Mass Graves at Lunawada

Burying the truth

As matters relating to the 2002 anti-Muslim pogrom in Gujarat reach a critical juncture, Modi’s government tries to frame Teesta Setalvad in the Pandharwada massacre and other carnage cases in a bid to save its own skin

For over six months now the Gujarat state administration and the police machinery under Chief Minister Narendra Modi have been running a malicious and motivated campaign against Teesta Setalvad (secretary, Citizens for Justice and Peace, and co-editor, Communalism Combat), against lawyers engaged by CJP and against other human rights activists fighting for justice for the victims and survivors of the genocidal killings in Gujarat in 2002.

The objective is clear: to derail the ongoing justice process in the Supreme Court – where Modi’s own fate hangs in the balance – and the fast track courts in Gujarat – where nearly 350 accused, including many senior leaders of the Bharatiya Janata Party (BJP), the Vishwa Hindu Parishad (VHP) and the Bajrang Dal, face the prospect of conviction and long years in prison. If the objective is clear, the method too is apparent: malign and discredit activists and lawyers fighting for justice, embroil them in cooked up charges and constrain their personal liberties through illegal arrests.

The attack on Teesta Setalvad in particular has been three-pronged: a widespread and malicious disinformation campaign against her, slapping false charges on her and the threat of impending arrest, all aimed at distracting her, as secretary of CJP, from the relentless pursuit of justice since 2002. In making her the main target the aim is also to intimidate and frighten hundreds of eyewitnesses in the major carnage cases being tried in eight fast track courts as directed by the Supreme Court of India.

The timing of these attacks is significant. The three-judge bench of the apex court hearing the Zakiya Jaffri/ CJP petition is clearly dissatisfied with the fact that though the Special Investigation Team (SIT) report had seriously indicted Modi and his lieutenants for their role in the 2002 Gujarat genocide, it claimed there was not enough evidence to register criminal offences, charge-sheet the chief minister and other perpetrators and haul them into court. On May 5, the Supreme Court issued orders asking amicus curiae Raju Ramachandran to carry out an independent scrutiny and report back to the court before July 28.

That the court was unhappy with the functioning of the SIT, its own creation, was evident from news reports on the court proceedings the next day. ‘SC snubs SIT, calls in amicus’ read the headline on page one of The Indian Express while the opening paragraph of the report read: “In an unprecedented stance since the Supreme Court started monitoring the Gujarat riots cases, the apex court on Thursday [May 5] sidestepped its own Special Investigation Team (SIT) to directly ask amicus curiae Raju Ramachandran to ‘independently’ consider whether there is evidence against Gujarat Chief Minister Narendra Modi and others in the Gulberg Society massacre case.”

‘Go beyond SIT report on Jaffri case, court tells amicus curiae’ was the headline in The Hindu while the report said: “The Supreme Court on Thursday empowered the amicus curiae in the Zakiya Jaffri case to go beyond the report submitted by the Special Investigation Team (SIT) [on the complaint of Ms Jaffri, alleging that the Gujarat chief minister, Narendra Modi, and 61 others had orchestrated the 2002 riots]… A three-judge bench of Justices DK Jain, P. Sathasivam and Aftab Alam asked the amicus, Raju Ramachandran, to analyse and examine the SIT’s report and give his comments in the light of the statements of the witnesses filed along with the report. The bench, in its order, said: ‘If the amicus curiae, on the basis of evidence on record, finds that any offence is made out against any person, he shall mention the same in the report… The copies of the report, along with the comments of the [SIT] chairman, [shall] be given to the amicus curiae who shall analyse them in the light of evidence, statements of witnesses, and have his independent assessment of the entire evidence which has come on record’.” The amicus curiae was also given full authority to speak to any person if he thought it necessary to do so.

All this can hardly be good news for Modi. At the heart of the sustained and malicious campaign is the cynical and calculated intention of the Gujarat state to derail the course of justice being monitored by the apex court and ensure the acquittal of the accused, which includes Modi himself, senior politicians and functionaries of the BJP, VHP and Bajrang Dal as well as top police officers and civil servants.

It may be recalled that the appointment of the SIT by the apex court was the result of a complaint and tireless legal battle waged by Zakiya Ahsan Jaffri and Setalvad of CJP before the Supreme Court. It is no surprise then that a government that has acted vindictively and maliciously against serving and retired IPS and IAS officers who have stood by the Indian Constitution is training its guns on activist Setalvad.

The charges levelled in the criminal complaint against Modi and others are very serious indeed. Despite all the efforts of the Gujarat government and its political mentors and allies to subvert the course of public justice, preliminary investigations by the SIT have revealed details of high-level involvement, of the chief minister and his chosen others, in a series of criminal and unconstitutional actions that engineered the massacre of 2,500 Muslims in the wake of the Godhra incident. No less serious are the SIT’s findings on the subsequent manipulation of evidence, subversion of witnesses and so on.

The allegations against Modi and the government of Gujarat – issuing criminal instructions to police officers and the illegal stationing of ministers in the state and city police control rooms thereafter – are substantiated by the macabre violence, killings, rapes and burnings unleashed on minorities in 19 districts of the state. These allegations and the current investigation are unprecedented in the history of independent India. The illegal handing over of the bodies of victims of the Godhra mass arson to a functionary of a rabid right-wing outfit – the VHP – not to an official of the administration or the police, and the inflammatory media coverage of the Godhra incident by leading Gujarati newspapers, further points to how premeditated the conspiracy actually was. The VHP leader who was given charge of the dead bodies in Godhra on February 27, 2002 is among those accused of instigating mass murder in Naroda Gaon the next day.

On March 15, 2011 the Supreme Court had pulled up the SIT, saying that the evidence it had gathered did not match its inferences. On March 21, 22, 23 and 25, the SIT was compelled to record the statement of yet another serving IPS officer, Sanjiv Bhatt, who, according to reports in the media, has deposed that he was present at a meeting held at the chief minister’s residence on the evening of February 27, 2002 when the latter clearly directed police officers to allow Hindus to “vent their anger” against Muslims. Finally, on May 5, 2011 the apex court directed the amicus curiae to arrive at an independent assessment, without consulting the SIT, of whether or not a criminal offence can be made out.

The other equally relevant point is that the patently false allegations against Setalvad of tutoring witnesses are being orchestrated at a time when crucial trials are nearing completion in the fast track courts in Gujarat. What is at stake is the conviction of over 350 accused in the eight major trials (Gulberg, Sardarpura, Odh – two separate trials, Naroda Patiya, Naroda Gaon, Deepda Darwaza and the British national case) that are underway, some of them nearing completion. Included among the accused in the ongoing trials are top politicians, leaders of the BJP, VHP and Bajrang Dal, senior police officers and civil servants. Despite the threat of intimidation and repression, eyewitnesses and survivors have deposed without fear in Gujarat courts, facing a hostile police and court atmosphere but standing by the affidavits they had filed, through CJP, in the Supreme Court of India.

It is these developments in the Supreme Court and the fast track trial courts in Gujarat that explain the frantic efforts of the Gujarat government under Modi to somehow detract from the incriminating evidence piling up against the perpetrators. This is sought to be achieved by somehow implicating on false charges the person who has been at the forefront of the struggle for justice in Gujarat: Teesta Setalvad. And in this desperate gamble the perpetrators have found a willing ally in the Ahmedabad-based Rais Khan, a former employee of CJP who was asked to leave the organisation in January 2008 after financial irregularities were suspected and survivor witnesses supported by CJP complained against his questionable conduct.

Ironically, the baseless allegations being levelled today are similar in substance to the tactics previously adopted by an unrepentant Gujarat government against Setalvad and other human rights activists since the genocidal carnage of 2002. Absent is any concern for the lives lost or any shame in the continuing subversion or perversion of the justice process. While the individuals making the accusations have changed, the charges have remained the same. Since September 2010, the principal agent for dissemination of this malicious propaganda has been Rais Khan. And the accusations made by him, more than two years after he was asked to leave CJP, have been widely publicised by The Pioneer, edited by Chandan Mitra, a BJP MP, and other mouthpieces of thesangh parivar.

Here in brief are the four alleged offences in which Setalvad is sought to be falsely implicated: Rais Khan has accused Setalvad of hacking his email account.

Rais Khan has accused Setalvad of tutoring witnesses in the Naroda Gaon case, one of the eight major carnage cases being tried in a fast track court in Gujarat.
At the instance of Rais Khan, Setalvad was first named in the FIR (first information report) and, more recently, charged by the Gujarat police as an “absconding accused” in the Pandharwada mass graves case.
Five years ago a Mumbai fast track court delivered its judgement in the Best Bakery case wherein most of the accused – earlier acquitted by a lower court in Vadodara whose ruling was upheld by the Gujarat high court – were found guilty and given severe punishments. Now, more than 60 months later, Yasmin Shaikh, sister-in-law of Zahira Shaikh, has claimed before the Bombay high court that she was forced by Setalvad to lie before the Mumbai trial court. It may be recalled that following accusations against her by Zahira Shaikh in 2004, Setalvad had herself approached the Supreme Court urging a full inquiry into the charges whereupon a team headed by the registrar of the apex court was appointed by the court to investigate the charges. The investigation concluded that the charges against Setalvad were totally baseless and false. Zahira Shaikh served a one-year prison sentence for lying in the court during the retrial proceedings in Mumbai. Now, by filing an affidavit before the Bombay high court and making accusations against Setalvad, Yasmin Shaikh is by implication also pointing fingers at Judge Abhay Thipsay in whose court the retrial of the Best Bakery case was conducted.

Pandharwada: Truth of the grave

But the most serious allegation against Setalvad to date has to do with her being falsely implicated in the Pandharwada mass graves case. This is a five-year-old case that was recently pulled out of cold storage when suddenly, and inexplicably, Setalvad was not only named in an FIR but also charged as an “absconding accused”. The Lunawada police summoned her to be present at the police station on May 31 and her arrest appeared to be the obvious motive. Setalvad moved the Gujarat high court in the matter and on May 27 the court ruled that naming her as an absconding accused was “illegal and mala fide”. The police were however permitted to make corrections and prepare a fresh charge sheet in the case. Setalvad now proposes to appeal to the Supreme Court, hoping to quash the FIR itself.

The facts of the Pandharwada case, as detailed in the petition filed by Setalvad in the Gujarat high court on May 17, 2011, are a telling account of the blatantly communal, shameful and inhumane character of the Gujarat police and state administration:

March 1, 2002: The Khanpur police station records the commission of the crime (the massacre of over 40 persons in two separate incidents at Pandharwada in Panchmahal district).
March 2, 2002: Some of the injured eyewitnesses are shifted to the Cottage Hospital, Lunawada, in a government van. All those who were killed, including the kin of the injured eyewitnesses, are brought to the Cottage Hospital, Lunawada, as well. Post-mortem reports on the dead are also prepared on the same day and they are subsequently buried on the ground that nobody had come forward to claim the bodies and therefore the dead bodies were not handed over to their kin.

No panchnama (written and attested record) of this ‘burial’ is prepared. Moreover, despite the fact that there were three graveyards in Lunawada, the dead bodies are ‘buried’ in forest land near the Paanam river on the outskirts of the town. The bodies of the victims of both offences – CR No. I-11/2002 and CR No. I-13/2002 – were buried separately in the same area.

March 3, 2002: A local newspaper, Gujarat Today, reports that four persons, including Jakir Deshot, were killed by rioters on March 1 and that their bodies had been buried in the nearby jungle. The report also states that the guardians of these four persons had pleaded with the district collector to hand them the bodies but their requests went unheeded. (Ultimately, after the DNA from Jakir Deshot’s remains was found to match that of his kin, his remains were handed over to his parents and then buried according to religious custom on August 27, 2010.)
October 8, 2002: In response to an application by close relatives, the bodies of eight of those killed are handed over to them.
October 29, 2002: The two separate incidents of killing are tried in a sessions court and all of the accused in both incidents are acquitted.
September 22, 2004: An application for further investigation into the case is granted by the police.
February 1, 2005: Some of the relatives of those killed file affidavits with the police asking that the dead bodies of their kin be handed over to them. This clearly shows that 11 months before the dead bodies had been dug up, the victim survivors had placed on record that the bodies had yet to be handed over to them by the police.
December 27, 2005: On receiving information from victims’ relatives, Rais Khan goes to Lunawada where it was found that several dead bodies were buried after the commission of the offence on March 1, 2002. A ‘Janva Jog’ entry is registered by the police and the statements of Rais Khan and Gulam Gani are recorded.
December 27, 2005: The additional director general of police, Gujarat, writes to the inspector-general of police, Vadodara range, and the superintendent of police, Dahod, asking them to keep the aggrieved parties informed of the recovery and attachment of bones and skeletons, etc in order to ensure the impartiality and credibility of the police.
December 28, 2005: A writ petition is filed in the Gujarat high court by a relative of a victim, and CJP, asking for transfer of investigations to the Central Bureau of Investigation.
December 29, 2005: The Gujarat high court directs the CBI to collect the human remains that have been recovered and send them to a laboratory in Hyderabad for DNA analysis. The court also orders relatives of the deceased to cooperate in the DNA testing process by giving blood, etc.
January 2, 2006: With a view to preventing them from cooperating with the CBI in giving blood samples, etc for the DNA tests, the Lunawada police register an FIR against the relatives of the deceased, charging them with illegal digging of the bodies. The time at which the FIR was filed, 1:30 a.m., indicates that it was filed with deliberate intent to pre-empt the efforts of victim survivors in getting justice. It is only after assurances are given by the CBI officers that the relatives provide blood samples for DNA matching; the local police were asked not to arrest the accused named in the FIR.
April 18, 2006: After the accused were arrested and released on regular bail as was required under the conditions of the anticipatory bail order, the police applied for remand of the victim survivors and because the victim survivors could not be present on the required date, the local court issues non-bailable warrants against them.
December 8, 2006: The Gujarat high court orders a stay on proceedings in the case in response to a petition filed by the victim survivors.
August 27, 2010: The remains of eight persons, whose DNA was found to match that of their relatives, are handed over to their kin.
November 24, 2010: The accused victim survivors who are the petitioners in the matter, Special Criminal Application No. 408/2006, withdraw the petition, as it had become infructuous without adjudication on the merits.
December 14, 2010: Rais Khan and other co-accused surrender themselves to the police and make a statement under Section 164 of the Code of Criminal Procedure (CrPC). The timing of this incident is significant, as this happens around the time Rais Khan is making allegations against Setalvad with regard to the Naroda Gaon and Sardarpura matters and receiving wide coverage from a section of the media led by The Pioneer.
December 21, 2010: Rais Khan and the co-accused are granted regular bail by the magistrate, Lunawada. Khan makes public his desire to see Setalvad arrested. This reveals the impunity that he enjoys within Gujarat.
February 15, 2011: Setalvad is granted anticipatory bail by the additional sessions judge, Panchmahal.
March 18, 2011: The investigating officer issues summons under Section 160 of the CrPC, asking Setalvad to be present at the Lunawada police station on March 25. Setalvad replies, requesting the investigating officer to consider the provision of Section 160 of the CrPC which specifies that being a woman, her statement as a witness was required to be recorded at her residence, in Mumbai. Mysteriously, the investigating officer is suddenly transferred.
April 3, 2011: In the same charge sheet filed against all the accused who were earlier arrested and then released on bail, strangely, Setalvad is mentioned as an “absconder”.
April 28, 2011: Setalvad again receives summons from the investigating officer asking her to be present at the Lunawada police station. She replies.
May 9, 2011: Setalvad receives another summons asking her to be present at the police station on May 31, with no correction having been made in the charge sheet.

It was this attitude of the Lunawada police that forced Setalvad to file a petition in the Gujarat high court. The petition pointed out that as a human rights activist, she and her organisation had every right to provide legal aid to the poor victim survivors of Pandharwada. Pointing to the devious intent of the police, she underlined that they had initially opposed her application for anticipatory bail which was however granted by the additional sessions judge, Panchmahal. The police then issued a witness summons to her and in less than two weeks’ time she was inexplicably turned from a “witness” into an “absconding accused”. From all this it was evident that the police were engaging in blatant abuse of the law in a brazen attempt to illegally detain or arrest her.

If the objective is clear, the method too is apparent: malign and discredit activists and lawyers fighting for justice, embroil them in cooked up charges and constrain their personal liberties through illegal arrests

As already mentioned above, through its order of May 27, the Gujarat high court quashed the charge sheet that had named Setalvad as an “absconding accused”. Setalvad is now planning to move the Supreme Court, seeking to quash the FIR itself.

The state has persistently maintained that the mass burial was not an illegal dumping. It further claims that it had followed proper procedure in carrying out the mass burial in forest land by the Paanam river. But the panchnamaof the original crime does not list the skeletal remains. So legally speaking, this disproves the version proffered by the Gujarat state and its police. Victim survivors and rights activists have pointed out that Lunawada has a large kabristan (graveyard) spread over more than 100 acres of land. Hence, even assuming that the Gujarat police could not trace relatives, why did they need to so callously dump the victims’ remains in riverside land instead of giving them a dignified burial in the kabristan? Why dump them in an obscure spot outside Lunawada town rather than handing them over to community leaders for a dignified burial?

The worst aspect of the belated attempt to falsely implicate Setalvad is that it hides the inhumanity that compounds the criminality of the Gujarat police. Having waited for years, relatives of the deceased – thanks to their own efforts and the order of the Gujarat high court – were at last able to establish the identity of their dead relatives in 2005-2006.

But it was only after a Supreme Court order in February 2008 and a subsequent order of the trial court in December 2008 that a proper burial was finally conducted in August 2010 i.e. eight years after the brutal massacre.

Given the seriousness of the charges against the Gujarat state and its functionaries, these brazen attempts at intimidation and threat need to be seen for what they are. There is no guarantee that more false cases will not be cooked up by a vindictive state government in the coming days and weeks. After Tehelka scooped the SIT report indicting Modi (‘Here’s the smoking gun. So how come the SIT is looking the other way?’, February 12, 2011),IPS officer Rahul Sharma was served with a show-cause notice for placing crucial telephone records before the Nanavati-Shah Commission and the SIT. Clearly, the Gujarat government is worried that offences could be registered against its chief functionaries for not only aiding a massacre in 2002 but thereafter destroying evidence and subverting the course of justice by doing all they can to intimidate victim survivors and human rights groups who have stood by them.

The malicious campaign against Setalvad was initially launched in May 2009 by the Gujarat government’s counsel in the Supreme Court. Now, in Rais Khan, they have found a convenient ally. As stated at the beginning of this report, the objective of this campaign is plain and simple: to derail the trials, subvert the course of justice and thus escape conviction.

Archived from Communalism Combat, June 2011. Year 17, No.158 – Cover Story