The Report of the National Minorities Commission (NCM) on the Latehar Hangings in Jharkand severely indicts the Jharkand Police and the Political Class for Failing to Reign in the Gauraksha Samitis who are taking Law into their own hands

Deep and widespread communalisation of sections of the Jharkand police force, and slogans like ‘go-to-Pakistan’ were frequently used by the local police against the Muslims, pointing towards a larger communalisation of the state police, says a report of the National Commission for Minorities (NCM) after a team visited Latehar on the brute violence. The report, finalised on May 18 is an indictment of the authorities. Chairperson of the NCM, Naseem Ahmed speaking to Sabrangindia said that the findings contained in the report were self-explanatory. The Report can be read here.

Farida Abdulla Khan member of the team that visited Latehar was categoric. “Sections of the police are seriously implicated,” she told Sabrangindia, “ and there is palpable anger among local Muslim residents against them. “But much more crucial is that this is a communal issue that has been consistently and deliberately fanned politically. So it has to be tackled by the political establishment. The Gau Raksha Samitis etc are on the rampage and unless a clear and direct message from the political establishment is sent out, this kind of violence is not going to stop.

In an incident shockingly reminiscent of the Dadri lynching, a 12-year-old Muslim boy and a Muslim man herding eight buffaloes on their way to a Friday market were beaten up and hanged to death from a tree by suspected cattle-protection vigilantes. The initial report and photographers were pasted on facebook by Ashif Nawaz. The double murders  of the two Muslims [Mazlum Ansari, 32, and Imteyaz Khan] took place in Balumath, Latehar district of Jharkhand on March 18-19.

Mob rule has been the name of the game since the NDA II government came to power.   On April 2, the mutilated body of Mustain Abbas, was found in a drain near Masana village in Kurukshetra, Haryana, after the family belonging to Nai Majra in Uttar Pradesh had spent nearly a month looking for the 27-year-old. Both Jharkand and Haryana are ruled by the Bharatiya Janata Party (BJP).

In what the report terms “brazen communal reaction”, there is an instance where one sub-inspector of the Chandwa police station, Ratan Kumar Singh, who is said to have “physically attacked several of the protestors and used extremely provocative, abusive and communally charged language against the Muslims”. Many local Muslim residents of the area talked about Singh’s communal prejudices and said that his presence at the protest aggravated the violence. Ms Farida Khan pointed out that the Muslims of the area were so angry that the families of the victims refused to take the compensation of one lakh rupees that the state government had announced.
It is almost two months after the gruesome lynching of two cattle traders in Latehar, Jharkhand, that this fact finding report turns the gaze again on this brutal killing that had fallen off the national media map. The NCM has questioned the role of the state police in containing the simmering communal tension in the area. The two NCM members who led the fact finding team, Farida Abdulla Khan and Praveen Davar, found that the police ignored several complaints from the Muslim community against regional cow vigilante groups prior to the incident.

Two cattle traders, Majloom Ansari (32) and Imtiaz Khan (13), were beaten and hanged to death by some cow vigilantes in Jhabbar, Latehar on March 18, 2016 when they were travelling to the nearest fair to sell their cattle. Five men, all allegedly belonging to the local Gau Rakhsha Samiti, have been arrested in the case.

A prominent Hindu seer associated with a cow protection vigilante group is accused of fomenting hatred against cattle traders and directing his followers to target and kill them in Jharkhand’s communally sensitive Latehar district that saw two cattle traders murdered on March 18.  Family members of the victims, Muslim villagers, political leaders and rights activists of Latehar on Monday unanimously held Acharya Gopal Maniji Maharaj, a katha vachak (preacher) of the Bharatiya Gau Kranti Manch, responsible for the gruesome killing of Mazlum Ansari, 32, and Imteyaz Khan, 13.The Hindustan Times  reported that Latehar police have arrested five suspects, including a member of a local cow protection vigilante group, for the murders. Police superintendent Anup Birtharay declared it a criminal incident aimed at looting cash and cattle. But ruling parties are crying foul over the police probe.. “We have concrete information that a few Bajrang Dal activists from Balumath block had recently gone to Delhi to meet the seer,” said Madan Pal, member of a prominent human rights group Jharkhand Jansangram Morcha. He alleged the activists returned on February 28 and carried out the killings.

Recommendations:
(A) Pertaining to the incidents in Hazaribagh
 
1. Loss in each shop/house should be properly assessed and adequate compensation be paid to each victim.
2. State Govt must issue strict instructions to the District Administration to explore if the Ramnavmi celebrations could be restricted to only one day as in other parts of the country.
3. All perpetrators and instigators of violence must be identified and proceeded against as per law and a speedy trial.
4. Mohd Hafeez, whose forearms have been shattered in an attack should be provided urgent medical attention by referring him to AIIMS, Delhi. 

(B) Pertaining to the incidents at Latehar:
1. Adequate compensation should be given to the victims’ families at the earliest possible.
2. All efforts be made to punish the guilty and all those associated with the crime either directly or indirectly.
3. Immediate steps to be taken to monitor the Gau Rakshak Committees and to take serious action against those who are attempting to create communal tensions and encouraging vigilante groups into taking the law into their own hands.
4. The Muslim community must be reassured about their physical safety and protection of their livelihoods.
5. The events of 18/03/2016 should be properly screened and charges against the innocent to be dropped.
6. Serious allegations against Ratan K. Singh Sub-inspector Chandwa Thana be investigated and appropriate action be taken.

Communal police actions
The report was finalised on May 18 and sent to the Jharkand government and the aministration, locally. The Centre’s standard response reportedly has been that this is a ‘state issue’.

The report notes that the police acted in a brazenly communal manner with the protestors who came to file a report after the killings. The protest had turned violent with the police resorting to lathi charge and firing in the air. “When we visited Balumath and Nawada villages from where Ansari and Khan came, the Muslims told us that its anger against the police was cumulative as the local police did not take any action despite their repeated complaints over the last few months against the cow vigilantes. ” Farida Abdulla Khan told Sabrangindia adding that villagers complained that the cow vigilante groups often threatened them to stop their business or face consequences.

She said that the Muslim residents have traditionally been in the cattle trading business. “They bought cattle from the market and sold them on a marginal profit. There is no slaughter involved,” she explained. The report says: “…attacks on the (Muslim) community, especially those dealing with cattle trading, have been taking place and increasing in number and viciousness over the last two or three years. Muslims rearing and trading in cattle are being threatened, harassed and physically attacked, and although they have approached the authorities over this, no action has been taken against any of the perpetrators.”
The report also says that the emergence of Gau Raksha Samitis in the area is a relatively new phenomenon. “The residents mentioned a Baba Gopal Maniji Maharaj from Dehradun who started coming to the region in 2012 and initiated this movement which has since become more widespread… the locals report that at meetings of these committees, there is incitement to hatred and an attempt to target Muslims in the name of protection of cows.”

The findings of the committee are in keeping with reports that cow protection committees are centrally managed  by Hindutva groups spread across India and have come to enjoy political patronage especially in BJP-ruled states.

Noteworthy is that the Jharkhand administration was reluctant to admit the association of the five people arrested with cow vigilante groups. “Gau Raksha Samiti activities are a parallel event and there is no direct link to the killing. The group’s members had assaulted some villagers earlier but there is no direct bearing of this on what has happened now,” Latehar superintendent of police Anoop Birthare had said.  The BJP chief minister Raghubar Das, too, towed the Hindutva line in the aftermath of the Latehar incident. “There is a lot of cattle-smuggling in the area. Just like Uttarakhand, in Jharkhand trafficking cows across the border is not permissible,” he had said in his initial response, while quoting the Jharkhand Bovine Animal Prohibition of Slaughter Act, 2005 that bans cow slaughter and transporting cows outside the state. It was only after it was pointed out that the two cattle traders had not violated the law that he asked his officials to take quick action and prevent such incidents in the future.

The NCM report has recommended that the case be handed over to the Central Bureau of Investigation to ensure quick delivery of justice to the aggrieved families. It also says that stern action should to be taken against Ratan Kumar Singh and any one engaged in incitement to communal violence. The team also recommended that compensation for the affected families be increased to 3.5 lakh rupees, already in the state government’s provisions.

Hazaribagh violence
The NCM team also visited Hazaribagh, witness to Hindu-Muslim riots during the Ram Navami procession on April 17. “Over a dozen shops and several vehicles were set ablaze by the mobs. We were told that the puja committees are advised every year to avoid playing songs that are directed against any community. All these check lists are given to them every year and although they agree to abide by these, they circumvent it by using one excuse or the other. Such songs with twisted lyrics were being played for last many years defying the orders of the administration. Though opinion varied, it appears the tenor of the songs played this time was much sharper in their anti-minority bias. A large number of participants consume heavy quantities of liquor which adds to making the situation more aggressive,” the report notes about the Hazaribagh violence.

“The minority community showed us damage that they had to bear because of the riots and that the state administration has not estimated their losses well. No compensation has been paid to them. They also complained that neither the police nor any of the neighbours came to their rescue when their shops and houses were being set on fire,” said Khan.

Communal riots had broken out when the members of a Hindutva group played certain allegedly anti-Muslim songs in the procession. Khan said that just like Latehar, the Muslims of Hazaribagh complained about frequent threats by Hindutva groups. “This ‘go-to-Pakistan’ slogan against Muslims and other such unpronounceable abuses, are slowly being used as the main weapon to attack the minorities in Jharkhand,” said Khan.

The NCM team has recommended adequate compensation for the riot victims and punishment for those who were involved in the riots. In addition, it has instructed the district administrations to “explore if the Ram Navami celebrations could be restricted to only one day as in other parts of the country”. Even in the past, Ram Navami processions have acted as the trigger for communal violence in many parts of the country.
Khan drew parallels between the Jharkhand incidents and the Muzaffarnagar riots and Dadri lynching case. “In all these cases, we have found that the minority community has lost faith in the administration. Despite the fact that they had to live under constant threat, they were absolutely stunned by the way the two persons were killed,” the NCM member said, while talking about the impunity Gau Raksha committee members enjoy in the present times.

That Hindutva groups have gained confidence after the BJP has come to power and enjoy a greater degree of impunity than in the times of the previous government is difficult to disagree with. The BJP-ruled states have increasingly become prone to communal polarisation in the last two years. Even certain BJP parliamentarians have resorted to making  hateful statements against minorities. Given this context, the NCM report pointing to the Jharkhand administration’s complicity in Hindu majoritarian propaganda or even lack of interest in protecting the rights of Muslim citizens is not just significant but a timely reminder of a volatile situation.
 
 

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With the failure of the executive to apply correctives especially on the deepening of the rights of citizesns, the burden of delivery of Rule of Law falls on the judges, said Vice President Hamid Ansari; He was addressing the Sesquicentennial Celebrations of the High Court of Judicature of Allahabad in Lucknow

The Governor of Uttar Pradesh, Shri Ram Naik, the Chief Justice of Allahabad High Court, Dr. Justice D.Y. Chandrachud were among those present on the occasion.  The Vice President said that the traditional public esteem for the judiciary has been reinforced by its activism in contrast to the failure of the executive to apply correctives on matters of concern and this is particularly true of its good work in expanding the ambit of rights.
 
The Vice President, however, also cautioned that lack of access to justice, the high cost of it, delays in the delivery of justice, lack of a mechanism for accountability and allegations of corruption have, together, given rise to doubts and added to the pervasive pessimism about the efficacy of institutions.  He further added that another area of concern is the excessive zeal reflected at times in pronouncements of members of the judiciary.
 
Referring to Kautilya’s Arthashastra, the Vice President said that judges shall discharge their duties objectively and impartially and added that rectitude is thus a prime requirement in judiciary as in all other walks of life and must be observed at all times and at all levels.
 
Following is the text of the Vice President’s address:
 
“Men and women who wear judicial robes are not known to deviate into the unknown and yet they seem to have embarked on a risky venture in inviting someone unlettered in law to this landmark function today marking the sesquicentennial of the High Court of Allahabad.
 
I thank Chief Justice Chandrachud and Mr. Justice Husnain for this and I fervently pray that I would justify their gamble.
 
The Allahabad High Court of Judicature is one of the oldest high courts in the country. Today, it is the biggest in terms of work load, the number of judges and, regrettably, in terms of vacancies on the bench.
 
The Lucknow Bench of High Court itself has had a long and distinguished history. On my part, I candidly admit that the infrequent opportunity of coming to one’s own state in the Union of India was temptation enough, more so because I have vague memories of a few years of childhood spent in this historic centre of culture and etiquette in the early 1940s.
 
I therefore take solace in the couplet:
 
Go wan nahin pa wan ke nikale huai to hain
Kaabe se in butoen ko bhai nisbat hai door ki
 
I have a subjective reason too for succumbing to the temptation.  A distant relation of mine on my mother’s side was the first Indian Chief Justice of the Allahabad High Court.  I refer to Sir Shah Mohammad Sulaiman who presided over this Court from 1932 to 1937 before becoming a judge of the Federal Court of India established under the Government of India Act, 1935.
 
The eloquent tribute paid to him in Justice R.S. Pathak’s essay in the centenary volume is testimony enough to his work. It has been said often enough that fundamentals of faith must be revisited in order to reinforce faith. One of our articles of faith as citizens of the Republic of India is the Rule of Law.
 
The term is a part of our daily vocabulary. Its basic purpose is, as Montesquieu said a long time back, is avoidance of tyrannical laws or their execution in a tyrannical manner. Its classic enunciation is to be found in Albert Dicey, who needs no introduction to this audience.  To him, the essential ingredients of rule of law were (a) the absolute supremacy of regular law (b) equality before the law (c) access to justice and development of law by the judges on a case by case basis.
 
As the former Lord Chief Justice of England and Wales Lord Bingham put it, ‘it makes the difference between Good and Bad Government.’ Over time and in different societies, these principles have been challenged, amplified and modified.  Professor Upendra Baxi has sought to read the rule of law as going beyond a mere division of functions in modes of governance; to him, it is the rule of good law and is as such reflective of the struggle of a people ‘to make power accountable, governance just, and state ethical’.

(The) Rule of Good Law and is as such reflective of the struggle of a people ‘to make power accountable, governance just, and state ethical’: Upendra Baxi
 
Professor Baxi opines that the Indian constitutional conception of the rule of law links its four core notions: rights, development, governance and justice. An interesting early example of this approach is to be found in the Declaration of Delhi of January 1959 by the International Congress of Jurists. It recognized the Rule of Law as:

‘a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance civil and political rights of individuals in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realised’.
 
This approach has been upheld in judicial pronouncements. Rule of Law, said the Supreme Court in Dalmia Cement (Bharat) Ltd v Union of India (1996) ‘is a potent instrument of social justice to bring about equality in result’.  In 2005, the International Bar Association deplored in a Resolution the ‘increasing erosion around the world of the Rule of Law and spelt out its ingredients:

‘An independent, impartial judiciary; the presumption of innocence; the right to a fair and public trial without undue delay; a rational and proportionate approach to punishment; a strong and independent legal profession; strict protection of confidential communications between lawyer and client; equality of all before the law; these are all fundamental principles of the Rule of Law.  Accordingly, arbitrary arrests; secret trials; indefinite detention without trial; cruel or degrading treatment or punishment; intimidation or corruption in the electoral process; are all unacceptable.’

It is here that the burden of delivery falls on the judges. 

An eminent New Zealand judge, Lord Cooke of Thorndon observed some years back, in relation to the Constitution of India, that ‘an elaborate and high-sounding Constitution is at worst a camouflage and at best a paper tiger without the judicial will and strength to enforce it.’

The traditional public esteem for the judiciary has been reinforced by its activism in contrast to the failure of the executive to apply correctives on matters of concern. This is particularly true of its good work in expanding the ambit of rights. On the other hand, lack of access to justice, the high cost of it, delays in the delivery of justice, lack of a mechanism for accountability and allegations of corruption have, together, given rise to doubts and added to the pervasive pessimism about the efficacy of institutions. One law officer has also expressed concern over the ‘increasing disregard of the salutary doctrine of precedents’.
 
Another area of concern is the excessive zeal reflected at times in pronouncements of members of the judiciary. Some observers have asserted that ‘the Supreme Court has given up any formal pretence to the doctrine of the separation of powers’. This is perceived to upset, as a former Speaker of the Lok Sabha observed some years back, ‘the fine constitutional balance and the democratic functioning of the state as a whole’. The caution administered by Chief Justice Stone of the U.S. Supreme Court, therefore, has relevance: ‘While unconstitutional exercise of power by the executive and legislative members of the Government is subject to judicial restraint, the only checks on our own exercise of power is our sense of self-restraint.’
 
What then is the score on this count? Some years back the longest serving Chief Justice of India dwelt on a few aspects of the matter on the eve of his retirement. In response to a question about delay, he identified long judgments, frequent adjournments, and lengthy oral arguments. Each of these, let me add, is remediable and can be remedied given the will and the commitment on the part of the judiciary and the fraternity of lawyers.
 
Judgments in an earlier generation were concise and cryptic and adjournments were allowed only for good reason. As for long oral arguments, it is an Indian malaise; in the Supreme Court of the United States, for instance, each side is allowed only 30 minutes for oral presentation. There is no reason why verbosity cannot be restrained. The ‘desire for immortality through the pages of law reports’ can be achieved better through sharp and succinct pronouncements, as was done in an earlier period and has been done by great judges the world over.
 
Kautilya’s Arthashastra said that judges shall discharge their duties objectively and impartially. This has been the dictum down the ages in all lands and legal systems. Rectitude is thus a prime requirement in judiciary as in all other walks of life and must be observed at all times and at all levels. The judicial mind should be so trained as to eliminate subconscious loyalties and, in the execution of justice he or she should, in the words of the 17th century English judge Sir Mathew Hale ‘lay aside (his) own passions and not to give way to them however provoked.
 
’ This brings us to the question of social awareness particularly in a society like ours with all its complexities and imperatives. The answer here would lie in the letter and spirit of the Constitution and in the expectations and aspirations of the citizens and their quest for justice, liberty, equality and fraternity. An unavoidable consequence of this is what has been termed ‘judicial activism.’ Even here, however, the requirement of balance cannot be forsaken.
 
The ambit of this was set many years back by the most activist of Indian judges, Krishna Iyer, when he cited with approval an American votary of civil liberties, the journalist Alan Barth:

A court which yields to popular will thereby licenses itself to practice despotism for there can be no assurance that it will not on another occasion indulge its own will. Courts can fulfill their responsibility in a democratic society only to the extent they succeed in shaping their judgment by rational standards, and rational standards are both impersonal and communicable.
 
Here too, a judicious mix can bring forth reasonably satisfactory results. Mr. Fali Nariman, with over six and a half decades of experience at the bar, has suggested such a mix:

‘It has been said that judges without a social agenda are not crusaders but only problem solvers, but they too have their uses. I believe the ideal mix for a progressive higher judiciary – which includes the high courts as well as the Supreme Court – is three-quarter problem-solvers and one-quarter crusaders.’

This should throw up an enticing or agonizing challenge to each judge: of locating himself or herself as the upholder or transformer of established norms of interpretation or enforcement of law.
 
I have one last point. A changing world has made globalization an unavoidable necessity. This, in the ultimate analysis, cannot be restricted to economics and trade policy only and extends to global standards in all fields including in the area of dispensation of justice; by implication, the space for local peculiarities is shrinking. The sooner we adjust to it, the better for all – litigants, lawyers, judges. The eventual beneficiary would be public.
 
Thank you for giving me the opportunity of sharing some thoughts with you today. I wish you all success in the years to come. Jai Hind.”
 
 
 

The post The Burden of Delivery of Rule of Law falls on the Judiciary : Vice President appeared first on SabrangIndia.

This article, written and published in 2013 is being re-published because it outlines the significance of the legal effort afoot to bring ultimate accountability for the genocidal killings of 2002
 
It is not often that the battle against aggressive communalism, the sustained mobilization that precedes brute and targeted violence and includes hate speech and hate writing, the deliberate debilitation and paralysis of preventive and pro active measures of law and order that minimize the spread of reprisal violence and protect lives and properties, gets sustained and validated through courts of law. In the south Asian context, majoritarian communalism fed in an insidious manner by its minority prototype has the unique characteristic to deteriorate into authoritarianism, even fascism. Be it Sri Lanka, Pakistan or India events past and present are testimony to this. In the cases of all countries of the region, communalists of the majority find ready partners with fundamentalists of the minority.

For over four decades now, aggressive communalism has made deep inroads into the pillars of the Indian republic, executive, legislature and even the judiciary. The calculated, and bloody mobilization of an ostensibly religious kind by India’s main opposition party from the late 1980s was purely political; it consolidated a rigid vote-bank of middle and upper class Hindus while demonizing the minority vote bank as the raison d’être for its existence. This section of Indians, fortuitously a numerical minority still substantial number at 27-30 per cent of the overall vote, have aggressively celebrated the bloody attacks on minorities and its critics even as the this rath yatra led by LK Advani had a bloody trail en route (Hubli, Karnataka, Jaipur, Rajasthan, Surat, Gujarat among others). Writers and commentators have analysed this phenomenon as the republic’s descent into proto-fascism, with forces of the Hindu right, the Bharatiya Janata Party –the parliamentary wing of the Rashtriya Swayamsevak Sangh and its more modern avatars, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal (BD) manipulating institutions of democratic governance. Our administration, our police, even our Courts barely withstood the systematic onslaught.

It is in this unique context that the battle for acknowledgement, justice and accountability for the well-orchestrated state directed and executed crimes of 2002 in Gujarat needs to be understood. For over 11 years now, a steely band of survivors, backed by groups of civil and legal rights groups and activists have extracted, for the first time a degree of acknowledgement, transparency and accountability from an indifferent system. One hundred and twenty-six sentences (imprisonments for life), pronounced to, among others, policemen, powerful politicians (one former minister) and strongmen of outfits of the VHP and BD, is a success story in its own right.

What the  Zakia Jafri protest petition filed on April 15, 2013 attempts is to take this battle for accountability several steps further, and deeper. In carving out a substantial case of criminal conspiracy planned and executed by the state’s chief minister who is also its home minister, this unique and historic legal intervention, apart from the individual cases of the 59 accused involved raises serious questions about
a) the systemic build up of communal mobilization and inaction by state agencies and actors;
b)  the lacunae in monitoring and check on hate speech, hate writing, pamphleteering;
c) the state and government’s specific response to a tragedy like Godhra on February 27, 2002;
d) contemporaneous records that reveal government’s intent to contain  the impact and spread of violence;
e) transparency in summoning assistance from the military /paramilitary forces;
f) comparative analysis of districts & commissionerates worst affected by violence (15) and those that held their own (SPs/DMs refused to bow down to political masters);
g) role of whistleblowers in pinning down accountability from political masters;
h) the role of survivors/activists/ legal and civil rights groups;
i) the role of the media in covering the build up and fall out of mass crimes.

Gujarat in early 2002 was sitting on a communal cauldron, carefully stoked since October-November of 2001.  Records of the State Intelligence Bureau (SIB) that are well-documented parts of the protest petition (annexures to the affidavit of former SIB Gujarat chief, RB Sreekumar) as well as responses received from the office of the chief minister during the course of the investigation clearly establish that sustained efforts to keep districts and cities of Gujarat on the boil were afoot (reference pgs 178, Paras 426-442 of the protest petition). Significantly the newly sworn in chief minister, Narendra Modi who had been brought in by the party’s national leadership after a series of bye-election losses in September 2001, is at the helm of the law and order machinery as the state’s home minister but does little to act against this communal mobilization. SIB warnings include detailed notings of the aggressive anti-minority speeches being made by BJP party leaders as also persons belonging to the VHP and BD. One such comment recorded would prove to be prescient, “Yeh andar ki baat hai, police hamaari saath hai.” (stated by one Prahlad Patel on his way upstate to Faizabad-Ayodhya). Despite this climate and warnings, Godhra with a poor record, is left unguarded and unprepared. Despite platoons of the military and paramilitary being not far away (at Vadodara), they are not galvanized. When the Sabarmati Express arrives five hours late at the Godhra station on the fateful day, February 27, 2002, Godhra and many parts of Gujarat were already sitting on a communal tinderbox.

It is how the Godhra tragedy is deliberately manipulated that requires a careful and dispassionate study for all those concerned with non-partisan governance. The first information on Godhra received by the chief minister, home and revenue department from the district magistrate, Jayanti Ravi details the sequence of events – aggressive and provocative sloganeering by kar sevaks that caused a mob of Muslims to gather and pelt stones. This reasoning that explains, partially at least how and why a crowd gathered when the train stopped after it had left and the chain was pulled, is thereafter deliberately and consciously obliterated by the government in official statements and releases. The chief minister in the assembly around 1 p.m that afternoon hints at a sinister and Machiavellian conspiracy. (paras 50-54 at pages 37-39 of the protest petition and paras 127-174, pages 71-92 of the protest petition ).

But it is other jigsaws in the puzzle that have fallen into place during the analysis of investigation papers and preparation of the protest petition that point to the chilling manoevres by men and women in positions of governance to abdicate their oath to the Indian Constitution and consciously allow a chain of criminal actions to spiral out of control, that bear careful understanding and discussion. Between 9 a.m. when news of the tragedy at Godhra has been received and 10.30 a.m. when an official meeting of home department officials is called by the chief minister, phone call records (that were deliberately ignored by the Special Investigation Team, SIT) show that the chief minister was in close touch with Jaideep Patel (accused number 21 in the criminal complaint). Jaideep Patel, far from being a man from officialdom, is actually a strongman of the VHP, the state’s general secretary. Despatched to Godhra soon after these telephone conversations it is the same Jaideep Patel who thereafter attends an official meeting at the Collectorate at Godhra (para 69, page 45 of the protest petition) and to whom the chief minister orders the 54 dead bodies of Godhra victims to be handed over. It is a VHP man who is given the responsibility of transporting these bodies to Ahmedabad in a motor cavalcade that causes violence in its wake (paras 73-81 at pages 47-50 of the protest petition) and Jaideep Patel who hands them over to the authorities at Sola Civil Hospital, Ahmedabad. Jaideep Patel thereafter is also charged with being an instigator of mobs to violence at Naroda Gaam, the next day, February 28, 2002.

This close contact between the chief minister and Jaideep Patel, both accused in the Zakia Jafri criminal complaint dated June 8, 2006 continues right through till February 28, 2002 when the massacres at Naroda and Gulberg are being executed. At 15:26:06 hours, Jaideep Patel calls the chief minister at his official number and has a conversation lasting 141 seconds. Jaideep Patel’s is one of just three calls on this number. Incidentally all the official office and residential numbers of the chief minister for both days show a shockingly low number of calls, raising more questions than they answer. The mobile number of the chief minister has been left deliberately uninvestigated by the SIT (para 106, page 61 of the protest petition)

After this surreptitious indications of the criminal conspiracy that was to unfold, the chief minister, then health minister, Ashok Bhatt, minister of state for home, Gordhan Zadaphiya and Jaideep Patel are in touch and a controversial decision to conduct postmortems on the bodies of the unfortunate Godhra victims, in the open at the railway yard, in full public view of an aggressive crowd of VHP persons, baying for blood, is taken. Chief minister who is accused number 1 in this protest petition is present at Godhra at the railway yard while these illegal post mortems are allowed.  (paras 473-477, pages 211-212 of the protest petition)

Law and procedure are exacting about whom bodies of such calamities are to be given; they require to be in the safe keeping of the police authorities (in this case the Godhra police where the case was registered) until claimed by relatives to whom they need to be handed over with due procedure. Photographs of gruesome/gory are strictly prohibited from being displayed or published. (para 480, page 214 of the protest petition). Not only were the gory charred remains displayed but they were allowed to be widely publicized in violation of Section 233, 4 (vi), Volume III of the Gujarat Police Manual.

The narrative behind this legal journey is in itself an exploration into systemic efficacy and response. Zakia Jafri, widow of quarterised, burned and slain former parliamentarian Ahsan Jafri first filed this criminal complaint before the Director General of Police, Gujarat. The man to hold this position by June 8, 2006, the date of the complaint, was none less than many times promoted despite being indicted Commissioner of Police, Ahmedabad PC Pande. When the Gujarat police failed to register an FIR, she along with the Citizens for Justice and Peace, approached the High Court and later, when relief was denied further, the Supreme of India. On April 27, 2009 the Supreme Court, seeing merit in the issues raised by the complaint handed it over to the already appointed Special Investigation Team (SIT) under former CBI director, RK Raghavan. 

The investigations by the SIT resulted in four reports, three before the Supreme Court. While the SIT, despite contradictory findings concluded there was no evidence against any of the accused, the Amicus Curiae (friend of the court) senior counsel Raju Ramachandran said to the contrary. His report dated July 25, 2011 told the Supreme Court that there was a clear case for the prosecution of Modi and three others, at least. Based on this contrary advice, the Supreme Court on September 12, 2011 told the SIT to file its final report after considering the amicus’ contrary view and, in the event of this being no different from its conclusions before the Supreme Court, specifically entitled Zakia Jafri to a complete set of the investigation papers to file a competent protest petition. After a battle of five years, the complaint that began with a plea for registration of an FIR had now proceeded to the stage of a charge sheet being filed against the accused.

SIT did not change its conclusions and filed yet another report stating that no criminal charges were made out. As questionable, was its adamant refusal to comply with the Supreme Court’s order dated September 12, 2011 and give all the investigation papers to Zakia Jafri. The 514 page protest petition is an elaborate testimony to the reasons behind the SIT’s refusal to comply. Its own investigation papers have provided a wealth of further evidence of the callous complicity at the very highest levels in the state administration to paralyse the administration into inaction, deliberately refuse preventive arrests or the declaration of curfew, allow funeral processions to be the launching pads of attacks and rioting, neutralize any action on hate speech etc. By 2013 it is clear that the SIT has not simply performed an onerous job in a desultory and unprofessional fashion. It is today through its partisan conclusions completely obfuscating the dividing line between being an independent investigating agency that it was bound to be, given its appointment by the Supreme Court, to becoming a spokesperson for the Modi administration.

Raghavan, Malhotra and Shukla the three main spokespersons for the SIT have cynically misled the Supreme court when they stated that the funeral processions of the Godhra victims in Godhra and at least five-eight other locations (Khedbrahma, Vadodara, Modasa, Dahod, Anand) were peaceful.  The evidence from Police Control Room (PCR) records submitted by PC Pande to the SIT after 15.3.2011 reveal a cold-blooded mobilization of RSS workers and VHP men at the Sola Civil hospital from 4 a.m. onwards on 28.2.2002 in aggressive anticipation for the arrival of the dead bodies. Repeated PCR messages, that the home department under Modi (A-1, who held the home portfolio) and PC Pande (A-21) were trying to conceal, show that both in Ahmedabad and in several locations all over Gujarat, crowds were mobilized to aggressively parade bodies with bloodthirsty sloganeering, inciting mobs to attack innocent Muslims.

The then joint police commissioner, Ahmedabad, Shivanand Jha, also an accused in the complaint (A-38), was jurisdictionally in charge of Sola Civil Hospital in Zone 1. As the messages extracted show, repeated PCR messages desperately ask for more bandobast; they speak of the staff and doctors of the hospital being under threat; of a 5,000-6,000 strong mob accompanying the bodies and finally one message also says that “riots have broken out.”  (paras 559-560 at pages 244-247 of the protest petition) These records also reveal what the SIT was trying hard to conceal — that while the Ahmedabad police under PC Pande and the home department  under Modi and then MOS, home Gordhan Zadaphiya (A-5 ) had enough forces to escort a VHP leader known for his incendiary slogans, Giriraj Kishore, from the airport to the Sola Civil hospital to accompany the processionists, — they did not have enough forces to send to Naroda Patiya where 96 persons were massacred in broad daylight (charge-sheet figures in the Naroda Patiya case, though more deaths have been recorded) and 69 persons at Gulberg society the same day and around the same time aggressive processions were being allowed.

Sustained warnings from the SIB, even after the Godhra tragedy on February 27, 2002 show that large sections of the police were aware and knew of what should be expected all over the state now that the Godhra tragedy had happened. As early as 12:30 pm on the 27th February: An SIB officer through fax no 525 communicated to the headquarters that there were reports that some dead bodies would be brought to Kalupur Hospital station in Ahmedabad city. The same message said that kar sevaks had given explosive interviews to a TV station at Godhra and had threatened to unleash violence against the Muslims.  

But it is the panic messages from 1.51 a.m. onwards on February 28, 2002 from police wireless vans positioned at Sola Hospital demanding immediate protection from Special Reserve Police platoons and the presence of DCP Zone 1 that are grave testimony to the planned gory scenario that was to unfold. The message at 2:44 hours on February 28, 2002: the motor cavalcade has reached Sola Civil Hospital. Page No. 5790 of Annexure IV, File XIV reveals that at 04:00 am a mob comprising of 3,000 swayamsevaks, that is the members of the RSS, had already gathered at the Civil Sola Hospital. Again, another message three minutes later at 7:17 a.m. (Page 5797 of Annexure IV, File XIV of the documents) says that a mob of 500 people was holding up the traffic. By 11:55 am a PCR message is sent out saying that the Hindu mob had become violent and had set a vehicle on fire and was indulging in arson on the highway. Message at 11.55 a.m. on 28.2.2002 (Page No. 6162 Annexure IV File XV) saying that “Sayyed Saheb, the Protocol Officer had informed Sola-1 that riots have started at Sola civil hospital at the High Court where the dead bodies were brought. Again, there is another message with no indication of time (Page No.6172 of 28.2.2002) that states that the officers and employees of the hospital had been surrounded by a 500 strong mob and they could not come out”. The message also made a demand for more security for the civil hospital at Sola. In a cynical disregard of this hard documentary evidence, the SIT in its first investigation report dated May 12, 2010, the chairman’s comments, May 14, 2010 and its final report dated February 8, 2012 say the funeral processions were peaceful.

On the morning of February 28, 2002, another SIB message says that a funeral procession was allowed to take place at Khedbrahma, a town in Sabarkantha district and adds that soon after the funeral procession 2 Muslims on their way to Khedbrahma were stabbed and the situation had become very tense.  All this and more has been ignored by the SIT completely.

Other documentary evidence of deliberate acts of provocation by persons like Jaideep Patel Kaushik Mehta (also both accused) and Dileep Trivedi are recorded by the SIB that states that deliberately inflammatory and false statements of “women being molested at Godhra” are being propagated by these persons; other meetings at Vapi, Khedbrahma, Bhavnagar etc are being held by RSS, VHP, BD to whip up sentiments (paras 631-637, pages 274-276 of the protest petition). One message at Annexure III, File XVIII (D-160) at Page No. 19 Message No. 531 from SIB Police to KR Singh at 1810 hours on 27.2.2002, actually records that “on 27.2.2002 at 4.30 p.m. when the train arrived at the Ahmedabad Railway station, the kar sevaks were armed with ‘dandas’ and shouting murderous slogans ‘khoon ka badla khoon’ and ‘Bharat Mata ki Jai’.”  

While the chief minister has travelled 300 kilometres to Godhra and returned the same night, he does not visit any of the refugee camps where in brute reprisal killings, women, children and men of the minority have been lodged until well after the visit of the chairperson of the National Human Rights Commission (NHRC), former chief justice JS Verma on May 21-22, 2002. He also announces a discriminatory compensation package for those killed at Godhra and those thereafter. The crucial and sensational meeting at his residence on the night of February 27, 2002, is where direct evidence of the conspiracy in operation has been alleged.

Officers and others who were present have over the past eleven years indicated the directly illegal orders conveyed by the accused chief minister. Unlike crucial law and order meetings at times of crises this meeting has not been minuted. What transpired at this meeting was first publicly revealed through the report of the Concerned Citizens Tribunal—Crimes Against Humanity headed by Justices VR Krishna Iyer, PB Sawant and Hosbet Suresh.  Thereafter in the course of the SIT investigations, a serving officer of the Gujarat police, Sanjiv Bhatt testified directly and corroborated this. The protest petition makes a strong case for testing this evidence in court. Amicus curiae Raju Ramachandran in his report to the Supreme Court has also clearly opined that it is not for the investigating agency to pre-judge the evidence but place it to be tested during trial.

Despite the evidence of intense communal mobilisation, bloodthirsty speeches and actual attacks on innocent citizens of the minority, on the day of the Godhra tragedy, there is no appeal for peace and calm by the state’s chief minister and home minister; no preventive arrests are made despite 19 attacks on minorities in Ahmedabad on February 27, 2002 itself; no prohibitory orders are issued and there is no clarity from the investigation papers as to when the army was actually called and deployed. SIT has not bothered to record the statement of Major Zameeruddin Shah in charge of the army operations in Gujarat neither that of KPS Gill sent  in by the erstwhile NDA government in May 2002 simply because the violence continued and refused to stop. Hence the protest petition apart from praying for the charge sheeting of all the accused also makes a strong case for a transfer of the further investigation to an independent agency

The failure of the SIT was to examine the evidence objectively, evaluate the motive behind the government supporting a bandh called by the VHP and RSS and its impact, tested officers of the ground who were sending warnings against the claims of their accused superiors who have collaborated in partisan mis-governance. An honest and robust investigation would have made a strong comparative analysis between those districts of Gujarat that burned and those that withstood the illegal instructions from above while succumbing to rampaging militias of the RSS-VHP-BD combine from below. Bhavnagar and Panchmahals are interesting studies.

SP Rahul Sharma despite all attempts to unleash bloodshed, held his own, even though re-enforcements and troops were deliberately delayed by his seniors in Gandhinagar.Annoyed at his non partisan conduct he was transferred out by March 26, 2002. Brought to the crime branch where he again, made significant points about non partisan charge sheets in both the Gulberg and Naroda Patiya investigations, he was transferred yet again. The narrative of the conspiracy of partisan governance and subversion of the justice process runs in parallel to a cynical policy of punishments of those officers and administrators who refused to bow down to a cynical leadership and rewards for those who succumbed and became collaborators.

Unfashionable as it is to quote from Jawaharlal Nehru when he said that "The [real] danger to India, is from Hindu right-wing communalism", it seems more than appropriate given the continued attempts by the government in power in Gujarat and the party in power to belittle what has been an onerous and exacting battle, fought at great risk, within the courts.
 
(This article first appeared in the Economic and Political Weekly, April-May 2013)

References:
1. Relentless Attack to Break the Resistance https://sabrangindia.in/column/relentless-attack-break-resistance

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