A court in Halol, of Gujarat’s Panchmahal district has acquitted 14 accused for murder and rioting, during the Gujarat pogrom of 2002, owing to prosecution’s failure to prove the case. The Additional Sessions Judge Harsh Balkrishna Trivedi held that in absence of ‘corpus delicti’ or concrete evidence such as a corpse, the accused were being acquitted. Out of the 22 accused, 8 had died during pendency of trial. They were accused of murdering 17 Muslims including 2 children. The accused had been out on bail anyway since 2004, after Gujarat high Court granted them bail. They were arrested in 2004 itself.

The FIR in the case was lodged in December 2003, pointing towards the questionable approach of Gujarat police. Over 100 witnesses were examined and many of them had turned hostile.

The court noted that it is a “general rule not to convict anybody unless Corpus delicti can be established.” The forensic report of January 7, 2004 had stated that DNA profiling could not be done of completely charred bone pieces which were alleged to belong to the missing persons. The court held that in such a situation, the rule of corpus delicti is to be considered automatically.

The basis of the acquittal being, that the prosecution was unable to prove the place of the crime. Further, the bodily remains were also not recovered for the alleged place of crime. The court also noted the prosecution failed to establish beyond doubt the presence of the accused at the site of the offence or their specific role in the crime, failed to recover the alleged weapons used for the crime from the accused, and that there was no inflammable substance found at the suspected site of crime, reported Indian Express.

The case related to a relief camp in Kalol where many Muslim had sought refuge after fleeing from Delol village. They alleged that several of their family members were missing. Another person from the relief camp said that 18 Muslims from his village were also missing. During investigation charred bones were found and there were many witnesses who identified about 20 accused and testified that they saw the accused murdering their family members with swords and axes. The weapons were never recovered. The chargesheet was filed in 2004.

The accused include: Mukesh Bharvad, Killol Jani, Ashokbhai Patel, Niravkumar Patel, Yogeshkumar Patel, Dilipsinh Gohil, Dilipkumar Bhatt, Nasibdar Rathod, Alkeshkumar Vyas, Narendrakumar Kachhiya, Jinabhai Rathod, Akshaykumar Shah, Kiritbhai Joshi and Sureshbhai Patel.

This incident allegedly took place on March 1, 2002 whereby 17 were killed by a mob and their bodies were burnt in order to destroy evidence. In this case it clearly served the purpose.

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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 later, 14 acquitted for murder in one of the many 2002 Gujarat riots cases appeared first on SabrangIndia.

Rights activists and other eminent citizens have urged the Election Commission to treat Union home minister Amit Shah’s recent statement during an election rally in Gujarat, in which he spoke about how the rioters were “taught a lesson” in 2002 and thereafter BJP has ensured peace till the present day, as a violation of the Model Code of Conduct. Urging the EC not to permit such “divisive exhortations”, they have also demanded a probe and necessary punishment in the matter.

`Shah’s statement was ‘highly objectionable’, sought to promote enmity’

Relying on a report by news agency Press Trust of India, former secretary to Government of India E.A.S. Sarma has, in a letter marked to Chief Election Commissioner Rajiv Kumar and Election Commissioners A.C. Pandey and A. Goel on November 26 first raised the issue of Shah’s “highly objectionable statement” during a rally in Mahudha town of Kheda district.

The news report had quoted Shah as saying: “During the Congress rule in Gujarat (before 1995), communal riots were rampant. Congress used to incite people of different communities and castes to fight against each other. Through such riots, Congress had strengthened its vote bank and did injustice to a large section of the society…..But after they were taught a lesson in 2002, these elements left that path (of violence). They refrained from indulging in violence from 2002 till 2022. BJP has established permanent peace in Gujarat by taking strict action against those who used to indulge in communal violence.”

‘Taught a lesson’ implied people had taken law into their own hands

Sarma lso quoted from the NDTV report that quoted Shah, addressing a rally in Mahudha town of Kheda district, in support of BJP candidates ahead of the next month’s Assembly elections.that said the same thing, 

“During the Congress rule in Gujarat (before 1995), communal riots were rampant. Congress used to incite people of different communities and castes to fight against each other. Through such riots, Congress had strengthened its vote bank and did injustice to a large section of the society…..But after they were taught a lesson in 2002, these elements left that path (of violence). They refrained from indulging in violence from 2002 till 2022. BJP has established permanent peace in Gujarat by taking strict action against those who used to indulge in communal violence,”  

The former bureaucrat, Sarma says in his communication to the ECI that the “said statement apparently refers to how a political party and certain sections of the people ‘taught a lesson’, which in effect implies those other than the law enforcement authorities had taken law into their hands. If the statement is correctly reported, it would have serious public interest implications. 

The full text of the letter also reads, 

“I sincerely hope that Shri Amit Shah had not made any such statement but, if he had indeed made a statement to that effect, considering that it has come from him, holding the high and responsible office of the Union Home Minister, it assumes a great deal of importance, having wide ramifications for the ensuing Gujarat elections, scheduled to take place shortly and even for other Assembly elections scheduled to take place elsewhere in the country during the next few days.  

“The statement, if it is found to be true, violates the Model Code of Conduct in force, especially with reference to the following clause, 

“There shall be no appeal to caste or communal feelings for securing votes.   

“Shri Shah’s statement needs to be viewed by the Election Commission in conjunction with the reported fact that it was the Union Home Ministry that cleared the release of the eleven rape convicts in the Bilkis Bano case, directly related to the infamous Godhra incidents in 2002, which triggered the shameful sequence of events that shook the nation’s conscience. The background and the aftermath of the Gujarat incidents of 2002 are so widely known that I do not have to explain the same to the Commission in detail.

“I believe that, as the custodian of free and fair elections in Gujarat and elsewhere, by virtue of Article 324, and the trust reposed by the electorate in the integrity and impartiality of the Election Commission, the Commission should act quickly, hold a special emergent meeting today, preferably during early hours, ascertain the veracity of the news report on Shri Shah’s purported statement and, if the said statement is found to be true, the Commission should, as required, give an opportunity to the person who has made the statement to explain his position, take immediate penal action if necessary, so as to ensure that after-effects of the statement may not interfere with the integrity of the electoral process in the State. 

“From the statement referred, if it is true, I am constrained to draw the inevitable inference that it would have already impacted the course of the Gujarat elections in the short run and would have long-term adverse implications for the nation as whole. By token penalties imposed, the Commission may not be able to undo the considerable damage that would have already been caused, in which case, the only course of action left to the Commission is to consider deferment of the elections, till such time that the environment becomes conducive to conducting elections freely and fairly. 

“The Commission should also take note of the fact that the Union Ministry of Finance had earlier notified an unprecedented extension of the window for political parties receiving corporate donations, on which I had expressed my concern in my letter addressed to you on November 8, 2022, with a special reference to the Model Code. To the best of my knowledge, the Commission is yet to initiate any meaningful action on it!  

“I may further remind the Commission that its inaction in announcing Gujarat elections on October 14, 2022, simultaneously with announcement of elections in Himachal Pradesh (HP), and deferring Gujarat elections till November 3, 2022, for no plausible and convincing reason, resulted, in the Model Code of Conduct coming into force only on November 3. This indirectly (perhaps coincidentally!) gave license to the local authorities in Gujarat to go ahead with premature inauguration of the dangerous, incompletely restored Morbi bridge on Machchhu River, which in turn resulted in a horrific human disaster that took away the lives of more than a hundred innocent persons. Had the Commission announced the Gujarat elections along with its announcement of the HP elections, the Morbi accident would never have taken place! While the two events were not directly connected, it is a fact that the Commission did defer announcing the Gujarat elections, without citing any plausible and valid reason. It is essential that the Commission remains not only credible as a Constitutional authority but also appears to be so, in every respect. 

“The Election Commission of India is a unique, independent institution, owing its existence to Article 324 of the Constitution and the apex court has time and again emphasised that the Commission’s responsibility is to ensure that nothing happens that affects the fairness of elections. During the time when the Model Code of Conduct is in force, the Commission has the authority to go to any extent to penalise those that violate the Code and take appropriate steps to safeguard the integrity of the electoral process in every possible way.  

“Several incumbents of the office of the Commission in the past had demonstrated the authority of the Commission in its full measure and the people of this country, who repose trust in the Commission’s authority as an independent institution, expect the Commission to act objectively with the sole purpose of safeguarding the integrity and fairness of the electoral process, impervious to extraneous influences. The Commission cannot afford to permit political parties to indulge in divisive exhortations to the electorate and thereby influence elections against the public interest. “ 

The communication ends with a fervent appeal to the ECI to act firmly and decisively in this matter, keeping in view that the elections are going to take place in Gujarat very shortly (December 1, 5, 2022).  

Shah’s name had figured in complaints to EC in 2019 too

Incidentally, Shah’s name had figured in the complaints made to the EC ahead of the 2019 Lok Sabha elections too, when then Election Commissioner Ashok Lavasa had opposed five clean chits given by the Election Commission to Prime Minister Narendra Modi and Shah over alleged violations of the MCC.

There were five rulings then where one of the commissioners had dissented. This included an instance related to Shah who while referring to Congress leader Rahul Gandhi’s candidature from Wayanad in Kerala had commented: “Rahul Gandhi is contesting in such a place where it is impossible to say when a procession is taken out, whether it is a procession in India or Pakistan.”

The Wire  has also spoken to Association of Democratic Reforms (ADR). Stating that he supported Sarma’s letter, Chhokar said the home minister’s statement was also “in violation of section 153A of the Indian Penal Code”, which pertains to “promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony”. He said the statement also attracts Section 8 of the Representation of the People Act, 1951 that provides for disqualification on conviction for certain offences including for offences punishable under Section 153A of the IPC.

`Defer the polls till atmosphere is conducive’

Furthermore, Chhokar demanded, in view of the gross violation of the MCC, as already suggested by Sarma, the Commission immediately directs deferment of the elections in Gujarat “till such time that the environment becomes conducive to conducting elections freely and fairly”.

The social activist also sought initiation of action by the EC for the lodging of complaint and registration of First Information Report for the violation of Section 153A of IPC.

Will EC act? SC recently told it not to be a “yes man” of government

While both these citizen-activists have reposed faith in the EC to act on the matter, the Supreme Court recently stressed on the need for making the appointment of the CEC and the ECs “procedure-based and transparent”. The observation came while a five-judge Constitution Bench, headed by Justice K.M. Joseph, was on November 24 hearing pleas challenging the constitutionality of the appointment of the present CEC and ECs.

The court observed that those manning the Election Commission should not be “yes man” of the government but “independent who can act independently” even if it comes to taking on the prime minister.

In this regard, the bench also posed a hypothetical question to the government, saying: “Do you think the Election Commissioner… if he is asked to take on none less than the prime minister, it’s just example, and he doesn’t come around to doing it – will it not be a case of complete breakdown of the system?”

Related:

Hate Watch: Amit Shah says “more mazars than population” during Gujarat rally

Attempt to Destroy Gujarat Riots Legal Trail: Arundathi Roy

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A large crowd gathered at the Bharat Scouts and Guides auditorium in Bengaluru on Monday to pay tributes to journalist-activist Gauri Lankesh on the 5th anniversary of her murder. 

The chief guests of the programme, organised by the Gauri Memorial Trust, included the late journalist’s sister and film director Kavitha Lankesh, Booker Prize winner Arundathi Roy, actor Prakash Raj, journalist and Alt News cofounder Mohammed Zubair and prominent rights activist Teesta Setalvad. 

Students, activists, citizens and friends and colleagues of Gauri attended the programme amid heavy police presence. Zubair and Setalvad could not attend the programme personally. Bharatiya Janata Party (BJP) leader Manjinder Singh Sirsa has filed a police complaint against Zubair accusing him of “spreading hate” against cricketer Arshdeep Singh and the Sikh community with his tweet. 

Roy had accepted the invitation to speak at the programme just days after the passing of her mother Mary Roy in Kerala. “Three days ago, I buried my mother and I didn’t know whether my heart would allow me to leave her grave. But I’m here because she would have been ashamed of me if I hadn’t come,” the eminent author said to rapturous applause. 

Reflecting on the paradigm shift in the political system, Roy said, “In the early 90s, two locks were opened: one of the Babri Masjid and the other of the market [economic liberalisation]. When they opened those two locks, they unleashed two kinds of fundamentalism—religious and economic.” 

Explaining how the government had “two different reasons to become a security state”, Roy said, “In the name of Islamic terrorism and anti-development protests, everything became an excuse for the state to secure itself.” 

The author was at her searing best as she reflected on political horse-trading. “The richest political party in the world can topple (state) governments and buy members of Legislative Assemblies at will. I have a suggestion: like during the Kisan Andolan, our elected representatives should also start campaigning for MSP—but this time for MLAs and MPs,” she said.

Roy also condemned the release of 11 rapists of Bilkis Bano, who had also murdered 14 members of her family, through the legal process. There is an “attempt to destroy the legal trail of the Gujarat pogrom for international reasons while claiming its political legacy for internal reasons”, she said. 

Admiring Setalvad’s work in documenting “the atrocities committed in the 2002 Gujarat riots”, Roy said, “This meticulous documentation should one day provide evidence of ‘war crimes’ because that is what happened in Gujarat.”

Raj said that “it has been five years since Gauri died and her killers are in jail, but the people who ordered the killing are free”. “We should also understand the reason for the release of Bilkis Bano’s rapists. The message is that ‘if you commit atrocities in the name of our ideology, we are here to protect you,’” he said.  

Union home minister “Amit Shah recently said that society should not misunderstand the concept of jail. He said that just because a person went to jail does not mean he is a convict. Does this mean that we should keep garlands ready and expect more people to be released?” the actor added. 

Kavitha spoke about the “rise in communal incidents in Karnataka, especially in Shivamogga district. “When I was making a documentary on Gauri, I met [journalist] Ravish Kumar. I asked him is there any hope? Will there be a change if the regime changes and the BJP is out of power? He said, ‘No.’ People have been weaponised,” she said.

Courtesy: Newsclick

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The Supreme Court is hearing renowned activist Teesta Setalvad’s application for interim bail. Gujarat Police arrested her on 25 June, a day after the Supreme Court’s veiled but critical observations in 2002 Gujarat riot victim Zakia Jafri’s case that all involved in the “abuse of process need to be…proceeded against in accordance with law”. The key allegation of the police against Teesta is that she conspired to implicate powerful people, including then Gujarat chief minister Narendra Modi, in the riot-related investigations.

It is impossible to pre-judge today’s ruling, but how the case against Teesta proceeds is highly relevant to the culture of protest in India. Her arrest conveys to those who charge powerful executive figures with the wrongdoing that they could end up in the dock like her. 

“What wrong did Zakia or Teesta do? They have only complied with the Supreme Court’s directions since 2012,” says Anand Yagnik, Gujarat High Court advocate and activist. “The court said Zakia could file a protest petition if she disagreed with the closure report of the Special Investigative Team (SIT) examining the riots. Where is the mala fide? It is the Supreme Court which pursued the 2002 riot cases and appointed an amicus curiae, whom Teesta assisted,” he says. “Can anybody show me one piece of evidence in the SIT report supporting an ulterior motive on Teesta’s part? Actually, the political dispensation is undemocratic, and she is a victim of witch-hunting,” says Yagnik.

In 2012, the Supreme Court directed Zakia that she could file a protest petition if she disagreed with the findings of the SIT appointed by it to examine allegations of a larger conspiracy behind the 2002 riots. The SIT report had found no prosecutable evidence against Modi and 63 others, including senior government officials. Zakia did file such a petition, in 2013, in a metropolitan court in Gujarat. The court rejected it and accepted the SIT’s findings. She approached the High Court next, which also accepted the SIT report. In 2018, she approached the Supreme Court, and it is this case which had a final hearing on 24 June.

Those who are demanding justice for Teesta also see the case against her as a signal to civil society and opposition political outfits to join hands or the ruling Bharatiya Janata Party (BJP) will continue to unleash its spree of arrests. “Previous governments were oppressive too, especially during Emergency, but not a shade on what is happening now. Civil society is the only space still proposing alternative ideas to the state’s notions, and hence is under attack,” says human rights activist Ravi Nair. Earlier this year, Medha Patkar was charged with misusing funds, and Stan Swamy died in prison last year. “To stop such occurrences, parties must leave differences aside and join hands with each other and civil society,” he says.

Many cannot help recalling two contrasting recent arrests, of film-maker Avinash Das and AltNews co-founder Mohammad Zubair, both picked up for their tweets. Delhi Police arrested Zubair on 27 June, two days after Teesta, and a court granted him bail after 23 days. Das, arrested on July 20, got bail from an Ahmedabad court the next day. But Thursday marks Teesta’s 69th day in jail.

For poet-activist Shamsul Islam, people have realised that the fight for justice and against communalism cannot be won “through symbolic protests and demonstrations”. He recalls that just last year, India watched as the powerful peasant unions of Punjab raised a massive movement that forced the Centre to repeal its three controversial farm laws. But while the farm movement succeeded, there was hardly any outrage over Teesta’s arrest.

Is Teesta in trouble because her work not only challenges Hindutva but Prime Minister Narendra Modi? After all, she helped victims of the 2002 Gujarat riots secure justice, and Hindutva is the BJP’s ideology, which has ruled at the Centre since 2014 and in Gujarat since 2002. “Indeed, communalism is a different kind of animal,” says Parminder Singh, state secretary of the AFDR or Association for Democratic Reforms in Punjab. “But once there is a mass movement, it becomes difficult for the state to act against it. And when the police know people back something, it becomes difficult for them to suppress it,” he says.

The movement of Punjab’s farmers also did not spring up overnight. It took decades to reach the point where its democratic and anti-communal outlook became the norm rather than the exception among Punjab’s peasantry and youth. The result is that journalist Rana Ayyub’s book, Gujarat Files, became immediately available in Punjabi and gained a wide readership. It also explains why, in late 2020, 80,000 people of all faiths protested at Malerkotla, Punjab’s sole Muslim-majority district, against the CAA, NRC and NPR. People from Punjab participated in the Shaheen Bagh protests as well. “Such protests should be repeated, and different organisations and people must come forward for Teesta and others,” says Singh.

Recently, the importance of wider democratic movements hit home again when the Centre’s Agnipath scheme suddenly curtailed military recruitments to four-year terms. Once the young aspirants’ protests turned violent, without a democratic leadership, the Centre could push them back easily.

Propaganda and polarising politics also undercut solidarity, and there is plenty of it against Teesta and others who believe in democratic rights. For example, it has been spread in Gujarat that Teesta was close to the Congress party, and they worked in concert on 2002 riots cases. For two months, this argument of Gujarat Police has followed Teesta’s bail applications, from the sessions court to the High Court and the Supreme Court.

Shamsul echoes the concern: “Teesta’s problem is she spoke about not Muslims but Hindus and Muslims. Such solidarity would end the politics of Muslim-Hindu polarisation,” he says, adding, “She was actively engaged with minorities’ concerns in Assam. She fought Muslim fundamentalism as much as Hindu. The state wants to stop her from doing these things,

Rights activists have always warned that voting is crucial to national life but does not guarantee the state’s neutrality or responsiveness to public demands. Mukul Sinha, who died in 2014, contested from Muslim-majority Shahpur in Ahmedabad but got hardly any votes though he spent his life fighting for minority rights. Manipur’s Irom Sharmila went on a 16-year hunger strike against the Armed Forces Special Powers Act but secured just 90 votes in the 2017 Assembly election.

That is why it is crucial for democratic-minded people across India to organise against the Hindutva onslaught and raise the material demands of people. For now, all eyes are on Teesta’s bail hearing in the Supreme Court and what twists and turns to expect in the investigation into the allegations against her.

Courtesy: Newsclick

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The really good professor of history and the social sciences tells us that the partisan or selective narrative underlying communalism – manipulation of religion towards political ends involves not just an incorrect or perverted history telling but deliberate erasure.[1] Such erasure and exclusion buttressed by an overwhelmingly vicious construct of a state that is both exclusivist and discriminatory is tantamount to criminality. It assumes an attack on democracy itself as the cultural rights of every section to find their cultures and histories reflected in the collective narrative of nation-building is deliberately snatched away.

No wonder then that the project of the re-fashioning of India’s texts by the Modi 2.0 regime involves the erasure of social ruptures like the 1984 anti-Sikh pogrom, the 2002 Gujarat anti-Muslim carnage as also narratives around ‘Struggles for Equality’ (how Tawa Matsya Sangh fought for the rights of displaced forest dwellers of Satpura forest of Madhya Pradesh) and explorations into ‘Democratic Politics’ (wherein people’s movements and pressure groups influence politics) itself. Among the other erasures are significant mentions of India’s first prime minister, Jawaharlal Nehru and his appraisal of India’s first “engineering feat” (Bhakra Nangal dam), the Cold War and Mughal Courts.

And remember, these are the third set of erasures since 2017 as a detailed investigation by The Indian Express (Ritika Chopra, June 18, 2022) informs us, with a staggering total of 1,334 changes in 182 textbooks being made. The changes have been made in India’s premier textbook writing governmental agency, the National Council for Educational Research & Training (NCERT) and effected in its history, political science and sociology text books for Classes 6-XII.

Serious students of both history and political science are both informed and aware of how silencing and erasure are precursors to physical exclusion and extermination from societies and nations. Decades, close to centuries after a rapacious white population grabbed material resources and cultural validation from native, American Indian, Inca, Maori, Adivasi populations, serious acknowledgement and rectification, while happening in parts, remains a pipe dream. Propagandist, fascist regimes feel comfortable with re-fashioning historical contexts and understanding by removing any possibility of knowledge systems that buffet against propaganda working. The first step is cleansing the history, political science and social sciences text with content that explores and deepens these explorations with nuance.

Independent India’s tryst with textbook writing and history telling has reflected the evolution of a state as we have experienced it, a flawed democracy, acknowledging some exclusions, attempting periodic inclusions and corrections. Even as that experiment was afoot, and subaltern populations organised and grappled with getting their struggles read as a wider Indian people’s history –the struggles over land and agriculture by Adivasis and peasants under British colonial rule were barely recognised by post-Independent India’s history-telling, neither were the depressed caste child’s historical experience with caste exclusion—India was hurtled backwards by an ideology that sought to re-fashion the fundamentals on which we stood.

Post 1998-1999 we witnessed the first attempts to convert the Indian republic into a hegemonistic, mono-cultural theist state (NDA I under Atal Behari Vajpayee,1999-2004). Then, in 2000, this author had, in a long research paper recounted how “the votaries of hegemonised history had violently disrupt the Dussehra celebrations in Tamil Nadu (October 1998) that have always burnt effigies of Ram, not Ravana, as part of “their” glorious past and tradition… The project launched to ‘Hinduise’/Brahmanise history is also a project aimed to stifle democracy, variations and dissent in the rich area of culture and tradition and impose, in its stead,  a set of “moral and religio-cultural dos and don’ts” on a land and culture that had, hitherto defied such strait-lacing  nomenclatures.”[2]

The post-2017 cultural project of the same ideological orientation takes earlier efforts aggressively further. The changes in the texts are justified once again, in the name of un-burdening of the young mind, disturbed by two years of the pandemic. The NCERT has also claimed that the rationalisation was required to prune “overlapping or similar content” or “content which is irrelevant in the present context.” The subjectivity behind this assessment is there for all to see. Since when are the ruptures that have erupted in our recent history irrelevant? Is not the very purpose behind the study of History and Political Science as a discipline is to be informed about all aspects, even the violent ruptures of the past?

The portions that have been erased tell a bald and sordid tale, the crude desire of the rulers to ensure that an unthinking, unquestioning, population, un-enriched by accounts of the Indian people’s struggles with power, exclusion and injustice remains just that: khaki shorts and saffron shirts of a hollowed out regime.

But first, the details of the passages in the NCERT texts that were clearly pinching a falsified narrative sought to be built by the present regime. The latest passages to go include references to the Gujarat 2002 carnage where, in the Std 12 text there is detailed referencing of the reprisal killings of Muslims in the state under the then government’s watch after the mass arson of the Sabarmati Express at Godhra.

A former chief justice of India, Justice JS Verma’s scathing criticism of the Gujarat government’s failure to control the violence has now been relegated to the dustbin of history! The second page (now removed) carries a collage of three newspaper reports along with an excerpt of the NHRC’s annual report (2001-2002) on the Gujarat government’s (mis)handling of the riots.

Unsurprisingly, former prime minister Atal Bihari Vajpayee’s famous “raj dharma” remark in this section has also been removed: “My one message to the Chief Minister (of Gujarat) is that he should follow ‘raj dharma’. A ruler should not make any discrimination between his subjects on the basis of caste, creed and religion.” Vajpayee had said this at a press conference in Ahmedabad in March 2002 with Narendra Modi, then chief minister of Gujarat, sitting by his side. The two had been visiting the 12,000-populated Shah-e-Alam camp in Ahmedabad.[i]

The passages in the NCERT texts that have been deleted, existed as attempts to educate young populations of ruptures that threaten the Republic, to learn from those that affect marginalized sections in the past. The bald desire to erase any references to serious flaws in the young Indian nation’s past is nothing short of a political project to prevent pining of accountability and the deepening of democracy. Few youth born over the past decades recall the horrors of 2002 or 1984, much like Partition related violence which has been relegated to selective community memory.

What we are seeing now is the re-fashioning of the Republic into a crude structure of a brute state, armed by an excitable mob, fed on propaganda not the rational discipline of history. Future textbooks will further this project. Any modern or cohesive identity of the nation or its people, secular and egalitarian as our Constitution outlines, has been fractured and dismembered to rubble, where narrow, chauvinist, misogynist identities have been encouraged to come to the fore.

This project to de-historicise history is not happening in isolation, it is accompanied by a destructive, violent present. It is the publicised images of the bulldozer leitmotif from MP’s Khargone to Delhi’s Jahangirpuri to UP’s Sahranpur, Kanpur and Prayagraj (Allahabad) that capture the period of history that we in India are living through. While television channels and sections of social media have recorded these as they selectively target the Indian Muslim, the narrative of the ruler seeks to erase even this brute exclusion and re-fashioning.

India 2022 is witnessing the ripping through, or ripping apart of the Indian nation as it was once constructed. The re-writing of history and political science texts is matched by the brutal violent ruptures of so many parts of north and central India, on the ground. Lynchings of minorities, criminalizing of their protests and dissent, socio-economic boycotts of their businesses, stigmatizing and demonizing of food and culture, selective demolishing of homes and properties.

Between the erasure post-Independent social ruptures of a violent kind (that targeted lives of marginalized minorities) and present day active violent, re-fashioning, there is a sordid connection.

The attempt to build a false narrative of modern Indian history and the birth of the nation that has little or no connection with reality. ‘The collapse of education is the collapse of the nation.’  India as we have known it truly stands on the brink.

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The Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the final submissions of both the petitioners as well the respondents in the Special Leave Petition (SLP) filed by Zakia Jafri and Citizens for Justice and Peace (CJP), where petitioners submitted evidence of how the Special Investigation Team (SIT) probing the Gujarat genocide of 2002, had botched up the investigation by failing to examine multiple instances that pointed towards a larger conspiracy.

At the December 8 hearing, the petitioners took the court through all the such material once again to reiterate what the court needed to look at while exercising its jurisdiction. During yesterday’s hearing Senior Counsel Mr. Kapil Sibal, appearing for the petitioners, offered rebuttals against the scathing remarks made by the State government against petitioner no.2.

On December 9, the final day of the hearing, Sibal continued his submissions about petitioner no. 2, Teesta Setalvad and her organization, Citizens for Justice and Peace (CJP) explaining the body of work they are involved in including the citizenship related work in Assam, forest rights, grassroots fellow program, flood relief, medical aid, relief work during the Covid pandemic and so on.

Sibal remarked, “To paint us as anti-Gujarat is unfair. Many FIRs are filed against us because we tried to seek justice for Gujarat victims and we got relief in every court. Other than seeking justice she has no agenda.” Sibal even read out a judgment of the Supreme Court which had expunged the scathing remarks made by the Gujarat High Court against Setalvad.

In Teesta Setalvad v. State of Gujarat 2004 10 SCC 88, the Supreme Court had expunged the remarks made by the Gujarat High Court against her:

According to the appellants, being human rights activities, they wanted to find out what is the truth and in the process, though after conclusion of the trial, it was reliably felt by tghem on the basis of verifications made the truth has been the resultant casualty. they had made detailed study of the situation and also met the riot affected persons. they helped the victims in lodging FIRs and setting up legal aid clinics for the affected victims… Certain persons, who were not happy with the verdicts rendered by the Trial Court in the case commonly known as Best Bakery case also approached the appellants and they helped them in obtaining legal assistance. Unfortunately the High Court, while dealing with the appeal filed by the State of Gujarat, against the acquittal of the accused persons and other connected cases made some caustic observations casting serious aspersions on their bonafides and has used strong words like super investigators, anti social and anti-national elements.

15. In view of the aforesaid we direct that the observations of the High Court, as against the appellants quoted above shall stand expunged and deleted from the judgment of the High Court, and consequently must be treated as having never existed or being part of the High Court judgment.

Suspicion of offence

Sibal cited another judgment to indicate that the Magistrate, if he suspects that an offence has been committed, can take cognisance under CrPC.

In Abhinandan Jha & Ors vs Dinesh Mishra 1967 3 SCR 668, the court held thus,

“There is certainly no obligation, on the Magistrate, to accept the report, if he does not agree with the opinion formed by the police. Under those circumstances, if he still suspects that an offence has been committed, he is entitled, notwithstanding the opinion of tile police, to take cognizance, under S. 190(1)(c) of the Code. That provision, in our opinion, is obviously intended to secure that offences may not go unpunished and justice may be in- voked even where persons individually aggrieved are unwilling or unable to prosecute. or the police, either wantonly or through bona fide error, fail to submit a report, setting out the facts constituting the offence.”

Reference to SIT submissions

Sibal responded to the submissions made by SIT, asking how they disregarded the Tehelka sting operation tapes despite having used them in trials as prosecution evidence? It was on the basis of this very evidence that Babu Bajrangi was convicted in the Naroda Patiya case.

Larger conspiracy

The petitioners submitted a statement before the court contending that a larger conspiracy involving individuals whose undisputed extra-judicial confessions are on tape, read along with inactions of officials demonstrated by undisputed documents, should have been investigated by the SIT, which could have established a larger conspiracy. The submission is that the SIT did not investigate the larger conspiracy, but limited itself to matters in dispute relating to a meeting of February 27, 2002.

It was further submitted that undisputed evidence on record points to a larger conspiracy which appears to have involved bureaucrats, politicians, public prosecutors, Vishwa Hindu Parishad (VHP), Rashtriya Swayamsevak Sangh (RSS), Bajrang Dal and members of the State political establishment. It is this conspiracy that is not investigated by the SIT.

Petitioners’ conclusions

Sibal concluded by thanking the bench for its patience and kindness, “Ultimately your lordships have to decide whether all this material does not raise any suspicion that any offence has been committed. Then you may accept closure report. If not, then your jurisdiction is wide enough.”

Respondent’s final submissions

Senior Counsel Mukul Rohatgi came before the bench to retort a few claims of the petitioners. He stated that Babu Bajrangi was not convicted on the basis of the Tehelka tapes, which Sibal contested towards the end of the hearing, saying this is a false claim.

Rohatgi also said that the petitioners were wrong in saying that Anil Shankarbhai Patel’s statement was not recorded by the SIT. He also retorted to the submission that the petitioners never said that bodies were paraded from Godhra to Sola Civil Hospital.

About treating the Protest Petition as a complaint, Rohatgi said that the petitioners have argued before the Magistrate that forget the complaint and treat the Protest Petition as a fresh complaint.

He also raised the allegation of a different complaint filed before the Supreme Court in this SLP.

He then referred to the submission of the petitioners that the Nanavati Commission report cannot be relied upon, which Rohatgi accepted and said that the SIT closure report does not refer to the Commission’s report and that instead it is the complaint that relies upon material of the Commission and without that material, the complaint would fall apart.

In his final submission, Rohatgi stated that nobody has raised a finger against the SIT except the petitioners “now 20 years later you want further investigation, when trials have been completed, appeals are pending before the High Court and Supreme Court.”

About the statements being statements under section 161 of the CrPC, Rohatgi said, “Only a police officer can record statements under section 161 CrPC, hence when we took statements we took signatures. They were deemed to be section 161 statements by the Supreme Court in 2013. We are not on the correctness”.

He concluded saying, “I think what the Magistrate and High Court have done should be endorsed by this court otherwise this will keep going on for the ulterior motives of Petitioner no.2”.

The hearing in this matter has concluded.

Related:

They want all this material to be effaced from the nation’s memory: Petitioners in Zakia Jafri SLP

Zakia Jafri SLP: Petitioners argue there was evidence for Magistrate to issue process

Zakia Jafri SLP: SIT argues if investigation is ordered, some acquitted person will be prejudiced

The post Zakia Jafri SLP: Petitioners conclude arguments appeared first on SabrangIndia.

On December 8, the petitioners made their final submissions in the Zakia Jafri SLP hearing before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar and are likely to conclude today. Senior Counsel Mr. Kappil Sibal, representing the petitioners, Zakia Jafri and Citizens for Justice and Peace (CJP), made several submissions countering everything the SIT had put before the court and referred to all such material that required further investigation.

Sibal began his submission referring to the Tehelka sting operation tapes stating that other than Babu Bajrangi, who was prosecuted in Naroda Patiya trial, none of the persons are accused in any of the 9 trials that SIT was concerned with. When the Bench asked whether they were accused in any case related to the riots, Sibal said that was for the state government to confirm, yet he made the submission, “I daresay they have not been prosecuted in any case.”

Sibal pointed out how SIT had questioned all persons who were in the Tehelka sting operation tapes but they had merely recorded the statements and accepted these statements as is. He pointed out that the same pattern was adopted for these individuals like Bharat Bhatt, Deepak Shah and Dhimant Bhatt. In fact, Sibal submitted that even though Babu Bajrangi was convicted in the Naroda Patiya trial case, there are many other materials against him in the Tehelka tapes which make up separate offences and for which he should be tried separately.

After reading out Babu Bajrangi’s explanation for making those statements in the Tehelka tapes Sibal said, “SIT is now doing what the defence is required to do. They are defending the accused.”

The petitioners submitted that the Magistrate had based findings in the order on section 161 (CrPC) statements.

“Everything in a chargesheet relied upon by prosecution has to be proved. Nothing stated therein is proof itself. Therefore, even this tape has to come to court. They just took the statement and accepted. There is so much in the tapes that it could have led them to other persons,” Sibal submitted.

He also asked on what basis was the SIT saying that the Tehelka tapes are unreliable? Sibal stated that SIT had submitted it as prosecution evidence in other trials and except in the Gulberg trial case, it was accepted as evidence which ended up in convictions of many. “How can SIT, which had relied upon the sting, today for the first time say they did not find it reliable? Who are you to say it is not reliable? Is this your oral statement? This is just a biased statement, meant to protect the accused,” he said.

The petitioners submitted that the state chose not to act despite being aware of the Tehelka tapes and even the SIT chose not to act in that regard. “We are in 2021, what investigation will happen now after 19 years? They have successfully protected the accused which was their motive. They wanted to make sure we reach this stage. That is why they say we want to keep the pot boiling. They want this material to be effaced from the memory of the nation.”

Contention of larger conspiracy

The Bench asked Sibal to focus on what relief the petitioners wanted from the court, since the larger conspiracy allegation was not being urged by them. Sibal contended that how can larger conspiracy be established without investigation. Bench said that SIT submitted that investigation has already been done but they did not read out that part as the petitioners did not urge it. So, what now remains is conspiracy at smaller, grassroot levels.

Sibal contended that they are not arguing with regards to just one person but if the tapes were investigated, the SIT would have found other persons involved in the conspiracy. He said, “If you don’t investigate how will you find larger conspiracy? Larger conspiracy does not mean just one person.” Sibal further argued, “The confessions themselves suggest larger conspiracy which was not investigated. Let’s not deal with one act or one person. I have no desire to go there. My only desire is that there are persons involved which is reflected in these tapes and they need to be investigated so conspiracy is revealed. If one person supplied arms, there are other persons involved. You may not start with 120B but you could be led to 120B (criminal conspiracy) during investigation.”

The petitioners submitted that the conspiracy that they are referring to does not only relate to the meeting of February 27, 2002 but the many incidents before and after. “The undisputed evidence demonstrates a larger conspiracy (with respect of Tehelka tapes etc.). It is this conspiracy which is not investigated by SIT. That is my statement,” Sibal said.

Sibal also said that the “Complaint is only a piece of information, it is only the starting point. Disclosure in the tapes show conspiracy. Investigation should have been conducted, which might have led to a much larger conspiracy.”

The petitioners then cited Firozuddin Basheeruddin & Ors vs State Of Kerala 2001 7 SCC 596 on the issue of conspiracy

“The court has to be satisfied that there is a reasonable ground to believe the existence of the conspiracy and that is a matter for judicial inference from proved facts and circumstances.

Conspiracy is not only a substantive crime. It also serves as a basis for holding one person liable for the crimes of others in cases where application of the usual doctrines of complicity would not render that person liable. Thus, one who enters into a conspiratorial relationship is liable for every reasonably foreseeable crime committed by every other member of the conspiracy in furtherance of its objectives, whether or not he knew of the crimes or aided in their commission.”

Argument of Everything was fine in the state

The petitioners submitted that other official records which do not per se amount to the commission of an offence, but indicate delay in response, for which the SIT should have carried out a thorough investigation to find out why the authorities chose not to act given the situation on the ground. The Supreme Court had stayed trials in 2003 because the NHRC brought to the court’s notice and the victims complained that the bulk FIRs were being recorded without naming the accused.

Sibal said, “To say the state was doing everything right goes against what the Supreme Court said. This court was not happy, NHRC was not happy; hence, SIT was obliged to carry out further investigation in these cases.”

When the petitioners submitted about the non-responsive fire brigade, the bench interjected that the SIT submitted that investigation was done in this regard and that they could not respond since roads were blocked and officials were on duty. Sibal responded, “It has not been recorded that they were on duty, hence they did not respond to the calls.”

Call Data records

The petitioners submitted that CDR records in the possession of Rahul Sharma would have also indicated the calls made from various mobile numbers when violence was at its peak in Ahmedabad. The frequency of calls made from a particular phone number to a particular individual, their analysis, their corroboration by recording statements were all steps that could have been adopted by the SIT.

The SIT came in 6 years later, however, Sibal said that at least they could have questioned why CDR was not checked by the state investigating agencies.

The petitioners also questioned why SIT did not put then Ahmedabad Police Commissioner PC Pandey to question when he revealed the PCR messages almost 8 years later, and only after the Supreme Court had directed; when the initial position of the State was that all such messages had been destroyed as per protocol.

No victim statements recorded

The petitioners made a submission that the SIT had not recorded even one statement of victims of the riots. Sibal said there was only one instance when victim statements were recorded, which was to show an official Shivanand Jha in good light and to exonerate him. “With greatest humility I say, with this kind of evidence the SIT cannot be given a certificate of good conduct,” Sibal said.

The petitioners also submitted that the public notice inviting victims/witnesses to come before the SIT to depose was issued in 2008, and after the apex court’s direction to SIT about Zakia Jafri’s complaint, no such notice was issued, as far as they are aware.

Material requiring further investigation

The petitioners have listed out issues that required further investigation which include handing over of bodies to Jaideep Patel of VHP, Post Mortems in Railway yard in the sight of a crowd, parading of bodies during funeral procession, delay in calling the army, delay in imposing curfew and so on.

Sibal commented on SIT’s submission that the bodies were not handed over to Patel, “SIT submitted bodies were not handed over to VHP. There is nothing on record to show. This was an oral statement. In fact, evidence is to the contrary.” He then read out the affidavit filed by the Mamlatdar where he states that the bodies were handed over to Patel under instructions of Godhra DM, Jayanti Ravi and Additional DM BN Damor to shift the bodies with police escort. Additionally, Hasmukhbhai Pateel, a leader with Jaideep Patel signed as a person accepting the corpses as well.

Sibal pointed out that an escort is only meant for protection and when the bodies reached Sola Civil Hospital, they were handed over to the hospital by Jaideep Patel.

Further, the petitioners also clarified that they never submitted that the bodies were paraded from Godhra but only said that they were paraded when the funeral processions were carried out from Sola Civil Hospital.

SIT also denied the crowd of 3,000 present at the hospital at 4 A.M, while the petitioners presented PCR messages that a message was sent out informing about 3,000 swayam sevaks being present at Sola Civil Hospital at 4 A.M.

The argument of ‘no violence till 1 pm’

The petitioners submitted that there were 14 FIRs lodged before 1 P.M in Ahmedabad on February 28, 2002, which refutes the submission of the SIT that there was no violence before 1 P.M that day.

There are PCR messages that say “situation very tense”, “vehicle set on fire near Gujarat High Court ” and so on, all before 1 P.M.

Adverse remarks on SIT by court

The Gujarat High Court, in the Naroda Patiya judgement gave adverse remarks about the SIT:

“XXIII INVESTIGATION BY THE SIT:

“323. The Investigating Officer (SIT) has recorded statements of witnesses in blatant breach of the provisions of section 161 of the Code, inasmuch he has obtained signatures of the witnesses on such statements and more particularly on the statements of the police officers, which is clearly borne out from the testimonies of the witness and the police witnesses whose statements were recorded by him…. section 162 of the Code expressly bars a statement recorded by the police being signed by the person making it. Despite such express provision in the Code, Page 2882 of 3422 R/CR.A/1713/201 investigating Officer has obtained signatures of the persons whose statements he had recorded on such statements. Even in case of high ranking police officers, such signatures have been obtained. One wonders whether the Investigating Officer (SIT) and such high  ranking officers were not aware of these basic provisions of law…. There are several other shortfalls in the investigation conducted by the SIT, reference to which has been made at the particular stage in the judgment.”

Finality of Criminal Proceedings

Once an accused is convicted by the Magistrate, upheld by the High Court, as well as the Supreme Court, the accused cannot be prosecuted again on the same facts for the same offence, under Article 20 of the Constitution. Article 20 does not apply in cases of acquittal, the petitioners submitted. Fresh discovery of facts may result in a fresh trial after cognizance is taken by the Magistrate. This is why for offences punishable with a sentence for over 3 years, the CrPC does not provide for limitation.

The petitioners also submitted that this principle cannot apply in a case where a court has not taken cognisance of an offence and closure report is filed and accepted by the court.

Discrediting RB Sreekumar

The SIT undermined the evidence provided by RB Sreekumar, former Director General of Police (DGP), Gujarat because of his subsequent supersession. However, the petitioners submitted that the supersession of Sreekumar has nothing to do with the documentary evidence as it is consistent with the records available from 2002 much before his supersession in 2005.

The petitioners provided a list of all evidence and affidavit filed by Sreekumar before the SIT in the year 2002 which was all contemporaneous evidence.

Questioning Zakia’s deposition in Gulberg trail case

The petitioners submitted that in the Gulberg trial case, Zakia Jafri was not a complainant, it was not her private complaint. As a prosecution witness, the SIT required the witness to prove certain facts, which were required to be proved by the prosecution. Appearing as prosecution witness, she could have only given evidence with respect to what she was required to prove in that case and nothing beyond that. A prosecution witness cannot rely on a complaint which is not relied upon in the charge sheet. Even the prosecution in the Gulberg trial could not have brought the complaint on record, since it was not relied upon during the course of the Gulberg trial.

In any case, as per the petitioners the Supreme Court order directed that the SIT look into her complaint and that order cannot be diluted by contending that she should have raised the issue of her complaint as a prosecution witness in the Gulberg trial. Any such attempt would be in effect seeking to nullify the order of the Supreme Court.

Allegations of so-called doctored complaint

The petitioners state that their clarification about the inadvertent error is mentioned not only in the SIT report but also in their protest petition. This means the SIT had taken note of it already while filing the closure report. The clarification states that Rahul Sharma and Satish Verma are both witnesses and were inadvertently listed as accused persons. The petitioners also submitted that this very complaint was filed before the High Court as well and that they have not concealed anything and also questioned that if this were the case why did SIT not raise such contention before the High Court when they were in appeal.

State government only attacking the petitioner

Towards the conclusion of the hearing, Sibal asked the Bench if they wanted him to address the allegations and submissions made by the state government through SG Tushar Mehta which were all deprecating Petitioner No. 2, Teesta Setalvad and dealt with mainly irrelevant material to the case. Sibal submitted that instead of responding to such voluminous evidence given by them, the State only attacked Setalvad.

The Bench responded saying, “You may address whatever you want to say. We made it clear when he was arguing, that we will not give opinion on other proceedings. We will not record findings on those proceedings.”

Sibal said that the challenge to the locus of petitioner no. 2 is based on unsubstantiated allegations in a judgment of Gujarat High Court. “Is it illegal to help a widow who has no recourse to justice? If the victims feel that the State has not been fair to them what is wrong with that. This means every victim who acts against the State would be characterised in this fashion. What is the sinister agenda?”

He added, “She (Teesta) is not seeking any personal relief. She was doing it openly, not secretly. Tutoring a witness is not the same as guiding a witness. The injured witnesses were in such a state of mind that they needed (guidance).”

Sibal then submitted that under the law it is the duty to give such information and cited section 39 of CrPC which states that Every person, aware of the commission of, or of the intention of any other person to commit, certain offences shall forthwith give information to the nearest Magistrate or police officer of such commission or intention.

Related:

Zakia Jafri SLP: Petitioners argue there was evidence for Magistrate to issue process

Zakia Jafri SLP: SIT argues if investigation is ordered, some acquitted person will be prejudiced

Zakia Jafri SLP: Guj gov’t’s smear campaign against Teesta Setalvad, feeble attempt to deflect from own failure

The post With such evidence, SIT cannot be given certificate of good character: Petitioners in Zakia Jafri SLP appeared first on SabrangIndia.

On December 7, the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard the concluding arguments of the State of Gujarat as well as the counter submissions of the petitioners. The hearing will continue on December 8.

The petitioners made some significant counter-submissions before the court highlighting how the Special Investigation Team (SIT), in its submissions did not counter the petitioner’s submissions and did not rely upon or comment upon the undisputed evidence relied upon by the petitioners.

State govt submissions

The hearing began with the Solicitor General Tushar Mehta continuing his submissions for the state of Gujarat. He relied upon conclusions of the Nanavati Commission report which had stated that the government had discharged its duties. “These are major findings on steps taken. Wherever the incidents have taken place, nobody has disputed. It is nobody’s case that the guilty have gone unpunished,” SG Mehta submitted. He argued that if re-investigation is directed by the court, it would be travesty of justice.

Petitioners’ counter submissions

Senior counsel Kapil Sibal appearing for the petitioners began his oral arguments reiterating that he had made submissions as per the court’s jurisdiction and hence had not relied upon evidence that was disputed, “I did that because I did not want to enter arenas where the court will have to look into statements made by ABC and have to see who is right or wrong because that is not your jurisdiction.”

He pointed out that the SIT, in its submissions before the court, had relied upon statements recorded under section 161 of CrPC, which cannot be used before the court as they are not findings of facts. He then emphasised what the limit of the Magistrate’s jurisdiction was pointing out, “The Magistrate’s limit is that (to see if) on this material there is strong suspicion that offence has been committed, then he is bound to issue process. If there is none, he accepts the closure report. Magistrate cannot decide on findings of sec. 161 (CrPC) statement. That is why I only placed undisputed documents, on the basis of which no Magistrate could have ever come to the conclusion that there is no strong suspicion that offences were committed.”

He further stated that in cases where such undisputed material is placed, which on the face of it does not raise strong suspicion, the Magistrate will order further investigation.

He relied upon The State Of Gujarat vs Afroz Mohammed Hasanfatta 2019 20 SCC 539 where the court had stated thus,

“It is well-settled that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and the Magistrate is only to be satisfied that there are sufficient grounds for proceeding against the accused. It is fairly well-settled that when issuing summons, the Magistrate need not explicitly state the reasons for his satisfaction that there are sufficient grounds for proceeding against the accused.”

“Reliance was placed upon Bhushan Kumar and another v. State (NCT of Delhi) and another (2012) 5 SCC 424 wherein it was held as under:- “11. In Chief Enforcement Officer v. Videocon International Ltd. (2008) 2 SCC 492 (SCC p. 499, para 19) the expression “cognizance” was explained by this Court as “it merely means ‘become aware of’ and when used with reference to a court or a Judge, it connotes ‘to take notice of judicially’. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone.” It is entirely a different thing from initiation of proceedings; rather it is the condition precedent to the initiation of proceedings by the Magistrate or the Judge. Cognizance is taken of cases and not of persons. Under Section 190 of the Code, it is the application of judicial mind to the averments in the complaint that constitutes cognizance. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction can be determined only at the trial and not at the stage of enquiry. If there is sufficient ground for proceeding then the Magistrate is empowered for issuance of process under Section 204 of the Code.”

Further, the court in this case also stated, “In summoning the accused, it is not necessary for the Magistrate to examine the merits and demerits of the case,” however Sibal argued that the Magistrate had done just that.

Applying test of strong suspicion

As cited above, Sibal said that in cases where there is strong suspicion, the Supreme Court in State (Delhi Administration) vs I. K. Nangia And Anr 1981 SCC 258 has stated thus,

“There can be no doubt that the order made by the learned Metropolitan Magistrate refusing to issue any process against the respondents is wholly unwarranted. It cannot be said that there is no material for presuming that these respondents had not committed an offence and, therefore, it was not open to the learned Metropolitan Magistrate to come to the conclusion that there was no basis for proceeding against them. The test as laid down by this Court in the State of Bihar v. Ramesh Singh is that at the initial stage, if there is a strong suspicion which leads the Court to think that there is a ground for presuming that the accused has committed an offence, then it is not open to the Court to say that there was no sufficient ground for proceeding against the accused.”

He then re-read certain transcripts from the Tehelka sting operation referred to in his earlier submission to apply this test of string suspicion and question whether such statements could invoke strong suspicion in the eyes of the court or not.

Hate Speech

Sibal pointed out that SIT said that there were 2,000 cases filed in relation to hate speech but the question is why did the SIT not prosecute or investigate the material on record with regards to hate speech.

Going beyond the complaint

Sibal referred to the SIT’s submission that they could not look beyond the complaint but Sibal argued that this was not a private complaint, this was a piece of information. “Even if it is an FIR, it is a piece of information, not an encyclopedia of facts and on that the investigating agency finds out many things that may not be part of FIR,” he submitted.

Limited to Gulberg case

The petitioners also submitted that the SIT erred in holding that the complaint was only related to Gulberg incident. “They (SIT) say it is limited to Gulberg but complaint is not limited to Gulberg. 90% of it has nothing to do with Gulberg yet they make arguments that inquiry can’t go beyond Gulberg. This whole position is contradictory,” Sibal argued.

How can tapes be unreliable

The SIT has relied upon the Tehelka sting operation tapes in trials and even secured conviction on the same basis hence the petitioners questioned how can they deem it to be unreliable evidence.

The SIT had submitted that one of the persons on tape was bragging when he made some revelations, to which Sibal asked, “How do they know they are bragging? Do they have personal knowledge of it?”

The so called “star witnesses”

The petitioners contended that they never spoke of these three “star witness” as termed by the SIT.

“When did I argue about them? Did tehelka (tapes) deal with it? No. The SIB messages are official records, nothing to do with them. I relied upon those, not upon RB Sreekumar. He only corroborated them. I never took Sanjiv Bhatt’s name.” Sibal argued. “For Rahul Sharma, argument is why he kept CDR with him for so many years. He had given them (CDR) in 2004 itself. They are not even getting facts right. The SIT even commends Rahul Sharma at one point,” he added.

Factual errors

Apart from the factual error about Rahul Sharma, then SP Bhavnagar, submission of CDR, Sibal also pointed out that the SIT submitted that there was no violence until 1 pm on February 28, 2002 but there is clear evidence that violence started on February 27 itself.

He also questioned why PC Pandey, then Commissioner of Police, Ahmedabad, had kept with him PCR messages and disclosed them only in 2010 and why the SIT had not questioned him about this.

How can you say everything was in order?

Sibal questioned the submissions made by SIT and the state of Gujarat that everything was in order in the state, “If everything was going as per law, why did the Supreme Court stay trials in 9 cases?” He even stated that the NHRC, meanwhile, had approached the court and that is when petitioner no.2, Teesta Setalvad got involved and filed an intervention before the court.

“The petitioner who is now being backlisted worked with NHRC. She worked with the amicus, filed applications. The SIT never took objection then. Suddenly her character is besmirched, if I tell you the facts, you will be shocked,” Sibal said, however he refused to go into details as that was irrelevant.”

About having Public Prosecutors belonging to the Vishwa Hindu Parishad (VHP), Sibal submitted, “VHP is alleged to be part of conspiracy for committing serious offences and the lawyers part of VHP are appointed as Public prosecutors and they have come on tape and made some revelations. Now SIT says, so what if they are VHP.”

The 2011 judgement

Sibal re-read parts of the Jakia Nasim Ahesan & Anr vs State Of Gujarat 2011 12 SCC 302

“Accordingly, we direct the Chairman, SIT to forward a final report, along with the entire material collected by the SIT, to the Court which had taken cognizance of Crime Report No.67 of 2002, as required under Section 173(2) of the Code. Before submission of its report, it will be open to the SIT to obtain from the Amicus Curiae copies of his reports submitted to this Court. The said Court will deal with the matter in accordance with law relating to the trial of the accused.”

With reference to this Sibal said, “They are aware that trial was going on. So this 173 (2) relates to this final report. Why does it say that? The court does not know if its chargesheet or closure report. Accused emerging from where? This report. This is not just a complaint and not just related to Gulberg.”

About the argument of ‘look into’ that the SIT kept making that the Supreme Court had directed it to ‘look into’ the complaint, Sibal said, “The Supreme Court never said look into the complaint. It said ‘look into’ the material. This whole argument of complaint and looking into it is meaningless.”

Sibal also pointed out that the complaint is not connected with just the Gulberg incident since the June 2006 complaint is related to the build up, nature of the many incidents and the accused in the Gulberg trial and this complaint are completely different.

The hearing will continue on December 8.

Related:

Zakia Jafri SLP: SIT argues if investigation is ordered, some acquitted person will be prejudiced
Zakia Jafri SLP: Guj gov’t’s smear campaign against Teesta Setalvad, feeble attempt to deflect from own failure
Zakia Jafri SLP: SIT again fails to defend its shoddy investigation
The complaint was supposed to be additional material only: SIT in Zakia Jafri SLP

The post There was evidence for Magistrate to issue process: Zakia Jafri SLP appeared first on SabrangIndia.

On November 24, the Day 8 of the Zakia Jafri-CJP Special Leave Petition (SLP) hearing before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, the respondent, Special Investigation Team (SIT) started with the submissions, represented by Senior Counsel Mukul Rohatgi.

At the outset he stated that he will demonstrate that the SIT conducted the job assigned to it thoroughly, efficiently and examined all material with due application of mind and submitted the report in the “Gulberg Case”.

“There is no material to conclude that there was any conspiracy large or small, except for the cases that have been tried,” Rohatgi started off.

Justification for bringing bodies to Ahmedabad

He gave the court a run-down of the incidents that started from the Godhra carnage on February 27, 2002 and how after the incident, Post Mortem examination of remains of victims was conducted at the Railway Yard calling doctors there, and the decision was made to bring the bodies to Ahmedabad after the then Chief Minister had visited Godhra.

He reasoned that since Sabarmati Express was headed for Ahmedabad and since 33 out of 58 bodies belonged to kin in Ahmedabad, this decision was taken. “A lot has been said about parading of dead bodies. There is no substance in this,” he submitted.

He also denied that the dead bodies were paraded in any manner. He submitted that the dead bodies were not handed over to VHP leader Jaideep Patel, and he merely accompanied the bodies in the trucks which also had a police escort.

No dispute on Tehelka tapes being genuine

Rohatgi, when he started making submissions about Tehelka sting operation tapes, said that the outset, that he was not disputing the genuineness of the tapes. “SIT has not said it is not genuine, but the SIT found the contents of the tape and statements made by the persons before (Ashish) Khetan inspired no confidence, there was no material to support them and some said it was part of a script,” he submitted. Therefore, SIT did not file any FIR or chargesheet but it still submitted the tapes in 3 cases, one of which was the Gulberg trial case. He pointed out that in the Gulberg case, the trial court rejected the sting material or the fact that the sting shows larger conspiracy.

Allegation of late deployment of army

As opposed to the petitioners’ allegation that there was delay in deployment of army and that they were not given access, Rohatgi completely refuted the same. He submitted that on February 28 itself the decision was made to call the army and a fax was sent to the Union Defense Ministry and the army was airlifted and necessary logistics were provided. He questioned why did Lt Gen Zaheeruddin Shah not come before the SIT to depose, when the SIT had called for the public to depose before it. He insisted that there was no material to support Shah’s memoir.

“It was a preliminary inquiry”

“The incident is of 2002, complaint was filed in 2006, assigned to SIT in 2009, closure report is of 2012, Protest Petition of 2013, then trial court’s decision and the High Court’s decision on the same and today we are in 2021. After so many forums it is easy to say that investigation was not done properly,” Rohatgi said.

He reasoned that when the petitioner came before the Supreme Court, since SIT was already in place and Zakia Jafri being resident of Gulberg Society where her husband was killed, the court asked SIT to examine her complaint and take steps according to law.

“The complaint was not an FIR. Supreme Court also didn’t direct FIR. Really speaking it is preliminary inquiry. But SIT still took the burden, and did much more than preliminary inquiry. Technically it was preliminary inquiry, but they did extensive inquiry. They examined 275 witnesses. It was only to ensure that nobody raises finger that they are partisan,” he said.

“You may not agree with their conclusion but they should not be accused of being partisan,” he added.

He then delved into the order passed by the Supreme Court on September 9, 2011 whereby it directed the SIT to file its final report before the court that had taken cognisance of Crime 67/2002 (Gulberg case). He said it was not an independent complaint. “In law, when chargesheet has been filed in court, this complaint in nature of further material, it cannot be FIR. This complaint is only further material in respect of crime occurred i.e. her husband killed in Gulberg,” he said.

“Our job was to see whether there was other credible material in the 2006 complaint to file chargesheet. That is my limit. My limit is to see if there is material against persons who are not already accused, and whether I should file chargesheet against other accused,” he submitted.

On the allegation that the SIT did not examine phone call data, Rohatgi questioned how can mobile phone records of 2002 be examined in 2012. No company keeps records for 10 years. Police Control Room messages are also to be deleted every 5 years, that is the mandate, he said.

Allegation of omission in complaint

Rohatgi alleged that the petitioners have removed Rahul Sharma, SP Bhavnagar, as accused in the complaint submitted to the Supreme Court as annexure. He alleged that the petitioners had named Rahul Sharma as accused in their complaint and then they have “hailed him as a hero” before this court.

The bench questioned whether the original complaint as being presented by Rohatgi was presented to the High Court when it gave its order in November 2007, Rohatgi said he would get back to the court to confirm this.

He pointed out that the complaint of 2006 did not deal with issues focused on by Sibal, like Tehelka tapes, parading of bodies. However, it is pertinent to note that Tehelka tapes were released in 2007 and that several issues argued by the petitioners were brought to light only by materials made available to them by the SIT and this was reiterated by the petitioners in all hearings before this bench.

Transfer of police officers

The petitioners have alleged that certain officers in field executive posts were transferred in the thick of the riots despite the DGP’s objections. Rohatgi argued that investigating this was beyond the prerogative of the SIT, and yet they went ahead and examined these officers who also said that transfers were the government’s prerogative. The bench reasoned that the petitioners were saying that the officers who were maintaining law and order were transferred out, but Rohatgi insisted that the petitioners’ contention was that they were transferred because they were not in favour of the state government.

Rohatgi also pointed out that RB Sreekumar was superseded in his promotions and hence, he turned against the government and brought forth certain materials only after. However, the closure report states that he mentions of assessment reports submitted by him in 2002 itself, and before April 2005, he had filed two affidavits before the Nanavati Commission already, and the April 2005 affidavit presented data on his harassment and victimisation.

Miscellaneous issues

He also alleged that the petitioners’ submission of affidavits submitted before the Nanavati Commission of officers like RB Sreekumar was ‘hearsay’.

He further stated that Arvind Pandya, who said in the Tehelka sting tapes that he was managing defence lawyers in riots case, was not a public prosecutor in any riots cases and was only representing the Gujarat government before the Nanavati Commission.

The Gujarat High Court vide its order November 2, 2007, had ordered that if the petitioner wishes that FIR be registered on her complaint dated June 8, 2006, she should do so under section 190 of CrPC.

About the allegation that Ministers were present in the Police Control rooms during the riots, Rohatgi read through the Closure report of the SIT to give certain justifications that the Minister was made to wait in a separate chamber and the other Minister only probably visited for few minutes, as also statements of few officers who said that the Minister did not visit the control room. Through this, the SIT had concluded that it could not be established whether they were present there. Rohatgi however questioned, what is wrong with Ministers visiting police control rooms?

The hearing will continue on November 25.

Related:

Hate speech was allowed to spread with impunity: Zakia Jafri SLP

Zakia Jafri SLP: More skeletons tumble out of the SIT’s closet

Only SC can bring to life the cold print of the Constitution: Sibal in Zakia Jafri SLP

Zakia Jafri SLP: Were SIT’s acts of omission deliberate?

The post Zakia Jafri SLP: SIT submits it conducted thorough investigation appeared first on SabrangIndia.

The hearing on November 16 in the Zakia Jafri Special Leave Petition (SLP), largely dealt with how contemporaneous evidence at the disposal of the Special Investigation Team (SIT) was also ignored and overlooked leading to miscarriage of justice.

While the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar expressed its reservations on casting doubts on the motive of the SIT, Senior Counsel Kapil Sibal insisted that he will demonstrate in due time, why he was casting such aspersions. In due course of the hearing, Sibal submitted how reports of a statutory body, a constitutional body and a Parliamentary Committee were not even considered by the SIT, and said that it was for the court to question why the SIT did so.

The hearing will continue on November 17.

Can the SIT’s motives be questioned?

Sibal told the court that he would demonstrate how there was contemporaneous evidence since 2002 which were available for the Supreme Court appointed SIT. When Sibal began his argument that after the Godhra incident, investigators became collaborators in the crime, the court questioned whether this was directed towards the SIT.

Justice Khanwilkar asked, “The collaborator with the police at ground level we understand and would look into in. How can you say that about SIT appointed by the Court? Is that your argument?” He added, “You are attacking the manner of investigation done by SIT? It is the same SIT that had filed chargesheet in other cases and they were convicted. No such grievance in those proceedings.”

When the bench said that collaboration was a strong term for an SIT constituted by the court, Sibal insisted that the SIT overlooked certain matters and evidence on purpose. “SIT had knowledge of Tehelka tapes. They knew about the judgment of Gujarat High Court that authenticated the tapes. That is a question that anyone would ask. Why was the defence accepted by the SIT? What does it show – was SIT collaborating and saving some people. Why?  Yours Lordships will have to ask that question,” Sibal submitted.

The bench insisted, “We can understand you saying that the SIT did not deal with the issues but you cannot ascertain motive. Maybe they overlooked or there was an error in judgement.” The bench continued in a lighter vein, “Maybe you have missed it in the record of the cases.”

The NHRC proceedings

Sibal then proceeded to point out how early the suo moto cognisance was taken by the National Human Rights Commission (NHRC) in this matter. The orders begin as early as March 1, 2002, and he pointed to the proceedings of March 6, 2002 where the NHRC has noted that “a large number of media reports have appeared which are distressing and appear to suggest that the needful has not yet been done completely by the administration.” The Commission had also noted its dismay that a detailed reply from the Gujarat government was not yet forthcoming and instead more time was sought, however, the Commission expected at least a preliminary report indicating action taken so far and an assurance of rule of law.

In the proceedings on April 1, 2002 the Commission stated that the chairperson along with some others visited Gujarat between March 19 to March 22, 2002 as normalcy had still not been restored in the state and during this visit they met with numerous victims in groups and a report on the same was provided to the central and state government in separate covers.

Sibal asked why the SIT did not question any members of the Commission who visited Gujarat at that time and seek the report that was given in sealed covers to the government.

In its preliminary comments, the NHRC had, inter alia, observed thus, “The commission is constrained to observe that a serious failure of intelligence and action by the State government maked the events leading to the Godhra tragedy and the subsequent deaths and destruction that occurred. On the face of it, in the light of the history of communal violence in Gujarat, recalled in the report of the state government itself, the question must arise whether the principle of ‘res ipsa loquitur (the affair speaking for itself) should not apply in this case in assessing the degree of state responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat”.

The Commission also pointed out that the violence was certainly not contained within 72 hours and that “there was a pervasive sense of insecurity prevailing in the state” when the team visited in March, 2002, and pointed how one sitting and one retired judge of the High Court were compelled to leave their own homes due to the vitiated atmosphere.

The recommendations given by the NHRC included taking action against public servants who failed to act appropriately to control the violence, provocative statements made by persons to the media to be examined and acted upon and so on.

Even thereafter the proceedings continued and on May 1, 2002 the Commission notes that the Gujarat government did not respond to the NHRC’s confidential report which was based on the team’s visits to the state in March 2002. On the proceedings of May 31, 2002 as well the Gujarat government had not responded to this report, despite several reminders and thus decided to release the confidential report.

Sibal pointed out that the SIT did not even have to wait for their Protest Petition when it already had such evidences at its disposal and the Protest petition merely brought all evidences together which were already available for the SIT.

The NHRC also pointed to the failure of intelligence in the state as it failed to keep in touch with its counterparts in UP on the movements of kar sevaks back to Ahmedabad after the Maha Yagna. It further pointed out the failure of the state government to identify local factors and players in participating in the violence, the pattern of arrests and also distorted FIRs. The NHRC noted that there were several allegations that FIRs were poorly recorded. Sibal had pointed this out in the previous hearing that FIRs during riots are usually recorded by the police and when the victim comes ahead to report the incident and name the accused, the same is not done. Sibal requested the bench to issue directions in this regard in its final decision, that in such cases, FIRs already registered should be able to register additional information that may be provided by witnesses or victims of the crime.

Until April 24, 2002 when Mr. PGJ Nampoothri, ex-DGP of Gujarat submitted his report, the victims were experiencing difficulty in having FIRs recorded, in naming those whom they had identified and in securing copies of the FIRs.

“This shows collaboration of the machineries of the State,” Sibal remarked.

“These are grave matters indeed that must not be allowed to be forgiven or forgotten,” NHRC had said. The Commission had also warned that the “danger persists of a large scale and unconscionable miscarriage of justice of the effort to investigate and prosecute the crimes” is not directed with skill and determination as well as integrity and freedom.

The Commission had also called for identification of officers who had failed to discharge their statutory responsibilities. The government had said it will await report of the inquiry commission instituted by the state, however the Commission was not convinced with this response. The Commission had also pointed out the various sections of the Indian Penal Code and Code of Criminal procedure that would apply in these cases to punish delinquent public servants.

The Commission also pointed out that “Guidelines to promote communal harmony” issued by the Ministry of Home Affairs in 1997 states that “at first sign of trouble, immediate steps have to be taken to isolate elements having a non-secular outlook.”

Judges of High Court were in danger

The NHRC had pointed out how retired judge, Justice Divecha were forced to leave their home due to the disturbances and no real protection was given to him. He told the Commission that on February 28, 2002 a mob destroyed the property in their building and left. They were compelled to leave their home and by evening they received news that the building was set on fire.

NHRC recommendations ignored

The NHRC’s recommendations with respect to involving CBI in the investigation was ignored by the state government stating that it is not required at this stage. It also ignored the recommendation of establishing Special courts for critical cases to be heard on a daily basis.

The report of the NHRC team’s visit

The report of the team’s first visit which was between March 19 to March 22, 2002 led by the then Chairperson Justice JS Verma states that the police should have been better prepared for the Bandh called by the VHP which was supported by the state BJP. “The police by and large chose to act as silent spectators allowing the crowds to swell in size and become uncontrollable,” the report reads.

“The failure of police and administration in the current riots is attributed not to their professional incompetence but to their attitude of apathy and callousness in general and the accusation of connivance and complicity which was made in some cases,” the report adds. It was also alleged that crowds involved in destruction of slums near Ambika Mill had the support of the administration. It was also alleged that mobs were equipped with gas cylinders, kerosene, petrol bombs for burning people and torching houses and they also had full details of Muslim houses and establishments which were then targeted.

Sibal pointed out that the recommendations of NHRC are a statutory exercise under section 12 of the Protection of Human Rights Act (PHRA) and such a statutory report of a statutory report should have been acted upon by the government or the Police of the state and eventually also considered by the SIT, which was not done.

Statutory value of NHRC report

Sibal referred to a Madras High Court judgement (W.P.No.41791 of 2006; decided on February 5, 2021) to establish the importance of NHRC and its recommendations. The High Court stated thus,

“450. Likewise, the Commission which has been assigned a constitutional role with statutory backing, its recommendations are not liable to be slighted or ignored. If the recommendations are open to be ignored or the concerned Government in its discretion, can refuse to accept the recommendation and provide reasons for non-acceptance of the recommendation, the remedial action contemplated in the Act would be a empty promise and a mirage, betraying its core purpose. It is needless to mention that any act done by the agents/officials of the Government in violation of the human rights, is purported to be at the behest of the Government. In that view, the Government either directly or vicariously liable for the transgressions of its officials/agents. The violation of human rights is too serious sacrosanct a matter to be left to the Government’s discretion towards redressal of the grievances of the victims”.

Election Commission’s observations

Amidst demands of holding elections in Gujarat since the Assembly was dissolved in July 2002, the EC had visited the State to assess the situation. The EC was informed by then ADGP RB Sreekumar that 151 towns, 993 villages covering 154 out of 182 Assembly constituencies were affected by the riots. “This evidently falsified the claims of the other authorities that the riots were localized only in certain pockets of the state,” the EC noted.

The EC also noted that it had complaints of culprits of violence still moving around scot-free including some prominent political persons and those out on bail. In Dakor, the EC team was told that the culprits had been identified before the police but no arrests had taken place and the main culprits continued to threaten the villagers to withdraw their FIRs. Similar instances were reported from 12 other districts and in Ahmedabad itself Muslim families stated that they could not return to their homes because the culprits had blocked accesses to their homes.

The EC also noted that while the Chief Secretary and DGP painted a picture of normalcy, ADGP (Intelligence) Sreekumar, whose views were supported by new Commissioner of Police, Ahmedabad, KR Kaushik, stated that an undercurrent of tension and fear was prevailing beneath the apparent normalcy.

Parliamentary Body’s report

The Committee on empowerment of Women (2002-2003) submitted its report on “Violence against women during riots” to the Rajya Sabha on August 12, 2002. The committee made visits to the relief camps in July 2002. The committee noted that 185 cases of attacks on women were registered out of which 100 were from Ahmedabad city alone.

The Committee also received complaints that police did not register several FIRs in cases of crimes against women. The Committee also handed over a list of 58 women who complained of being sexually assaulted during the riots in the Shah Alam camp alone, to the police.

The Committee also noted with regret that no efforts were made to confiscate the hate literature that was widely circulated in the state. The Committee also noted that recommendations of Commissions like National Commission for Women including establishment of special courts and impartial inquiry by an impartial agency into violence against women were not implemented by the state.

The hearing will continue on November 17.

Related:

Tehelka sting tapes containing crucial evidence ignored by SIT: Zakia Jafri to SC

Unbiased investigation is umbilical cord connecting CrPC to Article 21: Kapil Sibal in Zakia Jafri SLP 

No court with a conscience would ignore such evidence: Kapil Sibal argues in Zakia Jafri SLP

SIT Investigation flawed, evidence of serious lapses by state functionaries ignored: Zakia Jafri & CJP argue in SC

The post SIT shunned 2002 reports of EC, NHRC: Zakia Jafri SLP appeared first on SabrangIndia.