I actually believed that after the first flush of activity things would pack up. So there was a great sense of satisfaction when as an advocate I experienced, in matter after matter, legal action groups like Citizens for Justice and Peace (CJP) persisting with their work even today. Even after such a long time and with many ups and downs, especially for social activists, the fight continues.

I would particularly like to mention that CJP has looked after countless victims and witnesses all over the state and undertaken legal interventions in scores of cases. And it has been there right from the start. It was in March 2002 that CJP began its legal interventions, first with its writ petition on behalf of the relief camps running in the city and state. Thereafter it has intervened in dozens of matters related to the victims and complaints of the mass carnage. There were also compensation claim cases, hate speech cases and many others.

The relief camp matter came up before the court in April 2002. The petition sought basic amenities from the state for the hapless residents of relief camps who were internally displaced refugees and to whom the state had turned a deaf ear. (Relief camps in Gujarat were all run privately by individuals and groups belonging to the Muslim community. The state of Gujarat did not operate a single relief camp for victims of the genocidal violence.)

The court made a verbal request to the public prosecutor (PP), state of Gujarat, asking him to agree to make a voluntary statement increasing the per day expenses for each resident (from Rs six to Rs eight) and improving the water supply, the provision for bathrooms and so on. The atmosphere in court was especially hostile at the time. Almost every lawyer present in court was hoping, willing the court to simply dismiss the petition. On the other hand, those representing the relief camps – senior counsel, Aspi Chinoy from Mumbai, and I – expected the court to issue firm orders and directions rather than to "request the state government to agree to oblige the poor displaced victims" by giving them the basic amenities that are their due as citizens of this country.

There was immense pressure on all of us as a team. As I stood in the courtroom, and as relief camp managers and the CJP secretary (Teesta Setalvad) arrived, the place filled up not just with lawyers but also intimidatory crowds. In the Gujarat High Court sick notes from all lawyers are generally accepted as a matter of course and without much ado. On one occasion during the hearing, I was quite unwell – a result, I believe, of the constant tension, the pressures of work and the many sleepless nights. I was running a high fever and had no option but to file a sick note. So on the day the matter was to be heard I sent my junior, Anil Verma, to the court, requesting an adjournment. The court responded angrily (a sharp contrast to its amenability and courtesy towards the state of Gujarat) and passed an order stating that all petitioners would thereafter have to remain personally present in court each time the matter was to be heard. Now, the relief camp managers were also performing a sterling service for the community, providing food, water and shelter to victims while the whole of Gujarat was burning. But thanks to the court’s attitude, the relief camp managers had to interrupt their activities and be personally present in court. In the end the state was "obliged" to provide more bathrooms, toilets and quality food to the riot victims.

Another case that stands out was the one related to an incident in Abasana in rural Ahmedabad where six members belonging to the Muslim minority had been killed – an offence registered at the Daithroj police station. Three of the accused had approached the high court for bail. I appeared on behalf of the complainant and filed an affidavit by the complainant witness narrating the role of each of the accused. Some of the accused had used a sharp metal weapon (dhariya) to cause injuries to a victim, an injury that resulted in a fracture of the skull. The deceased victim was then thrown into a fire by other accused. In the post-mortem notes, the cause of death was shown as ‘burning’ although column 17 of the post-mortem report did indicate a fracture to the skull of the deceased victim.

I had opposed bail for these accused as well. However, the defence lawyer argued for bail for the accused persons who had brutally assaulted the deceased on the grounds that the skull fracture was not the cause of death. I then requested a stay on the order granting bail for four weeks so that we could approach the Supreme Court. The court referred the question to the PP (in itself a highly questionable practice) whereupon the PP advised the court that the order should not be stayed and thus my request for a stay was denied. The court then asked me if any conditions needed to be imposed on the accused. I stated that the order should constrain the accused into staying outside rural Ahmedabad until the trial was over. Once again the court referred to the PP who refused to accept these conditions saying that all the accused persons should not have to suffer such hardship. Ultimately, all the accused were constrained into staying outside Abasana for four to six months.

In its judgement the high court also recorded that it was the complainant who had not insisted on a reasoned order (one that provided a detailed explanation of the rationale behind its decision). However, while hearing the complainant’s case for cancellation of bail, the Supreme Court took the view that the high court must record a detailed reasoned order. Following the Supreme Court judgement, the high court should have cancelled the bail granted to the accused. However, due to the long time lag, bail was not cancelled. For a substantial period of time during which the trial was being heard, the accused roamed free. It appears that during this time the witnesses had been won over by the accused persons who were allowed out on bail and they had then turned hostile. The delay in the trial forced them to bow to the influence of the accused.

There is another case related to 2002 that has been pending since December 16 that year. The petitioner, Abdul Hakim Khan, had filed a complaint at the Satellite police station, Ahmedabad, seeking registration of offences against the newspaper, Sandesh, under sections 153 A and 153 B of the IPC for publishing false and provocative reports on February 28 and March 1, 2002. The reports in question were extremely inflammatory and the police should themselves have registered a complaint against the newspaper concerned. Since the police did not, a private complaint was filed under Section 200 of the CrPC. The magistrate concerned dismissed the private complaint on the grounds that state government sanction was necessary for permission to prosecute. So the complainant applied to the state government seeking such sanction. As expected, the state government did not heed the representation and ultimately the complainant had to file a petition in the Gujarat High Court on December 16, 2002 when the petition was admitted and posted for "final hearing without any returnable date". Five years have passed and so far the matter has not been heard. It is still pending before the court and I am not sure when or if it will ever be heard. If, say, the matter were heard in 2008 or 2009, this would be six or eight years after the offence was committed. Where would the trial be then?

The relief camp matter came up before the court in April 2002. The atmosphere in court was especially hostile at the time. Almost every lawyer present in court was hoping, willing the court to simply dismiss the petition

Another case filed by a victim, Abdul Rasool D. Aljuwalla, in 2002 sought directions from the high court to allow all six co-petitioners possession of their shops. The petitioners all had shops in Raigad village, Sabarkantha district. They had been dispossessed of these on February 28, 2002. Like others in Raigad, they were forced to leave their village and could not go back because of the ongoing violence. When they did attempt to return about 10-15 days later, they found that their landlords had taken over the shops and even looted their wares. The FIR listed offences under sections 435, 436 and 390 of the IPC for looting, dacoity and rioting. As in so many other cases, the writ petition was "admitted" and is still awaiting final hearing, five and a half years later. The landlords have already rented the shops out to other people thereby making the victims’ task, the retrieval of their shops, difficult if not impossible. As far as the trial goes, the sessions court has acquitted the accused for want of evidence. The complainants i.e. the victims filed a revision application in the matter but the high court dismissed this on the ground that a revision application had less scope, as "evidence cannot be re-appreciated". The case can now be reopened only if an appeal is filed by the state of Gujarat but this, predictably, is yet to happen.

There are also individual petitions where petitioners have sought adequate compensation from the state of Gujarat. One such petition supported by CJP was filed on March 28, 2003 by Patni Arvind and others asking for compensation from the Ahmedabad district collector. Other matters that CJP has supported include a petition filed by Abdul Hamid Abdul Inamdar on July 30, 2003 seeking compensation for victims of mass violence in Ahmedabad district and a writ petition filed by Ilyasbhai Khan Khatri on September 20, 2003, seeking compensation for loss of property. All these petitions are pending final disposal with no specified date of hearing being ordered. Given the backlog of cases, these matters will have to wait 10 years or more, testing the petitioners’ tenacity and courage. The matters all pertain to the pathetic sums of compensation (Rs 1,000-15,000) paid to victims whose losses, in fact, run into lakhs.

Another major public interest litigation (PIL) filed by CJP relates to expansion of the compensation scheme. This matter has also been repeatedly delayed by the state government (with the court’s compliance) even as petitioners and their advocates remained present and ready.

Rubina Salimbhai Ghanchi filed a petition in July 2003 asking for the appointment of a special PP in place of Arvind Pandya at the Gujarat High Court. Pandya is an advocate of some notoriety, known to be close to the chief minister, Narendra Modi, and is the state government’s counsel before the Nanavati-Shah Commission. The matter was disposed of when Pandya himself withdrew from the case in question. There were also other petitioners seeking the arrest of absconding accused in some cases that achieved limited success. It was only after the court issued notice to senior police officers that the police were forced to arrest some of the accused.

In a case filed some time in 2005 the petitioner was Zahir Bashir Shaikh whose mother was killed in reckless police firing. The petition challenged the role of the investigating and prosecuting agencies. According to the prosecution’s case in the trial, there were incidents of stone pelting whereupon the police constable opened fire and one such bullet hit the petitioner’s mother. The petitioner argued that no stones were found or recovered from the street where his mother had been killed. Shaikh alleged that the police constable deliberately fired at the Muslim house because miscreants had set fire to the policeman’s shop. After the constable got off duty he came to Shaikh’s locality and, using his private revolver, fired at Shaikh’s mother. The police tried to shield the constable by filing a false complaint stating that after five or six incidents of stone pelting, the police had no option but to fire. It was only later on (following the state of Gujarat’s own affidavit) that the petitioner learnt that the firing was a private firing, that the constable’s shop had been burnt and that he was not on duty when the firing took place. Again, the matter was admitted and has been posted for final hearing.

My most telling experience was however during the Best Bakery case appeal in December 2003. The matter was first listed before justices KR Vyas and AL Dave but the bench declined to hear the matter. We were then told that another two-member bench was assigned to the case but they also declined to hear the matter. Ultimately, the matter came up before justices BJ Sethna and JR Vohra. The witness, Sairabano (sister of key witness, Zahira Shaikh), had filed a revision petition challenging the order of acquittal (of the accused) before the high court even as the state government had to file a criminal appeal against the same acquittal under pressure from the Supreme Court. The Supreme Court had also passed strictures about the state of Gujarat’s lacklustre attitude towards justice. There was about a 17-day delay in filing the revision application so when the matter was finally heard, the revision application and the application for condoning the delay were heard together. The court rejected our revision application and directed me, appearing for the witness, to assist the PP in the state’s appeal.

Thereafter the appeal was heard in an extremely hostile atmosphere. The courtroom was packed with supporters of the accused and possibly none, or few, in that hostile and crowded courtroom wanted the state’s appeal to be allowed. I submitted my written arguments on behalf of the witness. The court, however, refused to accept these. I also filed an affidavit by the witness, Sairabano, and as is common procedure in the high court, this was served to the accused and the prosecution five days earlier. It was submitted through the computer at about 4.10 p.m. on December 12, 2003. I also obtained a status report recording the submitted affidavit as item 16. At the time, the appeal was still being heard on a day-to-day basis.

However, the court did not accept the witness’ affidavit and it was returned as per court directions. Entries on the computer were deleted and the status report now showed item 16 as "missing". The operative part of the judgement in the state’s appeal, confirming the acquittal, was pronounced on December 26, 2003 while the detailed judgement followed after the winter vacation on January 12, 2004. When courts reopened I was surprised to find that written arguments on behalf of the accused and those by the PP had been submitted and accepted for consideration after the court had decided on the matter. This by the same court that had rejected written arguments on behalf of the witness, Sairabano! Not only was the atmosphere fraught and hostile, these developments were deeply shocking.

Much of what took place within the courts was reflected at social functions within the legal fraternity. During this period judges were even heard commenting that some lawyers and activists were only trying to rake up old issues to keep them alive and defame Gujarat’s image in the world.

More recently, events in the court during the hearing of the Pandharwada mass graves case are worth a mention. Here we were asking for a transfer of the whole investigation to the CBI. During the course of the hearing in the high court, at one stage even counsel for the CBI made hostile remarks about the co-petitioners, CJP. There were humiliating comments from the court as well, suggesting that the petitioners’ legal interventions were motivated by personal gain.

Notwithstanding the many stumbling blocks, I still believe that if we work, as we must, with full faith and honesty, it can be a truly rewarding experience. Even so, the continuing hostility makes this a frightening exercise. There will be moments when we are disheartened. And there have been many such moments. At one stage during a crucial matter a government pleader attempted to browbeat me, saying that if I carried on like this prosecutors would be instructed to oppose me in all my regular matters as well. But I refused to give in. I have done my job with great satisfaction.

Recently we filed a petition asking that an FIR be registered against the chief minister and 62 others on charges that include criminal conspiracy, mass murder, manslaughter and intimidation (the PIL filed by Zakiya Jaffri and CJP). Some lawyers telephoned me to say that my role in the proceedings, where senior policemen and bureaucrats were also accused, was a recipe for disaster. I would be making formidable enemies.

These are but cheap threats to block the sterling work being done by organisations like CJP.

(As told to Communalism Combat.)

Archived from Communalism Combat, July 2007 Year 13    No.124, Genocide's Aftermath Part II, Voices 2

The post The fight continues appeared first on SabrangIndia.

Courtesy: PTI

Our Constitution stands for democracy, sovereignty, socialism, secularism, republicanism, equality, liberty, justice, dignity of the individual and unity of India. The Hindutva ideology of the Sangh Parivar is the negation of every basic feature of our Constitution. Though the Supreme Court of India has declared the basic feature of our Constitution as unalterable and not amendable. And despite the unanimous view of the Parliament and the Legislatures, the BJP–RSS–VHP–Bajrang Dal combine have acted in the way Hitler did in Germany: subverting the Constitution and the law from within by resorting to perversions and distortions and by destroying them from without by openly violating and defying every legal and constitutional provision and authority through its volunteers and mobs.

So far we had some glimpses of their ‘Hindu agenda’. Now we have their entire agenda fully unfolded and acted upon without any fear, scruples and remorse in Gujarat. Let us see how Narendra Modi’s ‘One day cricket match’ was played in Gujarat.

The tragedy of the Bharatiya Janata Party is that its defeat starts from the first moment of its victory. Once it comes to power on a communal platform of anti-Muslims and anti–Pakistan, it loses its raison d’etre, as it has no other people–centred socio-economic program of governance, despite its big talk. It cannot continue to bank upon communal riots for its strength and legitimacy because communal riots then tend to be counter–productive. Frequent riots, if unchecked, will cast doubts about its capacity to govern. And if attempted to be checked, it will antagonise the rioting Hindus by its police actions to control them.

The same tragedy overcame the BJP’s Keshubhai–led government earlier. Once riots were not on their agenda, it had nothing to offer except hollow promises in highly sanskritised words, like ‘Bhay, Bhukh, Bhrastachar Mukt Gujarat’ (Fear, hunger, corruption–free Gujarat), Gokul Gram Yojana, etc. All it could really offer to the people of Gujarat was insensitive and inefficient management of natural calamities like cyclone, drought, earthquake, and man–made maladies, criminalisation of politics, gross violations of human rights both by state agencies and dominant castes, communalisation of police and administration, rampant and all–pervasive corruption, least concern for social justice and healthy environment. In short, an almost
total absence of any kind of governance.

When the BJP high command realised that Keshubhai’s BJP government was fast losing ground, as was clearly evident from its defeat in the Panchayat elections and a few by–elections, and there were hardly 12-15 months left for the next Assembly elections due in February–March 2003, they decided on a change of guard. Modi, the sangh pracharak, who was brought in as the new chief minister of Gujarat gave a new slogan: ‘Apnu Gujarat, Aagvu Gujarat’ (Our Gujarat, unique Gujarat).

The induction just 10–12 months before the Assembly elections of a staunch RSS pracharak, a hyped–product of the mass media, an organisation man without any exposure to or experience of government or administration, and a special favourite of the RSS–VHP–BJP was the surest indication of the direction in which Gujarat was to move: a laboratory for the Hindutva agenda. As the BJP was losing elections in one state after another – it ended up in the third position behind the Samajwadi Party and the Bahujan Samaj Party in UP — its hawks started attributing its defeat to the dilution of the Hindu agenda.

Narendra Modi, “a textbook case of a fascist and a prospective killer” (first recognized a decade ago by Ashish Nandy – Seminar, May 2002) was ordered to march into Gujarat, not to reform or improve governance or to provide a just, responsive and people–centred government that works, but to saffronise Gujarat, implement the Hindutva agenda and offer a model of a Hindu state for the next round of elections, first in Gujarat in 2003 and then in India in 2004.

On assuming the reins of power in Gandhinagar amidst boisterous Hindu mobs chanting ‘Jai Sia Ram!’ and ‘Modi, March ahead, we are with you’, Modi significantly projected his short stint in power as a ‘one day cricket match’ in which he had to prove himself. For some time he fumbled, unable to get a grip over the government and the administration. While he managed to win his own election with a slender majority, he lost two other by–elections to the state Assembly. He tried to avoid Panchayat elections in the name of ‘Samras Yojana’, which meant unanimous or uncontested elections, by offering monetary incentives. He was about to lose his lustre. And then, suddenly but not so unexpectedly, in the midst of the rising crescendo of the Ram Shila Nyas program of the VHP and the Bajrang Dal, came the Godhra carnage of ‘kar sevaks’ on February 27. This was followed by a call for a Gujarat Bandh by the VHP–BD and supported by the BJP on February 28 to voice ‘people’s reaction, resentment and anger’ against the Godhra killings. This provided the golden opportunity that Modi and his ministers had been eagerly awaiting.

Thus, under the stewardship of Modi, Gujarat witnessed in Year Two of the 21st century a new kind of communal barbarism, where the chief minister and his government virtually presided over the well–organised and systematic liquidation of the life, liberty, property, business and dignity of lakhs of Muslims across Gujarat. Clearly anticipating the RSS’ Bangalore message to the Muslims that “the Muslim minority can live in India only if they can win the goodwill of the Hindu majority.”
After the Godhra killing of Hindu kar sevaks, Muslims in Gujarat — remember, not just the culprits of the Godhra incident — lost the ‘goodwill of the Hindu majority’ and therefore had to pay a price for it.

And what a price they paid: Hundreds of innocent Muslims were burnt alive; women were raped, molested and killed, even pregnant women were not spared; children and old people were butchered; thousands of homes, buildings and business houses with their belongings were looted and destroyed; a large number of Muslims’ religious places were razed to the ground and replaced by Hindu temples or thoroughfares; more than 2 lakh people were forced to leave their houses and to live in relief camps, without  adequate relief facilities and with no hope of just resettlement  and rehabilitation; the police continued  to act  in a partisan manner, indulging  in indiscriminate firings, arbitrary arrests, ruthless combing, abuse of criminal law process, refusal to start criminal proceedings against the criminals and closing the doors of justice  to the  victims. As if Modi was impatient to finish his ‘One–day cricket match’ well before the allotted number of overs.

Earlier, Prime Minister Vajpayee announced at election rallies in UP that the “BJP does not want Muslims votes for its victory.” The subsequent revised version was, “We will win even if Muslims do not vote for us”. Gujarat’s chief minister Modi perverted it into: “We do not care, not only for your votes, but even for your lives.” He converted ‘Apnu Gujarat’ (‘Our Gujarat’) into ‘Maru Gujarat’ (‘My Gujarat’), claiming to speak as the sole defender of the image, prestige and honour of Gujarat; and ‘Aagvu Gujarat’ (‘Unique Gujarat’) into Hindu Gujarat reducing Muslims to helpless victims and second–class citizens.

Once the polity is controlled by the Sangh Parivar and civil society is substantially communalised and polarised in terms of ‘We’ and ‘They’, and ‘They’ are identified with international Islam, Pakistan and terrorism and branded as anti–national, the threat is more open, direct, serious and dangerous for the forces of democracy, rule of law, secularism, justice and pluralism.

And now he is planning for early elections in Gujarat trying to capitalise on the communal divide and hostility to win a majority in the elections, as if winning elections even with a greater majority, with Hindu support, would legalise and legitimise the killing and looting of the Muslim minority and the gross violations of their basic human rights. Modi is hailed by many as ‘Chhote Sardar’ (Junior Sardar Vallabhbhai Patel) but in fact he is only a ‘Chhote Hitler’.

The question which agitates the minds of hundreds of well–meaning people in Gujarat, in India and elsewhere in the world is: What explains the successful arrival of ‘Chhote Hitler’ in Gujarat? Why the macabre dance by the killers of Mahatma Gandhi in the land of Gandhi himself? Why this Hindu tribalism and medievalism in ‘Nay Gujarat’ in the 21st century? What is still more disturbing and horrifying is the boast of the elite of Gujarat and the fear of those who are committed to democracy, secularism and social justice, namely, “What Gujarat is today, India will be tomorrow.” The elite claim with pride that Gujarat is always “a path–breaker for India.” Will this turn out to be true?    

The commonly accepted picture which emerges from various writings and reports is that what we have witnessed in Gujarat are not the ordinary communal riots between Hindus and Muslims Gujarat has had many in the past. Nor are they a mere product of the communal divide surcharged with intense mutual hatred and hostility, something we have had in abundance in our history. What is significant and striking is that these communal disturbances, commonly described as Hindu–Muslim riots, are qualitatively different from earlier Hindu-Muslim riots.

Since Independence and particularly during 1969 and thereafter,  Hindu–Muslim riots have been by and large one–sided, causing larger casualties and losses to the Muslims in general. But the recent riots in Gujarat are perceived to be nothing but a kind of genocide and ethnic cleansing, comparable to what the Nazis did to the Jews in Germany.

These trends were increasingly visible and discernible with each successive riot, particularly after the rise of Hindutva in the ’80s. Now they have emerged so distinctly, visibly, intensely and in accentuated and aggravated form that the quantitative difference has now become a qualitative difference, amounting to a distinct phenomenon. It is not merely a question of more violent and more widespread nationwide riots, but of a clear and present danger of fascism, threatening and undermining the very basis of our constitutional system.

What happened in Gujarat after February 27 has no parallel in India; it is even worse and more dangerous than the Emergency of 1975-77. The latter was certainly a gross abuse of the constitutional system for avoiding a direct threat to Prime Minister Indira Gandhi’s power and authority in the name of the poor and for saving the country from chaos threatened by “reactionary forces.” And yet it maintained some semblance of constitutionalism.

Moreover, it was in a way a ‘coup’ by a handful of Indira Gandhi’s supporters, led by Sanjay Gandhi. But there was a lot of discontent even within the ruling Congress Party and large sections of civil society in India were totally opposed to the Emergency. It led to a very powerful JP–led people’s movement for democracy.

The Emergency could not take root in society and was perceived even by Smt. Indira Gandhi to be nothing but a temporary phenomenon, to be removed when circumstances were favourable, as she well knew that her steps to remain in power were so inherently against the basic values of democracy, civil liberties, rule of law, independence of judiciary and resistance to any form of authoritarianism.

These values were so well understood and accepted in the polity and society that the authoritarian super-structure sought to be created by Mrs. Gandhi and Sanjay Gandhi was bound to face cracks or to collapse sooner or later. Realising this, Indira Gandhi, on the basis of intelligence reports which turned out to be incorrect, declared elections and lost power. The constitutional system was soon restored.

But the communal carnage carried out in Gujarat after February 27 was an expression of majoritarian communalism nurtured, developed and consolidated by the Hindutva forces in civil society, winning substantial support among Hindus, and with the open support, assistance and participation of the BJP government, administration and police. During the Emergency, a vibrant civil society resisted state power. But in Gujarat,the communalised state acted in close collaboration with the support of a large number of Hindus, while the rest of Hindu society remained silent or passive as Muslims were made the targets.

Once the polity is controlled by the Sangh Parivar and civil society is substantially communalised and polarised in terms of “We” and “They”, and “They” are identified with international Islam, Pakistan and terrorism and branded as anti–national, the threat is more open, direct, serious and dangerous for the forces of democracy, rule of law, secularism, justice and pluralism.

The Hindutva ideology of the RSS parivar, namely, India is Hindu and Hinduism is nationalism, of the ideal of a Hindu state within which Hindutva is seen as constituting the national mainstream or cultural nationalism, a state in which Muslims and Christian are minorities and second–class citizens and can live only if they win the goodwill of the majority, cannot be implemented in India through the constitutional system we have. Both cannot co–exist. And therefore the Gujarat situation is a direct subversion of the Constitution and presents a permanent threat, which if not defeated will destroy the Constitution itself.

Courtesy: AFP

Let us briefly describe what happened in Gujarat after February 27.

• The government of Gujarat failed to discharge its elementary constitutional obligation, viz., protecting the life, liberty and properties of its citizens, irrespective of their caste, religion or community. Modi’s government did not act as a constitutional government but a government of the Sangh Parivar, meant for the implementation of the Hindutva program and only for the protection and defence of the Hindu community.
• The government and its administration directly participated in the communal holocaust in aid and support of the marauding mobs of the Hindu fanatics, attacking members of the Muslim community throughout Gujarat and looting or destroying their property, thereby violating its constitutional obligation of non–discrimination as enjoined by the Constitution of India.
• Even though the BJP is a ruling party having its own government in the state, it openly declared support to the ‘Gujarat Bandh’ of February 28 declared by the Vishwa Hindu Parishad and Bajrang Dal, even though bandhs have been declared to be unconstitutional by the Supreme Court of India.
• Modi is most reliably reported to have instructed the officers and  police personnel not to come in the way of what he called the natural reaction of Hindus to the Godhra killings. The government of Gujarat directly and openly violated and infringed upon the basic rights of the Muslim minority under the Constitution of India, resulting in the killing of hundreds, destruction of houses and places of business, desecration of Muslims’ religious places, thereby violating Art.14, Art.19 (1))(g), Art.21 and Articles 25 and 26 of the Constitution.
• Instead of accepting responsibility for the mass killings and mass destruction, of the Muslims, Modi’s government justified the killing and destruction thereby taking sides with one community only. The law and order machinery itself participated in the communal violence against Muslims either directly or by remaining indifferent and passive in controlling the mobs.
• The government originally discriminated between the victims of Godhra violence even in respect of payment of compensation. Subsequently it was forced to withdraw the discrimination.
• The government also failed in providing efficient, effective and speedy relief to the victims belonging to the minority community and also did not take effective steps in providing rehabilitation to the inmates of the refugee camps. A few ministers of Modi’s government and almost all important leaders of BJP, the party in power, participated in the violent activities perpetrated by Hindu mobs throughout Gujarat.
• The government condoned and justified the attacks by the Hindus upon Muslim women, thereby encouraging them to violate the fundamental duties regarding gender equality and regarding respect for women.
• The ruling party and its allies threatened all secular forces and also attacked some of them so as to prevent them from exercising their fundamental rights in the society.
• The government has openly abused the provisions of the Criminal Procedure Code and has failed to enforce the criminal law, blocking the filing of proper FIRs and proper investigation into the crimes, and by appointing its own party men as police or public prosecutors. This has resulted in a denial of justice to  members of the minority community even in respect of crimes committed against them by the ruling groups.
• Modi continued to attack the mass media for their factual reportage of the communal carnage in Gujarat, branding them as anti-Gujarat, anti–Hindu and even foreign agents, thereby directly violating the freedom of speech and expression under Art.19 (1)(a) of the Constitution.
• The chief minister attacked the Parliament of India, particularly the leaders of the opposition parties by making all sorts of allegations against them for their visits to Gujarat and their observations on the happenings and the continuance of violence in Gujarat.
• The Modi government abused every legal and constitutional machinery for its partisan ends. For example, it imposed SSC and HSC examinations, ignoring the all–pervading atmosphere of fear and insecurity only in order to show that everything had become normal. Similarly, in order to pre–empt any allegations or accusations against him for his direct responsibility for the riots, the government even abused the provisions of the Commissions of Inquiry Act by appointing a commission, which was not generally acceptable to the independent citizens of the state.
• The government, through its agents, tried to malign even the National Human Rights Commission through a public interest petition in the Gujarat High Court, making all sorts of wild allegations against the chairman of the National Human Rights Commission.
• Modi’s government also made it very clear by its various actions that Muslims cannot enjoy equality with Hindus and must be content to live as second–class citizen at the mercy of the Hindu majority.
• The administration and the police to a substantial degree were communalised thereby violating the basic principle of a constitutional government, viz., objectivity and impartiality of the administration and law and order machinery.
• The central government controlled by the BJP failed to exercise its constitutional obligations under Art.356 of the Constitution of India and failed to protect the members of the minority community from the violence perpetrated against them by Hindu militants with the support of the state government. Not just that, the BJP government at the Centre abused the so–called principle of state autonomy, not for protecting the people but for protecting Modi’s government.
• The government deliberately did not  call the meeting of the state Legislative Assembly to avoid any discussion over the government’s failure. Instead it dissolved the Legislative Assembly even though the term of the legislature was to expire only in March 2003. This means that the government abused its power by dissolving the Legislative Assembly and deprived the people of Gujarat of an elected legislature by totally unjustified premature dissolution.
• Modi’s government also tried to abuse Art.174 of the Constitution, going so far as trying to force the Election Commission to hold elections in Gujarat at a time chosen by the BJP Government irrespective of ground realities where free and fair elections are not possible.
• On the one hand, the government of Gujarat has humiliated, alienated and destroyed the economic backbone of the Muslim community. On the other, it has created an atmosphere of insecurity in the minds of the Hindus by encouraging rumours of reprisal and terrorist attacks from the Muslim community. Thus the whole of Gujarat society has been polarised into two warring groups.
• Even the judges of the High Court, sitting or retired, were not spared. No steps were taken for their protection, thus making even the highest judiciary in the state feel insecure. Even top officers belonging to the Muslim community were not saved.

Thus every institution and authority, whether constitutional or legal, has been abused and perverted by Modi’s government in the implementation of its Hindutva agenda. At the same time, the government has encouraged and supported Hindu militant groups acting outside the law and the Constitution to pulverise the Muslim community. All these lead to one irrefutable conclusion – the Sangh Parivar cannot implement the Hindutva agenda legally within the framework of the Constitution because it directly attacks and violates every basic feature of our Constitution.

What has happened in Gujarat cannot therefore be described as “temporary aberration”, “transitory disruption” or “momentary insanity”, but has to be understood and accepted as an inherent and inseparable part and parcel of the Sangh’s Hindutva agenda. It is either the Constitution or Hindutva; there is no way the two can co-exist.

What has happened in Gujarat cannot therefore be described as ‘temporary aberration’, ‘transitory disruption’ or ‘momentary insanity’, but has to be understood and accepted as an inherent and inseparable part and parcel of the Sangh’s Hindutva agenda. It is either the Constitution or Hindutva; there is no way the two can co-exist.

What happened in Gujarat was not within the legal and constitutional framework or parameters. It was completely outside the law and the Constitution — a kind of Hindu terrorism. It was not merely a question of the misuse of state institutions committed to constitutional principles; it was nothing short of a calculated and well–planned experiment to superimpose a Hindutva-inspired state over the present democratic, secular, republican State apparatus. And the Hindutva forces have actually demonstrated, successfully to an extent, their vision of a ‘secular Hindu’ state. It is not just a competing vision of modern India within the Constitution, but an alternative vision totally outside and hostile to the constitutional framework.
Gujarat, therefore, offers us distinct and clear glimpses of a Hindu fascist polity working within a totalitarian Hindu worldview. To achieve this goal, even to attempt this in a single state in a federal country is very difficult, particularly when the Union government is of a different complexion. But the Gujarat experiment was possible because the NDA government in New Delhi was effectively a BJP government, supported by weak allies.

Even the benevolent principle of state freedom or autonomy was grossly abused, not for protecting the Constitution and for discharging the constitutional obligations of the Union under Art. 355 and 356, but for protecting the BJP’s Modi–led government, granting it the freedom to act as it wished.

This was the most treacherous behaviour of the Union government led by Vajpayee and Advani — a most shameful betrayal of the Indian Constitution. Double–dealing, double–speak, cunning, hypocrisy, blatant lies mark the conduct of the top BJP ministers and leaders at the Centre, whose motive was and is to show the entire nation what a full–fledged BJP government can do ‘for the Hindus’, to extract political mileage from the genocide of Muslims and to project the real face of Hindutva in the next Lok Sabha elections in 2004.

The fight then will not be an ordinary electoral contest between political parties, but a clash between two visions of our nation, two alternative processes of nation–formation. It is to be a struggle for the protection, preservation and defence of the Constitution against the naked bid for the perversion, desecration and subversion of the Constitution. If we lose the elections, it will not be a loss of one battle — we would have lost the war.

The true character and design of the Sangh Parivar in all spheres of our polity, society, economy and culture are now clearly, distinctly, unambiguously and nakedly exposed, leaving no room for doubt. Gujarat has revealed the true nature of Hindutva not only ideologically or theoretically but also in actual practice. This is what they stand for and this is what they want to do. Our ideology, our policy, programme and strategy must effectively respond to this and counter it.

In this context, therefore, our approach should be total, comprehensive and clearly focused, not merely fragmented or diffused. Hence how the riots actually broke out, the causes and consequences of the Godhra incidents, the nature, extent, intensity and dimensions of violence, the magnitude of the damage and loss to Muslims, the Muslims’ poverty, illiteracy and backwardness, or the Hindus’ sense of insecurity or neglect, the absence of social interaction or tolerance or understanding between different communities, police action or inaction, adequate or unjust rehabilitation, the recourse to courts, though important in themselves must not be dealt with or treated in isolation from one another. Their importance lies in exposing the true character of the menace we are facing.

Therefore, any partial or issue–based approach or strategy, no doubt important and necessary in its own way, will not be sufficient, adequate or effective. It is the new fascist threat of the 21st century combining authoritarianism, sectarianism, religious   fanaticism and an amoral economic policy of self–aggrandisement, cultural hegemony and brute force. They are operating both constitutionally and extra–constitutionally, inside the Parliament and courts and outside in the streets, and working on people’s minds. But the Gujarat events must not defeat, disillusion, disappoint or frustrate us, but must charge and unite us, open our eyes, shake off our complacency and prepare us for defeating them. In this sense, the Gujarat tragedy could retrospectively prove to be a blessing in disguise, in that it warns us of the impending danger and disaster in 2004.

The elections to the Lok Sabha in 2004 without the backdrop of the Gujarat riots would in a way have been deceptive and misleading. Gujarat at least has rid us of that illusion. Modi and his BJP-VHP-RSS want to replicate Gujarat throughout the country. It is for us to prevent this. The issue is no longer confined to Gujarat. It has become an issue for the entire nation. For Modi, it was a ‘One-day match’ finished in good time. For us now, it is a full 5-day Test. Either they win or we win. Even a draw will be ruinous for the country.        

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, India Modi-fied

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Courtesy: virtualclassroom.org

For centuries Hinduism has been the most tolerant of all religions. It was from the ranks of the Brahmins that the first converts to Buddhism were recruited in the sixth Century BC. Two hundred years after Ashoka’s death Buddhism had replaced Hinduism in vast areas of the sub-continent, although the Buddhism that prevailed was not of the purity envisaged by the Enlightened One. But within two centuries after Buddha’s death, eighteen varieties of the Buddhist doctrine divided and confounded the converted faithful!

And then, at the beginning of the first millennium, the growth of monasticism left India open to easy conquest. When the Arabs came, they looked with scorn upon the Buddhist monks and destroyed their monasteries, making the new faith unpopular. The survivors, under the influence of the youthful Adi Shankara, were then reabsorbed into the Hinduism that had begotten them.

As the historian Will Durant records in an elegant sentence: “the ancient orthodoxy received the penitent heresy Brahmanism killed Buddhism by a fraternal embrace.” And all this because Brahmanism had always been so tolerant. The history of the rise and fall of Buddhism and of a hundred other sects in this subcontinent records much disputation, but no instances of persecution (except from foreign invaders). After five hundred years of gradual decay, Buddhism disappeared from India, not violently or with bloodshed, but quietly and peacefully. And throughout Hindustan, Hinduism (after centuries of decline and decadence) came back into its own: still tolerant, still accommodating.

But all this was in the past. During the last few years I have been a querulous spectator of a new phenomenon — on occasions almost a frightened one. The Hindu tradition of toleration is showing signs of strain – the strain of religious tension,
fanned by fanaticism. This “great orchestra of different languages praying to different Gods” that we proudly call “India” is now seen and heard playing out of tune.

Some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.

Is Hinduism then changing its face? I hope not — but I fear it is. It is as well to express this fear openly. Secular India versus militant Hinduism is reminiscent of ambassador George Keenan’s metaphor when contrasting democracy with a dinosaur. “You practically have to whack off his tail,” said Keenan of the dinosaur, “to make him aware that his interests are being disturbed: but once he grasps this, he lays about him with such blind determination that he may destroy his habitat with his adversary.” We must not let the dinosaur destroy our habitat.

Look back a little and reflect on what a great patriot of India had to say — a man whose birth centenary we ritualistically celebrate in November each year. He never regarded the varied peoples of India as the dinosaur looked at he Earth’s smaller inhabitants.

Writing in the quiet seclusion of a prison in 1944 (his ninth term of imprisonment for revolting against the British) Jawaharlal Nehru contemplated “the diversity and unity of India”:

“It is tremendous (he wrote): it is obvious; it lies on the surface and anybody can see it… It is fascinating to find out how the Bengalis, the Malayalis, the Sindhis, the Punjabis, the Pathans, the Kashmiri, the Rajputs and the great central block comprising of Hindustani–speaking people, have retained their particular characteristics of hundreds of years, have still more or less the same virtues and failing of which old traditions of record tell us, and yet have been throughout these ages distinctively Indian, with the same national heritage and the same set of moral and mental qualities.”

There was something living and dynamic about this heritage (says Nehru) which showed itself in ways of living and a philosophical attitude to life and its problems. Ancient India, like ancient China, was a world in itself, a culture and civilisation, which gave shape to all things. Foreign influences poured in and often influenced that culture, but they were absorbed. Disruptive tendencies gave rise immediately to an attempt to find synthesis. And (Nehru adds) almost lyrically: “some kind of a dream of unity has occupied the mind of India since the dawn of civilisation. That unity was not conceived as something imposed from outside, a standardisation of externals or even of beliefs. It was something deeper and, within its fold, the widest tolerance of belief and customs was practiced and every variety acknowledged and even encouraged.”

Many Hindus, many Sikhs, many Muslims, many Buddhists — in fact, most Indians — endorse and share this dream; Nehru’s vision of the diversity and unity of India.

But events in Gujarat and elsewhere show that  ‘Dinosaurs’ breed fast — on hatred. Dinosaurs in one religious camp give impetus to the breeding of them in another — as recent events in Pakistan bear testimony. Scientists tell us that it was a great meteorite that finally destroyed all the dinosaurs on this earth. If so, I like to think that the meteor was the symbolic wrath of God!

I belong to a minority community, a microscopic wholly insignificant minority, which spurned the offer made (at the time of the drafting of our Constitution) — to Anglo–Indians and Parsis alike to have, for at least a decade, our representative in Parliament. The Anglo–Indians accepted the offer — but most of them migrated to places abroad. We Parsis declined the offer — and most of us stayed in India.

In the Constituent Assembly, Sir Homi Mody said that we would rather join the mainstream of a free India. We did. And we have no regrets. I have never felt that I lived in this country at the sufferance of the majority. I have been brought up to think and feel that the minorities, together with the majority community, are integral parts of India.

I have lived and flourished in secular India. In the fullness of time, I would also like to die in secular India, when God wills.       

Archived from Communalism Combat, September 2002, Anniversary Issue (9th), Year 9  No. 80, Tolerant tradition 

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