The court in Panchmahal district said that the 190 witnesses examined in the case had either “turned hostile” or “not supported the prosecution’s case” or were “unable to recall facts or identify the accused”.

Panchmahals: A court in north Gujarat’s Panchmahal district has acquitted 27 accused of gang rape and murder of over 10 people during the 2002 Gujarat carnage citing lack of evidence.

There were a total of 39 accused in the case, but the remaining 12 had died during the trial period. Additional sessions judge L.G. Chudasma of the Halol court observed that the prosecution case is based on “mere suspicion without any evidence on record”, Indian Express reported.

Delivering its verdict recently, the sessions court held that the 190 witnesses examined in the case had either “turned hostile” or “not supported the prosecution’s case” or were “unable to recall facts or identify the accused” in relation to incidents that took place on March 1, 2022.

According to available media reports the court has not commented on the inadequacy of the state’s prosecution case neither has it held any police officer or any part of the investigation team responsible for the failure. Witnesses turning hostile is a frequent malaise in India’s criminal justice system. Under Section 164 of the CRPC empowers courts to direct that evidence of worth is collected even while the trial is on.

The prosecution’s case was that the accused, as part of a mob, went on a rampage during a bandh call given after the Sabarmati train burning incident in Godhra on February 27. A first information report (FIR) was lodged against the accused at Kalol police station on March 2, 2002. The accused were booked for rioting, unlawful assembly, rioting with armed weapons, murder, and causing the disappearance of evidence, among other sections of the Indian Penal Code.

The prosecution also said that over 13 persons were killed when a mob of more than 2,000 people from “Hindu and Muslim communities” clashed with sharp weapons and inflammable objects in Kalol city in the Gandhinagar district. They damaged shops and set them on fire.

At the time, in a shocking incident, a man who was injured in police firing was burnt alive in a tempo he was being taken to a hospital for burn injuries. In another instance, a man stepping out from a mosque was attacked and burnt alive inside the mosque by rioters. The prosecution had detailed several such incidents of gory violence.

Related:

21 years later, 14 acquitted for murder in one of the many 2002 Gujarat riots cases

Bilkis Bano’s plea against remission to convicts could not be heard in SC

Provocative poster in Delhi’s Brahmpuri calls on Hindu landlords to not sell to Muslim buyers

Review of 2022: A year of discrimination & violence experienced by India’s religious minorities

The post 21 years down, ‘Lack of Evidence’, says Gujarat Court and Acquits 27 Accused of Gang Rape, Murder During 2002 Violence appeared first on SabrangIndia.

Support for Bilkis Bano and calls for justice for her are growing every day. Now, 134 former bureaucrats have written to the Supreme Court about the recent remission of sentence granted to eleven men convicted for gangraping Bilkis Bano and murdering 14 members of ther family including her two-and-a-half-year-old daughter, asking it to “rectify this horrendously wrong decision”.

“We write to you because we are deeply distressed by this decision of the government of Gujarat and because we believe that it is only the Supreme Court which has the prime jurisdiction, and hence the responsibility, to rectify this horrendously wrong decision,” says the letter signed by former civil servants and activists such as Aruna Roy and Harsh Mander, former Mumbai police chief Julio Ribeiro,  former Home Secretary GK Pillai, former Cabinet Secretary K M Chandrasekhar, former Lieutenant Governor of Delhi Najeeb Jung, and former foreign secretaries Shivshankar Menon and Sujatha Singh, among others. The letter has been put together under the aegis of the Constitutional Conduct Group.

The letter further says, “So influential were the persons accused of this ghastly crime and so politically fraught was the issue that not only has the case to be investigated by the Central Bureau of Investigation (CBI) instead of the Gujarat police, but it also had to be transferred from Gujarat to a special CBI court in Mumbai, to ensure a fair trial, because of the death threats received by Bilkis Bano.” It adds, “It is also shocking that five out of the 10 members of the Advisory Committee, which sanctioned the early release, belong to the Bharatiya Janata Party, while the remaining are ex-officio members. This raises the important question of impartiality and independence of the decision, and vitiates both the process and the outcome.”

The civil servants urge the Supreme Court, “In view of these glaring deviations from established law, departure from government policy and propriety, and the chilling impact that this release will have, not just on Bilkis Bano and her family and supporters, but also on the safety of all women in India, especially those who belong to minority and vulnerable communities, we urge you to rescind the order of remission passed by the Gujarat government and send the 11 persons convicted of gangrape and murder back to jail to serve out their life sentence.”

Readers would recall that on August 25, the Supreme Court issued notice in the petition moved by CPI (M) Member of Parliament Subhashini Ali, journalist Revathi Laul and Prof. Roop Rekha Verma, challenging the grant of remission of sentences. The State was granted two weeks to respond to the petition.

Related:

Bilkis Bano case: SC issues notice in petition challenging remission of convicts’ sentences

Bilkis Bano case: Remission of convicts’ sentences challenged before SC

Bilkis Bano case: NHRC to discuss release of convicts?

A very bad precedent has been set: Judge who convicted 11 men in Bilkis Bano case

Over 6,000 Citizens Urge SC to Revoke Remission of Convicts in Bilkis Bano Case

Bereft of words, still numb: Bilkis Bano

Bilkis Bano case: Eleven people convicted of gang rape and murder freed

The post Rectify this horrendously wrong decision: Ex-bureaucrats to SC on remission to convicts in Bilkis Bano case appeared first on SabrangIndia.

But shockingly, the Guj gov’t claimed compensation was not released because they want to file a review petition against that order! Declining any review a bench comprising Chief Justice Ranjan Gogoi, SA Bobde and S Abdul Nazeer, on Monday, ordered the Guj gov’t to release the compensation amount in two weeks.

In its April 2019 order, a bench comprising of Chief Justice of India Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna had directed the Gujarat gov’t to provide compensation to the tune of Rs 50 lakhs, a government job as well as accommodation to Bilkis Bano. This order was made after Bilkis Bano turned down a measly compensation of Rs 5 lakhs offered by the Guj gov’t. But the Guj gov’t did not act on the SC order that increased the compensation amount, prompting Bano to file a contempt petition.

Brief background of the case
Bilkis Bano and her family had been attacked in Randhikpur village near Ahmedabad on March 3, 2002. In the particularly brutal attack, 14 members of her family were killed including Bano’s two and a half year old daughter whose head was smashed on a rock! Bano who was over five months pregnant was gang raped.

In 2008, a special court convicted 11 people in the case and sentenced them to life imprisonment. But 7 people including policemen and doctors were acquitted. In 2017, the High Court convicted five policemen and two doctors under charges of not performing their duty and tampering with evidence. The Supreme Court upheld the conviction of four of them, while one person did not appeal.
 

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A bench headed by Chief Justice RajanGogoi was informed by the Gujarat government that action has been taken against the erring police officials in the case. However, BilkisBano’s counsel had alleged that they were continuing to get their benefits and continue in their positions as before. The top court had then asked the Gujarat government to take disciplinary action within two weeks against the erring police officials, including an IPS officer, convicted by the Bombay high court in the case.

The IPS officer who was convicted by the Bombay high court in the case has been demoted by two ranks, the Gujarat government said. The rape survivor, BilkisBano had earlier refused to accept the offer of Rs 5 lakh and had sought exemplary compensation from the state government in a plea before the top court.

A special court had on January 21, 2008 convicted and sentenced to life imprisonment 11 men for raping Bano and murdering seven of her family members in the aftermath of the Godhra riots, while acquitting seven persons including the policemen and doctors.

On May 4, 2017, mmore than 15 years after a five-month pregnant BilkisBano was gang raped and seven of her family members were killed by a riotous mob following the Godhra train burning, real justice was done for the rape survivor. When the Bombay High Court on overturned the acquittal of seven men, including policemen and doctors, and upheld the sentencing of 11 people convicted of rape and murder in the case, it acknowledged complicity of state officials in the incident. A total of 300 incidents had taken place all over Gujarat between February 28 and May 2002, justified by the far supremacist right “as retaliation for the train burning at Godhra.”

The Bombay high court in it’s judgement upheld the life sentence given by a trial court to 11 convicted in the BilkisBano gangrape and murder case from the 2002 Godhra riots. In addition, the court set aside the acquittal of others accused in the case, including Gujarat police officers and doctors from a government hospital. Five police personnel and two doctors were found guilty of dereliction of duty and evidence tampering.

The court also directed each of the convicts to pay Rs 55,000, to go to BilkisBano as compensation. BilkisBano described this verdict as having “vindicated [her] truth and upheld [her] faith in the judiciary”. “I want justice, not revenge. I want my daughters to grow up in a safe India,” the gangrape survivor had famously said after the high court’s decision.

When the matter reached the Supreme Court, further drama was to unfold. On March 29, the Supreme Court asked the Gujarat state government to complete disciplinary action against police officials who were previously convicted by the Bombay High Court in the BilkisBano gang-rape case, PTI reported. A bench comprising Chief Justice RanjanGogoi, and Justices Deepak Gupta and SanjivKhanna also said that it would hear BilkisBano’s plea seeking increased compensation on Monday, April 23. She has refused the Rs. 5 lakh that the Gujarat government had offered and had prayed for enhanced compensation.

In its iconic issue of the Gujarat Genocide of 2002, Communalism Combat  had throughit’s co-editor, TeestaSetalvad interviewed BilkisBano at the Godhra Relief Camp.

The excerpts from the detailed investigations into the Panchmahals district are reproduced here:

Panchmahal
Place: Randhikpur, Panchmahal district
Witness: Bilkees (19-year-old). Rabia, her neighbour and relative, was with her at the time of the interview.

(Interviewed at Godhra Relief Camp on March 22)
On the highway just outside the village we were set upon by a mob and 14 persons from my family were butchered and killed — 7 from my father’s family and 7 from my in-laws’ side. All the women and young girls, including my 3 1/2 -year-old baby, were raped before being killed. They did the same thing to me, and if I am alive, it is only because after attacking me, they left me, thinking I was dead.

My aunt, my mother, my three sisters all met with the same fate. I am 5-6 months pregnant. My husband and in-laws were away for Id. My husband came to meet me yesterday. All the other villagers, including Rabia’s family, had fled the day before, but we stayed behind because my aunt’s daughter was about to deliver. That delay has cost us everything. I have filed a complaint with the police but I don’t know whether I will get justice.

Bilkees’ FIR, addressed to the DSP, Dahod, reads:
“I, the complainant, am married to YakubRasul Patel, resident of Kapdi falia, Baria. We had a daughter named Saleha who was aged 3 ½ years. My mother’s home is in Randhikpur taluka, Dahod.
“On February 23, it being Id, I had gone with my little girl to my mother’s home. On February 27, because of the incident at Godhra Railway station, there was tension and violence in the surrounding villages. In order to save our lives, at about 10 o’clock in the morning on February 28, a total of 16 people from our house — I, my two sisters and two brothers, our mother, my little girl, my maternal uncle, my paternal aunt and her husband and their daughters — left Randhikpur for Baria on foot. As we came to know that there was violence everywhere on the way, we stopped at BijalDamor in Chuddi village. Around midnight, we went and hid in Kuvajar mosque.

“The daughter of my paternal aunt who was pregnant, gave birth to a girl. Around 10 o’clock the next morning, we went to Khudra and stayed with adivasis for two days. After two days, early in the morning, we came to Chhaparwad. We were walking down a kutcha road to save our lives.
While passing between two hills, two vehicles came in the direction of Chhaparwad and Randhikpur, with 30-40 people in them. This included ShaileshBhat, RajuSoni, Lala doctor, Govind Nana, JaswantNavi, LaloVakil, who is the son of BhaguKuverji and KesarKhima, BakaKhimaVasava. All of them are from Randhikpur so we recognised them. The others were from Chhaparwad, whose names we did not know, but whom I would recognise if I see them.

“All had lethal weapons in their hands — swords, spears, scythes, sticks, daggers, bows and arrows. They started screaming, “Kill them, Cut them up!’ They raped my two sisters and me and behaved in an inhuman way with my uncle and aunt’s daughters. They tore our clothes and raped eight of us. Before my very eyes they killed my 3 ½-year-old daughter.

“The people who raped me are Shailesh Bhatt, Lala doctor, LalaVakil and GovindNavi, all of whom I know very well. After raping me, they beat me up. Having been injured in the head, I fainted. They left, assuming I was dead.

“After two to three hours, when I regained consciousness, on seeing the corpses of my family members, I was terrified. I climbed up the hill and stayed there the whole night.

“In the morning, when the police came to know about this attack, they came to take the corpses and found me alive. As all my clothes were torn, they brought me some clothes from the house of an adivasi staying at the foot of the hill. Then they brought me to Limkheda and from there I was brought to the relief camp at Godhra.

“The above-mentioned people raped my deceased sisters and me, as well as the daughters of my maternal uncle and my paternal aunt. They killed all the people except myself. For which reason I say that legal action should be taken against the above-mentioned people.”
The deceased: 15 of a family butchered. All women victims, including a 3 1/2 -year-old baby, raped before being killed.

The accused: ShaileshBhat, RajuSoni, Lala doctor, Govind Nana, JaswantNavi, LaloVakil, who is the son of BhaguKuverji and KesarKhima, BakaKhimaVasava (all from Randhikpur).
 
 

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Pic from the website of saafbaat.com
 

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For criminal minds to craft acts beyond the popular images of bestiality, even by our own Bollywood standards is rare, but it may happen. For these to be tracked down zealously and prosecuted is rare. For all this to happen and the powerful to be prosecuted and be awarded exemplary punishment, that too in the case of a mass communal pogrom, seemed an impossibility. Yet it all happened when Judge Jyotsana Yagnik somberly meted out punishment for arguably the worst incident of the post Godhra reprisal killings of 2002 that have always been labeled as state sanctioned, if not state sponsored. On August 29, 2012 presiding over a Special Court in Ahmedabad, in a trial that was monitored by the Supreme Court, she sentenced a sitting MLA and former minister in the Gujarat government to life imprisonment. The Judge in a 1990-worded verdict profoundly reaffirmed an article of faith; in the Indian system, and justice.

Image: Hindustan Times

Over 300 incidents spread over at least 19 districts of the state had left 2,500 dead or missing, 19,000 homes trashed, 10,000 plus business establishments destroyed not to mention 297 Durgahs and Masjids a target. Naroda Patiya on the outskirts of Ahmedabad, where daily wage earners have been living for over a century was one such  sordid target.

It is the carefully crafted understanding of provisions of Indian criminal law on what constitutes a criminal conspiracy and the application of that understanding to the evidence available in the case that makes the judgement of Special Court Judge Jyotsana Yagnik both thorough and unique. Section 120-A of the Indian Penal Code (IPC) defines an act of criminal conspiracy as an unlawful act (or series of acts) between at least two persons, with unanimity of purpose, common intent and design, that is then successfully carried out. Criminal common intent, possession of arms, the presence of some of the conspirators at the scene of crime and sufficient evidence related to the occurrences of these ingredients are essential to satisfy the judicial mind that a criminal conspiracy is made out. In this case, as many as 81 victim witnesses and 52 other occurrence witnesses (133 in all) have deposed on the extensive character of organized violence that began in the morning (about 9.30-10 am) of 28.2.2002 with the assembly of crowds, shouting of incendiary slogans and  carried on virtually uninterrupted until late evening. The acts of premeditated violence claimed as many as 95 lives according to the charge sheet while survivors argue that over 120 lives were lost if those missing are added to the tally.

Detailed examination of all the evidence in Part 3 Chapter 1 of the famed Naroda Patiya trial court verdict delivered on August 29, 2012, outlines the reasons for  judicial acceptance of the conspiracy that was hatched. Eye witness testimonies specifically outlined the criminal roles executed by key accused (15 eye witnesses deposed about Kodnani’s role, another 21 on Bajrangi’s part) while several others deposed about the presence and violent behavior of all 33 accused since the morning of that day, when mobs gathered near Muslim residences and attacked their homes and place of worship (Noorani Masjid) and continued to spread through the area; rapes and sexual violence are admitted by the Judge to have taken place that evening.  Eye witness accounts form the bedrock on which a crime can be proved; in this case the evidence of witnesses had firm corroboratory evidence in the Sting Operation conducted by Ashish Khetan of Tehelka that has been accepted as extra-judicial confessions and relied upon by the Judge (Chapter II of the judgement). Seven years after an incident that remains an iconic reminder of the brutality of Gujarat 2002, the Naroda Patiya massacres, effective and valid testimonies of eye-witnesses were possible (between 2009 and 2011) due to the regular and thorough legal assistance *1 provided to victim witnesses availing of an amendment in Indian criminal law following the Best Bakery case and judgement on 12.4.2004.  Three high courts have since jurisprudentially upheld the right of the victim witness to independently file and argue in appeal against a trial court verdict. This is a tacit recognition that the fate of the criminal justice system cannot be left to the state alone.

This amendment, Section 24(8)(2) of the Criminal Procedure Code (CrPC) effected in January 2009,  codifies the right of a victim and or witness to officially engage a lawyer to assist the prosecution by the state, ensuring that aspects of evidence and argument that may be ignored are pursued. In the Naroda Patiya case, not only did we intervene during critical points of the trial, one of the advocates, Raju Mohammed Shaikh was threatened in open court by a powerful accused, Babu Bajrangi; we also submitted over 650 pages of written arguments analyzing the evidence during the trial. The hatching of a criminal conspiracy is a mental process evident in the physical acts of illegality and violence that ensure. To prove this convincingly enough to
convict 32 accused (one accused died during trial) undoubtedly requires tested and reliable eye-witness accounts as also corroborative documentary evidence. The validation of Tehelka’s  exemplary efforts (Operation Kalank, October 2007) were therefore critical.  CJP moved to ensure preservation of the evidence by moving first the Gujarat High Court and then the Supreme Court for orders to authenticate the Tehelka tapes, concerned that such valuable evidence must be protected. This was the period when matters were lying before the Supreme Court since May 2002, on prayers for transfer of investigation to CBI. Both Courts declined to pass Orders. Concerned that such valuable evidence was lost with the passage of time, we moved the National Human Rights Commission to invoke its powers on preservation of evidence when gross human rights abuse has taken place. The NHRC took note and on March 5, 2008 passed a full bench Order and invoked its powers under the Protection of Human Rights Act (PHRA) and handed over the Tehelka Tapes to be authenticated by CBI.*2 But for this timely action by the NHRC the valuable corroborative evidence provided by Ashish Khetan of Tehelka would have been lost. Khetan was examined before the Special Court and his evidence that runs into 110 pages provides further meat to already available testimonies on criminal conspiracy. If  the Tehelka tapes had not been preserved through authentication by the CBI  they would have met the same fate as another bit of valuable evidence—the Mobile Phone records CD provided by then DCP Crime Branch (2002) Rahul Sharma that were shoddily dealt with by the Supreme Court appointed Special Investigation Team (SIT) by the time the case reached trial. *3

Eye witness accounts successfully established that a mob, coming from the direction of Krishnanagar and Nartaj hotel, had gathered between the Noorani Mosque and the ST workshop at which point then elected MLA Mayaben Kodnani had come there with her bodyguard Kirpalsing, and had incited and excited the crowd to attack and kill Muslims (“Cut off Miyans” (Muslims) and also attack and brutalise women. Encouraged to violence and assured of protection by an elected member of the ruling party in power, members of the murderous mob began their attack on  Noorani Mosque,  had set it on fire,  while the police watched. It was the confidence and protection afforded by a powerful person in this case, Maya Kodnani an elected MLA that emboldened the mob to criminal actions. This also establishes a chain of command responsibility, from those who conspired, those who physically instigated to those who actually implemented the criminal conspiracy. Those in the mob who successfully carried out the criminal intent carried deadly weapons and inflammable substances like kerosene and petrol. There was also evidence led that revealed that the burned and distorted corpses of the victim community were disposed off at Teesra Kua but this aspect too has not been investigated by the SIT.

Several of the violent incidents that are linked to the same act of criminal conspiracy

Continued throughout the day and again Maya Kodnani and other accused persons had been seen between 12.30 – 1.45 p.m. coming in a vehicle, alighting, taking out swords from the car and distributing these weapons. The role of the sting operation was vital in proving further aspects of the criminal conspiracy; in his deposition before the Court , prosecution witness umber 322, Khetan confirmed what Babu Bajrangi had boasted of in his taped conversation, that 23 revolvers had been collected by him from persons owning revolvers from the Naroda area to further the conspiracy; gas shortages for ordinary residences in Naroda Patiya area for weeks before the incident point to a sinister premeditation that precedes even the mass arson of the Sabarmati S-6 Coach at Godhra on 27.2.2012. The high probative value of the sting operation stems from the nature of interviews that were recorded with no leading questions being asked, interviews given moreover to an independent and disinterested witness. The sting operation was validated through the scientific testing carried out by CBI pursuant to the NHRC order, the oral evidence of the forensic laboratory scientist and the evidence of Khetan.

Significantly the organizational links within the conspiracy that was hatched have also been substantially dealt with, the presence of an MLA of the ruling dispensation; four other accused were canvassers, propagators and election workers of Kodnani; another accused ran the election office of the ruling MLA; other accused are leading lights of fraternal organizations like the Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP) and Bajrang Dal. It was the VHP that called the bandh following the Godhra incident that was supported by the ruling BJP; and it was the accused Bajrangi a key conspirator who vowed after the Godhra incident to ensure that the death toll of Muslims was four times the number.

Gender driven brutalities and violence rarely sustain judicial scrutiny and the narrative of gender violence usually disappears with the onset of trial. In another first, the Naroda Patiya trial, monitored by the Supreme Court, with quality legal aid provided to witnesses, a conducive (not hostile Court atmosphere) ensured that the narrative of gender violence returned during prosecution. 

Women Victim eyewitnesses, emboldened by legal assistance and also physical protection given to them under the CISF by Orders of the Supreme Court, testified bravely about the extent of gender driven violence and rape on Muslim girls and women.*4  *5
 
Between pages 368 to 1759 in the judgement that examines offences of gender driven violence, the Judge categorically observes, “… It would be absolutely incorrect to believe that gang rapes have not taken place. The extra judicial confession of  Suresh Langda Chara (A-22) and testimonies of many PW including of PW 205 (the solitary surviving victim of gang rape who has been awarded Rs 5 lakhs in compensation) can safely be relied upon which proves gang rape and rapes to have taken place on that day. In the separate chapter on incidents of that day, such occurrences have been discussed and decided. “ 
 
Proceeding to examine the testimonies of survivors and relatives of victims of gender violence, the Judge accepts that indeed such violence took place but severely criticizes the Supreme Court appointed SIT for failing to make any attempt to investigate the perpetrators of these offences. For example, in the case of the lone survivor, the truthfulness and validity of Zarina is accepted (PW 205) as also the testimony of her husband is accepted, the fact that gang rape took place proved but the identity of the assailants remains unproven due to the failure of the investigating agency. Similarly, the oral evidence of another woman survivor, PW 158 is accepted and gender violence against one Farzana, Saida and Saberabanu proved though the identity of the assailants is left unproven, again due to the lacunae in probe. Similarly charges of gender violence has been proven against Sofiyabano and Nasimobano.  Only one accused has actually been convicted under section 376 of the IPC, Suresh Langda Accused 22 and been given seven years punishment.
 
 Over 165 pages of the judgement are devoted to examining the kind of previous investigation conducted by the Gujarat police in this case (Chapter VI) that is before the further investigation was handed over to the SIT on 26.3.2008. Stepping back, a look at the findings of the National Human Rights Commission (2002) on its suo moto inquiry into Gujarat 2002 is warranted. The NHRC had severely criticised the partisan conduct of the Gujarat police,  the polarized atmosphere as also recommended that this case and eight others be transferred for investigation to the CBI. On the basis of the NHRC report, we had approached the Supreme Court on 2.5.002 praying for a transfer of investigation. The Supreme Court stayed the trials on November 21, 2003 but only transferred investigation to a self created SIT on 26.3.2008 that is six years down.  Among of the compelling reasons for the Supreme Court to accept our plea for transfer of investigation was the conduct of the Crime Branch of the Ahmedabad police in the Naroda Patiya case clubbing as many as 120 individual FIRs first being merged into 26 FIRs and these then clubbed into a single mammoth FIR, I-C.R.No.100/02. All these group of complaints viz. 120 complaints have been treated as part of the complaint filed at Naroda Police Station I-C.R.No.100/02.

What is often overlooked, or deliberately forgotten is that the names of powerful accused first emerged in the complaints accepted by the local police (between march and May 2002) and were dropped by the Crime Branch thereafter. The clubbing of complaints were effected to both dilute the magnitude of the crimes as also drop the name of powerful accused. This was vigorously argued before the Supreme Court that accepted these facts and stayed the trials before finally ordering a transfer of investigation in 2008. Discriminatory practices in granting bail were also noticed and put forward. While the accused in the Godhra mass arson case remained in detention until the completion of the trial in February 2011, those accused of the post Godhra reprisal killings, barring those few without patronage, had all been released on bail within months of the crimes being committed. This meant essentially that during trial powerful accused roamed free in neighbourhoods even as victim witnesses deposed against them.

Unsubstantiated propaganda has blurred the strong vindication of both victim witness testimonies and human rights defenders that have essentially prayed for preservation of evidence and non partisan character of evidence gathering and prosecution. In her close examination of, and criticism of the previous investigation by the Gujarat police, Judge Yagnik details how PW 274, Shri K.K. Mysorewala, the first PI at the Naroda police station, despite being aware of the unlawful assembly, criminal intent, presence of accused at Naroda Patiya, does little to intervene, if at all the contrary. He does not make any attempts to stop the mob from its violent and criminal acts. After detailed examination of the conduct of both Mysorewala and other police officers, the Judge however refrains from accepting the Victim Witnesses plea to arraign Mysorewala and other officials as accused given the fact that evidence against them has emerged during the prosecution. This is a matter that will be agitated by victim witnesses in appeal.

The quality and authenticity of the victim witness testimony receives sound treatment by the Judge despite crude attempts by the defence to not simply discredit affected victim witness but deride their evidence. Yagnik observes at pages 368-370 that, “This Court has observed that during the deposition many of the witnesses were finding it very difficult to control rolling down their tears on their cheeks. They were eager to show their burnt limbs, their injured limbs and explain their losses to the Court. Many of the parent witnesses were unable to describe about the death of their children in the riot, they became so emotional that very often needed to be consoled and offered a glass of water to complete their deposition. Their pains, agonies, anxiety, effects of shock and trauma were very much visible and noticeable. Even on the date of the deposition they were … very much afraid. They were frequently assured about their security, but when they used to go to identify the accused, it was noticed that many of the witnesses have avoided identifing the accused whom they were knowing very well. Atleast two to three PWs were so much disturbed that their physical health was affected and ambulance had to be called to take them to the hospital.”

This flags another issue related to witness protection and prosecution that we pay scant attention to. The Naroda Patiya case took over ten years to reach judgement, there are still two rounds of appeal to go. Serious ethical questions of partisan appointments to public prosecutor posts  (from advocates chosen by the government of Gujarat who were active members of exclusivist organizations accused of organizing the violence) have been commented upon by the Supreme Court in the interim. As the years between 2002-2012, wore on and electoral victories of some among the perpetrators defied the demands for non partisan conduct and Constitutional governance, the state found another unique way of patronising the accused. Wary of being pulled up if prosecutors were directly partisan, the state of Gujarat has effectively worked out a system of patronage for an entire panel of advocates appearing for the accused in major trials by hiring them as special public prosecutors with high fees in other cases pursued by the state.*6 All the more does the debate for Independent Directorates of Prosecution controlled not by the executive but judiciary need to gain currency and momentum.

The writ of continuing mandamus is what the Supreme Court exercised when it monitored the major Gujarat 2002 trials in response to petitions by victim witnesses and rights defenders. This writ from the higher judiciary remains an exception rather than the rule, difficult to secure. Abiding questions of necessary judicial monitoring especially when executive misdemeanors are under scrutiny remain in the balance.

Today, while the wider criminal conspiracy related to the Naroda Patiya incident today stands proved with a member of the ruling party convicted on serious charges, the mass level criminal conspiracy alleged  to have taken place in 300 locations, remains at the Magisterial Court, at a fledgling stage. The Naroda Patiya verdict cannot but influence the judicial scrutiny and assessment of the wider substantive charges in the Zakia Jafri complaint dated 8.6.2006; Whether Kodnani executed a conspiracy in isolation or part of a ruling group that encompassed the highest levels of authority and governance ? Whether she acted on her own when she was inspired enough to instigate a crowd to commit mass violence or was she too offered the highest level of impunity from prosecution, the kind of impunity that her presence gave the executors of the rapes, burnings and bestialities committed at Naroda Patiya on 28.2.2002 ?

The path breaking verdict in the Naroda Patiya case could well be just the prelude to criminal culpability being established at a still, much higher level.
 
(This article appeared in the Economic and Political Weekly in December 2012) 

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In Gujarat pogrom, over 2000 persons were killed, 150,000 people displaced and property worth over Rs. 11,000 crores destroyed. Political, police and administrative complicity, facilitation and participation by them, were prominent features of the pogrom. The story of how chief minister Modi remained indifferent during the Gujarat pogrom 2002 failing to discharge his Constitutional responsibilities, has been recorded by journalist Manoj Mitta (‘The fiction of fact finding: Modi and Godhra, 2014).
 
The elements of preparation, planning and execution, documented by Paul Brassin his case studies in Uttar Pradesh (UP) were conspicuously seen in the 2002 pogrom. Paul Brass has noted that the whole political order in north India and its leading as well as local actors were implicated in the persistence of Hindu-Muslim riots, which have had concrete benefits for particular political organisations and larger political uses. British census definitions imposed on a diverse population were ultimately converted into social categories, who were fighting it out in electoral politics of an increasingly divided polity and society.
 
Both central and state governments in India, who share a responsibility, have failed to prevent and control communal riots. One of the main failures has been in the sphere of reforming and professionalizing the police force. Control over the civil and police administrations is at the heart of the broader struggle for power, since police are seen as instruments of the party in power, which uses them to harass their opponents, protect their supporters and deny protection to their rivals. Brass noted an overall decline in Muslim representation in UP police from 48 percent in 1938 to 7 percent in 1981.    
 
Institutionalised Riot Systems
The BJP, now the sole ruling party of India, has made enormous political and electoral gain from the massive religious mass mobilisation and violence during the 1990s and after. Since the 1980s incidents of Hindu-Muslim communal violence have been pogroms and organised massacres with large groups attacking the houses, properties and lives of small, isolated and previously identified members of the ‘other’ community, that is the minorities, mostly Muslims (Gyan Pandey, in Ranajit Guha, Subaltern Studies 1986-95).
 
Paul Brass, long-time student of Hindu-Muslim violence in Uttar Pradesh has expounded at length the ‘institutionalized riot systems’ that exist in communally sensitive Aligarh and other places. A large number of studies by other scholars exist. Brass however, changed the terms of discourse on the subject by evolving the thesis of ‘the institutionalized riot system’, which was relevant to the study by the Concerned Citizens Tribunal on Gujarat, 2002.
 
Several studies help us understand the role of the police and the administration in major incidents of communal violence such as the Srikrishna Commission Report, 1998, which examined the Hindu-Muslim violence in Mumbai during December 1992-January 1993; the Vibhuti Narain Rai study on ‘Combating Communalism: The role of the police, 1999 and the several important Commission reports on Gujarat Carnage, 2002.  
 
Paul Brass (2003) argues that the partition of India in 1947 arose out of a political struggle, a part of which was about the past, combined with a fear of a future in which two cultures, perceived to be historically distinct would not be able to live together. Militant Hindus of Uttar Pradesh perceived that the Muslim past of India had to be rectified and that a major step in that direction would be the destruction of the Babri mosque in Ayodhya.
 
Brass has held that even the most carefully planned and well-organized acts of violence are designed to appear spontaneous by the perpetrators. Capturing the meaning of Hindu-Muslim riots in a particular way helps legitimate illegitimate violence, cancel the extent of pre-planning and organisation, and maintain intact the persons, groups and organisations implicated in the violence, by preventing punishment of the principal perpetrators. 
 
The eight-member Concerned Citizens’ Tribunal on Gujarat 2002 noted serious deficiencies in the role performance of politicians, civil servants and the police. 20 of the 26 districts in the state were engulfed in well organised and armed mass attacks on Muslims between February 28 and March 2, 2002. During the period of the most concentrated attacks, the attacking mobs were 2000 to 3000 strong; often they were more than 5000 in number. The mobs were armed with lethal weapons and carried out chillingly similar manner of attacks hacking and killing human beings apparently in a carefully laid out plan of action behind them. The speed with which the violence spread and its intensity and brutality suggested that it could not have happened without government support.
 
Features of violence
The main features of violence were: i) selective targeting of Muslims; ii) brutality and bestiality of the attacks; iii) unprecedented degree and scale of violence; iv) loot and destruction of property on an unprecedented scale; v) military precision and  planning behind the attacks; vi) use of hate speech and hate writing; vii) massive sexual violence against women and children; viii) colossal economic destruction; ix) religious and cultural desecration on a massive scale; x) large scale preparations behind the violence; xi) state complicity; xii) serious violation of rules and procedures by the police and their active connivance and participation in the violence.
 
Other features of police behaviour included: i) participation in the violence; ii) illegal registration of FIRs; iii) omnibus FIRs; iv) FIRs without the names of the accused; v) deliberate obfuscation of the identity of the accused; vi) victimisation of the minority community; vii) unprofessional investigation; viii) malicious combing operations; ix) no relief to rape victims; x) no action against errant media; xi) no action against political activists behind the violence; xii) real culprits not arrested; xiii) non-implementation of the NHRC recommendations; xiv) non-use of special laws to stop violence; and so on (Source: KS Subramanian, ‘Political Violence and the Police in India’, 2007, chapter 7, p.170).
 
((This is an excerpt from KS Subramanian’s essay ‘Babri Masjid 1992 – Gujarat 2002 – Kashmir 2016: How the Sangh Parivar has wrecked India’s secular social fabric by sustained anti-minority violence’. For more excerpts, watch this space.))

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Image Courtesy: AFP

The truth is, facts never lie and memories never die! By all counts, the Gujarat Carnage was one of the bloodiest chapters in post-independence India. There was the brutality: barbarity at its worst as children, women and men were burnt alive; chopped into pieces. The murderous mobs spared no one: from the unborn child in the womb of a mother to the very old and sick. Unlike other ‘riots’ this carnage went on and on. There was arson and loot. An estimated two thousand people were killed, thousands others injured and many times that number who were affected and had to flee from places which they once called their home. Above all, this one took place with the complete connivance and even involvement of the State Government. There are enough of eyewitness accounts, reports and studies to evidence this. The police who are meant to protect the lives and property of all citizens have gone on record saying, “we have no orders to protect you”. It was, without an iota of doubt, the Government and their henchmen versus a minority community!

After sixteen years, there has certainly been some justice done. There have been several convictions for the atrocities committed, thanks to the indefatigable efforts of many committed persons. Teesta Setalvad and the ‘Citizens for Justice and Peace’ have been resolute in this struggle for justice; but there are others too who are determined to leave no stone unturned until the cause of justice has been completely met. Thanks to the efforts of all, the ‘Gujarat Carnage’ is still on the radar of the country and world today. However, the unfortunate reality is that some of the lynchpins- those largely responsible for orchestrating the violence- are today in the seats of power. They have managed to cloak themselves with a certain degree of immunity.

Today one can never forget the victim-survivors who have gone through unbelievable pain and trauma, and continue to do so. There are thousands of them everywhere; some have fled Gujarat never to return to a place, which was their ‘home’. Large numbers continue to be displaced from their original villages and towns, living in rather sub-human conditions in so-called resettlement places like the ‘Bombay Hotel’ area, which is next to Ahmedabad’s major garbage dumpsite. It is just unimaginable how people can live in places like these- literally in the midst of filth and squalor- without even the basic amenities of life.

Thankfully, some victim- survivors have shown amazing strength and resilience to take on the powerful perpetrators of this carnage. It has not been easy but they have heroically withstood all hostilities and obstacles, gone to the courts umpteen of times seeking justice, which is legitimately theirs. There is Zakia Jafri, the wife of the former Member of Parliament Eshan Jafri, who was brutally murdered on that fateful 28 February 2002; there are Rupa and Dara Mody who still wonder whether their only son Azhar, who also disappeared that very day, will one day return. There are many more, who still courageously and patiently wait for the light of day.

The powerful, the vested interests, those who are perpetrators of these heinous acts have been doing everything possible to stop the wheels of justice from arriving at the complete truth. They have bought up/coopted some members of the minority community to propagate fabricated stories; they have used former staffers and associates to ‘go to town’ with total untruths. Human rights defenders, social activists, committed journalists, academics, upright officials and others have had false cases foisted on them; the police and other Government bodies have been misused and manipulated to harass and intimidate those who have accompanied the victim-survivors. A good part of the mainstream media, in a blatantly Goebbelsian manner, has hounded those in pursuit of truth and justice. It is unbelievable, how sections of the Judiciary without weighing all the merits of a case, can deliver judgements, which are very convoluted. This and much more: the journey after 2002 has not merely been traumatic for those who have actually suffered, but also a real ordeal for those who have felt duty-bound to relentlessly pursue truth and justice, in order to preserve all that is sacred in India.

Today in Gujarat and in other parts of India, several of the victim-survivors, human rights defenders and citizens from all walks of life, assembled in rallies, public meetings and in prayer groups, remembering those bloody days of 2002! Many still await the day of justice; several still are and feel ostracized. In between the sharing of pain and struggle, there were also slogans like “We are all one!”, “Hindu-Muslim unity”, “Down with communalism”. Embers of hope!

Yes there is a hope that someday “truth will triumph”, the words emblazoned on our national emblem. There is certainly the need for the healing of memories, for genuine reconciliation, for sustainable peace. These values however are not enveloped in a vacuum; they take place when there is a realization by the perpetrators of what they have done, when there is not merely an acceptance of the wrong, but a sincere remorse and the courage to ask for forgiveness. In the eventuality of that happening, then reconciliation will take place, memories will be healed. As Haruki Murakami, the Japanese writer says so poignantly in ‘Kafka on the Shore’, “but still, no matter how much time passes, no matter what takes place in the interim, there are some things we can never assign to oblivion, memories we can never rub away. They remain with us forever, like a touchstone”.  Yes, memories never die!
 
*(Fr Cedric Prakash sj is a human rights activist. He is currently based in Lebanon, engaged with the Jesuit Refugee Service (JRS) in the Middle East on advocacy and communications. Contact: cedricprakash@gmail.com )          

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Image: Sam Panthaky
 

“I haven’t had a drink in five months,” said Javed Shaikh. His voice slurs and hands shake as he spits back into a tiny glass, the mango juice his wife had placed before him. It has been 15 years since the moment that defined Shaikh for life: then 14, Shaikh witnessed a Hindu mob rape and burn a pregnant Muslim woman to death during the 2002 Godhra riots in Gujarat.

That day, as he hid under a pile of dead bodies, Shaikh had seen both his parents and his older sister killed. He has told his story since to the courts, to politicians, to the numerous journalists who have sought him out – but has never spoken with a counsellor or psychiatrist about the things he saw as a child. Since 2002, he has moved from place to place seeking comfort. Each time, he has returned to Ahmedabad.

Fifteen years later, there is no official count of how many children were orphaned during the riots. Those who were left alive, like Shaikh, “wish every day to be dead because they die slowly every day,” said Hozefa Ujjaaini, a social worker who works with the riot victims through the non-profit organisation Jan Vikas. The children who survived relive the atrocities in their nightmares.

Between February 28 and March 2, 2002, the three-day-long spate of violence across Gujarat left – even by the State government’s conservative estimates – hundreds dead and over 98,000 people dispossessed. Though the state claims to have moved on, the riot-affected are stuck in time and place at the rehabilitation camps – once meant to be temporary, but which have since transformed into homes for most survivors. Many of those who remember the riots have grown weary, beleaguered from years of being ignored, displaced and overlooked. The residents of one such camp Citizen Nagar wonder when they will finally be treated like actual citizens of the country. Their children continue to suffer psychological and physical scars which no one in the administration has attempted to understand, let alone heal.

Some trials, such as the killing of Kausar Bano, witnessed by Shaikh, have been concluded – in 2012, a Gujarat court ruled that Kausar was hit with a sword and killed by Babu Bajrangi. Judge Jyotsna Yagnik, however, ruled Shaikh was too young to know whether the pregnant woman’s foetus was actually ripped out. This, along with other cases relating to the Naroda Patiya massacre, in which Shaikh was caught, are still pending before the Gujarat High Court.
 

 

Seeking a new normal

Rehabilitation colonies like Citizen Nagar, Vatva and 67 other sites across Gujarat lack basic amenities like running water, electricity and trash collection. The 130 homes in Citizen Nagar depend on a single tanker for their daily water needs. The roads are unpaved and water is scarce, a mountain of trash – all of Ahmedabad’s waste collected over decade – rises high. Black smoke spews out of the aluminium factory nearby, darkening the sky and making the air putrid.

The riot-affected of Ahmedabad have been, quite literary, moved to the outskirts of the city where they cannot be seen heard. “Many people have died,” said Moinuddin Sheikh, another survivor and witness of the Naroda Patiya massacre. “We have trouble breathing, the number of heart patients have increased since we came here in 2002.”

Sheikh was a policeman at the time of the riots. He quit right after. He recalled feeling helpless as he watched people being killed by men he has since identified in court as members of the Vishwa Hindu Parishad and Bajrang Dal. “There was no order to stop them from the Commissioner,” he said. “The police ran away first because they wanted to save their own lives.”

Sitting outside his one-storey makeshift building with a wrought iron roof, Sheikh recalls his family’s struggles in the first five years after the riots – an ordeal which has not yet ended.

Sheikh has two sons and one daughter, none of whom went to school after the riots. A graduate himself, the former cop wanted his children to be educated and to be placed in a government jobs, but this became impossible after 2002. The children were too psychologically scarred – like many child survivors of the riots – to concentrate on school or do much else.

“For the first five years, they were in a coma, you could say,” he said. “They would not move or do anything. If they would fall asleep, they’d wake up screaming, ‘Pappa, the mob is coming to kill us; Pappa, the mob is coming to burn us.’ What they saw plays in their minds even now, like a film that’s stuck in place.”

His children, and the hundreds who witnessed the brutal violence firsthand, are yet to receive any form of counselling or psychological treatment.

“Survivors of the riots say things like how many times will we be victimised?” said Hozefa. Working with the riot-affected people through Jan Vikas for a decade and a half, he asked why it should take the State government so long to intervene in their conditions. “Tata got its factory in a matter of months. These survivors have been living without a home to their name, without water or any facilities since 15 years. You cannot say it is because the government is slow to act.”
 

 

Sheikh has given up the fight for his children: his daughter was married as soon as she turned 18, his sons are day labourers and he drives an auto rickshaw. A parent’s regret loomed large on his face as he shook his hennaed head, recalling the first few years in Citizen Nagar.

“We have gone before the counsellors here, the MLA here to request water, a government hospital, a school for our children… it feels like its fallen on deaf ears,” he said. The next generation, he added, which was born after the riots in the rehabilitation colonies, will continue to suffer just like his children did. “The school is far, sending children there is expensive. Recently there was an accident and several of the colony’s children died on their way to the school, so now parents are even more scared to send their kids there.”

Rashida Ansari, a survivor of the riots and now a social worker with Jan Vikas, who helps the displaced living in Citizen Nagar, echoes the concern for the children. “No one remembers these children, the government ignored them,” she said. Workers like Ansari have invested in learning counselling techniques themselves, so they can provide relief to others suffering from post-traumatic stress disorder. Ansari received her training under Action Aid, an NGO that has worked closely with the riot-affected women and children since 2002. But there is only so much she can do without formal education. “Hum baatein sunte hai,” she said – all I do is listen.

Ansari wonders why the government never stepped up to provide safe havens for the affected and bereaved children. “Agar government ne ek orphanage bhi banaya hota jahan yeh bacche reh sakte; jahaan inki rehabilitation ho sake, abhi yeh bacche kuch aur hi hote,” she said – if only the government had provided orphanages for these children to live in, they would have been very different people today.
 

No exit

Today, the education and restoration of the riot-affected children is a matter of individual luck and circumstance. Shaikh Sahir Sabir Hussain is fresh-faced, with close-cropped hair and sharp eyes. He’s 16, and was seven-months-old at the time of the riot. Hussain lives in Citizen Nagar with his parents and two brothers. His brothers, 30 and 25 respectively, dropped out of school after the fifth grade. Hussain travels half an hour every day to reach the Irish Presbyterian Mission high school in Raikandh, where he is determined to finish his schooling. Until grade 10, he went to a private school, but had to move out because there were no facilities for senior classes there. “I want to study,” he said smoothening his green kurta-pyjama, “I want to study and become someone of consequence.”

Hussain’s friend Yakub is sixteen too, but dropped out of school after the eighth grade. The two boys spend their evenings together, but in the mornings, when Hussain is at school, Yakub makes furniture. “Meri mujboori thi,” Yakub said, indicating that his circumstances did not allow him to study. Yakub is the only working member in a household with five sons. His parents never objected when he stopped going to school – it was five kilometers away, and with eight mouths to feed, there were only so many textbooks and auto rickshaw rides the family could afford.

Seeing that lack of education is a growing crisis, several young men within Citizen Nagar have put together hour-long tuition classes for those who do not go to school. Students, mostly boys, gather together to learn the basics: writing their names, reading signs, simple math. Their teachers are college-going young men who donate time to help out their neighbours.

The girls have it worse. Most girls are pulled out of school after the eighth grade, with families citing various reasons, from societal norms to a fear of the Hindus living near the high schools. Most girls are married off even before they turn eighteen, never given a chance to excel at anything. In Vatva, a few girls voiced their discontent with the situation, but were resigned to the idea that this was the only way. None of them wanted to be identified – their parents had bigger problems at home, they said.
 

 

This article was first published on Scroll.in

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