The interventions of the Supreme Court in the Best Bakery case so far have rejuvenated faith in the institutions of Indian democracy. But reparations for the genocide in Gujarat, punishment of the perpetrators and masterminds of mass violence and the putting in place of institutional safeguards against future crimes against humanity are not yet in sight
Nearly 19 months after the genocidal violence that rocked the western Indian state of Gujarat, searing questions that the tragedies have raised related to justice and rehabilitation remain completely unanswered. Issues of state accountability in instances of mass violence, independent policing, adequate reparation and the response of democratic institutions such as the judiciary to such crimes hang suspended in mid-air, as the proverbial shortness of public memory hampers the best efforts to keep some of these issues alive.
What happened after Gujarat 2002? The voluminous report of a Concerned Citizens Tribunal comprising of senior jurists and other prominent citizens recommended, among other things, the establishment of a Statutory National Crimes Tribunal that must evolve a new jurisprudence drawn from the International Law on genocide.1 It also argued for urgent reforms in the Indian police force. Drastic reforms in the Indian police system that included independence of the law and order machinery, and ensured representation and diversity had also been recommended as far back as 1981 by the officially-appointed National Police Commission.2
Today, judicial matters related to the genocidal violence in Gujarat have been brought centre-stage through two pivotal cases currently being heard in the Supreme Court. The fact that this has happened at all is due in large measure to the initiatives taken by the statutory National Human Rights Commission (NHRC) since the justice process in the state was systematically de-railed.3 This has been backed by a gritty Mumbai-based citizens group, Citizens for Justice and Peace, that has set for itself the task of continuing the struggle for justice and reparation for the victim survivors, however tough or tortuous this effort may be.
Efforts are alive through these judicial interventions to move the criminal trials of the worst carnages outside the state of Gujarat.4 The argument for turning over both the investigation and conduct of the criminal inquiries to an area outside the control of chief minister Narendra Modi and the state administration under him has been made since the start of the carnage last year, both by the NHRC (April 2002), as also through several public interest litigations filed in the Supreme Court in April 2002 itself.5 If these had been heard judiciously and promptly by the apex court when it was first approached last year, concerns related to the utterly subverted and paralysed local atmosphere in the state of Gujarat would have been met and more promptly answered.
Unfortunately, the judicial record in dealing with such mass community-driven carnages remains pathetic. Sikh widow survivors of the 1984 pogrom against their community in the country’s capital following the assassination of former prime minister Indira Gandhi by her Sikh bodyguards continue the battle in vain for justice that evades them even 19 years later6 .
Similarly, Muslim family members of the 53 young males shot dead in cold blood in Meerut-Hashimpura, a town in western Uttar Pradesh, in 1989 still hope that justice will be done7 .
The recent conviction of Dara Singh and associates for the burning alive of Christian pastor Graham Staines and his two sons in January 1999 in Orissa is a rare case of a sessions court punishing those guilty of communally driven crimes.
Most pertinently, the attempts of these and many more such survivors to see justice done decades after the crime are living testimonies to the fact that human beings need to believe and find justice for unspeakable crimes before peace and reconciliation can be brought about. A failure to respond to this cry for justice renders a system vulnerable; torn from within by festering wounds and hurts that do not heal but in fact create their attendant aberrations. This is the unfortunate reality in India today.
The sensation created by young Zahira Shaikh’s brave admissions at a press conference in Mumbai (July 7, 2003) recounting the threats, intimidation and manipulation that she and her family was subjected to and that resulted in the witnesses lying in court and the acquittal of all the accused, propelled the NHRC into appealing to the Supreme Court of India for a retrial of the Best Bakery case outside Gujarat. This was a rare step taken by the NHRC. (see CC, July 2003).
Though fact-finding reports and media exposures had dealt with political manipulation by the Modi government in its dealings with the police and the appointment of pliant public prosecutors, it was only after the Best Bakery issue brought matters centre-stage that their conduct has begun to be closely scrutinised.
In another related matter taken up by the NHRC, Bilkees Yakoob Rasool, a victim of sexual violence, was given special legal assistance when the NHRC referred her case to prominent lawyer Harish Salve. Here, too, the SC issued notice to the Gujarat government, pulling up the state police for improper investigations. This is one of the rare cases of an FIR being registered in the matter of sexual assault and violence in Gujarat. Over 150 such cases have been reported but these crimes do not even figure in police records.
Not merely that. Nine other ongoing investigations and trials, including the Godhra investigation, are also marked by similar threats and intimidation of witnesses and subversion of evidence. In the Ode (Anand district) trial where over 23 persons were massacred, key eye-witnesses have not been examined.
The Best Bakery case apart, in the nine other major carnages where the judicial process is still on, the subversive manner of investigation and the continuing threats and intimidation of witnesses bode ill for the process of justice.
In the Gulberg society massacre, it was only after the outrage generated by the Best Bakery case that the repeated complaints of eye-witnesses about threats and intimidation by the Ahmedabad city crime branch have been taken seriously.8
Since November 2002, witnesses in the Gulberg case have been petitioning and making written applications for proper investigations, also complaining that proper statements have not been recorded. There is no response from the authorities and the matter keeps getting adjourned.
In short, the Best Bakery case apart, in the nine other major carnages where the judicial process is still on, the subversive manner of investigation and the continuing threats and intimidation of witnesses bode ill for the process of justice.9 These issues were comprehensively brought up before the apex court during the last hearing on October 17, 2003 and the Gujarat government has finally been forced to respond to them substantially.
Despite being severely exposed in the public eye in the Best Bakery incident, the Gujarat government waited until after the NHRC had moved the Supreme Court of India (August 1, 2003) before it filed an appeal against the acquittals in the sessions court in Vadodara (August 7, 2003). In between, on August 5, 2003, the Gujarat Bar Association passed a unanimous requisition against the NHRC’s moving the SC and demanded that the former withdraw its special leave petition! The frivolous nature of the appeal that did not even make the prayer for a re-trial led Chief Justice VN Khare to pass severe oral strictures against the government on September 12. Clearly this appeal in the High Court was being used as a tactical ploy to limit the SC’s interventions. During the hearing on October 9, the SC appointed senior counsel and former solicitor general of India, Harish Salve, as amicus curae (friend of the court) to assist the court on the points that had arisen.
During this ongoing battle two affidavits were filed by the Teesta Setalvad of the CJP. The astounding facts contained in them made Salve point these out to the court on October 17. While one related to the highly suspect nature of the ongoing investigations in nine major massacres, the other related to three major carnages in which acquittals had taken place in October 2002 and yet the state of Gujarat had not even appealed against these judgements.
In what were clearly three of the worst carnages—87 persons were burnt alive in the Limadiya Chowkey, Kidiad, incident, while over 70 persons were butchered and burned in two separate carnages in Pandharwada village, Panchmahal district—the Gujarat government effectively ensured acquittals of all the accused, through the appointment of public prosecutors with questionable political backgrounds and wilfully negligent investigations.
In all three instances, senior and elected functionaries of the BJP are indicted as accused. (In the Kidiad incident, the elected BJP MLA, Kalubhai Hirabhai Maliwad has been named as the main mastermind of the massacre).10 The malafide intent of the state can be gauged from the fact that no appeals have been filed by the Gujarat government for over a year.
The conduct, or misconduct, of the Gujarat government has been brought centre-stage before the Supreme Court, through the NHRC’s writ petition and transfer petition, and the special leave petition and impleadment applications filed by the CJP. It is to be hoped that when the apex court begins to deal with the issues raised in these and related matters, a comprehensive look and intervention of the consequences of the state-wide genocide becomes possible.
Without this, the struggle for justice to the victim-survivors of the Gujarat genocide remains narrowed down today. The weight of the system being battled against places the painful choice before the petitioners of picking and choosing the cases even in their struggle for justice. With the magnitude of what happened in Gujarat receding from public memory; the legal battles being waged today are constrained to be limited to getting justice for only those victim-survivors of the carnage where over a dozen persons were butchered and slaughtered.
What of the individual innocent victims, such as minors who were shot dead by an unaccountable police? What of the girls and women who were killed after brutal sexual violence? What about those who somehow survived and are now forced to live in the same villages where the crimes were committed?11
What of the 10,000-odd homes that were destroyed so thoroughly that the pathetic Rs 5,000–Rs 40,000 paid in compensation – that too, only to a fortunate few – is barely enough to pick up the threads and start living again? What about the reparation for the businesses destroyed and the agricultural lands seized? Despite the fact that the Prime Minister had announced Rs 150 crore in central aid for victim survivors, the Gujarat government remains adamant in not even disbursing the available, though highly insufficient funds.12
No less than 1,16,000 persons were internal refugees, thrown out of home and hearth, living in relief camps for over seven months last year. During this period, the Gujarat government refused to give them food, water and medicines despite their constitutional obligation to bear the cost of this internal displacement. Here again, it took legal interventions in the Gujarat High Court before the government was forced to act. Two writ petitions were supported by CJP, which included flying down a senior lawyer from Mumbai since the atmosphere was so communally surcharged in the state that few wanted to appear in defence of victims from the minority community!13 As a result of this legal intervention, at least Rs 10 crore had to be paid out from the State government coffers to the relief camp organisers.
It was the incident of the mass burning of 58 passengers on board the S-6 coach of the Sabarmati Express, returning from the temple town of Ayodhya, which was used to justify the mass crimes committed in the state-wide carnage that claimed no less than 2,500 lives and economically and culturally crippled the Muslim minority. (The economic loss to the community was estimated at no less than Rs 4,000 crore and this did not include irreparable damage to or loss of homes and agricultural lands that have been usurped after Muslims fled the villages where they were a small minority).
The reason that the well-tested term genocide was used by us14 and later the Concerned Citizens Tribunal to sum up what happened in Gujarat was because these and other jurisprudentially tested criteria for genocide were evident in the crimes against humanity in Gujarat. No less than 200-300 Muslim women were subjected to brutal sexual violence and no less that 270 mosques and durgahs (religious and religio-cultural shrines) were desecrated and then destroyed.
The calculated and state-sponsored attempt to ravage the dignity of a community was evident. Article 2 c) of the UN convention on genocide specifies – "Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part." Therefore, the fact that every single Muslim was not forced to flee for threat of slaughter (sic) is no defence against the genocide charge, as attempted both by the Gujarat chief minister and his close supporters among the top echelons of the BJP leadership in New Delhi that leads the National Democratic Alliance government.
Hate speech and hate writing not merely preceded the carnage but actually made the carnage possible. The violence in Gujarat in 2002 was preceded for some months by the systematic distribution of poisonous material, some anonymous, that systematically spewed hatred and venom against the Muslim minority in the state. Even during the orgy of violence, thousands of these pamphlets could be found. Some advocating systematic economic boycott of Muslims even carried the address of an office of the VHP15 . Others that were even more graphic and vicious advocated mutilation and rape.16
The issue of hate speech and its intent, and the non-prosecution of offenders, is the subject matter of one of the writ petitions filed in the apex court. Speeches made by Gujarat chief minister, Narendra Modi and the VHP’s working president, Ashok Singhal, were brought to the attention of the court. As is only to be expected, no FIRs have been registered or investigations launched against either of the two personalities. The attitude of our authorities and democratic institutions to the abuse of freedom and perpetration of hate speech has become pivotal in the struggle for a peaceful and sane polity.17
Many of these issues will remain alive as the battle continues in the Supreme Court for justice. The petitioners will try their best to ensure that various aspects of the state-sponsored genocide get addressed by the Supreme Court of India. Many hopes have been raised by the proceedings so far. It is to be hoped that the institutions of democratic India will live up to them.
1 Crimes Against Humanity, Volume II, Long Term Recommendations – Concerned Citizens Tribunal Report; Tribunal headed by Justice VR Krishna Iyer and with members like Justice PB Sawant, Justice Hosbet Suresh, KG Kannabiran, KS Subramaniam, Aruna Roy, Tanika Sarkar, and Ghanshyam Shah.
2 Ibid; section on Recommendations—Police
3 NHRC Report and Recommendations during and after last year’s carnage in Gujarat proved particularly embarrassing for the State
4 Plea in the SLP filed by the NHRC, dated August 1, 2003 and the SLP(Criminal) filed by CJP, Teesta Setalvad and Zahira Shaikh dated August 8, 2003 in the Supreme Court of India
5 Two petitions filed by DN Pathak and others and Mallika Sarabhai and others prayed for the transfer of key cases to the CBI and Investigations in these through this Independent agency
6 Darpan Kaur, a Sikh widow who lost 12 family members and even filed a First Information Report with the police against former Congress minister HKL Bhagat was first offered a bribe of Rs 25 lakhs and when she refused, was even beaten brutally. She has refused to give in.
7 The FIR in this crime was filed by a police officer of the rank of SP in his own name, Vibhuti Narain Rai who today is the IG of Uttar Pradesh
8 Affidavits filed by witnesses in the Supreme Court give details of this
9 Second affidavit filed in the SC by Teesta Setalvad on October 17, 2003 enlists the details
10 Teesta Setalvad’s affidavit, as Secretary CJP, in the Supreme Court of India which was mentioned by amicus curae, Harish Salve and to which the Gujarat government have been directed to file a reply by October 31, 2003
11 CCT, Volume II, Short Term Recommendations of Reparation, Relief and Rehabilitation
12 A pending PIL filed by Vijay Tendulkar of the CJP demands an account of the fund disbursal and the establishment of a joint committee to monitor funds and their distribution. This is still pending.
13 Aspi Chinoy along with Suhel Tirmizi argued the matter for over five hours before the Judge actually appointed a committee and thereafter passed orders that made the state government liable to make good the damages to the organisers of relief camps.
14 Communalism Combat’s special issue was entitled Gujarat genocide 2002, March-April 2002
15 Pamphlet Poison, Gujarat Genocide 2002, Communalism Combat March-April 2002
17 The criminal writ petition against Narendra Modi and Ashok Singhal has been filed by Alyque Padamsee, Valjibhai Patel, BG Verghese and Teesta Setalvad and is still pending.
Archived from Communalism Combat, October 2003. Year 10, No. 92, Cover Story 2