Burying the truth

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

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

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

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

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

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

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

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

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

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

The objective is clear: to derail the ongoing justice process in the Supreme Court – where Modi’s own fate hangs in the balance – and the fast track courts in Gujarat – where nearly 350 accused, including many senior leaders of the BJP, VHP and Bajrang Dal, face the prospect of conviction and long years in prison

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Alarmed at the persistent efforts of the  Gujarat state  through its police to  derail the justice process by targeting Teesta Setalvad personally, prominent human rights defenders have announced the formation of the Committee for the Defence of Teesta Setalvad and Justice in Gujarat, an initiative launched at a press conference in Mumbai on May 23, 2011. Chaired by a distinguished former judge of the Supreme Court of India, PB Sawant, the committee has two vice-chairpersons, veteran Islamic scholar Dr Asghar Ali Engineer and former chief minister of Gujarat Suresh Mehta; its conveners are advocate Balwant Desai and social activist Irfan Engineer.

The members of the committee include renowned academics and historians Romila Thapar, Irfan Habib, Rajmohan Gandhi and Prabhat Patnaik as well as prominent public figures such as Aruna Roy, Juzar Bandukwala and Binayak and Ilina Sen.
Speaking at the press conference, Justice Sawant said: “The malicious and motivated campaign against Teesta and the lawyers struggling for justice for the victims of the genocide in Gujarat in 2002 is aimed at distracting the course of justice and attacking the personal liberties of the human rights activists who have stood by the course of truth and justice.” Coming down heavily on the Gujarat government, he observed that what happened and continues to happen in Gujarat is a “rape of the legal system”.

“In Gujarat today, every constitutional norm is subverted; there is corruption and intimidation of the most vindictive kind,” opined former chief minister Suresh Mehta.

“The attack against Teesta Setalvad is three-pronged, aimed at threatening her personal liberty through arrest, a widespread disinformation and malicious campaign to affect the process of justice and distracting her from the demands of the struggle,” said senior lawyer Mihir Desai, speaking at the launch.

This intimidation comes at a time when finally, after nine long years, serious allegations against the Gujarat chief minister, Narendra Modi, of masterminding the criminal conspiracy to commit mass murder, have reached a pivotal stage. In a path-breaking development, the Supreme Court of India on May 5, 2011 directed the amicus curiae to examine all evidence and meet all witnesses and report back to the court on whether a case exists against the chief minister and 61 others. Serving and retired Indian Police Service (IPS) and Indian Administrative Service (IAS) officers have testified to the illegal and unconstitutional instructions given by Narendra Modi on February 27, 2002 which led to the carnage. In the ensuing days at least 2,500 people, mostly Muslims, were murdered. Rape and other terrible acts of violence were committed while the state police and administration stood by.

In addition to the evidence of high-level complicity that is being unravelled through the relentless pursuit of justice, the next six months or year could see the conviction of over 350 accused in the eight major carnage trials being monitored by the Supreme Court and in which Citizens for Justice and Peace, the organisation Setalvad represents, has been providing legal aid to victims and witnesses. The real story of the struggle for justice is the courage with which survivors have deposed, without fear or favour, within Gujarat even as the perpetrators walk free on bail.

Prosecution of all those responsible for these crimes is an essential prerequisite for justice, peace and reconciliation. It will help guarantee that similar crimes are not committed in the future. It is this judicial process, set inexorably in motion by the grit and persistence of the victim survivors, and supported by Setalvad and her organisation, that the government of Gujarat is brazenly seeking to thwart through its persecution of Teesta Setalvad.

Apart from a Facebook presence, more information can be sourced at http://justice4guj02.blogspot.com/. A US-based medical practitioner, Dr Bindu Desai, has initiated an online petition to the president of India, accessible at http://www.petitiononline.com/guj2002/petition.html, which states: “We follow with increasing concern and dismay events related to efforts seeking redress for the victims of the carnage in Gujarat in 2002. We have witnessed the relentless harassment and intimidation of Teesta Setalvad who has been working tirelessly and courageously for justice for these victims. She is targeted with character assassination, false allegations and threats to her personal security. In a concerted attempt to derail the course of justice, the government of Gujarat has foisted four false criminal cases against her. She faces the very real threat of arrest.

“The victims of 2002 have waited far too long for redress and justice. We urge you therefore to use the powers of your high office to ensure justice for the victims. We want you to make certain that the law and the process of justice take their proper course without being subverted or influenced by vested interests, however powerful. We demand that the government of Gujarat ceases the harassment and intimidation of Teesta Setalvad and other human rights defenders.”   
          

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The absence of any signs of remorse from the perpetrators has reduced what was a premeditated and gruesome carnage into a sorry spectacle. Every few months we are jolted by newspaper headlines and "breaking news" on television screens. For a few hours or a few days we are reminded once again of the carnage that was, but the neo-fascist functionary remains unrelenting, unrepentant. Gujarat continues to function as if it lives outside the writ and mandate of the Indian Constitution.

Official figures and police records reveal that of the 413 persons who were classified as ‘missing’ (bodies untraceable) after the 2002 carnage, the remains of 228 are still ‘not traced’. Victim survivors of the mass massacres, who filed missing person complaints with the local police in Anand, Mehsana, Ahmedabad and Panchmahal in 2002 and 2003, have said on oath that the remains of their lost relatives lie buried in illegal dumps or mass graves. Those mercilessly butchered were even denied the dignity of a decent burial.

Panchmahal was one of Gujarat’s many districts targeted by armed mobs between February 28 and March 3, 2002. Muslims of Pandharwada village were targeted for slaughter at two different locations on March 1, 2002 (CC, "Genocide-Gujarat 2002", was the first to document this massacre). Between March 2002 and December 2005, victim survivors of Pandharwada made oral and written applications to the deputy inspector general (DIG), Vadodara, the collector, Panchmahal, the deputy superintendent (DySP), Godhra, the deputy collector, Lunawada and the mamlatdar, Khanpur, urging that the remains of their lost ones be traced and returned. In December 2005, after nearly four years of frigid silence, they went digging for the remains themselves. They sought the media as an ally and Citizens for Justice and Peace (CJP) for moral and legal support.

On December 27, 2005 the relatives uncovered bodies of lost ones that had been dumped in the forest wasteland near the Paanam river outside Lunawada town. They approached the Gujarat High Court. The Gujarat High Court ordered the human remains to be sent for DNA testing and analysis to an independent laboratory in Hyderabad under strict supervision of the Central Bureau of Investigation (CBI). Justice CK Buch’s order observed that if after analysis even a single body remained unidentified, a fresh case existed and scope for a de novo qua or fresh investigation was made out.

The CBI submitted the analysis to the Gujarat High Court in May 2006. Victim survivors were denied a copy of this report despite repeated pleas while the Gujarat state accessed a copy immediately. On December 6, 2006, the state appeared to be in an unholy hurry to get the matter disposed of. The victim survivors, who had approached the court in the first place, were not given the report and hence had no chance to reply. Despite this, the report did become public. Samples from eight body remains appeared to match the DNA samples taken from relatives of the Pandharwada massacre victims while 11 body remains were still unidentified. The matter was taken up for final hearing just two days later.

Given the findings of the Hyderabad laboratory, there was clear scope for a fresh CBI investigation as observed by Justice Buch earlier. Predictably, the Gujarat government adamantly opposed the court’s ruling of December 29, 2005 while counsel for the CBI remained unmoved by the pleas of victim survivors a year later. Instead, the CBI indirectly supported the Gujarat government’s stand, a fact recorded by the judge in his oral order.

The advocate for the victim survivors argued cogently and at length that the entire matter of illegally dumping these bodies needed to be investigated afresh by the CBI.

In the year since the mass grave was found, the victim survivors and co-petitioners had filed 600 pages of affidavits to substantiate their claims. For example, it was pointed out that the skeletal remains of the son of petitioner, Ameenabehn Rasool, were found bearing tattered bits of the same clothes in which he had been killed. This indicated that the police had not followed post-mortem and other routine procedures. It was also pointed out that the Gujarat government’s bias was evident from the fact that while the unidentified remains of Godhra arson survivors were kept in the public morgue for five months (and public notices for identification sent out repeatedly), these victims from the Muslim minority were unceremoniously dumped in wastelands near the Paanam river within three days of their killing. A 250-acre Muslim graveyard in Lunawada town lies barely a few kilometres away.

State officials could have handed over the bodies, even if unidentified, to local clergy to perform the last rites. Not only was this not done, victim survivors and human rights defenders who have assisted the legal struggle since December 2005 have been hounded by the local police, with a false FIR (first information report) being made out against them. They have all had to seek anticipatory bail. The case is pending against them even today although the Gujarat High Court has stayed registration of the FIR.

Even after the DNA sampling has confirmed that eight of the body remains of the dead matched the survivors of the mass carnage in Pandharwada, the victims have been denied dignified burial rites.

Sadly, the struggle for justice in Gujarat has been reduced to a legal battle for constitutional governance by victim survivors and some civil society actors. The political class that chants the secularism mantra to win elections has not merely kept a discreet distance. When it comes to punishment of the guilty of 2002, the United Progressive Alliance government at the Centre has chosen to forget its 2004 electoral promise. Do political considerations make it uncomfortable for them to play a part in the struggle for justice? Or, with the blood of past carnages on their own hands, do they sleep easier if the perpetrators remain unchallenged?

Pandharwada mass graves case: A brief

March 1, 2002
Mass massacre in Pandharwada in Panchmahal district, registered as CR 11/2002. Over 40 persons were massacred in two brutal incidents in this village. The accused were acquitted in October 2002. After this hasty acquittal and following rebukes by the Supreme Court in the Best Bakery case, the state government has made token attempts to reopen the investigation and trial.

March 2002-December 2005
Victim survivors of the Pandharwada massacre make repeated oral and written applications addressed to the DIG, Vadodara, the collector, Panchmahal district, the DySP, Godhra, the deputy collector, Lunawada and the mamlatdar, Khanpur. They even approach the medical officer, Panchal, for recovery of dead bodies. All their efforts are in vain.

December 27, 2005
In the third or fourth desperate search for the remains of their loved ones, relatives unearth skulls and bones in a ravine near Paanam river, outside Lunawada town. TV channels present do a live telecast of the entire episode. Contacted by victims for legal support, Rais Khan, Gujarat field coordinator of CJP, is present at the spot, while CJP secretary, Teesta Setalvad informs the Gujarat police about the discovery of the bodies.

December 28, 2005
Police inspector Puwar from the Lunawada police station goes to the house of Gulam Kharadi to threaten and abuse him. His wife, Jebunissa Gulam Kharadi files a complaint at the Lunawada police station against the inspector.

December 28, 2005
Ameenabehn Habib Rasool, a victim survivor who lost her son in the bloody massacre, files a petition along with CJP (Spl. Crim. Appln. 1875/2005) praying for the transfer of the entire investigation to the CBI.

In the affidavit annexed to the petition and dated December 29, 2005, Ameenabehn Habib Rasool, who saw her 24-year-old son being slaughtered in front of her eyes, states that she was shocked to find that when confronted with the mass graves issue, DGP AK Bhargava of the Gujarat police threatened penal action against victim survivors instead of showing concern and remorse over the appalling developments.
 

Present status of  the Mass Graves case

• Survivors and CJP have filed an SLP appealing against the      odies matching the survivors of the Pandharwada mass carnage, the survivors are even today denied the right to a dignified burial of their relatives.
• The UPA government and the Centre’s counsel in the Gujarat High Court have been silent on the survivors’ demand for a CBI investigation. Why?
• A CBI/independent investigation needs to be ordered pertaining to the 228 missing persons from all over Gujarat. According to the Gujarat government’s own report, 228 bodies are yet to be found.
• The DNA test report exposes the Gujarat government’s collusion with the accused because they contended that the skeletal remains were in no way connected to the Pandharwada massacre.
• In all carnage related matters within the state of Gujarat there is a subversion of justice by the state of Gujarat and even sections of the judiciary in that state.
• Prosecutors in the Gujarat carnage cases continue to function at the behest of the chief minister, Narendra Modi, ignoring their legal and constitutional obligations.
• The Gujarat government is still holding its threat of an FIR against the survivors and human rights defenders.

Collector DH Brahmbhatt had a similar response, saying that ‘the anguished search of relatives for the remains of their lost ones was an illegal act". There were, however, several contradictions in the administration’s stance. On December 27, Bhargava told the media that the bodies could be related to the Pandharwada massacre; on the very next day he contradicted himself, saying the bodies could be related to an incident that took place prior to February 28, 2002. But on the same day the collector and the SP of the district, JK Bhatt, were categorical that the bodies were related to the Pandharwada massacre.

Expressing loss of faith in the Gujarat police, the petition also pointed out that Lunawada, a town only a few kilometres from Pandharwada (where all the survivors of the Pandharwada massacre are rehabilitated), had a 250-acre burial ground, large portions of which are unused. Why were those killed not given a dignified burial at the Lunawada graveyard? Why were they dumped surreptitiously into a mass grave?

Despite the fact that the post-mortem reports in most of the cases contained names of the deceased in detail, the state had the gall to claim that no family member had ever claimed the bodies.

Further proof of the state government’s lies comes from the inquest panchnamas and post-mortem reports. In identifying the dead, the police were clearly concerned with little other than observing the formalities. The dead bodies were shown to have been identified by Mukundbhai Bhikhabhai Sheikh, Shankar R. Harijan, etc, persons who were not even distant relatives of any of the deceased.

The body remains unearthed on December 27, 2005 were found bearing traces of the same clothes that the victims were wearing at the time of the assault. This is what made it easier for close relatives i.e. witnesses to identify the bodies, a process that was telecast by the electronic media in real time. This can only mean that the dead bodies did not undergo proper post-mortem procedures. If post-mortem procedures had been properly followed, the bodies would then have been wrapped in white cloth and the clothes worn by the deceased would have been collected and recorded through a separate panchnama. The post-mortem reports produced by the prosecution along with the charge sheet were apparently manipulated so that the weapons used by the accused persons could not be matched to the injuries of the deceased.

December 29, 2005
The Gujarat High Court passes an order transferring the investigation to CBI.

December 30-31, 2005
The CBI issues summons to the victim survivors to be present at the Godhra Circuit House for blood samples to be taken so that DNA tests may then be carried out. CJP provided the CBI with a list of the victim survivors and their relationship with the deceased. Summons were received and signed by victims before January 1, 2006.

January 2, 2006
At 1.30 a.m., the Lunawada police file an FIR (CR No. 1 3/2006 with Khanpur police station) against the victim survivors and representatives of CJP under sections 192, 193, 201, 120 B, 295 A and 297 of the Indian Penal Code. The team from the TV news channel, Sahara Samay, which was present throughout and telecast, live, the entire incident of digging and recovery of bodies, was deliberately excluded from the list of ‘offenders to alleged offences named in the FIR’. Interestingly, the FIR, which was lodged by a sanitation inspector, invokes sections that in normal circumstances require state government sanction. And the victim survivors who were forced to resort to a desperate search for the remains of their near and dear ones by a callous administration now stand accused of hurting religious sentiments. Whose religious sentiments?

January 5-7, 2006
A piquant situation arises when victim survivors come to the Godhra Circuit House, terrified because the state of Gujarat has accused them of committing serious crimes when all they were "guilty" of was an agonised search for the remains of their lost ones. CJP seeks and receives assurances from the collector and the SP of Panchmahal that the victim survivors would not be arrested when they arrived to give blood samples.

January 9, 2006
The state government affidavit contradicts itself. Para 4 of its affidavit dated January 9 states that some bodies were unidentified. (In another sworn affidavit filed later, it claims that all the dead bodies were identified.) The state government also claims that relatives and others had identified bodies and then let them remain in a pit without the dignity of last rites. The Gujarat government obviously has no qualms stating falsehood upon falsehood in sworn affidavits. Later, in para 8 of the affidavit the government claims that the bodies were buried because nobody had come forward to claim them!

January 10, 2006
Mehboobbhai Rasoolbhai Chauhan, a victim survivor, and all others accused in the FIR along with CJP representatives (Rais Khan and Teesta Setalvad), approach the Sessions Court, Panchmahal, situated at Godhra, for anticipatory bail. Bail is granted. What’s more, in his order the judge observes that the said FIR was, prima facie, filed to pre-empt the order of the high court and deter the CBI from investigating the offence pertaining to the skeletons. The judge also observes that the Lunawada police’s action in registering an FIR was clearly "a counterblast" to the matters pending before the Gujarat High Court.

Thereafter, the ‘accused’ in the FIR approach the police several times (as is the norm in Gujarat) but the police does not formally arrest and then release them on regular bail as is required under the law. This is a deliberate act so as not to complete the formalities necessitated by the court order of January 10. The state police thus keeps a sword hanging over the heads of Pandharwada’s victim survivors.

January 12, 2006
Some 40 persons from the local unit of the Rashtriya Swayamsevak Sangh (RSS) and the Vishwa Hindu Parishad (VHP) stage a ‘morcha’ to the collector’s office, asserting that ‘Hindu’ sentiments have been hurt and therefore Rais Khan and Teesta Setalvad should not be allowed inside Lunawada. The CJP secretary visits Lunawada and Pandharwada anyway, to stand by the survivors.

When confronted with the mass graves issue, DGP AK Bhargava of the Gujarat police threatened penal action against victim survivors instead of showing concern and remorse over the appalling developments

February 1, 2006
Maksudabehn Yusufbhai Shaikh, widow of murdered Yusufbhai Ahmedbhai Shaikh, files an application before the police sub-inspector, Khanpur police station, stating that she has information that her husband’s body has been buried illegally and without last rites at Lavanagam. She therefore appeals that the body be exhumed in the presence of her advocate and panchas (witnesses), and she be allowed to bury the body in accordance with Muslim rites. The same police that was screaming itself hoarse about the ‘illegal’ act committed on December 27, 2005, simply ignores her application. Copies of the said application were given to the DySP, Panchmahal, the collector and even the CBI, but to no avail.

February 7, 2006
CJP files an affidavit (in Spl. Crim. Appln. 1875/2005) pointing out that in the course of arguments before the Gujarat High Court on December 29, 2005, none of the so-called offences made out in CR No 1 3/2006 by the Lunawada police station had been committed. This clearly showed that the FIR was a desperate afterthought meant to adversely influence investigations. The affidavit also details the repeated harassment of Rais Khan by the police in Ahmedabad.

February 7, 2006
The state of Gujarat files an application (Misc. Crim. Appln. 1613/2006) for cancellation of bail of those named in FIR CR 1 3/2006. The court rejects this application.

February 10, 2006
Affidavits are submitted by petitioner Ameenabehn Rasool and CJP that include details of the procedure for burial of unidentified and missing persons as per the Gujarat Municipalities Act and the police norms and rules as stated by them in their earlier affidavit. None of this has been countered by the state of Gujarat.

Victim survivors have made it plain that the game plan of the state of Gujarat is to target them, and other eyewitnesses and citizens groups whom they have approached for legal help. Rather than showing any compassion or remorse, the administration and the government’s sole aim is to treat aggrieved citizens as criminals. The spectre of non-bailable arrest warrants continues to hang over them even today. Video recordings of the events of December 27, 2005, which have been placed before the court, substantively prove the petitioners’ contention that there was no instigation by outsiders when the mass grave was dug up. It was a spontaneous act by anguished relatives.

February 21, 2006
In its rejoinder affidavit the state government indulges in further falsehoods and claims that Maksudabehn Yusufbhai Shaikh had refused to allow the exhuming of her husband’s body.

March 2, 2006
Maksudabehn Shaikh files an affidavit in the main Pandharwada matter (Spl. Crim. Appln. 1875/2005) pointing out shocking attempts by the Gujarat police to doctor records. She charges the Gujarat police with fabricating evidence. This justifies the petitioners’ claim that the Gujarat state police simply cannot be trusted to handle an investigation against itself in a fair and impartial manner.

In her affidavit, Maksudabehn states that:

• She made applications on February 1 and 6, 2006 to the pranth officer, Lunawada, the collector, Panchmahal at Godhra, the SP, Panchmahal, the DySP, Lunawada, the PI, Lunawada, etc asking that her husband’s body be exhumed. The application requested that after following legal procedure, the same should be handed over to the CBI for samples for DNA analysis after which the dead body should be handed over to her for a proper burial as per Muslim law.
• The dead body of her husband, Yusufbhai Ahmedbhai Shaikh, was not handed over either to her or her mother-in-law, either on March 5, 2002 or on any other day, by any police, and she had not affixed her thumb impression acknowledging receipt of the body, as claimed by the state. She also states that the police was trying to make out a false case against her and was refusing to process her application to exhume her deceased husband’s body.
• The police claim that they handed over the dead body of her husband to her on March 5, 2002 is absolutely false and an irresponsible statement. Had the body been handed over to her as claimed, it would have been buried according to proper religious rites, in the Muslim graveyard, by Muslim men from the local community. It is very clear that nothing of this sort has happened. It appears therefore that the police was suppressing the truth.
• If her husband’s body had been handed over to her on March 5, 2002, then where was the need for her mother-in-law to make a written application for the same on March 19, 2002? (This was reported in the Gujarati daily, Gujarat Today, at the time.) Moreover, if the body had been obtained and buried, why would the family make repeated applications to the collectors of Godhra and neighbouring districts after March 5, 2002, inquiring whether Yusufbhai was alive or dead. Why did the police not respond to her applications at the relevant time?
• When the police carried out the inquest panchnama as claimed on March 5, 2002, she was not called to the site nor was she present. However, her name and presence has been falsely recorded therein. No thumb impression or signature of hers can be seen on this inquest panchnama. The police inquest panchnama is said to have been carried out between 4.00 and 4.45 p.m. on March 5, 2002. It has also been stated that the police had seen the dead body at 2.30 p.m. on the same day, after which they sent it to the medical officer in Pandharwada.
• If the so-called inquest panchnama was carried out between 4.00 and 4.45 p.m. on March 5, 2002, how does that tally with the police’s claim that the post-mortem was performed on the same day, at virtually the same time i.e. 4.30 p.m.?

From the material and facts mentioned above, Maksudabehn Shaikh concludes that the police’s claim that they had handed over her husband’s dead body to her on March 5, 2002, or any other day, was a total lie.

March, 2006
Victim survivors and CJP file 600 pages of detailed affidavits contradicting, point by point, all claims made by the state of Gujarat in their affidavits. Ameenabehn Habib Rasool in her rejoinder to rejoinder affidavit dated March 2006 states that:

• The dead bodies were buried on the banks of the river ‘Paanam’.
• Through their own investigations, the petitioners learnt that the said land has been classified as ‘forest land’ in village records. This proves that the local administration ought not to have buried the dead bodies there. Instead, they should have been handed over to the survivors of the deceased.
• Having learnt of the illegal dumping site from the sanitation inspector, victim survivors then informed other villagers and soon thereafter the skeletons were unearthed, in the presence of the electronic media. It was only because of the electronic media’s exposure that the police could not tamper with the skeletons, the evidence. The local administration was caught on the wrong foot, especially because the skeletons were unearthed from forest land. Thus the family members took a wise decision in not providing prior information to the relevant authorities, all of which are controlled by the state government.
• The CBI should be asked to immediately seize or take charge of the case diaries and the weekly diaries of the police so that the role of the state police and the local administration can be scrutinised. As it is, the state police has had enough opportunity to ‘tamper’ with the evidence.
• The role of the state government in not protecting its citizens and in defending the accused has repeatedly come to light in this and several other instances.

Justice CK Buch, Gujarat High Court
Order dated December 29, 2005
“..It is true that the CBI can be said to be a third agency but ultimately it is yet to be traced whether the dead bodies that have been found out are of the persons who were named deceased in earlier incidents and disposed of in accordance with the norms and scheme under the Municipality Act and other norms that are being adopted by the state, but if it is found that (the) dead bodies or any one of such dead bodies is not accounted for in connection (with) any of two earlier incidents, then it may lead to (a) new case and, therefore, the scope to investigate the crime de novo qua that is there. I am told that relatives of the persons who are declared missing have been paid compensation but that by itself would not be sufficient to resolve the situation that has come to light by the act of digging out the dead bodies already buried earlier by the state machinery or the municipality concerned. The CBI, on receipt of the report from the laboratory, after approaching this court, positively can take appropriate further steps if required…”

March 2006
Petitioners Mehboobbhai Rasoolbhai Chauhan and Rasoolbhai Ashrafbhai Sheikh pray for a transfer of the entire investigation of the alleged offences to the CBI.

April 5, 2006
The Gujarat High Court refuses to cancel the anticipatory bail granted to victim survivors and CJP representatives by the sessions court at Godhra earlier.

April 17, 2006
Despite the Gujarat High Court order of April 5, 2006, the Gujarat police illegally obtains non-bailable warrants against victim survivors and representatives of CJP by misleading the court.

April 20, 2006
The Gujarat High Court issues notice to the Gujarat government on the petitioners’ plea for stay and transfer of the FIR-related investigations to the CBI, and posts the case for urgent hearing on April 28, 2006. Meanwhile, no action can be taken by the Gujarat police in respect of the investigation.

The case now proceeds in the district sessions court, slowly.

Archived from Communalism Combat, June 2007 Year 13    No.123, Genocide's Aftermath Part I, Mass Graves

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