The former Bosnian Serb army general has been convicted of genocide and persecution, extermination, murder and the inhumane act of forcible transfer in the area of Srebrenica in 1995.

Former general Mladić during proceedings in January. UN ICTY, CC BY

Ratko Mladić has been convicted of genocide and persecution, extermination, murder and the inhumane act of forcible transfer in the area of Srebrenica in 1995. He was also found guilty of persecution, extermination, murder, deportation and inhumane act of forcible transfer in municipalities throughout Bosnia and Herzegovina and of murder, terror and unlawful attacks on civilians in Sarajevo.

In addition, the former Bosnian Serb army general was convicted for the hostage-taking of UN personnel. But he was acquitted of the charge of genocide in several municipalities in Bosnia and Herzegovina in 1992.

The events that occurred in and around the Srebrenica enclave between July 10-19 1995, where an estimated 8,000 Bosnian Muslims, mostly men and boys, lost their lives, are well documented. These atrocities, culminating in the “biggest single mass murder in Europe” since World War II, not only resulted in a tremendous loss of life and emotionally scarred survivors, it also left behind a landscape filled with human remains and mass graves.

Forensic investigations into the Srebrenica massacre assisted in convicting Mladić, who stood accused for his involvement in implementing and orchestrating the forcible transfer and eventual elimination of the Bosnian Muslim population from Srebrenica. For the Srebrenica investigations, between 1996 and 2001, the International Criminal Tribunal for the Former Yugoslavia (ICTY) conducted exhumations at 23 sites, while a further 20 mass graves were probed to confirm that they contained human remains.

Srebrenica. Martijn.Munneke/ Flickr, CC BY-SA

The investigative objectives for these investigations were to: * Corroborate victim and witness accounts of the massacres; * Determine an accurate count of victims; * Determine cause and time of death; * Determine the sex of victims; * Determine the identity of victims (a process that is ongoing with the help of DNA analysis); and * Identify links to the perpetrators.

The task of locating and exhuming mass graves in Bosnia continues, as does the general quest of locating the missing in the territory of the former Yugoslavia. And this evidence still matters for the ICTY. Evidence on hundreds of bodies exhumed from the Tomašica mass grave near Prijedor in the north-west of Bosnia and Herzegovina, was presented in the Mladić trial.

The summary judgment read out in the court room in The Hague made this very clear:

During several weeks in September and early October 1995, senior members of the VRS [Army of the Bosnian-Serb Republic] and the MUP [Ministry of the Interior] attempted to conceal their crimes by exhuming their victims’ remains from several mass graves, and then reburying those remains in more remote areas in Zvornik and Bratunac municipalities. Their attempt to cover up the Srebrenica massacres ultimately failed.

Such attempts at hiding crimes by digging up mass graves only to dispose of the bodies in so called “secondary mass graves” results in commingled and mutilated body parts rendering identification and repatriation of human remains all the more difficult. This causes further and prolonged distress to the survivor population and can be seen as intent to cause suffering.

Properly investigated forensic evidence from mass graves, the presentation of such physical evidence, the testing of expertise, independence and impartiality of the accounts in court, is likely to result in more reliable findings. In the case of Bosnian Serb leader Radovan Karadžić forensic evidence helped confirm the crimes committed – it can be assumed that the same is the case for Mladić; at the time of writing the judgment in its entirety is not available yet.

It is well worth remembering that the information from forensic mass grave investigations has another purpose and does not only speak to a court of law. The work on the ground through organisations such as the International Commission on Missing Persons will continue as there are “too many people who are still searching for their children’s bones to bury”. Those forensic findings will have a value and meaning for family members and survivors that judgments such as the Mladić one cannot have. It offers them information on their lost loved ones and, hopefully, the return of their human remains.

Melanie Klinkner is Senior Lecturer In Law, Bournemouth University.

This story was first published on The Conversation. Read the original.
 

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The Assassinations: A Novel of 1984 was unveiled by famous Indian journalist Hartosh Singh Bal at an event held at the city’s Habitat Centre.

The unveiling ceremony coincided with 33^rd anniversary of the anti-Sikh pogrom across India following the assassination of the then Prime Minister Indira Gandhi by her Sikh bodyguards on October 31, 1984.

Gandhi had ordered a military assault on the Golden Temple Complex, the holiest shrine of the Sikhs in Amritsar in June that year to flush out extremists who had fortified the place of worship. The military operation that left many pilgrims dead had enraged Sikhs all over the world.

Thousands of innocent Sikhs were slaughtered by the mobs instigated by the leaders of Gandhis’ self-proclaimed secular Congress party during the violence in the aftermath of her murder.  No senior leader involved in the bloodshed was ever convicted. Bal who is currently the Political Editor of Caravan magazine has extensively written on the subject.  

Bal and Kapur also held conversation on the issue that was followed by questions from the audience.

Among those present were renowned Punjabi author Ajeet Caur and her daughter and a prominent painter Arpana Caur. The mother and daughter have kept the issue of 1984 alive through expression.  Former Chief Election Commissioner Manohar Singh Gill was also in attendance. Ironically, Gill is associated with the Congress Party.

Though New Delhi alone witnessed more than 3,000 murders during 1984, no prominent Sikh leader was present.

Kapur revealed that he will donate all the proceeds from the sale of his novel to the victims’ families.

Despite being a Hindu, Kapur is passionate about the subject and has published another book on 1984 in the past. During his discussion with Bal, he acknowledged that being born and brought up in a secular environment of his family he was pained with the events of 1984. He insisted that the 1984 is more relevant today because of growing religious sectarianism under a right wing Hindu nationalist government.

The Assassinations is the story of two families, one Hindu and another Sikh. It revolves around the relationship between a Sikh man and a Hindu woman who fall in love during 1980s when social ties between the two communities are strained because of Sikh militancy and the brutality of the Indian state.  The love story ends in tragedy due to ugly developments of 1984 as the hero Prem Singh ends up becoming a militant after enduring violence targeting Sikh community.

The novel powerfully depicts the alienation of the Sikh minority and their mistreatment by the fanatical Hindus and the government, besides empathy of the Punjabi Hindus toward their Sikh compatriots. Through the character of Prem Singh’s would be father –in- law, Kapur portrays the dilemma of Punjabi Hindus who despite all their anxieties about the Sikh separatists feel sorry for the state sponsored violence against ordinary Sikhs.  The story also puts in perspective the efforts of the Sikhs who fled to counties like US for safety to keep the horrific memories alive in the absence of justice.

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It is often said that India is afflicted by three Cs, all in capital letters: Casteism, Communalism, Corruption. The issue of corruption and Team Anna’s own peculiar recipe to deal with it have so hogged the headlines through most of 2011 that insufficient attention has been paid to another bill on the anvil – the Communal and Targeted Violence Bill – which addresses the other two Cs. In May this year the Sonia Gandhi-headed National Advisory Council (NAC) placed its draft Prevention of Communal and Targeted Violence Bill 2011 in the public domain, inviting comments from the public. The draft bill now awaits the consent of the union cabinet before it can be tabled in Parliament. Meanwhile, the sharpest attacks, the loudest howls of protest against the proposed law have come from the BJP, other constituents of the sangh parivar and their political allies. The fact that communal organisations are so vehemently opposed to the proposed law indicates that something must be very right with what has been suggested.

It is true that some misgivings have also been expressed vis-ŕ-vis certain provisions of the draft bill by some allies of the Congress and a few others from within secular quarters. The rationale behind the bill is the subject matter of our cover story this month, in which the misconceptions and apprehensions of some secularists have also been comprehensively dealt with. Our limited purpose here is to draw our readers’ attention to an issue that Communalism Combat has repeatedly focused on, more so since the genocidal targeting of Muslims by the Narendra Modi-led BJP government in Gujarat in 2002.

The issue in question is the culture of impunity in the context of communal or targeted violence, which has prevailed in the country since independence. Reports of various judicial commissions – appointed by different governments from time to time to probe incidents of communal violence, fix responsibilities and make recommendations – have two conclusions in common. One, the violence was not spontaneous but the result of meticulous planning, organisation and implementation by Hindu communal bodies. Two, the police and the administration displayed anti-minority bias. The repeated recommendations by commission after commission on what needs to be done to pre-empt violence and punish the police officers and administrators guilty of dereliction of duty have gone unheeded. It is in this climate of permissiveness and the absence of accountability mechanisms that the culture of impunity has flourished.

As lawyer HS Phoolka – who for over two decades has spearheaded the legal battle for justice for the victims of the anti-Sikh carnage in 1984 – has repeatedly stated in recent years, if the perpetrators of 1984 had been prosecuted and punished, the 1992-93 anti-Muslim pogrom in Mumbai may have been prevented; and if the perpetrators of 1992-93 had been punished, the 2002 genocide in Gujarat may have been pre-empted. Not only have the perpetrators and errant policemen and civil servants never been punished; in the last 25 years we have repeatedly seen the state playing the role of mute witness, co-conspirator or even sponsor of mass crimes whose targets have been the country’s religious and other minorities.

It is against this backdrop that civil society groups have been campaigning, since the 2002 killings, for an appropriate law to bring an end to this unconscionable and blatantly unconstitutional state of impunity. It was in response to this persistent campaign, in which Citizens for Justice and Peace and Communalism Combat were among the most vocal, that in 2005 the first UPA government floated a draft – The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill 2005 – for discussion and debate. The bill elicited widespread criticism from the very groups and organisations which had been at the forefront of demands for a new law. To them, it was evident that the bill as it stood then would be worthless in preventing future massacres. A principal demand was that the new law should hold public servants – politicians, senior civil servants and police officers – accountable for their failure to control targeted violence. If anything, the 2005 draft envisaged even greater powers for the police instead of holding them accountable. In the face of all-round criticism, the draft was reworked but even the second draft was far from satisfactory.

In a welcome move, soon after the UPA-II government took charge in 2009 and the NAC was revived on Sonia Gandhi’s initiative, the council included a Communal Violence Bill among its priorities. The bill of 2011 is a result of that initiative. We need only add here that since both the UPA-I and UPA-II governments had in principle accepted the need for such a bill, they now have an obligation to ensure that the new bill sails through Parliament notwithstanding the expected resistance from the BJP and its allies. For the UPA government to delay or procrastinate on the bill – simply because, unlike Team Anna, the NAC members have neither threatened indefinite hunger strike nor issued deadlines and ultimatums – would be unfortunate, to say the least.

– EDITORS

Archived from Communalism Combat, November 2011, Year 18, No.161- Editorial

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Both characteristics hold good today.

One is the silent yet strident mobilisation by right-wing supremacist groups through hate speech and hate writing against religious and other minorities for months beforehand. Though these have always amounted to violations of the Indian Penal Code (IPC), they have gone unchecked and unpunished, creating a climate that is fertile ground for the actual outbreak of violence. The other major cause of such violence has been found, by several members of the Indian judiciary, to be the failure of large sections of the administration and the police force to enforce the rule of law, resulting in a complete breakdown indicating deliberate inaction and complicity.

Both these features combined each time – whether in Jabalpur (1961), Ranchi (1967, Justice Raghubir Dayal Commission of Inquiry), Ahmedabad (1969, Justice Jagmohan Reddy Commission of Inquiry), Bhiwandi, Jalgaon and Mahad (1970, Justice DP Madon Commission of Inquiry), Tellicherry (1971, Justice Joseph Vithayathil Commission of Inquiry), Hashimpura (1987) or Bhagalpur (1989) – to ensure that minorities were not just brutally targeted but also denied free access to justice and reparation.

The organised violence in Delhi in 1984, Bombay in 1992-1993 and Gujarat in 2002 took the levels of impunity for state and non-state actors to hitherto unknown heights. A historiography of communal violence since Indian independence thus reveals a poor report card on justice delivery and reparation. Today unfortunately, we have extant examples of victim survivors, Muslim, Sikh and Christian, still waiting at the threshold for the first stages of investigation and trial to begin decades after the crimes have taken place.

The newly drafted Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill 2011 (commonly referred to as the Communal and Targeted Violence Bill), which awaits a nod from the cabinet before it is tabled in Parliament, is an attempt to address the imbalance and the despair caused by over six decades of discriminatory justice delivery. Far from being discriminatory against the majority, it entitles any victim – whether from the majority or a minority – to a robust scheme for compensation and reparation.

The bill is legislative acceptance of the discriminations in justice delivery faced by sections of our population that have long been subject to communal and targeted violence. When citizens who are numerically weak and socially disadvantaged are attacked on account of their identity, institutions of governance – law enforcement and protection and justice delivery – most frequently act in ways that discriminate against them.

The Communal and Targeted Violence Bill seeks to protect religious and linguistic minorities in any state in India, as well as the scheduled castes and scheduled tribes, from targeted violence, including organised and communal violence. Apart from including the offences listed under the penal code, the proposed law modernises the definition of sexual assault to cover all sexist crimes that heap indignity on the victims (including stripping in public, etc), not just rape, and broadens the definition of hate speech and writing already penalised under Section 153A of the IPC.

Most significantly, it deepens the definition of dereliction of duty – which is already a crime under the IPC – and for the first time in India includes offences by public servants and/or other superiors for breach of command responsibility. “Where it is shown that continuing unlawful activity of a widespread or systematic nature has occurred,” the draft bill says, “it may be presumed that the public servant charged with the duty to prevent communal and targeted violence has failed… to exercise control over persons under his or her command, control or supervision and… shall be guilty of the offence of breach of command responsibility.” With the minimum punishment for this offence being 10 years’ imprisonment, superiors will hopefully be deterred from allowing a Delhi 1984 or Bombay 1992-1993 or Gujarat 2002 to recur. The proposed law will also act as a deterrent to acts of complicity by public servants during smaller bouts of violence and awards fair compensation and reparation to victims when they do occur.

Positive and reasonable legislative steps to correct either the discriminatory exercise of state power or the discriminatory delivery of justice draw strength from a clear constitutional mandate. Article 14 of the Indian Constitution states that: “The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. Article 21 clearly places the responsibility on the state to ensure equal protection of life and liberty (and, by implication, property) and Article 15(1) provides that “the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. This is recognition that vulnerable groups may require protection from the state.

Every democracy is premised on the assumption that while the majority can take care of itself, minorities need special protection. Consider for a moment India’s experience in tackling communal violence (or its failure thereof) alongside our history of recurring bouts of targeted violence, when numerically weaker and socially disadvantaged groups –linguistic or religious minorities or Dalits or tribals – are attacked because of their identity. Throw into this analysis the review of the application (or non-application) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. And the reasoning behind the need for this law, applicable to minorities defined not just by faith but also by other criteria, becomes immediately evident.

“Minority” is not, or should not be, a rigidly frozen concept based on religion alone. The reality is otherwise, as our sordid experience of the attacks on Kashmiri Pandits in the Kashmir valley or the violence unleashed on North Indians/Biharis in Mumbai and Maharashtra or Tamils in Karnataka has shown. With the migration of populations and altering demographies, democracies need to develop sound measures for the protection of all the people. Jurisprudence through justice delivery and reparation through compensation packages must reflect this ever changing reality.

There is a simple way in which to make the proposed law applicable to the state of Jammu and Kashmir. The Jammu and Kashmir assembly must first pass a simple resolution addressed to the president of India asking that the law be made applicable in the state. Thereafter, it would require a reference made to Parliament by the president of India for amendment of the Jammu and Kashmir (Extension of Laws Act) 1956 so as to extend the new law to Jammu and Kashmir.

A law to protect the minorities draws its source from already existing powers granted to the centre, implicit in Article 355 of the Indian Constitution regarding the “Duty of the union to protect states against external aggression and internal disturbance” which provides that: “It shall be the duty of the union to protect every state against external aggression and internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of this Constitution”. This has generated considerable debate and will also be deliberated upon when the bill is put before the parliamentary Standing Committee. Detractors who speak only of India’s federalism baulk at admitting the ground realities during prolonged bouts of violence; such selective public amnesia negates years of bitter experience in dealing with outbreaks of majoritarian mob frenzy.

Over the decades the collective experience of civil libertarians and jurists at such times has been to ask for law and order enforcement to be temporarily handed over to the army. Assimilating this experience without impinging on the responsibilities of state governments to protect lives and property, the proposed law, under Chapter IV, envisages the creation of a National Authority for Communal Harmony, Justice and Reparation. The authority’s role will be to serve as a catalyst for implementation of the new law. Its functions will include receiving and investigating complaints of violence and dereliction of duty and monitoring the build-up of an atmosphere likely to lead to violence.

The National Authority cannot compel a state government to take action – in deference to the federal nature of law enforcement – but it can approach the courts for appropriate directions. There will also be state-level authorities, staffed, like the National Authority, by a process that the ruling party of the day cannot unduly influence. The monitoring of relief and rehabilitation of victims will be a major part of their responsibilities.

The creation of this new entity was incorporated in the draft bill after much deliberation with practitioners, including former judges who felt that without a body to supervise, monitor and properly intervene when smaller but recurring bouts of communal and targeted violence take place, state governments would continue to be lax, as we have seen even recently in Bihar (Forbesganj, June) Rajasthan (Bharatpur, September) and Uttarakhand (Rudrapur, October 2011).

The powers of this authority are recommendatory and in no way violate federal principles. Similarly, the state-level authorities have also been created in order to facilitate district-level inputs towards the prevention of violence and its containment as well as justice delivery. Moreover, the National Authority has no power to issue binding orders against any state government except for the purposes of providing information. The National Authority is only empowered to issue advisories and recommendations with which the concerned state government/public servants may disagree, the only condition being that the reasons for such disagreement must be recorded.

Since mid-2011 when the National Advisory Council (NAC) invited comments on the draft bill, many voices have been raised expressing concerns about some basic precepts of the proposed law. These concern, in the main, the definition of the victim group – religious and linguistic minorities and scheduled castes and scheduled tribes – and the creation of a National Authority to monitor the build-up and occurrence of targeted and communal violence, issue advisories, extract replies from the state governments and intervene in courts hearing the cases. The provisions on witness protection, the rights of victims during trials and the thorough scheme of compensation and reparation have been largely welcomed.

There are two questions of concern expressed among those, across the ideological spectrum, who have objected to the draft bill’s definition of the victim group. One of these voices disquiet about a law which, if it comes into existence, will divide people on the basis of minority and majority. The second objection is sharper; it asks whether a law premised on the assumption that a minority has never committed or will never commit acts of violence can be just or fair. It comes as no surprise that the second criticism was first made through an article by Arun Jaitley, the leader of the opposition in the Rajya Sabha who is also a senior lawyer. Others who have vociferously echoed Jaitley’s criticism – with the sole exception of Tamil Nadu chief minister Jayalalithaa who is also dead against the law – belong to India’s main opposition party, the Bharatiya Janata Party (BJP), or are among its votaries. Lending voice to this criticism is the ideological fountainhead of the BJP, the Rashtriya Swayamsevak Sangh (RSS), and its affiliates, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal.

Other protests against the bill have come from the leaders of some regional parties, such as West Bengal chief minister Mamata Banerjee of the Trinamool Congress who appears to be more concerned with the role of the centre/National Authority under the proposed law and how this may impinge on the rights of state governments.

Let us first address the concern relating to the definition of the victim group.

Democracies, based as they are on electoral and representative politics, reflect the voice of different sections but do also privilege the majority. This majority is not always religious; it could be from a certain social stratum or caste or committed to a certain ideology. At their best, democracies maintain the balance of power while always giving space and protection to the minority voice, the single voice. Short of this delicate balance, democracy can tip over into the rule of the mob, a mobocracy. Values of constitutional governance, equality for all, especially equality before the law, are principles that could fall by the wayside when mob rule takes over. Can we in India – looking back with candour – accept that we have collectively succumbed to the rule of the mob?

While we rightly celebrate elections as a fundamental reaffirmation of the vibrant, live democracy that India is, the power of every individual’s right to vote can and has been subverted by the manifestation and legitimisation of brute majority power through the same electoral process that we celebrate.

Sober reflection reminds us that even while we cringe at categories like majority and minority, the anomalies of the very electoral victories we celebrate must force us to reconsider our views. Mass crimes have sat comfortably with electoral politics in India. And electoral discourse seems reluctant to propagate the principles of justice for all and discrimination against none.

Let us recall a moment in our history. In November 1984, within a short and bloody spell lasting about 72 hours, more than 3,000 Sikh residents of Delhi were massacred in cold blood. When Parliament convened in January the following year, no official condolence motion was moved to mark the massacre. And what is worse, among those who sat in the wells of the lower house, having ridden to victory in elections held just a month earlier, were Congress leaders HKL Bhagat, Jagdish Tytler and Lalit Maken, men who, along with Sajjan Kumar, had been named as guilty of inciting mobs by the People’s Union for Civil Liberties and People’s Union for Democratic Rights in their 1984 report ‘Who are the Guilty?’. (This was later corroborated by the testimonies and affidavits of victim survivors.)

Twenty-seven years have passed since then.

The four politicians identified as perpetrators of the 1984 Sikh massacres have never been punished. Instead, three of them were elected to Parliament within a month of the violence, from the city where they were accused of leading mobs, signalling democratic sanction for the brutal massacres. They had not only been given tickets by the ruling Congress party but Hindu voters, expressing brute majority support for their actions, had voted them in.

Should this brute democratic sanction of mob violence by the majority have gone legislatively unchecked?

Should Indian democracy not rise above political and partisan interests and enact a law that ensures protection of its minorities?

Following a similar pattern, those named as perpetrators of the violence against innocent Muslims in Bombay in 1992-1993 by Justice BN Srikrishna in his report on the post-Babri Masjid demolition violence in Bombay – Bal Thackeray’s Shiv Sena and its leaders – rode to power in the state of Maharashtra in 1995. Shiv Sena leader Madhukar Sarpotdar was elected member of Parliament from the Mumbai North-west constituency in 1996 and again in 1998. The man elected had been named in the Srikrishna Commission report as leading mobs, as was Gajanan Kirtikar, the Sena leader from Goregaon. The judge’s report also indicted 31 policemen who, instead of being prosecuted and punished, were elevated by a cynical Congress-Nationalist Congress Party regime that has ruled the state since 1999.

The genocide in Gujarat in 2002 and the near decade since has taken the “democratic” sanction for mob violence to new heights. The Concerned Citizens Tribunal – Gujarat 2002 in its findings held chief minister Narendra Modi to be “the chief author and architect” of the state-sponsored genocide. Modi not only rode to power in December 2002 and again in 2007 but he and the party that he represents have also shamelessly used these electoral victories to erase his guilt in the massacres. As chief minister and home minister, he is responsible for the subversion of justice in many pending cases and faces the possibility of being charge-sheeted as the main accused in a criminal complaint. The offences are as serious as destruction of official records and the appointment of public prosecutors with an ideological affiliation to the very groups that perpetrated the violence.

Here constitutional governance has been held to ransom by the very aspects of democracy, the electoral politics that we celebrate. Unchecked with each bout of violence, the subversion of the justice process has reached an all-time high. When majoritarianism creeps into systems of governance, legislative checks like those contained in the Communal and Targeted Violence Bill become vital.

It is therefore evident that one of the greatest challenges of our time – though by no means the only one – is how we in India equally protect all citizens. Can we safely say that there is no bias in the delivery of justice? Can we deny that during periodic bouts of targeted and communal violence over the years it is the minorities who have suffered the greatest loss of lives and property and who have also been denied justice? And that the perpetrators of such targeted crimes have got away unpunished?

Nowhere does the Communal and Targeted Violence Bill make the assumption that targeted violence can never be perpetrated by a minority group. There is no denying that in, say, Marad (Kerala), Malegaon (Maharashtra) or Bhiwandi (Maharashtra), Muslims were rioters. The bill simply reflects a legislative acknowledgement that when such incidents do occur, the police and the administration will behave in accordance with existing laws and will not fail to record accurate first information reports (FIRs), carry out thorough investigations and prosecute the guilty – which has been the sorry record of communal and targeted violence in India to date. If the criminal justice system is tardy and floundering for all Indians, when it comes to those in the minority, it is that much worse.

Hence the bill through its definition provisions provides that apart from the sections relating to remedy and reparation, all aspects that involve higher performance from the policeman and administrator are made applicable only if the victim is a member of the defined group. To ensure fair and non-discriminatory governance, the protected group comprises the religious and linguistic minorities and scheduled castes and scheduled tribes.

In 2009 about 50 Dalit organisations had collectively reviewed the functioning of the 20-year-old Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act 1989. In the course of this review, it was identified that among the many factors responsible for the failure in the act’s implementation was the absence of any provisions for pinning down the accountability of public servants. This coupled with the fact that in the caste hierarchy, scheduled castes and scheduled tribes represent the most deprived minority was the rationale for their inclusion in the protected group in the proposed law.

Apart from the Atrocities Act, we have in place the Protection of Women from Domestic Violence Act 2005 which was also a special legislative response to social reality and experience. Until this law was enacted, the amended Section 498A of the IPC was the section of criminal law invoked when domestic violence against women occurred. Many of those who had opposed the empowerment of women through this amendment had long argued for the repeal of Section 498A on the grounds that it had in a few cases been abused. Fortunately, the facts on the ground carried the day.

The BJP through Jaitley has also sought to project communal violence as a mere “law and order” problem even as it conveniently disregards the crucial element that allows communal violence to occur in the first instance, intensify in the second and fail to deliver justice in the third. They are equally outraged that the proposed law recommends that four of the seven members of the National Authority should, in the interests of representative governance, belong to minority communities.

The crucial component mentioned above – administrative and police bias – is blithely overlooked in Jaitley’s outraged arguments. This should come as no surprise, since his party rose to power on a wave of majoritarian mob frenzy and the crimes committed by BJP leaders (including a former deputy prime minister) in Faizabad-Ayodhya in 1992 and Gujarat in 2002 – to give only two examples – reflected the impunity of men secure in the knowledge that institutional tardiness and majoritarian bias would assist them in escaping prosecution. And punishment.

At a more intellectual level, the arguments proffered by sociopolitical commentator Ashutosh Varshney also appear to be mired in a frozen reality, three decades old. Unlike in the 1960s and 1970s when communal violence generally occurred in communally sensitive cities like Bhiwandi, Ahmedabad, Aligarh, etc – a hypothesis that Varshney uses – communal violence and serious eruptions of mob frenzy are today spreading to rural India and to towns and cities hitherto free from this malaise. A major reason for this is the widespread currency of majoritarian communalism which accompanied the BJP’s rise to power together with the moral failure of the “secular” Congress or the left to tackle the ideological onslaught. This encroachment by the majority, brutish and arrogant, has crept into our systems of governance, the administration and the police. While the proposed Communal and Targeted Violence Bill in no way pretends or purports to tackle the scourge of irrationality and prejudice, it certainly aims to hold to account those public servants who fail to abide by Articles 14 and 21 of the Indian Constitution, to protect the lives and liberties of innocent victims who are targeted simply because they belong to a minority group.

It is imperative that those concerned with justice and reparation join the campaign for the restoration of fair debate. Currently the proposed law has become the victim of hysterical propaganda – led, unsurprisingly, by players whose political trajectory gained momentum by legitimising irrational prejudice and even hatred, who rose to power on the wings of communal mob frenzy.

To enable a reasoned rational discourse on a long overdue law, the Communal and Targeted Violence Bill must be tabled in Parliament and be put before a Standing Committee forthwith. Any anomalies within it can be ironed out at that stage. We must not allow this process to be derailed by the same cynical political players who have gained political brownie points and mileage through the spread of hatred and the generation of mob frenzy. 

Archived from Communalism Combat, November 2011,Year 18, No.161, Cover Story

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Continuing atrocities

• Despite the enactment of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act to protect the lives and security of the scheduled castes and scheduled tribes (SCs and STs), from 1995 to 2007 less than one-third (30.7 per cent) of the crimes committed against SCs/STs across India were registered under the provisions of the act.
• As per the National Crime Records Bureau (NCRB) data, 1,21,464 (only one-third) of a total of 3,71,942 crimes against SCs and 14,263 (only one-fifth) of a total of 69,482 crimes against STs were registered under the act. It also states that the annual average of crimes registered against SCs/STs is 33,956 crimes while the daily average of crimes registered against SCs/STs is 93 crimes.
• If we look at the extreme forms of atrocities, a breakdown of the 4,41,424 registered crimes against SCs/STs during 1995 to 2007 includes 9,593 cases of murder, 61,168 cases of hurt or grievous hurt, 20,865 cases of rape, 4,699 cases of arson, 4,484 cases of kidnapping and 10,512 cases of ‘untouchability’ practices.
• A study of 500 cases of violence against Dalit women across Andhra Pradesh, Bihar, Tamil Nadu and Uttar Pradesh between 1999 and 2004 revealed that the majority of the women faced several forms of violence from either or both perpetrators in the general community and the family. The most frequent forms of violence were verbal abuse (62.4 per cent), physical assault (54.8 per cent), sexual harassment and assault (46.8 per cent), domestic violence (43 per cent) and rape (23.2 per cent).

The police

• As per the NCRB, 67 per cent of crimes committed during 1992 to 2000 and 64.9 per cent of crimes committed during 2001 to 2007 were not registered under the act. A study covering 11 atrocity-prone areas in Gujarat also exposed that between 1990 and 1993, 36 per cent of atrocities cases were not registered under the act. In 84.4 per cent of the cases where the act was applied, the cases were registered under wrong provisions with a view to concealing the violent nature of the incidents.
• A large number of cases have been closed by the police for various reasons. As per the NCRB, the police closed a substantial 21.7 per cent of the cases registered under the act during 1997 to 2007.
• As per the NCRB, investigation has been completed in only 1,34,534 out of a total of 1,76,397 cases, which includes the pending cases. A charge sheet has been submitted in only 97,341 of these cases and there are 37,193 cases pending charge-sheeting even 10 years after investigation.
• The Andhra Pradesh high court, in an interim order in writ petition 1019 of 2006 filed by Sakshi Human Rights Watch, Andhra Pradesh, observed that as per the statistics furnished by the director general of police regarding cases registered under the act: one case has been pending investigation for almost six years, 53 cases for between three to five years, 190 cases for almost two years and 805 cases for about one year. In response to this writ petition, a counter-affidavit filed by the police reveals that during 1995 to 2006, 21,000 cases were registered under the act. Of these, more than 14,000 were pending without a charge sheet being submitted even though the act stipulates that the investigation must be completed within 30 days of the FIR being filed.
•  A study covering 11 atrocity-prone districts in Gujarat during 1990 to 1993 showed that the time lag between the registration of murder cases and arrest of the accused was 121.2 hours; for rape cases, it was 532.9 hours; and for grievous cases, it was 862.4 hours. A study in Tamil Nadu revealed that out of 371 cases of atrocities for which data was available on arrests, in 25.6 per cent of the cases, the accused were never arrested while in only 25.9 per cent of the cases were all the accused arrested immediately after the registration of the FIR or on the next day. In 20.7 per cent of the cases, the arrests occurred at any time from a week to one year after the incident had taken place. Further, in 23 cases (six per cent), the accused succeeded in getting anticipatory bail from the high court.

The judiciary

• Given that the trial pendency rate is roughly the same for all crimes committed under the Atrocities Act, the Protection of Civil Rights Act 1955 and the IPC, reality shows no ‘speedy trials’ for crimes committed under the Atrocities Act. Also, in contravention of Section 14 of the act, special courts have still not been set up in 133 of the 612 districts/divisions across India.
• As per the NCRB, at the end of 2007, 99,659 cases in crimes against SCs/STs (79 per cent) remained pending for trial in criminal courts across the country, showing no significant improvement over the trial pendency rate (82.5 per cent) in 2001. Similarly, the trial pendency rate for crimes registered under the act did not decrease below 80 per cent during 1997 to 2007, averaging 82.9 per cent.
• As per the NCRB, the conviction rate under the act in 2007 was the fourth lowest (26.1 per cent) as compared with cases under more than 20 special and local laws (SLL). In fact, the average conviction rate under the act during 2003 to 2007 stood at just 25 per cent as compared to 72 per cent for other SLL cases.

Rights of victims and witnesses

• In spite of the provisions in the act, instances where victims and witnesses do not receive immediate relief, compensation and rehabilitation, and travelling and maintenance expenses, are very common. Wherever this phenomenon has been studied, be it Andhra Pradesh, Gujarat or Tamil Nadu, the figures show that the government is not paying adequate relief and compensation. In spite of the recommendations by various commissions, the National Human Rights Commission (NHRC) and the National Commissions for Scheduled Castes/Scheduled Tribes (NCSC/ST), relief and compensation is hardly ever paid to the victims of atrocities unless the case receives a lot of publicity.
• Both the ministry of social justice and empowerment’s annual report of 2006 on the implementation of the act as well as the NHRC’s 2004 report on prevention of atrocities against SCs observed that very few atrocity victims receive legal aid, which leaves them to the ‘due process of law’ without the help of a lawyer.

Kherlanji, September 2006

Implementing mandatory provisions of the act

• State governments must make known the atrocity-prone districts so that they can focus their resources on prevention of atrocities. Only 12 out of 35 states/union territories (UTs) have declared atrocity-prone districts.
• Whereas SC/ST Protection Cells are necessary to ensure public order and tranquillity, a Contingency Plan is necessary to implement the act. But only half of the states/UTs have set up an SC/ST Protection Cell and only nine states have created a Contingency Plan
• Nomination of nodal officers and appointment of special officers are necessary to coordinate the implementation of provisions of the act. But five states have not yet nominated their nodal officers while only 14 states have appointed special officers.
• One-third of the states/UTs have not yet set up the district-level and state-level Vigilance and Monitoring Committees. Even the union minister for social justice and empowerment and state ministers agree that regular meetings are not being organised so there is still a need for more meetings of the Vigilance and Monitoring Committees.
• The union ministry of social justice and empowerment has mostly not been adhering to its role of submitting an annual report, mandatory under Section 21(4) of the act. Its 1991-92 report was placed before Parliament in 1998, the finalisation of annual reports of 1993 to 1995 was delayed by almost four years, placing of the 2000 annual report was delayed by two years and the last annual report it placed before Parliament was in 2006.

Recommendations

• Appoint high-level committees at the centre and in the states/UTs to review the implementation of the act, assess the realisation of its objectives and take appropriate and speedy action for strengthening the act and for effective implementation in the future
•  Direct the concerned central and state ministries dealing with implementation of the act and rules to evolve ways and means for formulating and including the required legal amendments as well as for their effective operation
• Set up exclusive special courts, exclusive public prosecutors and exclusive investigators for the speedy trial of cases under the act.
• Include additional crimes which SCs and STs are subjected to but which do not figure in the present list of offences in the act, such as social and economic boycotts and false counter-cases.
• Delete expressions such as “intent”, “on the ground”, “wilful”, etc from various sections of the act, which give leeway to the police and judiciary to weaken cases of atrocities through subjective or arbitrary interpretations of the act.
• Add a new chapter in the act to deal with the rights of victims and witnesses thereby explicitly granting them various citizen rights with regard to atrocity cases.
• Amend the act to explicitly bring in all types of negligence by public servants at various stages in their handling of atrocity cases
• Enhance punishment for offences of atrocities under the act to be on par with the Indian Penal Code as well as based on the nature and gravity of the offences so as to ensure its deterrent effect
• Amend the definitions of “scheduled castes” and “scheduled tribes” in the act so as to add all Christians or Muslims belonging to any of the castes in the Schedule, all ethnic minority communities subjected to atrocities on the basis of their ethnicity and SC/ST migrant labourers on the basis of their caste/tribal status in their state of origin.
• Give priority attention to accepting and implementing the recommendations of national and state commissions as well as civil society organisations working to defend and promote the rights of SCs and STs.

Courtesy: National Campaign on Dalit Human Rights; www.ncdhr.org.in

Archived from Communalism Combat, November 2011,Year 18, No.161-Cover Story
 

The post Lapses and lacunae appeared first on SabrangIndia.

On June 8, 2006 when Zakiya Ahsan Jaffri, as-sisted by Mumbai-based Citizens for Justice and Peace (CJP), filed a mammoth 119-page complaint supported by 2,000 pages of documentary evidence, little did she know – or really expect – that the Supreme Court of India would actually conduct an investigation under its watch through a Special Investigation Team (SIT) and thereafter ensure through a detailed order that her complaint would be treated as an FIR and a charge sheet also be filed. In the event that the SIT files a closure report, the petitioners’ right to a protest petition has been allowed.

The course of the Supreme Court-monitored investigations over a one-year period revealed serious lacunae in the functioning of the SIT, including the SIT chairman’s attempt at exonerating Narendra Modi. The chairman’s efforts were checked by the report of his own investigating officer (IO), AK Malhotra, and the independent assessment provided by the amicus curiae in the matter, Raju Ramachandran. After Ramachandran submitted his 10-page preliminary note in January 2011, the Supreme Court had, in March 2011, directed the SIT to reassess its own findings submitted 10 months earlier.

If nothing else, the verdict of the Supreme Court delivered on September 12, 2011 is a huge victory for the rule of law and for those of us who believe in due process and transparency and accountability in governance.

While not wasting valuable column space on the banal attempts by Modi and his party to give himself, and themselves, a clean chit, it is worth looking carefully at paragraphs 8 and 9 of the order (uploaded on the CJP website, www.cjponline.org) which clearly state that under Section 173(2) of the Code of Criminal Procedure (CrPC), the complaint – now to be treated as a de facto FIR – will, along with all relevant investigation papers, first be placed before a regular magistrate’s court and then, if so deemed, be committed to the court already hearing the Gulberg Society case. The task will be to file a substantive, expanded charge sheet against Modi and 61 others. What is more, according to the law, and a specific direction of the Supreme Court in this order, the complainants will be given a chance at every stage – in case the SIT baulks again, which is not unlikely, or the judge decides to exclude one or more individuals from among those named as accused – to be heard and carry their appeal right up to the Supreme Court.

The process will no doubt be arduous. And in the current climate where communalism and mass crimes do not commandeer national outrage as, say money matters in the 2G spectrum scam do, it will take every bit of effort to ensure that the battle, bravely fought, reaches an effective conclusion. For any one of the 20-odd magistrates before whom the SIT report/charge sheet could be placed, it will be a definitive test of independence and integrity.

Will a magistrate sitting in Ahmedabad be able to withstand the pressure, vitriol and vindictiveness of Modi’s administration? Difficult though it may be to keep the faith, at such a time we would do well to remember Judge SP Tamang, the Ahmedabad metropolitan magistrate inquiring into the Ishrat Jahan case, who, on September 7, 2009, submitted an exemplary report against all odds. The report indicted a number of police officers, including the then Ahmedabad police commissioner, for the murder in 2004 of the Mumbra-based teenager and three others that Modi and the central government had cynically made out to be hardened terrorists.

Contrary to popular belief, the Supreme Court verdict in the Zakiya Jaffri-CJP case exceeds the petitioners’ demands. While the now historic petition No. SLP 1088/2008 sought the registration of an FIR against Modi and 61 others, the Supreme Court order in fact goes several steps further, taking the criminal matter to the committal stage where cognisance will be taken, and prosecution begun, of the complaint.

Not surprisingly, the facts are at variance with the pernicious propaganda spread by the Rashtriya Swayamsevak Sangh (RSS) and the Bharatiya Janata Party (BJP) in this regard. Their views were unfortunately echoed on many of India’s television channels, raising questions about the media’s competence as well as its allegiances. Many in the broadcast media cheerfully announced a ‘clean chit’ for Modi early in the morning of September 12 and then tempered their telecasts as initial interviews with Tanvir Jaffri (son of Zakiya and the late Ahsan Jaffri) and Teesta Setalvad, and print interviews with amicus curiae Raju Ramachandran over the next few days, stated to the contrary. Far from being an exoneration of Modi and company, the recent judgement demonstrates that the apex court finds merit in the complaint and has now directed a lower court to take it forward as procedures allow.

The petitioners have never pleaded that the Supreme Court should directly indict Modi. They have never said and do not believe that anyone should be convicted without due process of law, hanged as they are so easily in RSS-desired Taliban-style kangaroo courts. They would also like to state for the record that they do not believe in the death penalty for anyone, not even a gun-wielding terrorist or a Narendra Modi who calculatedly employed all the resources at his command to paralyse his administration while murder stalked the streets. Apart from conspiracy to commit murder, other serious charges in the complaint include the deliberate efforts to doctor investigations through faulty registration of FIRs, the appointment of incompetent and ideologically biased public prosecutors, the destruction of evidence and terrorising witnesses into turning hostile.

All this and more is the subject matter of the criminal complaint filed in 2006. The only one of its kind in India, it is the first criminal complaint related to communal violence that goes beyond indicting individuals responsible for acts of violence to trace the outbreak of violence further, drawing links between the chief minister, his cabinet colleagues, leaders of empathetic political right-wing outfits and officials of the Indian Administrative Service (IAS) and the Indian Police Service (IPS) who bowed to the murderous designs of their political boss.

We must not allow ourselves to forget what Gujarat 2002 was about. Over 300 well-orchestrated incidents of violence spread across 19 of Gujarat’s 25 districts, the calculated murder of 2,500 innocents in reprisal killings, several instances of daylight rape, the destruction of Muslim-owned property worth Rs 4,000 crore and the destruction of 270 dargahs and masjids. Almost or just as bad as the violence itself is the deliberate subversion of justice, the destruction of evidence and the intimidation and influencing of witnesses.

The conclusion of the case so doggedly fought by Zakiya Ahsan Jaffri and Citizens for Justice and Peace will be a litmus test for the Indian system, to establish whether it has the courage to punish those responsible for some of its bleakest hours.

A unique trajectory

After the Gujarat police refused to entertain their complaint in June 2006, the petitioners moved the Gujarat high court for registration of an FIR against 62 persons and transfer of the investigation to the Central Bureau of Investigation (CBI). The high court dismissed their petition in November 2007. However, the petitioners efforts were subsequently rewarded when the Supreme Court took cognisance of the case on March 3, 2008. A little over a year later, on April 27, 2009, the Supreme Court handed over the investigation not to the CBI but to the Special Investigation Team headed by former CBI chief RK Raghavan, which had been appointed by the apex court 13 months earlier to reinvestigate nine major Gujarat carnage cases.

In May 2009, Communalism Combat had, in its cover story ‘The Accused’, detailed critical elements of this complaint which was substantively different from that of the Gulberg Society case, one of the nine major carnage cases being reinvestigated by the SIT. Yet both the SIT and the state of Gujarat kept confusing the two cases. The primary distinction between the carnage cases and this complaint is the list of accused and the offences.

The accused in the complaint of June 8, 2006 (now treated as an FIR by the Supreme Court) are: the chief minister, Narendra Modi, 11 state cabinet ministers, three MLAs, three members of the ruling party in the state, three office-bearers and three members of extremist right-wing organisations and 38 high-ranking police officers and bureaucrats, beginning with the director general of police, Gujarat.

The progress of this case has been marked by high drama and behind-the-scenes subterfuge. However, it received scant attention until January 20, 2011 when the newly appointed amicus curiae, Raju Ramachandran, submitted a preliminary note to the Supreme Court which resulted in the court issuing directions to the SIT to reassess its findings. Until then, the media seemed uninterested in the proceedings, choosing to overlook the additional substantive evidence that the petitioners had regularly filed in support of their original complaint. The January 2011 order was the first sign that the SIT’s pathetic attempts to exonerate Modi and others from prosecution, in spite of the investigations carried out by its own IO, AK Malhotra, would not be accepted by the court.

Within days of the amicus curiae’s report being submitted to the Supreme Court and the court’s directions in the matter, Rahul Sharma, a serving IPS officer whose upright testimonies had allowed crucial evidence to enter the public domain, was served with a show-cause notice by a vindictive Narendra Modi-led Gujarat government. The notice was served on February 4, 2011. Sharma was later charge-sheeted on August 13, 2011 for speaking to the Supreme Court-appointed SIT and the state-appointed Nanavati-Shah Commission (now the Nanavati-Mehta Commission). It was Rahul Sharma’s deposition before the Nanavati-Shah Commission in 2004, when he made available a CD containing vital cellphone call records, that enabled CJP to analyse this data and place it before the commission and the courts.

Each hearing of this and related cases in the Supreme Court was punctuated by dubious attempts by the state of Gujarat and even the SIT to mislead the court and malign the petitioners – especially after October 2009 when CJP questioned the quality of the investigations being conducted by the SIT in the nine carnage cases. CJP secretary Teesta Setalvad was a specific target.
​

In a report to the apex court during hearings held in September-October 2010, the SIT mentioned a routine call made by Setalvad to the public prosecutor in the Gulberg Society case, RC Kodekar, who claimed that she had tried to threaten him. In January 2011, during the hearing of the matter pertaining to the carnage cases, the amicus curiae in that matter, Harish Salve, pointed out correspondence between CJP and the Geneva-based United Nations Office of the High Commissioner for Human Rights on the threats received by senior advocate SM Vohra, counsel for the victims in the Gulberg case. Unfortunate observations by the bench on this matter attracted media publicity which worked to the advantage of a state responsible for mass crimes and determined to target those who stood up against it.

During this period a national daily was also used, on or about the date of every hearing, to project complete victory for the Modi government. On December 3, 2010, the date of the Supreme Court hearing in the Gujarat 2002 matters, as in January 2011, blatant efforts were made by an accused and cornered Gujarat government to manipulate sections of the media (‘SIT clears Narendra Modi of wilfully allowing post-Godhra riots’, The Times of India, December 3, 2010).

And yet, through 2010, when the SIT investigations were underway, it was reports in The Times of India and The Hindu that drew attention to the 15 phone calls made between the chief minister’s office/secretariat and the Ahmedabad police commissioner, PC Pande, between 11 a.m. and 4 p.m. on February 28, 2002, significant because they were made around the same time that the massacres at Naroda Patiya and Gulberg Society were taking place even as the police did nothing. CJP submitted detailed analyses of important phone call records to the Nanavati-Shah Commission in May 2010 (reported in Communalism Combat’s cover story, ‘Dial M for Massacre’, in June 2010) and to the Supreme Court in July 2011.

But finally, it was the exhaustive coverage by Tehelka magazine, which scooped the SIT report and contrasted this with evidence that CJP had gathered and submitted to the court, in two important stories (‘Here’s the smoking gun’, February 12, 2011, and ‘I was there. Narendra Modi said let the people vent their anger’, February 19, 2011), that impacted on the entire discourse. Television channels were now forced to look at the issues that Jaffri and CJP had raised over the past five years.

A subsequent report by Tehelka, ‘Whose Amicus is Harish Salve?’, in its March 12, 2011 issue exposed that the conduct of senior lawyer Harish Salve as amicus curiae in the Gujarat carnage cases gave rise to a conflict of interest. The story revealed that even while he was amicus curiae in the crucial mass murder cases before the Supreme Court, Salve continued to lobby the Gujarat government for projects for his wealthy corporate client, Eros Energy (Kishore Lulla). Incidentally, RK Raghavan, chairperson of the Supreme Court-appointed SIT, happens to be a corporate security adviser at a Tata company.

In April 2011 events took another dramatic turn as the much publicised affidavit of deputy inspector-general of police Sanjiv Bhatt, filed before the Supreme Court, drew widespread attention to the illegal instructions issued at a secret meeting held by Modi on February 27, 2002 – almost nine years after details of this meeting were first revealed in Crime Against Humanity, the report of the Concerned Citizens Tribunal – Gujarat 2002. In the affidavit, submitted directly to the Supreme Court registry and amicus curiae Raju Ramachandran, Bhatt detailed among other things how his testimony before the SIT in November 2009 and early 2010 had been leaked to the state government and led to intimidation from his superiors. This provided further confirmation of the petitioners’ suspicions about the conduct and integrity of the SIT.

In March 2011 the SIT had recorded a subsequent, formal statement from Bhatt under Section 161 of the CrPC. With this, Bhatt also submitted voluminous documents from the State Intelligence Bureau (SIB), including material that would prove that Modi was personally aware of the impending attack on Gulberg Society on the morning of February 28, 2002 when he deliberately did not intervene but instead allowed the mobs to attack former parliamentarian Ahsan Jaffri and others. After first informing OP Singh, Modi’s personal assistant (PA), Bhatt is stated to have personally informed the chief minister of the worsening situation at Gulberg Society.

Sanjiv Bhatt was suspended from service on August 8, 2011 and then charge-sheeted on September 18 even as Narendra Modi was fasting for ‘sadbhavna’, or communal harmony! On Friday, September 30, he was arrested on apparently trumped-up charges.

Doubts have been raised about the authenticity of Bhatt’s disclosures ever since his dramatic and relatively late appearance in public view. In response to this, we would like to point out that Sanjiv Bhatt was in fact cited as a witness by the petitioners in their original complaint precisely because his name figured extensively in the SIB records available to them.

Bearing testimony

Extracts from the complaint

List of witnesses:

1. KC Kapoor, in 2006, principal secretary, home; 2. Manoj D. Antani, in 2002, superintendent of police (SP), Bharuch; 3. AS Gehlot, in 2002, SP, Mehsana; 4. Vivek Srivastava, in 2002, SP, Kutch; 5. Himanshu Bhatt, in 2002, SP, Banaskantha; 6. Piyush Patel, in 2002, deputy commissioner of police (DCP), Vadodara; 7. Maniram, in 2002, additional director general of police (ADGP), law and order; 8. Vinod Mall, in 2002, SP, Surendranagar; 9. Sanjiv Bhatt, in 2002, SP, security, State Intelligence Bureau; 10. Jayanti Ravi, in 2002, collector, Panchmahal; 11. Neerja Gotru, in 2003, special investigating officer assigned to reopen investigations in some riot-related cases; 12. Rahul Sharma, in 2002, SP, Bhavnagar; 13. RB Sreekumar, in 2002, ADGP, intelligence.

In their complaint, the petitioners have also pointed out that Modi held several secret, undocumented meetings during that period at which many witnesses were present, who should also be examined and interrogated for information.

The superintendents of police in the districts of Mehsana, Banaskantha, Sabarkantha, Patan, Gandhinagar, Ahmedabad rural, Anand, Kheda, Vadodara rural, Godhra and Dahod, where mass killings were reported during the riots, all need to be specifically interrogated for their roles as also their failure to document illegal and unconstitutional instructions from the chief minister and other representatives of the state government.

Archived from Communalism Combat, Sept.-October 2011,Year 18, No.160 – Cover Story

The post Still Under Fire appeared first on SabrangIndia.

CJP condemns the arrest of Sanjiv Bhatt

Citizens for Justice and Peace strongly condemns the vindictive action of the Gujarat government in arresting Sanjiv Bhatt, senior IPS officer, in an action that is nothing short of an attempt to intimidate an important witness in the Zakiya Ahsan Jaffri and CJP criminal complaint against chief minister Narendra Modi and 61 others. This action of the Gujarat police, under the direct instructions of the state’s home minister – Narendra Modi, amounts to tampering with evidence and direct intimidation of a key witness. It is also a cheap attempt to slur his character and standing.

Key issues need to be raised here. One, that through his affidavit before the hon’ble Supreme Court dated April 2011 he had testified to criminal and unconstitutional instructions being issued by Modi at a late-night meeting on February 27, 2002, the day of the Godhra incident. In his statements before the Supreme Court-appointed Special Investigation Team, he also gave documentary data about Modi’s abdication of responsibility on February 28, 2002, the day attacks on Gulberg Society and Naroda Patiya in Ahmedabad were in full swing. Finally, last but not least, in an affidavit filed before the Gujarat high court recently, Bhatt had even mentioned that both Modi and Amit Shah, former minister of state for home, had tried to intimidate and pressurise him into not giving facts and evidence in the possession of the State Intelligence Bureau, related to the assassination of former minister of state for revenue, Haren Pandya. The CBI investigation into the Pandya assassination has recently been severely criticised by the Gujarat high court.

Most critically, Bhatt had challenged this FIR for which he was arrested, through writ petition 135/2011 in the Supreme Court. (This criminal complaint is allegedly a fabricated FIR filed in June 2011 by KD Panth, his former driver, alleging that Bhatt had pressurised him into filing an affidavit to support the officer’s claim that he was present at the meeting held at the chief minister’s residence on February 27, 2002). The Supreme Court had issued notice to the Gujarat government on July 29, 2011. This hasty and vindictive, even desperate, action of the Gujarat police, while the matter is under consideration by the Supreme Court, raises serious issues of contempt of the highest court, due process and, most importantly, intimidating a witness critical to a trial to ensure public justice. With our matter now awaiting charge-sheeting before a Gujarat magistrate’s court, the arrest of Bhatt is also a clear attempt by the state of Gujarat to warn us all collectively and individually of repercussions if we struggle for justice. It is a pathetic subversion of the Constitution and the rule of law.

(Press release issued by Citizens for Justice and Peace on October 1, 2011.)

The post Vindictive action appeared first on SabrangIndia.

The FIR, the SIT report and the data unearthed during CJP’s investigations contain considerable evidence of serious crimes and grave miscarriages of justice, leading to serious allegations that have emerged in this context. We examine some of them.
 
Allegation I: The decision to take the charred bodies of the victims of the Godhra arson to Ahmedabad, handing them over to an office-bearer of the Vishwa Hindu Parishad (VHP), not to government officials. The bodies were handed over to the then state general secretary of the VHP, Dr Jaideep Patel, who is accused of instigating the mob in the Naroda Gaon case. The decision to parade them through Ahmedabad in unrestrained funeral processions during which mobs raised provocative slogans. The allegation in the FIR is that the decision to take the bodies in a ceremonial procession to Ahmedabad was a premeditated decision taken by chief minister Narendra Modi against the advice of the Panchmahal (Godhra) collector/district magistrate, Jayanti Ravi.

The SIT has in its findings stated that given the presence of the then minister of state for home, Gordhan Zadaphiya, at Godhra, it was a collective decision of the cabinet. Although Zadaphiya and Jaideep Patel initially concurred on this, Zadaphiya has since given a contrary statement to the SIT that implicates Modi. Investigating officer AK Malhotra speaks of two separate cremations at Ahmedabad on February 28, 2002 whereas SIT chairperson RK Raghavan casually mentions one. Neither of the two SIT officials gives weight to the documentary evidence provided in the Gujarat State Intelligence Bureau report (titled C/Dir/Smashan yatra/176/2002 and dated February 28, 2002) marked to Modi’s office and senior police officials, wherein the “likelihood of disturbances” after funeral processions was pointed out.

Call records of Jaideep Patel
An analysis of Jaideep Patel’s call records is revealing. It shows that between 8:03 p.m. and 11:58 p.m. on February 27, 2002 he made and received calls to/from Gordhan Zadaphiya. Patel was also in constant touch with police officers; we do not know why. His call records show that between 1:05 p.m. and 9:16 p.m. on February 27, 2002 he made and received calls to/from the then DCP (zone V), Ahmedabad, RJ Savani. CJP submitted details of Patel’s call records to Malhotra which show that he was also in close touch with chief minister Narendra Modi’s office. Malhotra is strangely silent on this. On February 28, 2002 Jaideep Patel had five telephone conversations with the chief minister’s office (CMO). Why?

The question that remains is whether it is normal procedure to hand over bodies of the victims of a tragedy in such a sensitive matter, which could have widespread repercussions on intercommunity peace and harmony, to an office-bearer of an organisation like the VHP which has a virulent track record of instigating violence but which happens to have powerful political patrons, including the chief minister and senior functionaries of the ruling party in the state?

Allegation II: The illegal instructions, to allow Hindus to vent their anger, issued by Modi at a top-level meeting held at the chief minister’s residence on February 27, 2002. It is clear from the SIT’s investigations that such a meeting did take place. It has also been established that no minutes of the proceedings were kept. The continuing dispute is about what transpired at the meeting.

The SIT recorded a joint statement from Justice PB Sawant, a former judge of the Supreme Court, and Justice Hosbet Suresh, a former judge of the Bombay high court, who had been members of the Concerned Citizens Tribunal – Gujarat 2002. They narrated details about the February 27 meeting from the confessions made to them by the late Haren Pandya, former minister of state for revenue, in mid-May 2002 when he deposed before the tribunal. In their statement before the SIT, they clearly stated that Pandya had testified before them that “Narendra Modi had made it clear that there would be a backlash from Hindus on the next day… and police should not come in their way”. The FIR also refers to Pandya’s testimony relating to a high-level meeting convened by the chief minister to which the then chief secretary, the then home secretary and senior policemen were summoned and to whom clear instructions were given “not to deal with the Hindu rioting mobs”.
Sanjiv Bhatt, who is currently making headlines, had earlier told the SIT that he would speak about this meeting and the illegal instructions issued at the meeting only if there was a legal obligation to do so. Bhatt, who in 2002 held the post of SP, security, in the SIB, also referred to a message received at the  control room on February 27, 2002 announcing that the chief minister had called for a situational review meeting. As is now well known, the SIT subsequently recorded a statement from Bhatt under Section 161 of the CrPC and he has since submitted an affidavit in this regard to the Supreme Court of India.

The FIR records that RB Sreekumar, who in 2002 held the post of ADGP, intelligence, had stated in an affidavit before the Nanavati-Shah Commission that the then director general of police (DGP), Gujarat, K. Chakravarti, had told him about the crucial meeting held by Chief Minister Modi on February 27, 2002. The chief minister had said at the meeting that “in communal riots, police takes action against Hindus and Muslims on one-to-one basis. This will not do now, allow Hindus to give vent to their anger” (paragraph 84 of RB Sreekumar’s fourth affidavit before the Nanavati-Shah Commission dated October 27, 2005).  

Allegation III: The illegal stationing of two ministers in the state and city police control rooms is a fact that has been established. The SIT admits this. However, there has been no attempt to further investigate the logical consequences of political interference with the proper functioning of the police i.e. preventing the police in several districts from doing their constitutional duty. The FIR refers to press reports of the time which documented the presence of senior cabinet ministers in the state and city police control rooms and their illegal interference in police functioning, their subversion of police rules and protocol by instructing policemen not to function and otherwise manipulating instructions.
 

Ringing evidence
Who was the chief minister calling while Gujarat burned?

The CMO makes 15 calls to the Ahmedabad police commissioner, PC Pande, on February 28, 2002. The CP does not step out of his office between 10:50 a.m. and 7:10 p.m. although the city was aflame from about 11 a.m. onwards. Were these calls directly correlated to the instructions given to top echelons of the police not to act?

The CMO makes contact with the VHP Gujarat general secretary, Dr Jaideep Patel (now an accused in the Naroda Gaon massacre), five times on February 28, 2002. This includes three conversations with Sanjay Bhavsar, officer on special duty to
the chief minister, and one with the chief minister’s PA, Tanmay Mehta.

The chief minister’s office numbers record only three telephone calls through the day that Ahmedabad was burning i.e. February 28, 2002. His residence records only two calls. Is this not unusual?

Allegation IV: The failure of the police to act, especially as a direct result of political interference. The FIR details several instances that corroborate this.

a) K. Chakravarti, the then DGP of Gujarat, had not given any special instructions about the preservation of law and order and no strict instructions on how mobs should be dealt with.

b) The then CP, Ahmedabad, PC Pande, commented on Newshour, Star News, on February 28, 2002 that: “These people also, they somehow get carried away by the overall general sentiment. That’s the whole trouble. The police are equally influenced by the overall general sentiments.”

c) Rahul Sharma, who in 2002 held the post of SP, Bhavnagar, stated during his cross-examination before the Nanavati-Shah Commission in 2004 that the attack on a madrassa housing hundreds of Muslim children, which took place under his jurisdiction on March 1, 2002, appeared to be an organised one. He also revealed that the minister of state for home, Gordhan Zadaphiya, had later complained to him about the greater number of Hindu deaths in police firing in Bhavnagar as compared to Muslims.

d) Police Inspector (PI) Khurshid Mysorewala, who was stationed at the Naroda police station in 2002, in an affidavit and during his cross-examination before the Nanavati-Shah Commission in 2004, averred that due to the lack of preventive measures, the instructions from superiors about system overload, the non-provision of reinforcements and other reasons, he was unable to avert the attacks or respond to the Muslim victims’ cries for help and stop the heinous crimes that took place in Naroda Patiya.

e) MK Tandon, in 2002, the JCP, Ahmedabad, stated in his cross-examination before the Nanavati-Shah Commission that when the incidents at Naroda Patiya and Gulberg Society, Meghaninagar, occurred, neither he nor the police commissioner were present; that none of the policemen who were present used force to try and disperse the mob; and that no inquiries were made by the state home minister regarding the breakdown of law and order. When the attack on Gulberg Society took place, two deputy superintendents of police, one PI and one officer of the Central Industrial Security Force were present but no strict measures were taken to disperse the mob.

Allegation V: The illegal instructions given by upper echelons of the Gujarat executive to senior policemen, recorded by the then ADGP, RB Sreekumar, in a handwritten personal register and detailed in the FIR.

a) RB Sreekumar, in his third affidavit before the Nanavati-Shah Commission dated April 9, 2005, records the attempts made by senior officers in his department and the then undersecretary, Dinesh Kapadia, the then secretary, law and order, GC Murmu, and the then government pleader, Arvind Pandya – after Sreekumar had filed his first affidavit before the commission – to pressurise him to refrain from filing further affidavits and from telling the truth before the commission i.e. to make him commit the criminal offence of perjury. Sreekumar stated that he was intimidated and warned by Murmu and Pandya to lie on oath and to avoid telling the whole truth.  
   
b) Paragraph 91 of Sreekumar’s fourth affidavit dated October 27, 2005 lists the names of several senior bureaucrats and police officials who, despite the expanded terms of reference of the Nanavati-Shah Commission (which, after July 2004, included within its ambit the “role and conduct of the then chief minister or any other ministers in his council of ministers, police officers, other individuals and organisations” in regard to the post-Godhra violence), bowed to pressure and did not file second affidavits that would have enlarged on the conduct of the chief minister Narendra Modi or any other ministers, etc.

Allegation VI: Officers of the state have been directly influenced to testify to falsified events and thereby commit the criminal act of perjury, as the FIR demonstrates. At the time when the FIR was prepared, this related to the lies and contradictions stated on oath by senior IPS and IAS officers in their affidavits before the Nanavati-Shah Commission.

Former Ahmedabad police commissioner PC Pande (accused No. 28 in the FIR) stated on oath before the Nanavati-Shah Commission that he had a memory lapse regarding what actually transpired at Gulberg Society on February 28, 2002. The commission failed to question him about why curfew was not imposed in Ahmedabad city until as late as 1 p.m. on February 28 when on February 27, 2002 itself at least 14 incidents of mob violence had been recorded in FIRs by the police. He was subsequently examined by the SIT on two occasions when, having apparently regained his memory, he denied being in possession of control room records and other crucial evidential material.

The absence of these documents was recorded by the SIT’s investigating officer, AK Malhotra. Listing the constraints faced by him as IO, he cites “destruction of critical documentary evidence” as one of the limitations he faced. Ironically, records were ostensibly destroyed in 2007 while the Supreme Court was seized of the matter thus amounting to contempt of court.

Chapter XI of the Indian Penal Code, ‘Of False Evidence and Offences Against Public Justice’ (Sections 201-205), and Chapter X, ‘Of Contempts of the Lawful Authority of Public Servants’ (Sections 175, 177, 187 and 188), refer to offences by public servants of failing to assist the course of public justice, destroying evidence and so on. After the Supreme Court first indicated that it would look beyond the SIT’s dismissive conclusions (January 20, 2011) and the SIT began formally recording statements under Section 161 of the CrPC, PC Pande made an interesting turnabout.

In its earliar report submitted to the Supreme Court, the SIT did find Modi guilty of a brazenly communal mindset. It remains to be seen what shape the SIT report/charge sheet will now take

On April 11, 2011 AK Malhotra came to Mumbai to record the statement of CJP’s Teesta Setalvad under Section 161. She insisted on mentioning the destruction of records as a specific culpable, criminal offence whereupon Malhotra unexpectedly informed her that, post-January 20, while the SIT was recording his statement under Section 161, PC Pande had done a complete turnaround and submitted a CD containing 3,500 scanned pages of hitherto ‘destroyed’ documents. Setalvad had in a letter to the SIT dated April 21, 2011 pointed out that Pande’s selective suppression of records during the SIT’s earlier investigations, and the mysterious reappearance of these documents, itself merited thorough investigation.

Allegation VII: The top echelons of the state administration and police force deliberately ignored the reports and warnings issued by their own State Intelligence Bureau, and other indicators, as demonstrated in the FIR.

a) RB Sreekumar, in paragraph 17 of his first affidavit before the Nanavati-Shah Commission dated July 6, 2002, stated that in response to a message received from the Uttar Pradesh intelligence department (during the period preceding the Godhra incident), the Gujarat SIB had requested all SPs and police commissioners to inform the SP, Faizabad, about the movement of kar sevaks from their respective jurisdictions. Following this, on February 16, 2002 the SP, Western Railway, Vadodara, had informed the IGP, intelligence, Uttar Pradesh, that on February 22, 2002 Prahlad Patel, president of the Bajrang Dal, Mehsana, would be leading a group of 150-200 trishul-bearing Bajrang Dal activists to the Ayodhya Maha Yagna on the Sabarmati Express.

b) In paragraphs 18 and 19 of the affidavit, Sreekumar points to the failure of the central and Uttar Pradesh (police) intelligence departments to provide adequate and timely information to the Gujarat state or SIB about the return journey of the kar sevaks, their unruly behaviour while returning from Ayodhya aboard the Sabarmati Express and, more specifically, their altercation with Muslims when the latter attempted to board the train at Rudauli.

c) In addition to the reports relating to the trouble anticipated on and after February 28, 2002, as communal violence persisted beyond the initial phase, the Gujarat SIB continued to provide specific intelligence reports, as revealed in paragraph 26 of Sreekumar’s first affidavit. In two such reports dated April 15 and April 26, 2002, the SIB provided information about impending communal trouble, including among other things the plan by radical Hindu elements to launch a large-scale assault on a Muslim colony in Ahmedabad and a plan by Bajrang Dal leaders to distribute lethal weapons. None of these reports were acted upon by the police hierarchy or the state executive.

Allegation VIII: The punitive treatment meted out by the state to those police officers who acted constitutionally to maintain law and order. While the FIR mentions six officers who were so punished, since then, at least three more officers have received similar treatment at the hands of the state.

Allegation IX: The rewards given to the senior IAS and IPS officers who bowed to Chief Minister Modi’s diabolical, unconstitutional plans. The FIR names 14 officers who were so rewarded.

Allegation X: The subversion of the criminal justice system.

The appointment of public prosecutors (PPs) with allegiances to the groups that led the violence was covered exhaustively in the May 2009 issue of Communalism Combat. Since then, CJP has investigated further and filed applications under the Right to Information Act, especially after a report on NDTV on March 29, 2010 revealed that many of the defence lawyers appearing for the accused in the nine major carnage trials have been appointed special public prosecutors to be paid Rs 12-15,000 a day with a specially amended rule of the Gujarat government’s legal department stating that fees would even be paid for days of adjournment. Hence the state of Gujarat is footing the bill for many lawyers appearing for the key accused in the post-Godhra massacres.

• Gulberg Society trial: Defence counsel Mitesh Amin is also a special PP, Gujarat. (Amin was paid Rs 25,52,000 by the state between April 1, 2009 and March 31, 2010.)
• Sardarpura trial: Defence counsel HM Dhruv, BC Barot and JG Rajput (now retired) were appointed special PPs, Gujarat. (HM Dhruv was paid Rs 17,28,000 by the state between April 1, 2009 and March 31, 2010.)
• Naroda Patiya trial: Defence counsel NM Kikani, BO Sharma, NR Shah, Bharat J. Joshi, MJ Dagli, HC Patel, SR Patel, GS Solanki, KN Thakor and RN Kikani were appointed special PPs, Gujarat.
• Naroda Gaon trial: Defence counsel Chetan K. Shah, Rohit H. Verma, Rajesh N. Modi, MR Khandar, Nilesh Lodha, HC Patel and PO Sharma were appointed special PPs, Gujarat. (Chetan Shah was paid Rs 2,97,000 by the state between April 1, 2009 and March 31, 2010.)
• Odh trial: Defence counsel CK Patel, Bharat J. Joshi and Ashwin H. Dhagad were appointed special PPs, Gujarat.
• In its earliar report submitted to the Supreme Court, the SIT did find Modi guilty of a brazenly communal mindset. It remains to be seen what shape the SIT report/charge sheet will now take.     

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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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