Image Courtesy: Facebook/Aseem Sawhney

Some measure of outrage has been expressed at the chilling appointment of a lawyer who represented the main accused in the gang-rape, torture and killing of an eight-year-old girl in Jammu and Kashmir’s Kathua to a government post. Aseem Sawney has been appointed additional Advocate General of the state. The state is now under Governor’s rule and therefore responsibility, or blame, needs to be pinned on to the Centre for this act.
 
This is not the first time, nor will it be the last, that the post of law officer of the state government has been subverted by the powers that be. Levels of subversion have meant that the independence and integrity of public prosecutors have often been compromised.
 
In Gujarat, after the genocidal carnage of 2002, the subversion was at its worst. The role of the public prosecutor was truly subverted by the state, with persons with distinct allegiance to the outfits who perpetrated the hatred and violence against the minorities being appointed public prosecutors! These officers then did not oppose the bail of those accused of mass, targeted crimes and worse, proceeded to subvert trials. The suo motu Inquiry by the National Human Rights Commission headed by former chief justice, JS Verma pointed to the subversion of the post of public prosecutor in the state.

Coming back to Jammu and the Kathua rape case, the lawyer claims he is not appearing in the Kathua case anymore. A government role for a man who defended the Kathua accused has provoked sharp reactions. Former chief minister, Ms Mufti today targeted her former alliance partner in tweets. The former Chief Minister said it was “ironic” that the appointment had been made on the World Day for International Justice.

“Rewarding those who defend alleged murderers & rapists is abhorrent & a shocking violation of the spirit of justice. Such a move will only serve to encourage the rape culture rampant in our society. Expect the @jandkgovernor to intervene,” she posted.
The little girl belonging to the Muslim Backerwal nomads, was kidnapped in the first week of January, kept in a small local temple, drugged, starved and repeatedly raped for days. She was finally strangled and her head was bashed in with a rock, but only after one of the men begged to be allowed to rape her one last time.

After eight people were arrested, including retired government official Sanji Ram, senior BJP leaders in the state, including lawmakers, openly backed the accused and called for a CBI inquiry to prove their innocence. The men are now being tried in Pathankot in Punjab.

Subversion of the criminal justice system in Gujarat: Role of the public prosecutor
Since 2003, when Citizens for Justice and Peace (CJP) took up first, the Best Bakery case, and thereafter intervened in the NHRC case (concerning trials that are now being reinvestigated by the SIT), it has highlighted the subversion and dubious functioning of the public prosecutor in Gujarat. In detailed affidavits submitted to the apex court between October 2003 and May 2007, CJP has constantly exposed the designs of the state of Gujarat in deliberately subverting the position of public prosecutor by appointing men who had overt sympathies with the ideology of the RSS and the BJP. These lawyers, instead of functioning as officers of the courts to safeguard the Indian Constitution, served the interests of the ruling party and the accused. They assisted courts in granting hasty bail to mass murderers within months of the crime.

Chetan Shah, Ahmedabad. First appointed public prosecutor in the Gulberg Society massacre case in 2003, he had previously appeared for the accused in this and the Naroda massacre cases. Witnesses made an application to the then state law minister, Ashok Bhatt, in September 2003, which was also produced before the apex court. Shah was replaced by his junior, VP Atre. Thereafter he appeared for the accused in the Naroda Patiya case.

During the Supreme Court proceedings, Harish Salve, amicus curiae, had, in his written submissions dated March 22, 2007 filed in the Supreme Court, stated that “the state of Gujarat does not have significant reply to the allegations (made by victim survivors and CJP) that the appointment of public prosecutors was done in a manner inconsistent with the rights of the victims under Article 21 (right to life) and in breach of the duty cast upon the state under the Code of Criminal Procedure.”

Vinod Gajjar, Ahmedabad. He was appointed by the state of Gujarat in 2006 to appear on its behalf before Judge ML Mehta, additional sessions judge, Delhi, who was appointed by the Supreme Court to scrutinise the voluminous case records in the NHRC case. Gajjar had previously appeared for some of those accused in the Gulberg Society massacre case.

Dilip Trivedi, Mehsana. He was (and probably still is) the general secretary of the state VHP and heads the organisation’s 12-member lawyers’ panel. He appeared for the state in matters relating to the Sardarpura carnage, in which 33 persons were burnt alive on March 1, 2002, where all 46 accused were released on bail. (A day after they were released some of them allegedly attacked a mosque). When the witness complainants filed an application in the Gujarat high court objecting to Trivedi’s role, additional public prosecutor, SJ Dave said the government would consider the appointment of a special public prosecutor but it would not make a firm commitment. Trivedi was removed from the Deepda Darwaja case (one of the two major incidents in Mehsana district) and replaced with Rajendra Darji. Thereafter, after the Supreme Court’s monitoring of the trial, he was removed.

Bharat Bhatt, Sabarkantha. He was the public prosecutor in 2002 but he was also the VHP’s district president. He is on record as saying that he has been doing his best to help the accused in 2002 riot-related cases (in the Tehelka exposé following its sting ‘Operation Kalank’).
Avadhoot Sumant, Vadodara. In early August 2003 he had demanded that the Gujarat high court initiate contempt proceedings against the NHRC for calling the Best Bakery case verdict of July 2003 a miscarriage of justice. Three days after his public declaration to this effect, Sumant was appointed assistant public prosecutor in the case.

Sanjay Bhatt Vyas, Vadodara. Vadodara’s assistant public prosecutor is the nephew of Ajay Joshi, VHP’s city unit president in 2003. An advocate himself, Joshi was a defence counsel in the Best Bakery case.

Piyush Gandhi, Panchmahal. The president of Panchmahal’s district VHP unit in 2002-03 and a member of the VHP’s lawyers’ panel appeared as public prosecutor in the district’s carnage cases and obtained acquittals in three trials between July and November 2002.

Raghuvir Pandya, Vadodara. As prosecutor for the city police in 1996, he contested elections to the Manjalpur Corporation from Ward 20, Kesariya (south), Vadodara, on a BJP ticket. During the Best Bakery trial in April-May 2003, before the fast track court of Judge HU Mahida, all matters were handled by the then public prosecutor, Mr Gupta. But at the time of interrogation of witnesses (who had turned hostile) Raghuvir Pandya was suddenly appointed public prosecutor.

HM Dhruva. A sudden and recent appointment to the SIT panel of prosecutors in April 2009, as reported in The Indian Express, Ahmedabad. Dhruva previously appeared as public prosecutor when the Godhra train fire case was being tried under the Prevention of Terrorism Act (POTA) and where, during proceedings, he demonstrated a clear bias against the accused. According to information received through a Right to Information (RTI) application filed in 2006-07, Dhruva, as special public prosecutor in one of the Godhra cases, officially received fees amounting to more than Rs 92 lakh, eight or nine times what was earned by prosecutors in other 2002 trials. Thereafter Dhruv appeared as defence lawyer for the Sardarpura accused.

Arvind Pandya, Ahmedabad. The state government’s counsel before the Nanavati-Shah Commission, who cast aspersions on the judges. According to him, Nanavati is after money and Shah is sympathetic to “them” (Tehelka, ‘Operation Kalank’).

Following the further investigations directed by the Supreme Court (in 2008), a different kind of subversion was resorted to. Lawyers for the defence, that is the accused in the mass carnage trials (Sardarpura, Naroda Patiya, Naroda Gaam, Gulberg, deepda Darwaza) were indirectly rewarded by giving them plum legal postings in other cases. The lawyer for the accused in the Gulberg case, Mitesh Amin is today the Gujarat state’s public prosecutor in the High Court.

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Subversion of the criminal justice system in Gujarat: Role of the public prosecutor
 

Since 2003, when Citizens for Justice and Peace (CJP) took up first, the Best Bakery case, and thereafter intervened in the NHRC case (concerning trials that are now being reinvestigated by the SIT), it has highlighted the subversion and dubious functioning of the public prosecutor in Gujarat. In detailed affidavits submitted to the apex court between October 2003 and May 2007, CJP has constantly exposed the designs of the state of Gujarat in deliberately subverting the position of public prosecutor by appointing men who had overt sympathies with the ideology of the RSS and the BJP. These lawyers, instead of functioning as officers of the courts to safeguard the Indian Constitution, served the interests of the ruling party and the accused. They assisted courts in granting hasty bail to mass murderers within months of the crime.
 

The mainstream media, tragically unconcerned with this deliberate subversion of the criminal justice system, did not bother to dwell on these facts or analyse them in lofty editorials. Chief Minister Narendra Modi who, in the run-up to the 2009 polls, was the most interviewed politician on television channels, including Times Now, CNN-IBN and Headlines Today, received kid-glove treatment from a media that is otherwise almost hysterically abusive about the ‘political’ class.
 

Chetan Shah, Ahmedabad. First appointed public prosecutor in the Gulberg Society massacre case in 2003, he had previously appeared for the accused in this and the Naroda massacre cases. Witnesses made an application to the then state law minister, Ashok Bhatt, in September 2003, which was also produced before the apex court. Shah was replaced by his junior, VP Atre.
 

During the Supreme Court proceedings, Harish Salve, amicus curiae, had, in his written submissions dated March 22, 2007 filed in the Supreme Court, stated that "the state of Gujarat does not have significant reply to the allegations (made by victim survivors and CJP) that the appointment of public prosecutors was done in a manner inconsistent with the rights of the victims under Article 21 (right to life) and in breach of the duty cast upon the state under the Code of Criminal Procedure."
 

VP Atre, Ahmedabad. A junior to Chetan Shah, whose conduct has also been suspect.
 

Vinod Gajjar, Ahmedabad. He was appointed by the state of Gujarat in 2006 to appear on its behalf before Judge ML Mehta, additional sessions judge, Delhi, who was appointed by the Supreme Court to scrutinise the voluminous case records in the NHRC case. Gajjar had previously appeared for some of those accused in the Gulberg Society massacre case.
 

Dilip Trivedi, Mehsana. He was and is the general secretary of the state VHP and heads the organisation’s 12-member lawyers’ panel. He appeared for the state in matters relating to the Sardarpura carnage, in which 33 persons were burnt alive on March 1, 2002, where all 46 accused were released on bail. (A day after they were released some of them allegedly attacked a mosque). When the witness complainants filed an application in the Gujarat high court objecting to Trivedi’s role, additional public prosecutor, SJ Dave said the government would consider the appointment of a special public prosecutor but it would not make a firm commitment. Trivedi was removed from the Deepda Darwaja case (one of the two major incidents in Mehsana district) and replaced with Rajendra Darji. There is no order on record removing him from the other trial.
 

Bharat Bhatt, Sabarkantha. He was the public prosecutor in 2002 but he was also the VHP’s district president. He is on record as saying that he has been doing his best to help the accused in 2002 riot-related cases (in the Tehelka exposé following its sting ‘Operation Kalank’).
 

Avadhoot Sumant, Vadodara. In early August 2003 he had demanded that the Gujarat high court initiate contempt proceedings against the NHRC for calling the Best Bakery case verdict of July 2003 a miscarriage of justice. Three days after his public declaration to this effect, Sumant was appointed assistant public prosecutor in the case.
 

Sanjay Bhatt Vyas, Vadodara. Vadodara’s assistant public prosecutor is the nephew of Ajay Joshi, VHP’s city unit president in 2003. An advocate himself, Joshi was a defence counsel in the Best Bakery case.
 

PS Dhora, Anand. He is allegedly an RSS sympathiser.
 

Piyush Gandhi, Panchmahal. The president of Panchmahal’s district VHP unit in 2002-03 and a member of the VHP’s lawyers’ panel appeared as public prosecutor in the district’s carnage cases and obtained acquittals in three trials between July and November 2002.
 

Raghuvir Pandya, Vadodara. As prosecutor for the city police in 1996, he contested elections to the Manjalpur Corporation from Ward 20, Kesariya (south), Vadodara, on a BJP ticket. During the Best Bakery trial in April-May 2003, before the fast track court of Judge HU Mahida, all matters were handled by the then public prosecutor, Mr Gupta. But at the time of interrogation of witnesses (who had turned hostile) Raghuvir Pandya was suddenly appointed public prosecutor.
 

HM Dhruva. A sudden and recent appointment to the SIT panel of prosecutors in April 2009, as reported in The Indian Express, Ahmedabad. Dhruva previously appeared as public prosecutor when the Godhra train fire case was being tried under the Prevention of Terrorism Act (POTA) and where, during proceedings, he demonstrated a clear bias against the accused. According to information received through a Right to Information (RTI) application filed in 2006-07, Dhruva, as special public prosecutor in one of the Godhra cases, officially received fees amounting to more than Rs 92 lakh, eight or nine times what was earned by prosecutors in other 2002 trials..

Appointed public prosecutors, these lawyers, instead of functioning as officers of the courts to safeguard the Indian Constitution, served the interests of the ruling party and the accused.
They assisted courts in granting hasty bail to mass murderers within months of the crime

Arvind Pandya, Ahmedabad. The state government’s counsel before the Nanavati-Shah Commission, who cast aspersions on the judges. According to him, Nanavati is after money and Shah is sympathetic to "them" (Tehelka, ‘Operation Kalank’).
 

No contempt of court proceedings have been initiated against Pandya for this insult to the Gujarat judiciary.
 

JM Panchal, Ahmedabad. He has been appointed public prosecutor in the past when major lapses were found in investigation.
 

Sudhir Brahmbhatt, Ahmedabad. He has been appointed public prosecutor in the past when major lapses were found in investigation.
 

SC Shah, Anand. He has been appointed public prosecutor in the past when major lapses were found in investigation.
 

MS Pathak, Anand. In 2002 he was public prosecutor in the Odh massacre case where hasty anticipatory bail was granted to the accused.

The judiciary

The story of the subversion of the criminal justice system in Gujarat by officers of the state from Chief Minister Modi downwards includes the unseemly influence exerted on the state judiciary for prompt granting of bail to all those accused in the post-Godhra massacres. In stark contrast, 86 persons accused in the Godhra train fire case, all Muslims, were and still are in jail, having been denied bail for more than seven years. (Five of them died in custody.)
 

The pursuit of justice for the victims in the post-Godhra massacre cases through a sustained intervention by the apex court has been an arduous process. In 2004, a year after the former chief justice, VN Khare, appointed Harish Salve as amicus curiae, the Gujarat government made shameful efforts to mislead the court on the issue of granting of bail to the accused. When CJP, acting as a constant watchdog, called attention to this shamefaced lying by the Gujarat government, the amicus curiae commissioned it in July 2004 to translate hundreds of pages of bail orders to prove that the Gujarat government was wrong and had been lying to the court. This task was completed within a month. The result revealed to both the amicus curiae and the Supreme Court the lengths to which the state of Gujarat would go in order to conceal the facts from the apex court.
 

This was seen in cases relating to the Gulberg Society massacre, the Naroda Patiya and Naroda Gaon massacres as well as the killings at Sardarpura and Odh. In fact, in Odh in Anand district, a judge even granted anticipatory bail to the accused, some of whom then ran off abroad! This subversion of justice was systematically executed between March 2002 and 2003 when acquittals in many of the cases relating to the major massacres also took place. Apart from the Best Bakery case, there were acquittals in the Pandharwada case (Panchmahal district, where 42 persons were killed) and Kidiad cases (Sabarkantha district, where 62 persons were burnt alive at Limbadiya Chowky as they attempted to flee in tempos). If the apex court had not intervened and stayed the trials (now being reinvestigated by the SIT) on November 23, 2003, there was every likelihood that mass acquittals would have taken place. The media through its piecemeal and sensationalised coverage has refused to grasp, or portray, the systematic subversion of the justice process within Gujarat.
 

Babu Bajrangi (Patel), principal accused in the Naroda Patiya case, was granted bail within months of the carnage. Since then he has blatantly committed more crimes. He told Tehelka during its sting operation that Modi had changed three high court judges to ensure that Bajrangi was granted bail! Akshay Mehta, a high court judge who granted bail to a large number of those accused in the post-Godhra killings in various cases was, after retirement, appointed colleague to Justice Nanavati of the Nanavati-Shah Commission when Justice KG Shah passed away.
 

Surely such deep levels of subversion require systematic investigation?

Archived from Communalism Combat,  May 2009 Year 15    No.140, Cover Story 6

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