very highest levels in the state administration to paralyse the administration into inaction, deliberately refuse preventive arrests or the declaration of curfew, allow funeral processions to be the launching pads of attacks and rioting, neutralize any action on hate speech etc. By 2013 it is clear that the SIT has not simply performed an onerous job in a desultory and unprofessional fashion. It is today through its partisan conclusions completely obfuscating the dividing line between being an independent investigating agency that it was bound to be, given its appointment by the Supreme Court, to becoming a spokesperson for the Modi administration.

Raghavan, Malhotra and Shukla the three main spokespersons for the SIT have cynically misled the Supreme court when they stated that the funeral processions of the Godhra victims in Godhra and at least five-eight other locations (Khedbrahma, Vadodara, Modasa, Dahod, Anand) were peaceful.  The evidence from Police Control Room (PCR) records submitted by PC Pande to the SIT after 15.3.2011 reveal a cold-blooded mobilization of RSS workers and VHP men at the Sola Civil hospital from 4 a.m. onwards on 28.2.2002 in aggressive anticipation for the arrival of the dead bodies. Repeated PCR messages, that the home department under Modi (A-1, who held the home portfolio) and PC Pande (A-21) were trying to conceal, show that both in Ahmedabad and in several locations all over Gujarat, crowds were mobilized to aggressively parade bodies with bloodthirsty sloganeering, inciting mobs to attack innocent Muslims. The then joint police commissioner, Ahmedabad, Shivanand Jha, also an accused in the complaint (A-38), was jurisdictionally in charge of Sola Civil Hospital in Zone 1. As the messages extracted show, repeated PCR messages desperately ask for more bandobast; they speak of the staff and doctors of the hospital being under threat; of a 5,000-6,000 strong mob accompanying the bodies and finally one message also says that “riots have broken out.”  (paras 559-560 at pages 244-247 of the protest petition) These records also reveal what the SIT was trying hard to conceal — that while the Ahmedabad police under PC Pande and the home department  under Modi and then MOS, home Gordhan Zadaphiya (A-5 ) had enough forces to escort a VHP leader known for his incendiary slogans, Giriraj Kishore, from the airport to the Sola Civil hospital to accompany the processionists, — they did not have enough forces to send to Naroda Patiya where 96 persons were massacred in broad daylight (charge-sheet figures in the Naroda Patiya case, though more deaths have been recorded) and 69 persons at Gulberg society the same day and around the same time aggressive processions were being allowed.

Sustained warnings from the SIB, even after the Godhra tragedy on February 27, 2002 show that large sections of the police were aware and knew of what should be expected all over the state now that the Godhra tragedy had happened. As early as 12:30 pm on the 27th February: An SIB officer through fax no 525 communicated to the headquarters that there were reports that some dead bodies would be brought to Kalupur Hospital station in Ahmedabad city. The same message said that kar sevaks had given explosive interviews to a TV station at Godhra and had threatened to unleash violence against the Muslims.

But it is the panic messages from 1.51 a.m. onwards on February 28, 2002 from police wireless vans positioned at Sola Hospital demanding immediate protection from Special Reserve Police platoons and the presence of DCP Zone 1 that are grave testimony to the planned gory scenario that was to unfold. The message at 2:44 hours on 28.2.2002: the motor cavalcade has reached Sola Civil Hospital. Page No. 5790 of Annexure IV, File XIV reveals that at 04:00 am a mob comprising of 3,000 swayamsevaks, that is the members of the RSS, had already gathered at the Civil Sola Hospital. Again, another message three minutes later at 7:17 a.m. (Page 5797 ofAnnexure IV, File XIV of the documents) says that a mob of 500 people was holding up the traffic. By 11:55 am a PCR message is sent out saying that the Hindu mob had become violent and had set a vehicle on fire and was indulging in arson on the highway. Message at 11.55 a.m. on 28.2.2002 (Page No. 6162 Annexure IV File XV) saying that “Sayyed Saheb, the Protocol Officer had informed Sola-1 that riots have started at Sola civil hospital at the High Court where the dead bodies were brought. Again, there is another message with no indication of time (Page No.6172 of 28.2.2002) that states that the officers and employees of the hospital had been surrounded by a 500 strong mob and they could not come out”. The message also made a demand for more security for the civil hospital at Sola. In a cynical disregard of this hard documentary evidence, the SIT in its first investigation report dated May 12, 2010, the chairman’s comments, May 14, 2010 and its final report dated February 8, 2012 say the funeral processions were peaceful.

On the morning of 28.2.2002, another SIB message says that a funeral procession was allowed to take place at Khedbrahma, a town in Sabarkantha district and adds that soon after the funeral procession 2 Muslims on their way to Khedbrahma were stabbed and the situation had become very tense.  All this and more has been ignored by the SIT completely.

Other documentary evidence of deliberate acts of provocation by persons like Jaideep Patel Kaushik Mehta (also both accused) and Dileep Trivedi are recorded by the SIB that states that deliberately inflammatory and false statements of “women being molested at Godhra” are being propagated by these persons; other meetings at Vapi, Khedbrahma, Bhavnagar etc are being held by RSS, VHP, BD to whip up sentiments (paras 631-637, pages 274-276 of the protest petition). One message at Annexure III, File XVIII (D-160) at Page No. 19 Message No. 531 from SIB Police to KR Singh at 1810 hours on 27.2.2002, actually records that “on 27.2.2002 at 4.30 p.m. when the train arrived at the Ahmedabad Railway station, the kar sevaks were armed with ‘dandas’ and shouting murderous slogans ‘khoon ka badla khoon’ and ‘Bharat Mata ki Jai’.” 

While the chief minister has travelled 300 kilometres to Godhra and returned the same night, he does not visit any of the refugee camps where in brute reprisal killings, women, children and men of the minority have been lodged until well after the visit of the chairperson of the National Human Rights Commission (NHRC), former chief justice JS Verma on May 21-22, 2002. He also announces a discriminatory compensation package for those killed at Godhra and those thereafter. The crucial and sensational meeting at his residence on the night of February 27, 2002, is where direct evidence of the conspiracy in operation has been alleged. Officers and others who were present have over the past eleven years indicated the directly illegal orders conveyed by the accused chief minister. Unlike crucial law and order meetings at times of crises this meeting has not been minuted. What transpired at this meeting was first publicly revealed through the report of the Concerned Citizens Tribunal—Crimes Against Humanityheaded by Justices VR Krishna Iyer, PB Sawant and Hosbet Suresh.  Thereafter in the course of the SIT investigations, a serving officer of the Gujarat police, Sanjiv Bhatt testified directly and corroborated this. The protest petition makes a strong case for testing this evidence in court. Amicus curiae Raju Ramachandran in his report to the Supreme Court has also clearly opined that it is not for the investigating agency to pre-judge the evidence but place it to be tested during trial.

Despite the evidence of intense communal mobilization, bloodthirsty speeches and actual attacks on innocent citizens of the minority, on the day of the Godhra tragedy, there is no appeal for peace and calm by the state’s chief minister and home minister; no preventive arrests are made despite 19 attacks on minorities in Ahmedabad on February 27, 2002 itself; no prohibitory orders are issued and there is no clarity from the investigation papers as to when the army was actually called and deployed. SIT has not bothered to record the statement of Major Zameeruddin Shah in charge of the army operations in Gujarat neither that of KPS Gill sent  in by the erstwhile NDA government in May 2002 simply because the violence continued and refused to stop. Hence the protest petition apart from praying for the charge sheeting of all the accused also makes a strong case for a transfer of the further investigation to an independent agency

The failure of the SIT was to examine the evidence objectively, evaluate the motive behind the government supporting a bandh called by the VHP and RSS and its impact, tested officers of the ground who were sending warnings against the claims of their accused superiors who have collaborated in partisan mis-governance. An honest and robust investigation would have made a strong comparative analysis between those districts of Gujarat that burned and those that withstood the illegal instructions from above while succumbing to rampaging militias of the RSS-VHP-BD combine from below. Bhavnagar and Panchmahals are interesting studies. SP Rahul Sharma despite all attempts to unleash bloodshed, held his own, even though re-enforcements and troops were deliberately delayed by his seniors in Gandhinagar.Annoyed at his non partisan conduct he was transferred out by March 26, 2002. Brought to the crime branch where he again, made significant points about non partisan charge sheets in both the Gulberg and Naroda Patiya investigations, he was transferred yet again. The narrative of the conspiracy of partisan governance and subversion of the justice process runs in parallel to a cynical policy of punishments of those officers and administrators who refused to bow down to a cynical leadership and rewards for those who succumbed and became collaborators.

Unfashionable as it is to quote from Jawaharlal Nehru when he said that “The [real] danger to India, is from Hindu right-wing communalism”, it seems more than appropriate given the continued attempts by the government in power in Gujarat and the party in power to belittle what has been an onerous and exacting battle, fought at great risk, within the courts.

This article was originally published in Economic and Political Weekly (EPW) in May 2013, and is being republished on CJP now.