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Mass graves and missing lives

01 Jun 2007

 
The challenges thrown up for India, post-Godhra 2002, are fundamental. Are the politically powerful, even if they are organisers of mass murder and rape, immune from the law? The acknowledgement of a crime is the essential foundation on which victims begin the process of healing. In Gujarat, victims have been denied even that recognition.

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

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

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

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

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

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

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

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

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

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

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

Pandharwada mass graves case: A brief

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

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

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

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

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

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

Present status of  the Mass Graves case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March, 2006
Victim survivors and CJP file 600 pages of detailed affidavits contradicting, point by point, all claims made by the state of Gujarat in their affidavits. Ameenabehn Habib Rasool in her rejoinder to rejoinder affidavit dated March 2006 states that:
  • The dead bodies were buried on the banks of the river ‘Paanam’.
  • Through their own investigations, the petitioners learnt that the said land has been classified as ‘forest land’ in village records. This proves that the local administration ought not to have buried the dead bodies there. Instead, they should have been handed over to the survivors of the deceased.
  • Having learnt of the illegal dumping site from the sanitation inspector, victim survivors then informed other villagers and soon thereafter the skeletons were unearthed, in the presence of the electronic media. It was only because of the electronic media’s exposure that the police could not tamper with the skeletons, the evidence. The local administration was caught on the wrong foot, especially because the skeletons were unearthed from forest land. Thus the family members took a wise decision in not providing prior information to the relevant authorities, all of which are controlled by the state government.
  • The CBI should be asked to immediately seize or take charge of the case diaries and the weekly diaries of the police so that the role of the state police and the local administration can be scrutinised. As it is, the state police has had enough opportunity to ‘tamper’ with the evidence.
  • The role of the state government in not protecting its citizens and in defending the accused has repeatedly come to light in this and several other instances.
 

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



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

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

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

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

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

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


 

Mass graves and missing lives


 
The challenges thrown up for India, post-Godhra 2002, are fundamental. Are the politically powerful, even if they are organisers of mass murder and rape, immune from the law? The acknowledgement of a crime is the essential foundation on which victims begin the process of healing. In Gujarat, victims have been denied even that recognition.

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

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

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

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

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

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

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

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

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

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

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

Pandharwada mass graves case: A brief

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

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

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

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

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

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

Present status of  the Mass Graves case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

March, 2006
Victim survivors and CJP file 600 pages of detailed affidavits contradicting, point by point, all claims made by the state of Gujarat in their affidavits. Ameenabehn Habib Rasool in her rejoinder to rejoinder affidavit dated March 2006 states that:
  • The dead bodies were buried on the banks of the river ‘Paanam’.
  • Through their own investigations, the petitioners learnt that the said land has been classified as ‘forest land’ in village records. This proves that the local administration ought not to have buried the dead bodies there. Instead, they should have been handed over to the survivors of the deceased.
  • Having learnt of the illegal dumping site from the sanitation inspector, victim survivors then informed other villagers and soon thereafter the skeletons were unearthed, in the presence of the electronic media. It was only because of the electronic media’s exposure that the police could not tamper with the skeletons, the evidence. The local administration was caught on the wrong foot, especially because the skeletons were unearthed from forest land. Thus the family members took a wise decision in not providing prior information to the relevant authorities, all of which are controlled by the state government.
  • The CBI should be asked to immediately seize or take charge of the case diaries and the weekly diaries of the police so that the role of the state police and the local administration can be scrutinised. As it is, the state police has had enough opportunity to ‘tamper’ with the evidence.
  • The role of the state government in not protecting its citizens and in defending the accused has repeatedly come to light in this and several other instances.
 

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



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

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

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

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

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

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


 

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Sabrang

Betrayal by the state

01 Jun 2007

Unchanged: Destroyed house in Shaikh Mohalla, Sardarpura, June 2006
 
Article 21 of the Constitution of India safeguards citizens from the state’s violation of their life and personal liberty. Moreover, the state is also required to prevent such a violation of fundamental rights by private individuals.


The state is duty bound to protect a threatened group or class of citizens from assault. If it fails to do so, it fails to perform its constitutional and statutory obligations. The state is bound to take every precautionary measure and act swiftly to curb riots and mass terror. Inaction or passivity on its part can result in the loss of life, limbs, livelihood, property and liberty, and the negation of Article 21. If the state is unable to do so and especially if its own officials are complicit in the execution of unconstitutional acts, it is liable to compensate for loss of life, limbs, livelihood, shelter and property.

In these circumstances, the state of Gujarat is constitutionally obliged to provide adequate and appropriate compensation to those who have lost their lives, limbs, houses, livelihood and property in the violence of 2002.

As far back as March 2003, legal action group, Citizens for Justice and Peace (CJP) and Communalism Combat had filed a petition in the Gujarat High Court challenging several questionable acts by the state of Gujarat with regard to compensation for the victim survivors of the genocide.

The total amount earmarked for relief by the government of Gujarat, including compensation for deaths, emergency rations in the relief camps and compensation for destroyed homes, was an abysmally low Rs 205 crore, of which the state received Rs 150 crore from the government of India. In February 2003 the Gujarat government even announced its decision to return Rs 19.10 crore to the central exchequer, stating that adequate compensation had been made.

The CJP petition queried the arbitrary disbursal of compensation, the returning of central funds unused when, in fact, paltry amounts had been paid to victims, and also demanded an enhancement of the compensation scheme. CJP and its team was then authorised by the court to inspect records in all state districts and city collectorates since there were gross discrepancies between amounts claimed by victims and those actually disbursed by the state.

In the course of this inspection as many as 8,358 survey forms were collected from 12 districts of Gujarat between 2003 and 2006. These violence affected households, which suffered losses averaging Rs 1.5 lakh each, were the total number included in the first survey. (CJP is now undertaking phase two, which will provide the complete picture.) Carefully collated by the CJP team, the data reproduced below highlights the extent of the state’s abdication of responsibility. In a mammoth exercise not attempted before, CJP has also undertaken to collate independent data related to about 80,000 families in Gujarat that should be completed a few months from now. This will offer comprehensive material on all issues of criminal justice (legal cases, etc), compensation and reparation for a vast section of the minority population in the state.

Ahmedabad

In Ahmedabad city, where there was maximum destruction, loss of life and property, a total of 1,007 households were surveyed. Of these, 30 per cent have received no compensation at all. Twenty per cent received between Rs 1,000-2,000 each; 20 per cent received between Rs 2,000-5,000 each; 14 per cent received between Rs 5,000-10,000 each and 16 per cent received more than Rs 10,000 each in compensation.

Anand

In Anand district, where a total of 1,146 households were surveyed, 24 per cent have received no compensation at all (these include victim survivors of some of the worst massacres in the genocide). Ten per cent received between Rs 1,000-2,000 each; 24 per cent received between Rs 2,000-5,000 each; 19 per cent received between Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

Banaskantha

In Banaskantha district, where a total of 105 households were surveyed, 23 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; 16 per cent received Rs 2,000-5,000 each; 56 per cent received Rs 5,000-10,000 each and three per cent received more than Rs 10,000 each in compensation.

Bharuch

In Bharuch district, where a total of 50 households were surveyed, 10 per cent have received no compensation at all. Six per cent received Rs 2,000-5,000 each; 30 per cent received Rs 5,000-10,000 each and 54 per cent received more than Rs 10,000 each in compensation.

Bhavnagar

In Bhavnagar district, where a total of 359 households were surveyed, 23 per cent have received no compensation at all. Twenty-three per cent received Rs 1,000-2,000 each; 22 per cent received Rs 2,000-5,000 each; nine per cent received Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

Dahod

In Dahod district, where a total of 91 households were surveyed, 18 per cent have received no compensation at all. Twelve per cent received Rs 1,000-2,000 each; 18 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 38 per cent received more than Rs 10,000 each in compensation.

Kheda

In Kheda district, where a total of 1,192 households were surveyed, 18 per cent have received no compensation at all while 12.5 per cent received Rs 1,000-2,000 each in compensation. Thirty-six per cent received Rs 2,000-5,000 each; 25.5 per cent received Rs 5,000-10,000 each and eight per cent received more than Rs 10,000 each in compensation.

Mehsana

In Mehsana district, where a total of 195 households were surveyed, 72 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; five per cent received Rs 2,000-5,000 each; four per cent received Rs 5,000-10,000 each and 17 per cent received more than Rs 10,000 each in compensation.

Panchmahal

In Panchmahal district, where a total of 441 households were surveyed, 15 per cent have received no compensation at all. Eight per cent received Rs 1,000-2,000 each; 10 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 52 per cent received more than Rs 10,000 each in compensation.

Patan

None of the 12 households surveyed in Patan district have received any compensation for homes destroyed.

Sabarkantha

In Sabarkantha district, where a total of 2,884 households were surveyed, 48 per cent have received no compensation at all. Six per cent received between Rs 1,000-2,000 each; 16 per cent received between Rs 2,000-5,000 each; 12 per cent received between Rs 5,000-10,000 each and 18 per cent received more than Rs 10,000 each in compensation.

Vadodara

In Vadodara district, where a total of 876 households were surveyed, 15 per cent have received no compensation at all. Ten per cent received Rs 1,000-2,000 each; 36 per cent received Rs 2,000-5,000 each; 25 per cent received Rs 5,000-10,000 each and 14 per cent received more than Rs 10,000 each in compensation.

The state of Gujarat’s studied disregard for reparation to victim survivors becomes even more evident from the existing condition of many homes that were attacked in some of the worst massacres of the genocide.

Nineteen homes were destroyed at Shaikh Mohalla in Sardarpura village, Mehsana district. Victim survivors photographed these homes on June 21, 2006. In these photographs, submitted to both the Gujarat High Court and the Supreme Court in July 2006, the extent of the damage is still clearly visible.

A total of 19 homes were destroyed but a meagre compensation, a sum of Rs 39,050, has been paid to the victims. This for a case involving mass carnage – a case that is currently under scrutiny at the Supreme Court (the trial having been stayed on November 21, 2003). Indeed, the Gujarat government’s attitude to the hapless victims of a monumental tragedy needs no further elucidation.

Similarly, at three locales in Ode village of Anand district – Malu Bhagol, Surivali Bhagol and Piraveli Bhagol, 275 homes were destroyed. The totality of the damage can be seen even today. A total sum of Rs 23,22,750 (including miscellaneous compensation expenses) has been paid to the victims in Ode. Victim survivors photographed these homes on June 22, 2006. Photographs of their homes in their current state alongside photographs taken in 2002 as well as a chart showing the extent of damage and the actual compensation paid have all been placed before the courts.

It is clear from these documents and photographs that the amounts paid as compensation are woefully inadequate where the damage to victim survivors, their homes, is immense. Equally clear is that this is no typical instance of administrative negligence or inadequacy. It appears to be a deliberate attempt by the state of Gujarat to shirk their constitutional obligations and deny citizens their constitutional rights.

Compensation for death

The Gujarat state has paid out a mere Rs 1.5 lakh (Rs 90,000 in cash and Rs 60,000 in Narmada Bonds) as compensation to the next of kin of those killed in the violence of 2002.

Detailed memoranda to the United Progressive Alliance (UPA) government (to the prime minister, Manmohan Singh, the union home minister, Shivraj Patil, minister for minority affairs, AR Antulay, and UPA chairperson, Sonia Gandhi), not to mention three public meetings held by victim survivors, pointed out these glaring inadequacies.

Between 2002 and 2006, CJP had been pursuing the matter legally and through advocacy with the political class. CJP and its team worked out a reasoned basis for the actual amount that should be paid as compensation for death given judicial precedents set after the 1984 anti-Sikh carnage. They argued that the amount declared by the state of Gujarat was inadequate and arbitrary, and amounted to a failure on the part of the state to fulfil its constitutional obligations.

In April 2007, a team of representatives from various districts of Gujarat presented this data to union home minister, Shivraj Patil, and the chairman of the National Commission for Minorities (NCM). The delegation also met the general secretaries of the Communist Party of India (Marxist), Prakash Karat, and the Communist Party of India, AB Bardhan.

A significant landmark with regard to compensation for riot victims was a ruling of the Delhi High Court six years prior to the Gujarat violence. In 1996 the Delhi High Court directed the payment of Rs two lakh plus interest from 1984 onwards (amounting to a total of Rs 3.5 lakh) as compensation for those killed in the anti-Sikh riots of 1984. On that basis, and allowing for an average seven per cent annual rate of inflation from 1996 to 2002, the amount of compensation for victims of the Gujarat genocide should be approximately Rs three lakh, with the interest on this amount being around Rs one lakh. Thus the amount of compensation for those killed in the Gujarat violence of 2002 would be over Rs four lakh each.

Following this rationale, it was argued that the Gujarat government’s ceiling of Rs 1.5 lakh, and the payment of Rs 60,000 of this in bonds, was wholly illegal, arbitrary and unconstitutional. CJP and its counsel maintained that the amount should be in consonance with the state’s obligations under Article 14 (guaranteeing equality before the law) and Article 21 of the Constitution of India and should therefore be fixed at Rs four lakh as detailed above. Compensation for injuries/disabilities sustained should be pro rata or proportional to this amount.

Sexual violence

One of the many unfortunate characteristics of the post-Godhra violence in Gujarat was the numerous attacks on women and children, including several instances of rape – a fact also acknowledged by the state home department. However, the Gujarat government’s compensation scheme contained no compensation or reparation amounts for women and children victims of violence. This was pointed out to the Supreme Court through the CJP’s detailed analysis of the compensation scheme in August 2004. At the time, the apex court passed an order directing that any suggestions made by the petitioners (CJP) for enhancement of the compensation scheme should be considered in the Public Interest Litigation (PIL) before the Gujarat High Court.

By August 2002 the government had itself documented that there had been 185 cases of attacks on women (of which 100 were in Ahmedabad city) and 57 attacks on children (of which 33 were in Ahmedabad). In all, 225 women and 65 children were killed. The government also recorded 11 cases of rape: three cases in Ahmedabad, one in Anand, three in Dahod and four in Panchmahal.

In fact, the rape and sexual abuse of women was far more pervasive and the actual number of rape cases far exceeds the official figures. Many victims were killed and burnt beyond recognition. Others were too terrified to record complaints. At the Shah Alam relief camp in Ahmedabad, where many refugees of the violence took shelter, accounts of victim survivors indicated that a much larger number of rapes in fact took place. The same is true of other areas in Gujarat.

To date, no compensation has been paid to the victims of such heinous attacks. In the PIL before the Gujarat High Court, CJP has argued that constitutional obligations require the state to make full and appropriate compensation, of an amount not less than that made available in the case of death (i.e. Rs four lakh), to such helpless women and children.

Substantive reports on sexual violence by various Indian and international civil rights and women’s rights organisations have highlighted how the government of Gujarat failed to fulfil its obligations, under both national and international law, to protect its citizens. In particular, how the state government failed to protect Muslim women who were the targets of specific gendered forms of sexual violence.

Reports have highlighted how elements of the criminal justice system, including the police and the judiciary, failed in their constitutional duty to objectively record and investigate complaints and prosecute offences. They have also illustrated how the Gujarat government, authorities and trial courts failed to provide medical relief and secure medico-legal evidence from victims who had been sexually abused. Many of these findings also exposed a deficiency long recognised by Indian women’s rights activists and quasi-governmental bodies, including the Law Commission of India. The inadequacy of existing penal provisions relating to rape meant that many of the sexual crimes inflicted on women during the genocide fell outside the existing legislative framework and were thus not registered by the police.

A closer inspection of the handful of cases that have been registered – some of which are at advanced stages of investigation – also reveals the manifold failings of the judiciary in Gujarat. It also emphasises that but for the incessant and dogged efforts by victims and human rights activists to pursue these cases in court, they would never have come this far.

Destruction of homes

The position as regards compensation for houses that were damaged or destroyed is equally adverse. The Gujarat government fixed an arbitrary ceiling of Rs 50,000 as compensation for the destruction of homes and in most cases has paid only a pittance of this inadequate amount.

In its August 2002 report, the women’s parliamentary Committee on Empowerment of Women (WPC) noted that the Gujarat government had informed the committee that 4,954 houses (2,023 urban and 2,931 rural) had been "completely destroyed" and that the amount of compensation disbursed for the same was Rs 7.62 crore.

This would mean that an average of around Rs 15,000 was paid for each completely destroyed house. The construction of a house costs approximately Rs one lakh in rural areas and approximately Rs two to three lakh in the urban areas. As a result, nearly 5,000 families have been unable to rebuild their houses or make alternative provisions for their shelter or accommodation.

The committee recorded that it had been informed by the Gujarat government that 18,294 houses had been partially damaged (11,199 urban and 7,095 rural), for which Rs 15.55 crore had been paid as compensation. This works out to an average of a mere Rs 8,500 per house. The committee in fact noted that a number of recipients had shown them cheques made out by the state for as little as Rs 40 to Rs 200. The detailed survey conducted by CJP now corroborates this pathetic reality.

Moreover, the state government has refused to accept even those estimates of losses contained in panchnamas prepared by its own officers. In the PIL before the Gujarat High Court, CJP has argued that the ceiling of Rs 50,000 is entirely illegal, arbitrary and unconstitutional and the amount should, in consonance with the state’s obligations under Articles 14 and 21 of the Constitution, be fixed at Rs 1.5 lakh in rural areas and Rs three lakh in the urban areas. Compensation as per losses indicated in the official panchnamas (subject to the above ceilings) should also be paid.

In August 2002, the WPC report had recorded that as many as 1,32,532 persons had been displaced or forced to leave their houses and were living in 121 riot relief camps of which 58 were in Ahmedabad city.

By June 1, 2002, as mentioned earlier, there had been 4,954 cases (2,023 urban and 2,931 rural) of residential houses having been completely destroyed. There were a further 18,294 cases of partially damaged houses (11,199 urban and 7,095 rural) - i.e. more than 23,000 houses had been destroyed or damaged by the rioters. In addition to this, approximately 5,000 urban houses and approximately 1,000 rural houses were destroyed or damaged after June 2002.

And yet, despite the facts on the ground, the state of Gujarat continues with the false propaganda that adequate compensation has been paid. Unaffected by a genocide that claimed thousands of lives, the state’s attitude has remained unabashedly unrepentant. In July 2002 the Gujarat government announced that the relief camps which sheltered thousands of displaced refugees had been voluntarily closed down by camp organisers. This was yet another example of the state’s manipulation of the truth. Even documents prepared by the state establish that the camps were forcibly closed down following threats and coercion by officers of the state. (In August 2002, the chief minister callously dubbed the relief camps "baby-making factories".) In fact, the camps were forcibly closed down in anticipation of a visit from the Chief Election Commission, in an attempt to establish that ‘normalcy’ had been restored.

Another item on the state’s long list of misdeeds was its refusal to acknowledge official documents detailing losses suffered by victims of the violence. Initial losses were recorded in panchnamas prepared by state officials after site visits or inspections. Although recorded by government officials in the presence of panchas, or witnesses, these panchnamas were later rejected by the state. After the panchnamas had been collected by local police stations at various relief camps in the normal course, the state asked district collectors to appoint teams that conducted their own surveys. Predictably, the losses and damage shown in these survey results were drastically reduced to protect the state’s interests and public image.

More often than not, the state’s so-called technical teams carried out ex parte visits (in the absence of victim survivors) to sundry business establishments. Their reports were never made available for public scrutiny. The compensation amounts paid on the basis of these reports are so niggardly and inadequate as to confer further insult or injury upon those who had already lost their livelihoods and property. Ignoring the earlier panchnamas, during the course of the PIL the Gujarat government also demanded that the victims prove their losses "conclusively" and by adopting "proceedings in civil courts".

Apart from the panchnamas, some first information reports (FIRs) by victim complainants and the police statements recorded therein also contain details of actual losses suffered.

The Gujarat government’s denial of the panchnamas, its response to victims’ losses, only exemplifies its overall approach to a people who had suffered so grievously. It negates, yet again, the Gujarat government’s claims that it had fulfilled its constitutional obligations of compensation. On the contrary, it highlights the government’s continuing reluctance to provide just and fair compensation to those who had already lost so much.

The state’s complicity in influencing records and policy in Gujarat vis-à-vis the genocide, its aftermath, the payment of compensation and reparation, and its obstruction to the path of justice continues even today. Five years later, attitudes have not changed.

By the state’s own admissions to various national bodies, it is evident that the Gujarat government has spent a total of Rs 55 crore for compensation. The balance of funds came from a central government grant of Rs 150 crore, of which the sum of Rs 19.10 crore was returned unused.

Apart from the obvious lacunae in compensation awarded to victims of the genocide, which have been detailed above, the aggregate figures themselves illustrate a glaring discrepancy. While the government estimated that the total loss to property alone was well over Rs 600 crore, the total amount awarded as compensation, including compensation for deaths, rations to relief camps, etc, was in fact only Rs 185.90 crore (including Rs 119 crore spent on providing rations at refugee camps and Rs 17.90 crore awarded as compensation for those killed). The numbers speak for themselves.

There is a pattern of behaviour that establishes that the government of Gujarat intends to deny dignified compensation to the victims of the mass carnage of 2002. What is required is an independent comparison between the discrepancies in the official records, the losses recorded in the FIRs, police statements and panchnamas, and thereafter by the technical survey team. Significantly, the government informed the WPC in August 2002 that almost 5,000 houses had been completely destroyed. In the same breath, the Gujarat government defends the ceiling of Rs 50,000 per home when far greater losses have been suffered.

In effect, the compensation paid is pitiful even where FIRs and panchnamas were dutifully recorded. Whereas ration in the relief camps was given to 1,60,753 persons as per the Gujarat government’s own records, relief money and money for rehabilitation were given to a far reduced number. This is a gross discrepancy that appears to victimise the inmates of relief camps who were and in some cases still are internally displaced persons or refugees. And given their refugee status, it would be reasonable to assume that each one of them should have been entitled to rehabilitation or compensation.

Constitutional obligations require that compensation of at least Rs three lakh plus interest from 2002 be paid to the relatives of those killed and proportional amounts be paid as compensation for disabilities and serious injuries. Women who were raped or sexually abused must be given compensation equal to that awarded for persons who were killed. The ceiling amount for house compensation must be raised to Rs 1.5 lakh in the rural areas and Rs three lakh in the urban areas, and compensation based on a fair assessment of data and records, including the panchnamas contemporaneously recorded, must be paid along with the interest amount accruing from 2002.

Activists have also argued that when communal violence takes place, the state should be duty bound to provide adequate reparation rather than capriciously handing out arbitrary sums of money to victims. Given these recommendations, the government of India is reported to be considering a review of existing policies governing the payment of compensation to victims of communal violence. (India, including Gujarat, has witnessed a series of communal conflicts since independence and rates of compensation awarded to victims of these conflicts have varied greatly.) Furthermore, in light of the paltry amounts given by the Gujarat government to the families of those killed in the violence, the government of India awarded a compensation amount of Rs 3.5 to four lakh to these individuals in November 2006.

Many activists have however highlighted that the compensation needs to encompass those victims who weren’t killed during the violence but nevertheless suffered serious harm and injury – including victims of sexual violence, victims of serious injuries and those who suffered significant damage to their property but were not properly recompensed under the state government’s disbursement.

After visiting Gujarat in October 2006, the NCM has further recommended that this policy – in addition to providing mandatory sums agreed for immediate compensation – should also include money for rehabilitation. The NCM has highlighted that a specific policy dealing with internally displaced persons in the context of communal violence is important, especially in situations where the threat against minorities is perceived to be continuing, where the criminal justice system – as in Gujarat – appears not to be working and there is ongoing discrimination and exclusion. The NCM has argued that the policy must further include provisions for those wishing to return home as well as provisions to facilitate their return and restore the displaced families to their original conditions of living. All these remain in the form of recommendations alone.

Existing camps not regularised by the state government


Ahmedabad (Rehabilitation Camps)
Islamic Relief Committee (IRC) – Houses Rehabilitated, 2002
Allama Ali Takiya – 60 houses
Khanwadi Mitthan Shahid – 156 houses
Ekta Nagar, Vatwa – 108 houses
Naroda Patiya – 125 houses
Ekta Complex, Juhapura – 37 houses
Javed Park, Juhapura – 14 houses
Millat Colony, Gupta Nagar – 317 houses
Mohalatwad, Paldi – 22 houses
Viramgam – 82 houses
Mandal – 4 houses
IRCG Colony, Asim Park – 35 houses
Gujarat Sarvojanik Relief Committee
Sidhikabad, Juhapura – 180 houses
Vandvad, Vatwa – 84 houses
Satnagar, Nr. Ambica Mill, Kakarakia – 240 houses
Parmanand Patel ni Chawl – 79 houses
Arsh Colony, Vatwa – 50 houses
Viramgam – 112 houses
 
Anand district
Ode – 25 houses
Kheda Anand Relief Committee built 34 houses in Anand
 
Dahod district
Sanjeli, Jhalod – 18 houses
Sukhsar, Fatehpura – 39 houses
Piplod, Devgadhbaria – 3 houses

Gandhinagar district
Adalaj – 11 houses
Nardipur – 17 houses
Por – 12 houses
 
Kheda district

Shewala – 14 houses
Gothaj, Kapadvanj – 13 houses
Anjuman-e-Tamir-e-Millat built 20 houses
Majlis Dawatul Haq built 20 houses
 
Mehsana district (Kadi Rehabilitation Camps)
Satnagar (Taluka Vijapur) – 20 houses
Nandasan – 35 houses
Abolgaon – 82 houses & 49 houses
 
Panchmahal District
Shahra – 50 houses
Della – 60 houses
Pandharwada (Khanpur) – 100 houses
Vanjiakhunt (Santrampur) – 5 houses
Eral and Malav (Kalol) – 34 houses
Halol – 53 houses

Sabarkantha district
Vadali – 61 houses
Modasa – 68 houses
Tajpur Camp, Prantij – 21 houses
Chhanapur – 15 houses
Dolapur, Malpur – 22 houses
Himmatnagar – 25 houses

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

Betrayal by the state

Unchanged: Destroyed house in Shaikh Mohalla, Sardarpura, June 2006
 
Article 21 of the Constitution of India safeguards citizens from the state’s violation of their life and personal liberty. Moreover, the state is also required to prevent such a violation of fundamental rights by private individuals.


The state is duty bound to protect a threatened group or class of citizens from assault. If it fails to do so, it fails to perform its constitutional and statutory obligations. The state is bound to take every precautionary measure and act swiftly to curb riots and mass terror. Inaction or passivity on its part can result in the loss of life, limbs, livelihood, property and liberty, and the negation of Article 21. If the state is unable to do so and especially if its own officials are complicit in the execution of unconstitutional acts, it is liable to compensate for loss of life, limbs, livelihood, shelter and property.

In these circumstances, the state of Gujarat is constitutionally obliged to provide adequate and appropriate compensation to those who have lost their lives, limbs, houses, livelihood and property in the violence of 2002.

As far back as March 2003, legal action group, Citizens for Justice and Peace (CJP) and Communalism Combat had filed a petition in the Gujarat High Court challenging several questionable acts by the state of Gujarat with regard to compensation for the victim survivors of the genocide.

The total amount earmarked for relief by the government of Gujarat, including compensation for deaths, emergency rations in the relief camps and compensation for destroyed homes, was an abysmally low Rs 205 crore, of which the state received Rs 150 crore from the government of India. In February 2003 the Gujarat government even announced its decision to return Rs 19.10 crore to the central exchequer, stating that adequate compensation had been made.

The CJP petition queried the arbitrary disbursal of compensation, the returning of central funds unused when, in fact, paltry amounts had been paid to victims, and also demanded an enhancement of the compensation scheme. CJP and its team was then authorised by the court to inspect records in all state districts and city collectorates since there were gross discrepancies between amounts claimed by victims and those actually disbursed by the state.

In the course of this inspection as many as 8,358 survey forms were collected from 12 districts of Gujarat between 2003 and 2006. These violence affected households, which suffered losses averaging Rs 1.5 lakh each, were the total number included in the first survey. (CJP is now undertaking phase two, which will provide the complete picture.) Carefully collated by the CJP team, the data reproduced below highlights the extent of the state’s abdication of responsibility. In a mammoth exercise not attempted before, CJP has also undertaken to collate independent data related to about 80,000 families in Gujarat that should be completed a few months from now. This will offer comprehensive material on all issues of criminal justice (legal cases, etc), compensation and reparation for a vast section of the minority population in the state.

Ahmedabad

In Ahmedabad city, where there was maximum destruction, loss of life and property, a total of 1,007 households were surveyed. Of these, 30 per cent have received no compensation at all. Twenty per cent received between Rs 1,000-2,000 each; 20 per cent received between Rs 2,000-5,000 each; 14 per cent received between Rs 5,000-10,000 each and 16 per cent received more than Rs 10,000 each in compensation.

Anand

In Anand district, where a total of 1,146 households were surveyed, 24 per cent have received no compensation at all (these include victim survivors of some of the worst massacres in the genocide). Ten per cent received between Rs 1,000-2,000 each; 24 per cent received between Rs 2,000-5,000 each; 19 per cent received between Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

Banaskantha

In Banaskantha district, where a total of 105 households were surveyed, 23 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; 16 per cent received Rs 2,000-5,000 each; 56 per cent received Rs 5,000-10,000 each and three per cent received more than Rs 10,000 each in compensation.

Bharuch

In Bharuch district, where a total of 50 households were surveyed, 10 per cent have received no compensation at all. Six per cent received Rs 2,000-5,000 each; 30 per cent received Rs 5,000-10,000 each and 54 per cent received more than Rs 10,000 each in compensation.

Bhavnagar

In Bhavnagar district, where a total of 359 households were surveyed, 23 per cent have received no compensation at all. Twenty-three per cent received Rs 1,000-2,000 each; 22 per cent received Rs 2,000-5,000 each; nine per cent received Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

Dahod

In Dahod district, where a total of 91 households were surveyed, 18 per cent have received no compensation at all. Twelve per cent received Rs 1,000-2,000 each; 18 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 38 per cent received more than Rs 10,000 each in compensation.

Kheda

In Kheda district, where a total of 1,192 households were surveyed, 18 per cent have received no compensation at all while 12.5 per cent received Rs 1,000-2,000 each in compensation. Thirty-six per cent received Rs 2,000-5,000 each; 25.5 per cent received Rs 5,000-10,000 each and eight per cent received more than Rs 10,000 each in compensation.

Mehsana

In Mehsana district, where a total of 195 households were surveyed, 72 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; five per cent received Rs 2,000-5,000 each; four per cent received Rs 5,000-10,000 each and 17 per cent received more than Rs 10,000 each in compensation.

Panchmahal

In Panchmahal district, where a total of 441 households were surveyed, 15 per cent have received no compensation at all. Eight per cent received Rs 1,000-2,000 each; 10 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 52 per cent received more than Rs 10,000 each in compensation.

Patan

None of the 12 households surveyed in Patan district have received any compensation for homes destroyed.

Sabarkantha

In Sabarkantha district, where a total of 2,884 households were surveyed, 48 per cent have received no compensation at all. Six per cent received between Rs 1,000-2,000 each; 16 per cent received between Rs 2,000-5,000 each; 12 per cent received between Rs 5,000-10,000 each and 18 per cent received more than Rs 10,000 each in compensation.

Vadodara

In Vadodara district, where a total of 876 households were surveyed, 15 per cent have received no compensation at all. Ten per cent received Rs 1,000-2,000 each; 36 per cent received Rs 2,000-5,000 each; 25 per cent received Rs 5,000-10,000 each and 14 per cent received more than Rs 10,000 each in compensation.

The state of Gujarat’s studied disregard for reparation to victim survivors becomes even more evident from the existing condition of many homes that were attacked in some of the worst massacres of the genocide.

Nineteen homes were destroyed at Shaikh Mohalla in Sardarpura village, Mehsana district. Victim survivors photographed these homes on June 21, 2006. In these photographs, submitted to both the Gujarat High Court and the Supreme Court in July 2006, the extent of the damage is still clearly visible.

A total of 19 homes were destroyed but a meagre compensation, a sum of Rs 39,050, has been paid to the victims. This for a case involving mass carnage – a case that is currently under scrutiny at the Supreme Court (the trial having been stayed on November 21, 2003). Indeed, the Gujarat government’s attitude to the hapless victims of a monumental tragedy needs no further elucidation.

Similarly, at three locales in Ode village of Anand district – Malu Bhagol, Surivali Bhagol and Piraveli Bhagol, 275 homes were destroyed. The totality of the damage can be seen even today. A total sum of Rs 23,22,750 (including miscellaneous compensation expenses) has been paid to the victims in Ode. Victim survivors photographed these homes on June 22, 2006. Photographs of their homes in their current state alongside photographs taken in 2002 as well as a chart showing the extent of damage and the actual compensation paid have all been placed before the courts.

It is clear from these documents and photographs that the amounts paid as compensation are woefully inadequate where the damage to victim survivors, their homes, is immense. Equally clear is that this is no typical instance of administrative negligence or inadequacy. It appears to be a deliberate attempt by the state of Gujarat to shirk their constitutional obligations and deny citizens their constitutional rights.

Compensation for death

The Gujarat state has paid out a mere Rs 1.5 lakh (Rs 90,000 in cash and Rs 60,000 in Narmada Bonds) as compensation to the next of kin of those killed in the violence of 2002.

Detailed memoranda to the United Progressive Alliance (UPA) government (to the prime minister, Manmohan Singh, the union home minister, Shivraj Patil, minister for minority affairs, AR Antulay, and UPA chairperson, Sonia Gandhi), not to mention three public meetings held by victim survivors, pointed out these glaring inadequacies.

Between 2002 and 2006, CJP had been pursuing the matter legally and through advocacy with the political class. CJP and its team worked out a reasoned basis for the actual amount that should be paid as compensation for death given judicial precedents set after the 1984 anti-Sikh carnage. They argued that the amount declared by the state of Gujarat was inadequate and arbitrary, and amounted to a failure on the part of the state to fulfil its constitutional obligations.

In April 2007, a team of representatives from various districts of Gujarat presented this data to union home minister, Shivraj Patil, and the chairman of the National Commission for Minorities (NCM). The delegation also met the general secretaries of the Communist Party of India (Marxist), Prakash Karat, and the Communist Party of India, AB Bardhan.

A significant landmark with regard to compensation for riot victims was a ruling of the Delhi High Court six years prior to the Gujarat violence. In 1996 the Delhi High Court directed the payment of Rs two lakh plus interest from 1984 onwards (amounting to a total of Rs 3.5 lakh) as compensation for those killed in the anti-Sikh riots of 1984. On that basis, and allowing for an average seven per cent annual rate of inflation from 1996 to 2002, the amount of compensation for victims of the Gujarat genocide should be approximately Rs three lakh, with the interest on this amount being around Rs one lakh. Thus the amount of compensation for those killed in the Gujarat violence of 2002 would be over Rs four lakh each.

Following this rationale, it was argued that the Gujarat government’s ceiling of Rs 1.5 lakh, and the payment of Rs 60,000 of this in bonds, was wholly illegal, arbitrary and unconstitutional. CJP and its counsel maintained that the amount should be in consonance with the state’s obligations under Article 14 (guaranteeing equality before the law) and Article 21 of the Constitution of India and should therefore be fixed at Rs four lakh as detailed above. Compensation for injuries/disabilities sustained should be pro rata or proportional to this amount.

Sexual violence

One of the many unfortunate characteristics of the post-Godhra violence in Gujarat was the numerous attacks on women and children, including several instances of rape – a fact also acknowledged by the state home department. However, the Gujarat government’s compensation scheme contained no compensation or reparation amounts for women and children victims of violence. This was pointed out to the Supreme Court through the CJP’s detailed analysis of the compensation scheme in August 2004. At the time, the apex court passed an order directing that any suggestions made by the petitioners (CJP) for enhancement of the compensation scheme should be considered in the Public Interest Litigation (PIL) before the Gujarat High Court.

By August 2002 the government had itself documented that there had been 185 cases of attacks on women (of which 100 were in Ahmedabad city) and 57 attacks on children (of which 33 were in Ahmedabad). In all, 225 women and 65 children were killed. The government also recorded 11 cases of rape: three cases in Ahmedabad, one in Anand, three in Dahod and four in Panchmahal.

In fact, the rape and sexual abuse of women was far more pervasive and the actual number of rape cases far exceeds the official figures. Many victims were killed and burnt beyond recognition. Others were too terrified to record complaints. At the Shah Alam relief camp in Ahmedabad, where many refugees of the violence took shelter, accounts of victim survivors indicated that a much larger number of rapes in fact took place. The same is true of other areas in Gujarat.

To date, no compensation has been paid to the victims of such heinous attacks. In the PIL before the Gujarat High Court, CJP has argued that constitutional obligations require the state to make full and appropriate compensation, of an amount not less than that made available in the case of death (i.e. Rs four lakh), to such helpless women and children.

Substantive reports on sexual violence by various Indian and international civil rights and women’s rights organisations have highlighted how the government of Gujarat failed to fulfil its obligations, under both national and international law, to protect its citizens. In particular, how the state government failed to protect Muslim women who were the targets of specific gendered forms of sexual violence.

Reports have highlighted how elements of the criminal justice system, including the police and the judiciary, failed in their constitutional duty to objectively record and investigate complaints and prosecute offences. They have also illustrated how the Gujarat government, authorities and trial courts failed to provide medical relief and secure medico-legal evidence from victims who had been sexually abused. Many of these findings also exposed a deficiency long recognised by Indian women’s rights activists and quasi-governmental bodies, including the Law Commission of India. The inadequacy of existing penal provisions relating to rape meant that many of the sexual crimes inflicted on women during the genocide fell outside the existing legislative framework and were thus not registered by the police.

A closer inspection of the handful of cases that have been registered – some of which are at advanced stages of investigation – also reveals the manifold failings of the judiciary in Gujarat. It also emphasises that but for the incessant and dogged efforts by victims and human rights activists to pursue these cases in court, they would never have come this far.

Destruction of homes

The position as regards compensation for houses that were damaged or destroyed is equally adverse. The Gujarat government fixed an arbitrary ceiling of Rs 50,000 as compensation for the destruction of homes and in most cases has paid only a pittance of this inadequate amount.

In its August 2002 report, the women’s parliamentary Committee on Empowerment of Women (WPC) noted that the Gujarat government had informed the committee that 4,954 houses (2,023 urban and 2,931 rural) had been "completely destroyed" and that the amount of compensation disbursed for the same was Rs 7.62 crore.

This would mean that an average of around Rs 15,000 was paid for each completely destroyed house. The construction of a house costs approximately Rs one lakh in rural areas and approximately Rs two to three lakh in the urban areas. As a result, nearly 5,000 families have been unable to rebuild their houses or make alternative provisions for their shelter or accommodation.

The committee recorded that it had been informed by the Gujarat government that 18,294 houses had been partially damaged (11,199 urban and 7,095 rural), for which Rs 15.55 crore had been paid as compensation. This works out to an average of a mere Rs 8,500 per house. The committee in fact noted that a number of recipients had shown them cheques made out by the state for as little as Rs 40 to Rs 200. The detailed survey conducted by CJP now corroborates this pathetic reality.

Moreover, the state government has refused to accept even those estimates of losses contained in panchnamas prepared by its own officers. In the PIL before the Gujarat High Court, CJP has argued that the ceiling of Rs 50,000 is entirely illegal, arbitrary and unconstitutional and the amount should, in consonance with the state’s obligations under Articles 14 and 21 of the Constitution, be fixed at Rs 1.5 lakh in rural areas and Rs three lakh in the urban areas. Compensation as per losses indicated in the official panchnamas (subject to the above ceilings) should also be paid.

In August 2002, the WPC report had recorded that as many as 1,32,532 persons had been displaced or forced to leave their houses and were living in 121 riot relief camps of which 58 were in Ahmedabad city.

By June 1, 2002, as mentioned earlier, there had been 4,954 cases (2,023 urban and 2,931 rural) of residential houses having been completely destroyed. There were a further 18,294 cases of partially damaged houses (11,199 urban and 7,095 rural) - i.e. more than 23,000 houses had been destroyed or damaged by the rioters. In addition to this, approximately 5,000 urban houses and approximately 1,000 rural houses were destroyed or damaged after June 2002.

And yet, despite the facts on the ground, the state of Gujarat continues with the false propaganda that adequate compensation has been paid. Unaffected by a genocide that claimed thousands of lives, the state’s attitude has remained unabashedly unrepentant. In July 2002 the Gujarat government announced that the relief camps which sheltered thousands of displaced refugees had been voluntarily closed down by camp organisers. This was yet another example of the state’s manipulation of the truth. Even documents prepared by the state establish that the camps were forcibly closed down following threats and coercion by officers of the state. (In August 2002, the chief minister callously dubbed the relief camps "baby-making factories".) In fact, the camps were forcibly closed down in anticipation of a visit from the Chief Election Commission, in an attempt to establish that ‘normalcy’ had been restored.

Another item on the state’s long list of misdeeds was its refusal to acknowledge official documents detailing losses suffered by victims of the violence. Initial losses were recorded in panchnamas prepared by state officials after site visits or inspections. Although recorded by government officials in the presence of panchas, or witnesses, these panchnamas were later rejected by the state. After the panchnamas had been collected by local police stations at various relief camps in the normal course, the state asked district collectors to appoint teams that conducted their own surveys. Predictably, the losses and damage shown in these survey results were drastically reduced to protect the state’s interests and public image.

More often than not, the state’s so-called technical teams carried out ex parte visits (in the absence of victim survivors) to sundry business establishments. Their reports were never made available for public scrutiny. The compensation amounts paid on the basis of these reports are so niggardly and inadequate as to confer further insult or injury upon those who had already lost their livelihoods and property. Ignoring the earlier panchnamas, during the course of the PIL the Gujarat government also demanded that the victims prove their losses "conclusively" and by adopting "proceedings in civil courts".

Apart from the panchnamas, some first information reports (FIRs) by victim complainants and the police statements recorded therein also contain details of actual losses suffered.

The Gujarat government’s denial of the panchnamas, its response to victims’ losses, only exemplifies its overall approach to a people who had suffered so grievously. It negates, yet again, the Gujarat government’s claims that it had fulfilled its constitutional obligations of compensation. On the contrary, it highlights the government’s continuing reluctance to provide just and fair compensation to those who had already lost so much.

The state’s complicity in influencing records and policy in Gujarat vis-à-vis the genocide, its aftermath, the payment of compensation and reparation, and its obstruction to the path of justice continues even today. Five years later, attitudes have not changed.

By the state’s own admissions to various national bodies, it is evident that the Gujarat government has spent a total of Rs 55 crore for compensation. The balance of funds came from a central government grant of Rs 150 crore, of which the sum of Rs 19.10 crore was returned unused.

Apart from the obvious lacunae in compensation awarded to victims of the genocide, which have been detailed above, the aggregate figures themselves illustrate a glaring discrepancy. While the government estimated that the total loss to property alone was well over Rs 600 crore, the total amount awarded as compensation, including compensation for deaths, rations to relief camps, etc, was in fact only Rs 185.90 crore (including Rs 119 crore spent on providing rations at refugee camps and Rs 17.90 crore awarded as compensation for those killed). The numbers speak for themselves.

There is a pattern of behaviour that establishes that the government of Gujarat intends to deny dignified compensation to the victims of the mass carnage of 2002. What is required is an independent comparison between the discrepancies in the official records, the losses recorded in the FIRs, police statements and panchnamas, and thereafter by the technical survey team. Significantly, the government informed the WPC in August 2002 that almost 5,000 houses had been completely destroyed. In the same breath, the Gujarat government defends the ceiling of Rs 50,000 per home when far greater losses have been suffered.

In effect, the compensation paid is pitiful even where FIRs and panchnamas were dutifully recorded. Whereas ration in the relief camps was given to 1,60,753 persons as per the Gujarat government’s own records, relief money and money for rehabilitation were given to a far reduced number. This is a gross discrepancy that appears to victimise the inmates of relief camps who were and in some cases still are internally displaced persons or refugees. And given their refugee status, it would be reasonable to assume that each one of them should have been entitled to rehabilitation or compensation.

Constitutional obligations require that compensation of at least Rs three lakh plus interest from 2002 be paid to the relatives of those killed and proportional amounts be paid as compensation for disabilities and serious injuries. Women who were raped or sexually abused must be given compensation equal to that awarded for persons who were killed. The ceiling amount for house compensation must be raised to Rs 1.5 lakh in the rural areas and Rs three lakh in the urban areas, and compensation based on a fair assessment of data and records, including the panchnamas contemporaneously recorded, must be paid along with the interest amount accruing from 2002.

Activists have also argued that when communal violence takes place, the state should be duty bound to provide adequate reparation rather than capriciously handing out arbitrary sums of money to victims. Given these recommendations, the government of India is reported to be considering a review of existing policies governing the payment of compensation to victims of communal violence. (India, including Gujarat, has witnessed a series of communal conflicts since independence and rates of compensation awarded to victims of these conflicts have varied greatly.) Furthermore, in light of the paltry amounts given by the Gujarat government to the families of those killed in the violence, the government of India awarded a compensation amount of Rs 3.5 to four lakh to these individuals in November 2006.

Many activists have however highlighted that the compensation needs to encompass those victims who weren’t killed during the violence but nevertheless suffered serious harm and injury – including victims of sexual violence, victims of serious injuries and those who suffered significant damage to their property but were not properly recompensed under the state government’s disbursement.

After visiting Gujarat in October 2006, the NCM has further recommended that this policy – in addition to providing mandatory sums agreed for immediate compensation – should also include money for rehabilitation. The NCM has highlighted that a specific policy dealing with internally displaced persons in the context of communal violence is important, especially in situations where the threat against minorities is perceived to be continuing, where the criminal justice system – as in Gujarat – appears not to be working and there is ongoing discrimination and exclusion. The NCM has argued that the policy must further include provisions for those wishing to return home as well as provisions to facilitate their return and restore the displaced families to their original conditions of living. All these remain in the form of recommendations alone.

Existing camps not regularised by the state government


Ahmedabad (Rehabilitation Camps)
Islamic Relief Committee (IRC) – Houses Rehabilitated, 2002
Allama Ali Takiya – 60 houses
Khanwadi Mitthan Shahid – 156 houses
Ekta Nagar, Vatwa – 108 houses
Naroda Patiya – 125 houses
Ekta Complex, Juhapura – 37 houses
Javed Park, Juhapura – 14 houses
Millat Colony, Gupta Nagar – 317 houses
Mohalatwad, Paldi – 22 houses
Viramgam – 82 houses
Mandal – 4 houses
IRCG Colony, Asim Park – 35 houses
Gujarat Sarvojanik Relief Committee
Sidhikabad, Juhapura – 180 houses
Vandvad, Vatwa – 84 houses
Satnagar, Nr. Ambica Mill, Kakarakia – 240 houses
Parmanand Patel ni Chawl – 79 houses
Arsh Colony, Vatwa – 50 houses
Viramgam – 112 houses
 
Anand district
Ode – 25 houses
Kheda Anand Relief Committee built 34 houses in Anand
 
Dahod district
Sanjeli, Jhalod – 18 houses
Sukhsar, Fatehpura – 39 houses
Piplod, Devgadhbaria – 3 houses

Gandhinagar district
Adalaj – 11 houses
Nardipur – 17 houses
Por – 12 houses
 
Kheda district

Shewala – 14 houses
Gothaj, Kapadvanj – 13 houses
Anjuman-e-Tamir-e-Millat built 20 houses
Majlis Dawatul Haq built 20 houses
 
Mehsana district (Kadi Rehabilitation Camps)
Satnagar (Taluka Vijapur) – 20 houses
Nandasan – 35 houses
Abolgaon – 82 houses & 49 houses
 
Panchmahal District
Shahra – 50 houses
Della – 60 houses
Pandharwada (Khanpur) – 100 houses
Vanjiakhunt (Santrampur) – 5 houses
Eral and Malav (Kalol) – 34 houses
Halol – 53 houses

Sabarkantha district
Vadali – 61 houses
Modasa – 68 houses
Tajpur Camp, Prantij – 21 houses
Chhanapur – 15 houses
Dolapur, Malpur – 22 houses
Himmatnagar – 25 houses

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

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Sabrang

Gujarat 2002-2007 Genocide’s aftermath

01 Jun 2007

Unchanged: Destroyed house in Ode, June 2006

A challenge to the Indian republic

Five years after independent India’s worst ever state sponsored carnage directed against the Muslim minority, issues of state impunity for mass crimes, accountability to the Constitution, deliverance of justice, fair compensation and reparation, citizenship rights and an ongoing climate of fear and intimidation remain. With 2007 being the scheduled assembly election year in the state of Gujarat, there is also a legitimate fear that violence will again be used as a tool against the battered minority. It is imperative therefore that the nation remains watchful, for not much has changed in the state of Gujarat in the five years since the genocide.

Indian democracy’s response to the Gujarat genocide has been mixed. Outrage from the media, independent citizens groups, the National Human Rights Commission (NHRC) and the Chief Election Commission (CEC) contrasted with an initially tardy response from the Supreme Court. The subsequent, resounding defeat for the National Democratic Alliance (NDA) government in the general elections of May 2004 offered some consolation. The NDA’s leading partner, the Bharatiya Janata Party (BJP), wholeheartedly supported Modi’s execution of the state sponsored carnage while its allies covertly lent him their support, and still do. A month before the electoral results, a rare and unequivocal verdict from the Supreme Court delivered a scathing critique of Modi’s regime in Gujarat when it transferred the well-publicised Best Bakery trial out of the state into neighbouring Maharashtra, undoubtedly influencing the poll’s outcome. The Bilkees Bano case was also transferred to Mumbai and the verdict is still pending. Here, the trial for gang rape and multiple murders in Randhikpur, Dahod district, was not just subverted but involved the destruction of evidence by senior medical and police personnel.

Despite these sharp rebukes and setbacks, the Modi government and its administration have survived in office. Mere months after the carnage, Modi was re-elected to a second term in power, riding on the genocide. The five years since have seen repeated bids for respectability with corporate India and even political opponents obliging.

If the carnage of 2002 shocked India and her people and also became a matter of serious concern for international human rights bodies and even governments, in the five years since, Gujarat emerges as a state with two realities in mutual conflict. One is the shameful aftermath of post-independent India’s first genocide which, having wrecked a community at the physical, emotional, economic, cultural and religious level, has reduced Gujarat’s Muslims to a second grade status. This ugly reality is itself part of the overall story of a repressive state whose targets are numerous: the political dissenter, artist, women, Adivasis, Dalits.

(Suicides in Gujarat have shown an alarming growth even in urban middle class areas. Violence against women in general is now commonplace, a grim reminder of the unintended long term consequences of indoctrinating and setting up hate-filled militias for sexual violence against women and girls, as seen in 2002.)

Contrasted with this sorry state of affairs are the persistent efforts of chief minister, Narendra Modi, backed by a significant section of the state administration and even part of the central United Progressive Alliance (UPA) government’s bureaucracy, to paint and project a picture of normalcy. Modi has spent huge amounts of the Gujarati taxpayer’s money in staging international and national extravaganzas, before leaders of business especially, peddling the image of a vibrant and normal Gujarat.

Stung by international criticism and a silent message sent out by several international diplomatic missions, Modi has tried hard to overcome the humiliation of being India’s first chief minister to have been denied a visa by the USA (in March 2005). The fact that the ambassadors of some western powers continue to boycott Modi is a sore point for a man whose megalomaniacal tendencies are evident from the way every corner of the state is plastered with images of his face. Now bags and biscuit packets for school children, and even condoms are being used to drill the mass murderer’s persona into people’s consciousness.

To some extent, Modi has succeeded. Captains of industry, with their own vision of ‘India shining’, appear mighty impressed with the "strong political leadership of Mr Narendra Modi". Early this year, Ratan Tata of the Tata group, who had wept on the streets of Mumbai in empathy with Mumbai’s victims of communal violence in 1992-1993, had no problems sharing a dais with a politician accused of criminal conspiracy and mass murder. Not surprisingly, the Ambanis of the Reliance group, Shashi Ruia of the Essar group and Kumaramangalam Birla of the Aditya Birla group of industries joined in too, signalling corporate India’s readiness to help wipe the blood off Modi’s hands and help him gain respectability. The inexplicable and much publicised report of the Rajiv Gandhi Foundation calling Gujarat the best governed state (sic), made public months after the UPA came to power, was one more feather in Modi’s cap.

"Normalisation" and "strong leadership" are nomenclatures that have been attributed to a vindictive administration that shows no remorse for having engineered mass crimes, that sees political advantage in villages, cities and mohallas or neighbourhoods remaining divided by borders, that threatens victim survivors and human rights defenders who stand up for justice with arrest and torture. Gujarat is nothing but a showpiece of unchallenged state power.

The comfort of the Indian political class with the state of affairs in Gujarat has also been reflected in the lacklustre debates on the issue in the state’s assembly and in Parliament. The genocide’s aftermath has not been high on the list of priorities for elected representatives who protest and force adjournments on all kinds of issues a lot of the time. It is not just the Congress party, other partners in the UPA coalition, including the Left parties, have also been reluctant to take the issue of punishment for mass crimes to Gujarat’s streets.

“Normalisation” and “strong leadership” are nomenclatures that have been attributed to a vindictive administration that shows no remorse for having engineered mass crimes

Despite the change of political guard in New Delhi, the conduct of the central government in the courts where the struggle for justice is being vigorously fought has, in the five years since 2002, been ambivalent and equivocal. In none of the cases being fought in the Gujarat High Court or the Supreme Court, barring one exception, has the central government been forthright in supporting the Gujarat genocide survivor’s fight for justice. Only recently, during the hearing of the Sohrabuddin Sheikh encounter case, were vociferous arguments made by India’s attorney general, Milon Banerjee, arguing for a Central Bureau of Investigation (CBI) inquiry. This stance actually put off the apex court and denied the petitioner (Rubabuddin Sheikh) his legitimate demand for transfer of the investigation to the CBI. Counsel for the CBI and central government have been quick to adjust and compromise with the government of Gujarat’s counsel in a host of cases, reducing the Centre’s political battle cry against Modi’s fascism to somewhat hollow and hypocritical utterances.

In the course of the repeated hearings of the major carnage cases in the Supreme Court, the Centre has been reluctant to readily accept reinvestigation by the CBI in the Godhra, Gulberg, Naroda Patiya, Naroda Gaon, Ode and Sardarpura massacres. When the mass graves petition was being heard in the Gujarat High Court, the CBI counsel went so far as to actually abuse the legal action group, Citizens for Justice and Peace (CJP). The Congress party’s stand before the Nanavati-Shah Commission of Enquiry, appointed by the Gujarat government to probe the Godhra train arson and the post-Godhra violence, is similarly ambivalent.

Nowhere could the Centre’s reluctance to take a constitutional stand and position be observed more starkly than in the course of former additional director general of police (ADGP), Gujarat, RB Sreekumar’s case before the central administrative tribunal (CAT). The Indian Police Service (IPS) officer, now retired, filed a petition before CAT challenging the denial of his promotion to the post of director general of police (DGP), Gujarat, despite a long record of meritorious service. Sreekumar’s battle was not an individual grievance but the rare and principled dissent of a serving IPS officer who refused to compromise on his principles and his oath of allegiance to the Constitution. For this he was isolated and made to suffer. Since Sreekumar was a member of the central services, the role of the union government should have been clear. They simply had to reiterate that the grounds that the state government was using to justify an unfair denial of promotion were illegal and improper. Judicial precedents supported Sreekumar’s petition. But no. Despite interventions from the top level of the UPA leadership, bureaucrats in the union ministries even tried to smuggle in, at the last minute, an affidavit supporting the Gujarat government’s untenable stand against an upright officer.

Sloganeering at election time notwithstanding, India’s so-called secular political parties have shown a reluctance and ambivalence to identify with the victim survivors’ struggle for justice. After the Best Bakery retrial had commenced in Mumbai and barely a month after witness, Zahira Shaikh turned hostile for the second time (on November 3, 2004), municipal elections were held in Vadodara. The Congress party sent out a clear message when it gave an election ticket to Chandrakant Bhattu Srivastava, cousin of BJP member of the legislative assembly (MLA), Madhu Srivastava. The cousins had played a crucial role in attempting to subvert the struggle for justice in the Best Bakery case.

It was national statutory bodies such as the NHRC and the CEC that were severely critical of the criminal negligence and even unholy collaboration of the state government and its functionaries in the perpetration of heinous crimes against minorities in 2002. These bodies have also flayed the state administration for its acts of culpable omission and commission in not actualising effective performance of various segments of the criminal justice system, not earnestly redressing the grievances of riot victims or ensuring proper and durable rehabilitation of those displaced from their pre-riot habitats.

A meeting with victim survivors on April 26, 2002 moved the then president of India, KR Narayanan, to tears. He vowed to visit their beleaguered state but the visit never took place. The next President of India, APJ Abdul Kalam visited Gujarat on August 11, 2002 but was prevented by a wily Modi from any direct interaction with survivors at the relief camps.

A year after the genocide (2003), as trial after trial resulted in acquittal and the crude phenomenon of witnesses being influenced through fear and inducement received national focus, strictures flowed from the Supreme Court. It was after Best Bakery case witness, Zahira Shaikh’s sensational press conference in Mumbai on July 7, 2003, seeking support from CJP and exposing the pressures exercised on witnesses, that they were galvanised into action. The NHRC, Shaikh and CJP filed special leave petitions asking for retrial and finally the Supreme Court spoke out on what was transpiring in Gujarat. A series of orders and directives by former chief justice of India, VN Khare, then led to the transfer of the Best Bakery case out of Gujarat. The historic Best Bakery case verdict on April 12, 2004 (Justices D. Raju and Arijit Pasiath) was yet another official ratification of the state of affairs so diligently documented by rights groups. Rarely have Indian courts spoken out so sharply and clearly on state complicity in communal violence or the blatant attempts to subvert the role of the public prosecutor.

As early as November 2002, trials in two of the many incidents of premeditated violence had already resulted in a summary acquittal of the accused. (In Pandharwada village in Panchmahal district over 40 persons were killed. In Kidiad village in Sabarkantha district, 65 persons fleeing a village in two tempos were torched to death.) The NHRC, which had created history with its first report on Gujarat in 2002, failed to monitor the progress of justice consistently. This despite its own recommendations in the 2002 report that given the state’s role in the violence, special courts and independently appointed public prosecutors should handle the major criminal trials. It was one step forward and many steps back for India’s institutions.

Shocking exposures of telephone records and statements on oath by serving policemen kept a state government accused of mass murder constantly in the dock. But considering the scandalous exposures and evidence on the conspiracy behind the genocide, institutional democracy in India has so far left Modi and his co-conspirators relatively untouched. It is worth recalling the cold shoulder that even the apex court first gave legal interventions in 2002. Three critical petitions, each asking for special relief, were filed in the Supreme Court in April and May 2002. One of these petitions (writ petition (criminal) No. 37-52 of 2002, Devendrabhai Pathak and Others vs state of Gujarat), filed by independent citizens supported by CJP, remains undecided even today. The other two petitions, filed by danseuse Mallika Sarabhai, litterateur Mahasweta Devi and others asking for relief, became outdated after relief camps in the state were disbanded in August 2002.

The petition that survives makes a strong pitch for the implementation of the NHRC’s recommendations, asking for the major carnage cases, including Godhra, Gulberg, Naroda Gaon and Patiya, Ode and Sardarpura, to be reinvestigated independently by the CBI. After the scandal over the Best Bakery case in the Vadodara fast track courts, the NHRC and CJP further sought that these critical trials be transferred out of the state. The stark facts put down on affidavit by victim survivors and eyewitnesses through CJP in the Supreme Court led the court to stay these trials on November 21, 2003. Since then there have been over two dozen hearings. Not once have the victim survivors or CJP sought time. The court has however seen fit to repeatedly postpone the hearings as a result of which these major trials have been stymied. Victim survivors and witnesses wait anxiously for the Supreme Court to pronounce its verdict. Is justice delayed not justice denied?

The mass media, which has otherwise reported actual incidents without bias, has failed to link the genocide’s aftermath with the near collapse of India’s democratic institutions. As a result, the struggle against the fallout of the genocide in Gujarat and the reality of political repression and an ongoing emergency in the state has been relegated to a legal battle in the courts.

The genocide’s aftermath has, apart from the issue of delayed justice, also exposed the discriminatory deliverance of justice inherent in India’s criminal justice system. The conduct and practices being followed in the Gujarat courts have on occasion received sharp rebuke from the apex court. But even this has failed to correct the functioning of a tainted system.

The major perpetrators and masterminds of the post-Godhra violence were released on bail in next to no time by Gujarat’s courts, especially the high court, even though the crimes committed included barbarities like gang rape, massacre and multiple arson. On the other hand, 86 Muslims accused in the Godhra train arson case remain in jail five years after the incident. Included among them is a boy, Iqbal Mamdu, who is almost totally blind. Also among those still imprisoned is Maulana Umerji, a cleric and respected social worker, who was interned under the Prevention of Terrorism Act (POTA) a year after the incident. Umerji has a long history of social service – he collected donations from Godhra residents for victims of the Bhopal Gas tragedy and was the main person running the Godhra relief camp after the carnage in 2002. (The apex court, too, has remained unmoved by the bail pleas of the Godhra accused.)

In sharp contrast, Babu Bajrangi (Patel), accused number one in the Naroda Patiya carnage, roams free, enjoying political patronage from the top man in the state. An illegal racket run by the Navchetan group which he heads has, over the past eight or 10 years, abducted 350 Patel girls who ‘dared’ to marry a person outside their caste. Bajrangi has so far escaped the long arms of the law.

Bajrangi’s political clout was particularly evident during the recent Parzania film controversy. A film about a Parsee family’s anguished search for their missing son, Azhar, after the attack on Gulberg Society on February 28, 2002, Parzania was unofficially disallowed by the fascist regime in Gujarat in early 2007. Even today there is no government order banning the film. But Gujarat has no need for such legal niceties. One word from Modi or his militia is enough to terrorise multiplex owners not to show the film. It was Bajrangi who whetted the film and declared it unfit for viewing in the state.

December 2005 exposed the mass graves scandal and more callousness from the Gujarat police and administration. Hurriedly dumped skeletal remains of victims of the Pandharwada massacre were recovered by victim survivors. Legal intervention brought some relief when the Gujarat High Court ordered a DNA analysis under CBI supervision. A year later, another judge of the same court rejected a plea for an overall CBI inquiry despite the fact that eight of the samples matched the blood samples of surviving relatives. Ameenabehn Rasool, a victim survivor, and CJP have now filed an appeal in the Supreme Court. Meanwhile, victims and human rights defenders have been targeted by the local police and have had to seek anticipatory bail.

Beginning 2003, until today, persistent efforts continue by the Modi government, the administration and the police, to coerce/convince witnesses into turning hostile and so force the burial of their cases. Zahira Shaikh and her family are not alone. Zahira Shaikh served a one-year term for perjury, but the apex court which delivered this historic judgement stopped short of probing the involvement of those in power in Gujarat who had turned Shaikh and her family from the truth. Despite several applications to the Supreme Court by CJP, urging that the court should order an investigation into the roles of individual politicians who were instrumental in influencing the witness and her family, the court did not do so. To date, the mystery of Zahira Shaikh’s 10-day seclusion at the Silver Oak guest house on the Gandhinagar highway is shrouded in suspicion and secrecy. Despite the fact that this posh clubhouse was emptied of all staff for the duration of her stay, despite the fact that she was treated like a state guest by the state government and its administration, the apex court chose to leave the mystery unsolved. We all know that Zahira Shaikh committed perjury and paid for it. What we do not know are the conduits used by Modi’s men and the role of cabinet colleagues, MLAs, politicians, bureaucrats, policemen, lawyers, and even a Muslim priest, in the pay-off.

Notwithstanding all of Modi’s efforts to whitewash the intricate execution of brute crimes and the veil of conspiracy behind them, his government and administration stand severely indicted for the violence of 2002 especially by police officers who have tendered accurate records of this critical period before the ongoing Nanavati-Shah Commission.

Upholding the dignity of office, former ADGP, RB Sreekumar spurned professional lures when he filed four affidavits before the Nanavati-Shah Commission annexing invaluable records that now form part of the public domain. He suffered by not being promoted to the post of director general of police (DGP) despite being the most appropriate candidate for the job. His personal register records and indicts the chief minister and senior officials for issuing illegal instructions to the police. Sreekumar disobeyed these, inviting the wrath of political masters. Another police officer, former superintendent of police, Bhavnagar, Rahul Sharma, now serving with the CBI, submitted recordings of crucial telephone conversations, of policemen and politicians, conducted between February 27 and March 5, 2002. The recordings have exposed zealous interference in police duty by major players who were also accused in the massacres at Ahmedabad and elsewhere in the state. Despite the weight of evidence against Modi and his men, the stance of the Gujarat administration remains vindictive towards any and all who fight for justice.

The 2002 carnage in Gujarat was also marked by the cynical use of depressed sections, Dalits and tribals, for violence against the minorities while in most instances the dominant Brahmin and Patel castes orchestrated the carnage and watched. Those who have been arrested (and not been granted bail) are not the influential masterminds and architects of the pogrom but foot soldiers who executed a vicious game plan. The emergence of around 300 "only Dalit" colonies in Ahmedabad over the past few years reveals that despite Hindutva’s hyperbole and Hindu Rashtra’s pan-Hindu mantra, centuries-old taboos and caste discriminations are still in place.


Seeking reparation: Zakiya Ahsan Jaffri


The genocide

The protracted anti-minority pogrom in the western Indian state of Gujarat in 2002 was foreshadowed by the systematic organisation and training of cadres of youth for violence. Infiltration by individuals belonging to organisations with a discriminatory, non-democratic approach into positions of power facilitated the orchestration of the mass killings, public and brutal sexual violence against women and girls, the seizure and ruination of homes and property, the denial of livelihoods, the desecration of religious and cultural places, and more.

The well-orchestrated pogrom followed the ghastly killing of 58 passengers, including a few kar sevaks returning from Ayodhya, in a fire on the Sabarmati Express train on February 27, 2002. The ensuing violence, which the state police failed to contain, resulted in the death of what the state claims is 963 persons (704 Muslims and 259 Hindus), injured thousands of people and destroyed or damaged property worth Rs 687 crore. Reliable independent estimates place the number of deaths at 2,500 persons from the Muslim community alone and the damage suffered at Rs 3,500 crore. According to official figures, 413 persons were ‘missing’ after the 2002 genocide. The remains of 228 persons are as yet untraced.

In its statements to the NHRC, the state of Gujarat admitted that the homes of 18,037 urban families (as against 13,222 until June 2002) and 11,204 families in rural areas (as against 10,025 until June 2002) had been destroyed or damaged. The widespread nature of these incidents of violence is evident from the fact that they occurred in 993 villages and 151 towns covering 284 police stations (of a total of 464 in the state) and spread over an overwhelming 153 of 182 assembly constituencies.

The desecration and damage of holy shrines, historic monuments, business establishments, and socio-cultural and financial institutions belonging predominantly to Muslims was another characteristic that set this orgy of violence apart from the many other anti-minority pogroms that India has witnessed in recent times. Hate propaganda in the form of anonymous pamphlets and audiovisual material, CDs, that were widely distributed preceding the genocide, helped transform entire neighbourhoods into complicit rioters. Established newspapers also used their columns for propaganda. To date, the state of Gujarat has not initiated any action against these publications. Although State Intelligence Bureau (SIB) reports suggested action against the offending newspapers, no action has been taken.

Evidence of state complicity

In the five years since the genocidal killings, incontrovertible material evidence and chains of circumstance revealed through depositions to judicial bodies by government officials and others has thrown adequate light on the anti-minority carnage. It is more than apparent that the riots and concomitant brutalities on the Muslim minority were the outcome of a well-designed conspiracy by the political leadership of the state, particularly its chief minister, Narendra Modi.

On June 8, 2006, Zakiya Ahsan Jaffri, widow of the late parliamentarian, Ahsan Jaffri (who was brutally killed by mobs during the Gulberg Society incident in Ahmedabad city on February 28, 2002), sent a complaint to the Gujarat DGP, PC Pande, asking that a first information report (FIR) be registered. The complaint was made out against chief minister, Narendra Modi – as accused number one – and 62 others, including cabinet ministers and Indian Administrative Service (IAS) and IPS officials, under section 154 of the Code of Criminal Procedure (CrPC).

Ten months after the DGP failed to register the FIR despite a strong case being made regarding serious cognisable offences, Zakiya Jaffri and CJP filed a criminal application in the Gujarat High Court praying for a writ of mandamus directing the registration of an FIR and for an order transferring the case to the CBI. Some of the offences cited in the complaint relate to the following sections of the Indian Penal Code:

Section 302 read/with (r/w) Section 120 B – Murder/Criminal conspiracy.

Section 186 – Obstructing public servant in discharge of public functions.

Section 187 – Omission to assist a public servant when bound by law to give assistance.

Section 153 A – Promoting disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities – disturbing the public tranquillity.

Section 506 – Criminal Intimidation.

This is the first time that such a comprehensive petition against the chief executive of a state, and his cabinet colleagues and administration has been filed. So far the judiciary in Gujarat, which has been diffident about honouring its constitutional obligations, has delayed hearing it. The petition carries over 4,000 pages in annexures, including certified copies of all the affidavits filed by serving police officers before the Nanavati-Shah Commission. Despite the existence of these affidavits, the state of Gujarat has not initiated any investigations into the incriminating evidence available before it. On the contrary, as RB Sreekumar’s fourth affidavit to the commission states, efforts were made to pressurise him not to depose honestly before a commission of enquiry instated by the state government itself. Critical questions that ought to have been put to him and other officers were deliberately omitted by all advocates appearing before the commission, including those appearing for non-governmental organisations.

The complaint sent by Zakiya Jaffri to the DGP points out in detail how the undeclared but insidious objective was to manipulate, focus and channel the Godhra incident – to create and germinate the ire of the Hindu population, facilitate a free play of their baser instincts as seen in the large-scale brutalities and thereby reap political and electoral dividends in the election year of 2002.

The chain of circumstances and the details of evidence, post-Godhra, establish that the chief minister, Narendra Modi, and his cabinet colleagues had conspired, planned, prepared, organised and perpetrated multifarious crimes against the Muslim minority by causing and contriving to mobilise armed anti-Muslim mobs.

Modi’s government and administration stand severely indicted for the violence of 2002 especially by police officers who have tendered accurate records of this critical period before the ongoing Nanavati-Shah Commission

The pogrom was made possible by simultaneously restraining the bureaucracy through the various instruments of punishment and reward at the government’s disposal. Consequently, the officials figuring in the FIR connived with and abetted the political leadership of the state in the execution of the numerous crimes as delineated in the complaint.

Not surprisingly, the Gujarat police dithered. On March 1, 2007, Zakiya Jaffri along with CJP filed a petition urging directions from the Gujarat High Court that such an FIR, encompassing all these offences, be registered forthwith and the CBI be asked to take over a case that involves over three dozen police stations in the state. So far, three dates for hearing have come up. The first judge refused to hear the case. Since then, on two occasions the state has sought time to file an affidavit in reply. The matter now comes up on July 23, 2007.

The truth about Godhra

Crime Against Humanity – the report of the Concerned Citizens Tribunal – Gujarat 2002 and ‘Genocide-Gujarat 2002’ (Communalism Combat, March-April 2002) had poked serious holes in the false claims by the Hindutva brigade and Narendra Modi about the Godhra incident. Both these publications revealed how the state government’s Ahmedabad based Forensic Science Laboratory Report (FSLR) itself exposed the theories pushed by the state. Without investigation, Modi and saffron organisations had pinned Godhra Muslims, backed by Pakistan’s Inter-Services Intelligence (ISI), as being the main culprits behind the arson. Since then, an important film, Godhra Tak, takes the FSLR report even further. The film reveals, through forensic experts, that the location of the Sabarmati Express’ S-6 coach ruled out the possibility of inflammatory liquid being flung by a mob from outside. The current union government’s railway ministry has since published its own enquiry report – the Banerjee Committee report – into the incident. Put together, Modi’s theory behind Godhra stands thoroughly exposed.

Given these findings, the blatantly biased attitude of the state (including judicial bodies in Gujarat) towards those accused in the Godhra mass arson is deeply disturbing.

Unfolding conspiracy and other crimes

Late in the evening of February 27, 2002, on his return from Godhra, Chief Minister Narendra Modi convened a meeting of senior officials attended by Addl. Chief Secretary Ashok Narayan, DGP K. Chakravarti, Commissioner of Police (CP), Ahmedabad city, PC Pande, and others. He instructed these officials to give vent to the Hindu anger against minority Muslims. (The fact that former revenue minister of Gujarat, Haren Pandya, deposed before the Concerned Citizens Tribunal in 2002 is widely believed to have led to his murder in February 2003. His father, Vithal Pandya, has alleged that the chief minister was behind his killing.)

The CM’s attitude proved a major obstacle to officers in initiating action against Hindu communal elements who were on the rampage against Muslims. By not opposing the illegal instructions of the CM and later facilitating the rioters through inaction and non-compliance of regulations, and the dereliction of statutory duties, these officials became consenting conspirators and abettors to the crimes committed by Modi and others.

Subsequent developments in Gujarat between 2002 and 2006 confirm that a series of motivated actions were carried out by the state to execute targeted attacks on Muslims, and later to deny due relief, assistance and protection to victims. Subversion and manipulation of segments of the state administration, particularly the executive magistracy (from mamlatdar to district magistrate) and the police, were the core modus operandi in the enactment of various crimes against Muslims.

There is adequate material and circumstantial evidence to prove the role of the accused persons in the commission of the crimes. A few illustrative strands of evidence are:

a. The non-initiation of preventive measures, as laid down in specific regulations, against potential offenders who were likely to indulge in anti-Muslim violence on the day of the bandh i.e. February 28, 2002.

In fact, targeted attacks on Muslims started on the evening of February 27, 2002 itself. The amount of brutalities, their intensity and range, had steadily escalated, hour after hour. But no effective actions, as preventive and deterrent measures, invoking relevant legal provisions of the CrPC and the Bombay Police Act, were resorted to. All over India and also in Gujarat, police have been periodically guided by detailed instructions on how to tackle an outbreak of communal violence through a Communal Riot Scheme. The conventional police response, in the form of arrests of potential troublemakers in the event of communal tension, as specified in the Communal Riot Scheme and other confidential police records, was conspicuously absent post-Godhra.

In none of the affidavits filed by police officers such as the CP, Ahmedabad, or the DGP, Gujarat, before the Nanavati-Shah Commission is there any mention of the arrest of communal minded persons or leaders of communal organisations, particularly those belonging to the BJP, the Vishwa Hindu Parishad (VHP), the Bajrang Dal and the Shiv Sena. From a reading of these it is clear that the police were reluctant to arrest leaders of Hindu communal organisations even when FIRs lodged by riot victims specifically named prominent political players. In the few cases where they were arrested, the judiciary was quick to grant bail.

b. The Bombay Police Act and other regulations empower district magistrates and police officers not to release dead bodies for the purposes of a funeral procession if such a public display of the dead could intensify communal strife and jeopardise the law and order situation. Despite such regulations, the authorities (in Godhra and Ahmedabad city) permitted a parade of the bodies of the Godhra train fire victims through Ahmedabad city although many of the bodies had not yet been identified and many did not even belong to Ahmedabad city or district. This unholy exercise was carried out to fuel the communal frenzy of Hindus against Muslims.

c. Another factor that aggravated Hindu communal passions soon after the Godhra incident was the local press. False or highly exaggerated reports with a clear anti-Muslim flavour repeatedly appeared in the Gujarati print media and played a significant role in fomenting and escalating the violence. Yet no action was initiated by the state government against the offending newspapers despite specific reports in this connection by then ADGP, RB Sreekumar.

d. The inexplicable delay in requisitioning additional central police units and calling in the army also created a situation conducive for rioters to inflict their brutalities on the Muslim minority.

e. Anti-Muslim violence in Ahmedabad city started on the evening of February 27, 2002 and huge mobs comprising activists of the VHP and Bajrang Dal had attacked Muslims on the morning of February 28. However, the imposition of curfew in Ahmedabad was inexplicably delayed until about 12.30 p.m. on that day (February 28). Was this delay to help or facilitate rioters? In areas that were less communally sensitive, such as Bhavnagar, Surat and so on, curfew had been imposed in the early hours of February 28, 2002.

f. Two cabinet ministers (who were not supervising or in charge of the state home department) were positioned by the chief minister, Narendra Modi, in the offices of the DGP, Gujarat and police commissioner, Ahmedabad. Urban development minister, IK Jadeja, was in the DGP’s office whereas health minister, Ashok Bhatt, was in the police control room, Ahmedabad city. This was done to facilitate illegal interference in the law enforcement duties of the police chiefs of the state and Ahmedabad city. These facts were in fact first brought to light in articles published by the English daily, The Indian Express, in 2002.

The resultant inactivity/indifference of the police generated a feeling that Muslims could be attacked and their houses and property destroyed with impunity.

And the execution of this conspiracy, ensured by the compliance of the state administration and the police, resulted in the brutal carnage that rocked Gujarat and India. Mass murders took place in Gulberg Society, Ahmedabad city (70 persons were killed, including those missing); Naroda Patiya, Ahmedabad city (83 killed); Ode village, Anand district (27 killed); Sardarpura village, Mehsana district (33 killed); Pandharwada, Panchmahal district (40 killed); Kidiad, Sabarkantha district (65 killed) and Best Bakery, Vadodara city (14 killed).

Pathetic living conditions: Pandharwada relief camp, March 2007

Rape, killings and arson resulting in the loss of lives and property also took place in several other cities and districts of the state. In many parts of Ahmedabad Rural, Banaskantha, Dahod, Gandhinagar, Godhra, Kheda, Patan and Vadodara Rural, brutalities were inflicted on the Muslim minority by frenzied crowds instigated or led by the BJP/VHP and supported by the state administration under pressure from the political leadership in Gujarat.

Additional collateral evidence also supports the charge of conspiracy and other offences by the chief minister and his administration.

Though the most brutal atrocities on Muslims were enacted in the weeks immediately following the Godhra incident, at the time the SIB sent no analytical intelligence reports depicting the gravity of the situation to the Centre. But from April 2002 onwards, the SIB has documented the extent of state involvement and subversion of the criminal justice system in four critical reports. Copies of these reports, dated April 24, 2002, June 15, 2002, August 20, 2002 and August 28, 2002, were appended to ADGP Sreekumar’s second affidavit before the Nanavati-Shah Commission. Significantly, neither the state government nor DGP Chakravarti, to whom these assessment reports were addressed, responded with any comments or queries about their contents. Nor did they initiate any remedial action as suggested.

Numerous illegal instructions were issued by higher authorities to RB Sreekumar. The ADGP recorded these in his personal register and attached this document to the third affidavit he filed before the Commission.

The state government orchestrated its vengeance well. Modi used the instruments of transfer, promotion and post-retirement benefits to cajole, persuade and pressurise officials to follow his illegal agenda.

The declaration of a bandh on February 28, 2002, in response to the Godhra arson, was cleverly manipulated by the chief minister and the octopus-like tentacles of the sangh parivar. Although the bandh was clearly a potential threat to law and order, a communal tinderbox, there were no orders from the state government instructing the organisers to call it off nor were there any directions to the police to treat the bandh as illegal.

Further, as part of its grandiose scheme to manipulate the criminal justice system in favour of criminals who brutalised an innocent minority, the state chose to subvert proceedings at the trial stage itself. The government appointed pro-VHP advocates, including actual office bearers of the VHP, as public prosecutors to conduct cases against those accused of anti-minority crimes – where the accused belonged largely to the VHP and sister organisations. This first came to light during the hearing of the Best Bakery case in the Supreme Court in early 2004. Even as late as 2006, an unremorseful administration appointed Vinod Gajjar, who had previously appeared for the accused in the Gulberg Society massacre, to represent the government in the transfer cases before the apex court.

Moreover, to starve the Nanavati-Shah Commission of relevant data and inputs, officials of the Gujarat home department have been systematically briefing government officials summoned by the commission as witnesses. ADGP RB Sreekumar’s third affidavit describes the attempts made by state home secretary, GC Murmu, to force him (Sreekumar) into supporting the conspiracy theory with regard to the Godhra incident, and other attempts even to intimidate him.

Needless to say, the state government took no action against senior police personnel and other officials who deliberately neglected the supervision of investigation of anti-minority cases – conduct that is in gross violation of Rules 24, 134, 135 and 240 of the Gujarat Police Manual-Vol. III.

In fact, in a number of cases uniformed police personnel were found marching behind or mingling with the mob. In some cases policemen joined in the mayhem and ensured that no resistance could be offered to the rioters even as those associated with the Bajrang Dal, the VHP and the ruling BJP were in the forefront of the rioting. District magistrates/collectors/district police in several of the worst affected districts did not take appropriate action to contain the riots in those areas where mass murder, rape and other heinous crimes were taking place.

The worst indictment against the state of Gujarat is however the state’s unrepentant attitude towards victims of the genocide. Contrary to the claims made by the state administration in its affidavits before the courts and its reports to the NHRC, the ground reality is in fact far from conducive for the successful rehabilitation of riot victims. There is a serious discrepancy between victim survivors’ claims with regard to housing compensation paid and the state’s unabashed efforts to brazen it out with blatant untruths. Instead, victims of the violence have been consistently intimidated into compromising with the perpetrators as a condition precedent for their safe return and rehabilitation in their pre-riot habitats. In some of the worst carnages of the 2002 genocide, in instances of massacre where judicial trials have been stayed by the Supreme Court, victim survivors simply cannot return to their villages. Photographs taken by Communalism Combat illustrate that in many cases the state of their destroyed homes remains unchanged – they are in exactly the same condition as they were five years ago, on the day that tragedy struck. Not only has there been no closure, their wounds fester, their pain renewed at the hands of a callous administration.

Internally displaced persons

The plight of those internally displaced from their homes as a result of the violence is a continuing one. They have no permanent citizenship today, the only proof they have are election cards (recently issued) that may or may not save the day. Relief committees have built them homes on land allotted by the government, land that is often purchased at commercial rates but on an ad hoc basis and not regularised. With elections around the corner, rights groups have petitioned the election commission to ensure that election cards are issued to residents in their new locales.

As far as rehabilitation is concerned, the reality is that survivors and eyewitnesses of the Sardarpura massacre cannot return to Shaikh Mohalla in their native village. They still live as refugees in Satnagar, in a neighbouring district. Survivors of the Gulberg massacre cannot return to their middle class housing colony. Survivors of the Ode massacre cannot return to their village. Well over five years after the carnage, only a few victim survivors from Naroda Gaon and Patiya have returned to their locality. Even after Supreme Court orders have been issued, the security provided to witnesses is inadequate and threats continue.

An estimated 2,50,000 individuals were displaced as a direct result of the Gujarat genocide in 2002. Of these, a vast majority have reportedly left the state or have bought or rented accommodation mainly in Muslim localities across the state. An approximate 8,000 families still live in what are currently referred to as "relief colonies" in four districts of Gujarat. Over the past five years, these habitats have become permanent places of residence for those who are too scared to return home. In the People’s Union for Civil Liberties’ right to food petition currently being heard in the Supreme Court, court commissioner, NC Saxena, has recently submitted a report on the pathetic living conditions of Gujarat’s refugees. A petition challenging the state of Gujarat’s cavalier approach to compensation was filed by CJP and Communalism Combat in March 2003. In October 2006, for the first time in five years, India’s National Commission for Minorities also visited these "relief colonies" following appeals by several rights groups.

Showing no remorse whatsoever for its part in the killings, five years later, the Gujarat government has failed to provide full – or in most instances, any – reparation to victims and their families, including restitution, rehabilitation and justice. This includes the failure to adequately recompense those families whose houses were partially or completely destroyed. The government of India must ensure that it respects its obligations under both national and international law to provide appropriate and adequate reparation commensurate with the harm suffered by victim survivors and sufficient to enable them to rebuild their lives.
 
Archived from Communalism Combat, June 2007 Year 13    No.123, Genocide's Aftermath Part I, Introduction

Gujarat 2002-2007 Genocide’s aftermath

Unchanged: Destroyed house in Ode, June 2006

A challenge to the Indian republic

Five years after independent India’s worst ever state sponsored carnage directed against the Muslim minority, issues of state impunity for mass crimes, accountability to the Constitution, deliverance of justice, fair compensation and reparation, citizenship rights and an ongoing climate of fear and intimidation remain. With 2007 being the scheduled assembly election year in the state of Gujarat, there is also a legitimate fear that violence will again be used as a tool against the battered minority. It is imperative therefore that the nation remains watchful, for not much has changed in the state of Gujarat in the five years since the genocide.

Indian democracy’s response to the Gujarat genocide has been mixed. Outrage from the media, independent citizens groups, the National Human Rights Commission (NHRC) and the Chief Election Commission (CEC) contrasted with an initially tardy response from the Supreme Court. The subsequent, resounding defeat for the National Democratic Alliance (NDA) government in the general elections of May 2004 offered some consolation. The NDA’s leading partner, the Bharatiya Janata Party (BJP), wholeheartedly supported Modi’s execution of the state sponsored carnage while its allies covertly lent him their support, and still do. A month before the electoral results, a rare and unequivocal verdict from the Supreme Court delivered a scathing critique of Modi’s regime in Gujarat when it transferred the well-publicised Best Bakery trial out of the state into neighbouring Maharashtra, undoubtedly influencing the poll’s outcome. The Bilkees Bano case was also transferred to Mumbai and the verdict is still pending. Here, the trial for gang rape and multiple murders in Randhikpur, Dahod district, was not just subverted but involved the destruction of evidence by senior medical and police personnel.

Despite these sharp rebukes and setbacks, the Modi government and its administration have survived in office. Mere months after the carnage, Modi was re-elected to a second term in power, riding on the genocide. The five years since have seen repeated bids for respectability with corporate India and even political opponents obliging.

If the carnage of 2002 shocked India and her people and also became a matter of serious concern for international human rights bodies and even governments, in the five years since, Gujarat emerges as a state with two realities in mutual conflict. One is the shameful aftermath of post-independent India’s first genocide which, having wrecked a community at the physical, emotional, economic, cultural and religious level, has reduced Gujarat’s Muslims to a second grade status. This ugly reality is itself part of the overall story of a repressive state whose targets are numerous: the political dissenter, artist, women, Adivasis, Dalits.

(Suicides in Gujarat have shown an alarming growth even in urban middle class areas. Violence against women in general is now commonplace, a grim reminder of the unintended long term consequences of indoctrinating and setting up hate-filled militias for sexual violence against women and girls, as seen in 2002.)

Contrasted with this sorry state of affairs are the persistent efforts of chief minister, Narendra Modi, backed by a significant section of the state administration and even part of the central United Progressive Alliance (UPA) government’s bureaucracy, to paint and project a picture of normalcy. Modi has spent huge amounts of the Gujarati taxpayer’s money in staging international and national extravaganzas, before leaders of business especially, peddling the image of a vibrant and normal Gujarat.

Stung by international criticism and a silent message sent out by several international diplomatic missions, Modi has tried hard to overcome the humiliation of being India’s first chief minister to have been denied a visa by the USA (in March 2005). The fact that the ambassadors of some western powers continue to boycott Modi is a sore point for a man whose megalomaniacal tendencies are evident from the way every corner of the state is plastered with images of his face. Now bags and biscuit packets for school children, and even condoms are being used to drill the mass murderer’s persona into people’s consciousness.

To some extent, Modi has succeeded. Captains of industry, with their own vision of ‘India shining’, appear mighty impressed with the "strong political leadership of Mr Narendra Modi". Early this year, Ratan Tata of the Tata group, who had wept on the streets of Mumbai in empathy with Mumbai’s victims of communal violence in 1992-1993, had no problems sharing a dais with a politician accused of criminal conspiracy and mass murder. Not surprisingly, the Ambanis of the Reliance group, Shashi Ruia of the Essar group and Kumaramangalam Birla of the Aditya Birla group of industries joined in too, signalling corporate India’s readiness to help wipe the blood off Modi’s hands and help him gain respectability. The inexplicable and much publicised report of the Rajiv Gandhi Foundation calling Gujarat the best governed state (sic), made public months after the UPA came to power, was one more feather in Modi’s cap.

"Normalisation" and "strong leadership" are nomenclatures that have been attributed to a vindictive administration that shows no remorse for having engineered mass crimes, that sees political advantage in villages, cities and mohallas or neighbourhoods remaining divided by borders, that threatens victim survivors and human rights defenders who stand up for justice with arrest and torture. Gujarat is nothing but a showpiece of unchallenged state power.

The comfort of the Indian political class with the state of affairs in Gujarat has also been reflected in the lacklustre debates on the issue in the state’s assembly and in Parliament. The genocide’s aftermath has not been high on the list of priorities for elected representatives who protest and force adjournments on all kinds of issues a lot of the time. It is not just the Congress party, other partners in the UPA coalition, including the Left parties, have also been reluctant to take the issue of punishment for mass crimes to Gujarat’s streets.

“Normalisation” and “strong leadership” are nomenclatures that have been attributed to a vindictive administration that shows no remorse for having engineered mass crimes

Despite the change of political guard in New Delhi, the conduct of the central government in the courts where the struggle for justice is being vigorously fought has, in the five years since 2002, been ambivalent and equivocal. In none of the cases being fought in the Gujarat High Court or the Supreme Court, barring one exception, has the central government been forthright in supporting the Gujarat genocide survivor’s fight for justice. Only recently, during the hearing of the Sohrabuddin Sheikh encounter case, were vociferous arguments made by India’s attorney general, Milon Banerjee, arguing for a Central Bureau of Investigation (CBI) inquiry. This stance actually put off the apex court and denied the petitioner (Rubabuddin Sheikh) his legitimate demand for transfer of the investigation to the CBI. Counsel for the CBI and central government have been quick to adjust and compromise with the government of Gujarat’s counsel in a host of cases, reducing the Centre’s political battle cry against Modi’s fascism to somewhat hollow and hypocritical utterances.

In the course of the repeated hearings of the major carnage cases in the Supreme Court, the Centre has been reluctant to readily accept reinvestigation by the CBI in the Godhra, Gulberg, Naroda Patiya, Naroda Gaon, Ode and Sardarpura massacres. When the mass graves petition was being heard in the Gujarat High Court, the CBI counsel went so far as to actually abuse the legal action group, Citizens for Justice and Peace (CJP). The Congress party’s stand before the Nanavati-Shah Commission of Enquiry, appointed by the Gujarat government to probe the Godhra train arson and the post-Godhra violence, is similarly ambivalent.

Nowhere could the Centre’s reluctance to take a constitutional stand and position be observed more starkly than in the course of former additional director general of police (ADGP), Gujarat, RB Sreekumar’s case before the central administrative tribunal (CAT). The Indian Police Service (IPS) officer, now retired, filed a petition before CAT challenging the denial of his promotion to the post of director general of police (DGP), Gujarat, despite a long record of meritorious service. Sreekumar’s battle was not an individual grievance but the rare and principled dissent of a serving IPS officer who refused to compromise on his principles and his oath of allegiance to the Constitution. For this he was isolated and made to suffer. Since Sreekumar was a member of the central services, the role of the union government should have been clear. They simply had to reiterate that the grounds that the state government was using to justify an unfair denial of promotion were illegal and improper. Judicial precedents supported Sreekumar’s petition. But no. Despite interventions from the top level of the UPA leadership, bureaucrats in the union ministries even tried to smuggle in, at the last minute, an affidavit supporting the Gujarat government’s untenable stand against an upright officer.

Sloganeering at election time notwithstanding, India’s so-called secular political parties have shown a reluctance and ambivalence to identify with the victim survivors’ struggle for justice. After the Best Bakery retrial had commenced in Mumbai and barely a month after witness, Zahira Shaikh turned hostile for the second time (on November 3, 2004), municipal elections were held in Vadodara. The Congress party sent out a clear message when it gave an election ticket to Chandrakant Bhattu Srivastava, cousin of BJP member of the legislative assembly (MLA), Madhu Srivastava. The cousins had played a crucial role in attempting to subvert the struggle for justice in the Best Bakery case.

It was national statutory bodies such as the NHRC and the CEC that were severely critical of the criminal negligence and even unholy collaboration of the state government and its functionaries in the perpetration of heinous crimes against minorities in 2002. These bodies have also flayed the state administration for its acts of culpable omission and commission in not actualising effective performance of various segments of the criminal justice system, not earnestly redressing the grievances of riot victims or ensuring proper and durable rehabilitation of those displaced from their pre-riot habitats.

A meeting with victim survivors on April 26, 2002 moved the then president of India, KR Narayanan, to tears. He vowed to visit their beleaguered state but the visit never took place. The next President of India, APJ Abdul Kalam visited Gujarat on August 11, 2002 but was prevented by a wily Modi from any direct interaction with survivors at the relief camps.

A year after the genocide (2003), as trial after trial resulted in acquittal and the crude phenomenon of witnesses being influenced through fear and inducement received national focus, strictures flowed from the Supreme Court. It was after Best Bakery case witness, Zahira Shaikh’s sensational press conference in Mumbai on July 7, 2003, seeking support from CJP and exposing the pressures exercised on witnesses, that they were galvanised into action. The NHRC, Shaikh and CJP filed special leave petitions asking for retrial and finally the Supreme Court spoke out on what was transpiring in Gujarat. A series of orders and directives by former chief justice of India, VN Khare, then led to the transfer of the Best Bakery case out of Gujarat. The historic Best Bakery case verdict on April 12, 2004 (Justices D. Raju and Arijit Pasiath) was yet another official ratification of the state of affairs so diligently documented by rights groups. Rarely have Indian courts spoken out so sharply and clearly on state complicity in communal violence or the blatant attempts to subvert the role of the public prosecutor.

As early as November 2002, trials in two of the many incidents of premeditated violence had already resulted in a summary acquittal of the accused. (In Pandharwada village in Panchmahal district over 40 persons were killed. In Kidiad village in Sabarkantha district, 65 persons fleeing a village in two tempos were torched to death.) The NHRC, which had created history with its first report on Gujarat in 2002, failed to monitor the progress of justice consistently. This despite its own recommendations in the 2002 report that given the state’s role in the violence, special courts and independently appointed public prosecutors should handle the major criminal trials. It was one step forward and many steps back for India’s institutions.

Shocking exposures of telephone records and statements on oath by serving policemen kept a state government accused of mass murder constantly in the dock. But considering the scandalous exposures and evidence on the conspiracy behind the genocide, institutional democracy in India has so far left Modi and his co-conspirators relatively untouched. It is worth recalling the cold shoulder that even the apex court first gave legal interventions in 2002. Three critical petitions, each asking for special relief, were filed in the Supreme Court in April and May 2002. One of these petitions (writ petition (criminal) No. 37-52 of 2002, Devendrabhai Pathak and Others vs state of Gujarat), filed by independent citizens supported by CJP, remains undecided even today. The other two petitions, filed by danseuse Mallika Sarabhai, litterateur Mahasweta Devi and others asking for relief, became outdated after relief camps in the state were disbanded in August 2002.

The petition that survives makes a strong pitch for the implementation of the NHRC’s recommendations, asking for the major carnage cases, including Godhra, Gulberg, Naroda Gaon and Patiya, Ode and Sardarpura, to be reinvestigated independently by the CBI. After the scandal over the Best Bakery case in the Vadodara fast track courts, the NHRC and CJP further sought that these critical trials be transferred out of the state. The stark facts put down on affidavit by victim survivors and eyewitnesses through CJP in the Supreme Court led the court to stay these trials on November 21, 2003. Since then there have been over two dozen hearings. Not once have the victim survivors or CJP sought time. The court has however seen fit to repeatedly postpone the hearings as a result of which these major trials have been stymied. Victim survivors and witnesses wait anxiously for the Supreme Court to pronounce its verdict. Is justice delayed not justice denied?

The mass media, which has otherwise reported actual incidents without bias, has failed to link the genocide’s aftermath with the near collapse of India’s democratic institutions. As a result, the struggle against the fallout of the genocide in Gujarat and the reality of political repression and an ongoing emergency in the state has been relegated to a legal battle in the courts.

The genocide’s aftermath has, apart from the issue of delayed justice, also exposed the discriminatory deliverance of justice inherent in India’s criminal justice system. The conduct and practices being followed in the Gujarat courts have on occasion received sharp rebuke from the apex court. But even this has failed to correct the functioning of a tainted system.

The major perpetrators and masterminds of the post-Godhra violence were released on bail in next to no time by Gujarat’s courts, especially the high court, even though the crimes committed included barbarities like gang rape, massacre and multiple arson. On the other hand, 86 Muslims accused in the Godhra train arson case remain in jail five years after the incident. Included among them is a boy, Iqbal Mamdu, who is almost totally blind. Also among those still imprisoned is Maulana Umerji, a cleric and respected social worker, who was interned under the Prevention of Terrorism Act (POTA) a year after the incident. Umerji has a long history of social service – he collected donations from Godhra residents for victims of the Bhopal Gas tragedy and was the main person running the Godhra relief camp after the carnage in 2002. (The apex court, too, has remained unmoved by the bail pleas of the Godhra accused.)

In sharp contrast, Babu Bajrangi (Patel), accused number one in the Naroda Patiya carnage, roams free, enjoying political patronage from the top man in the state. An illegal racket run by the Navchetan group which he heads has, over the past eight or 10 years, abducted 350 Patel girls who ‘dared’ to marry a person outside their caste. Bajrangi has so far escaped the long arms of the law.

Bajrangi’s political clout was particularly evident during the recent Parzania film controversy. A film about a Parsee family’s anguished search for their missing son, Azhar, after the attack on Gulberg Society on February 28, 2002, Parzania was unofficially disallowed by the fascist regime in Gujarat in early 2007. Even today there is no government order banning the film. But Gujarat has no need for such legal niceties. One word from Modi or his militia is enough to terrorise multiplex owners not to show the film. It was Bajrangi who whetted the film and declared it unfit for viewing in the state.

December 2005 exposed the mass graves scandal and more callousness from the Gujarat police and administration. Hurriedly dumped skeletal remains of victims of the Pandharwada massacre were recovered by victim survivors. Legal intervention brought some relief when the Gujarat High Court ordered a DNA analysis under CBI supervision. A year later, another judge of the same court rejected a plea for an overall CBI inquiry despite the fact that eight of the samples matched the blood samples of surviving relatives. Ameenabehn Rasool, a victim survivor, and CJP have now filed an appeal in the Supreme Court. Meanwhile, victims and human rights defenders have been targeted by the local police and have had to seek anticipatory bail.

Beginning 2003, until today, persistent efforts continue by the Modi government, the administration and the police, to coerce/convince witnesses into turning hostile and so force the burial of their cases. Zahira Shaikh and her family are not alone. Zahira Shaikh served a one-year term for perjury, but the apex court which delivered this historic judgement stopped short of probing the involvement of those in power in Gujarat who had turned Shaikh and her family from the truth. Despite several applications to the Supreme Court by CJP, urging that the court should order an investigation into the roles of individual politicians who were instrumental in influencing the witness and her family, the court did not do so. To date, the mystery of Zahira Shaikh’s 10-day seclusion at the Silver Oak guest house on the Gandhinagar highway is shrouded in suspicion and secrecy. Despite the fact that this posh clubhouse was emptied of all staff for the duration of her stay, despite the fact that she was treated like a state guest by the state government and its administration, the apex court chose to leave the mystery unsolved. We all know that Zahira Shaikh committed perjury and paid for it. What we do not know are the conduits used by Modi’s men and the role of cabinet colleagues, MLAs, politicians, bureaucrats, policemen, lawyers, and even a Muslim priest, in the pay-off.

Notwithstanding all of Modi’s efforts to whitewash the intricate execution of brute crimes and the veil of conspiracy behind them, his government and administration stand severely indicted for the violence of 2002 especially by police officers who have tendered accurate records of this critical period before the ongoing Nanavati-Shah Commission.

Upholding the dignity of office, former ADGP, RB Sreekumar spurned professional lures when he filed four affidavits before the Nanavati-Shah Commission annexing invaluable records that now form part of the public domain. He suffered by not being promoted to the post of director general of police (DGP) despite being the most appropriate candidate for the job. His personal register records and indicts the chief minister and senior officials for issuing illegal instructions to the police. Sreekumar disobeyed these, inviting the wrath of political masters. Another police officer, former superintendent of police, Bhavnagar, Rahul Sharma, now serving with the CBI, submitted recordings of crucial telephone conversations, of policemen and politicians, conducted between February 27 and March 5, 2002. The recordings have exposed zealous interference in police duty by major players who were also accused in the massacres at Ahmedabad and elsewhere in the state. Despite the weight of evidence against Modi and his men, the stance of the Gujarat administration remains vindictive towards any and all who fight for justice.

The 2002 carnage in Gujarat was also marked by the cynical use of depressed sections, Dalits and tribals, for violence against the minorities while in most instances the dominant Brahmin and Patel castes orchestrated the carnage and watched. Those who have been arrested (and not been granted bail) are not the influential masterminds and architects of the pogrom but foot soldiers who executed a vicious game plan. The emergence of around 300 "only Dalit" colonies in Ahmedabad over the past few years reveals that despite Hindutva’s hyperbole and Hindu Rashtra’s pan-Hindu mantra, centuries-old taboos and caste discriminations are still in place.


Seeking reparation: Zakiya Ahsan Jaffri


The genocide

The protracted anti-minority pogrom in the western Indian state of Gujarat in 2002 was foreshadowed by the systematic organisation and training of cadres of youth for violence. Infiltration by individuals belonging to organisations with a discriminatory, non-democratic approach into positions of power facilitated the orchestration of the mass killings, public and brutal sexual violence against women and girls, the seizure and ruination of homes and property, the denial of livelihoods, the desecration of religious and cultural places, and more.

The well-orchestrated pogrom followed the ghastly killing of 58 passengers, including a few kar sevaks returning from Ayodhya, in a fire on the Sabarmati Express train on February 27, 2002. The ensuing violence, which the state police failed to contain, resulted in the death of what the state claims is 963 persons (704 Muslims and 259 Hindus), injured thousands of people and destroyed or damaged property worth Rs 687 crore. Reliable independent estimates place the number of deaths at 2,500 persons from the Muslim community alone and the damage suffered at Rs 3,500 crore. According to official figures, 413 persons were ‘missing’ after the 2002 genocide. The remains of 228 persons are as yet untraced.

In its statements to the NHRC, the state of Gujarat admitted that the homes of 18,037 urban families (as against 13,222 until June 2002) and 11,204 families in rural areas (as against 10,025 until June 2002) had been destroyed or damaged. The widespread nature of these incidents of violence is evident from the fact that they occurred in 993 villages and 151 towns covering 284 police stations (of a total of 464 in the state) and spread over an overwhelming 153 of 182 assembly constituencies.

The desecration and damage of holy shrines, historic monuments, business establishments, and socio-cultural and financial institutions belonging predominantly to Muslims was another characteristic that set this orgy of violence apart from the many other anti-minority pogroms that India has witnessed in recent times. Hate propaganda in the form of anonymous pamphlets and audiovisual material, CDs, that were widely distributed preceding the genocide, helped transform entire neighbourhoods into complicit rioters. Established newspapers also used their columns for propaganda. To date, the state of Gujarat has not initiated any action against these publications. Although State Intelligence Bureau (SIB) reports suggested action against the offending newspapers, no action has been taken.

Evidence of state complicity

In the five years since the genocidal killings, incontrovertible material evidence and chains of circumstance revealed through depositions to judicial bodies by government officials and others has thrown adequate light on the anti-minority carnage. It is more than apparent that the riots and concomitant brutalities on the Muslim minority were the outcome of a well-designed conspiracy by the political leadership of the state, particularly its chief minister, Narendra Modi.

On June 8, 2006, Zakiya Ahsan Jaffri, widow of the late parliamentarian, Ahsan Jaffri (who was brutally killed by mobs during the Gulberg Society incident in Ahmedabad city on February 28, 2002), sent a complaint to the Gujarat DGP, PC Pande, asking that a first information report (FIR) be registered. The complaint was made out against chief minister, Narendra Modi – as accused number one – and 62 others, including cabinet ministers and Indian Administrative Service (IAS) and IPS officials, under section 154 of the Code of Criminal Procedure (CrPC).

Ten months after the DGP failed to register the FIR despite a strong case being made regarding serious cognisable offences, Zakiya Jaffri and CJP filed a criminal application in the Gujarat High Court praying for a writ of mandamus directing the registration of an FIR and for an order transferring the case to the CBI. Some of the offences cited in the complaint relate to the following sections of the Indian Penal Code:

Section 302 read/with (r/w) Section 120 B – Murder/Criminal conspiracy.

Section 186 – Obstructing public servant in discharge of public functions.

Section 187 – Omission to assist a public servant when bound by law to give assistance.

Section 153 A – Promoting disharmony or feelings of enmity, hatred or ill will between different religious, racial, language or regional groups or castes or communities – disturbing the public tranquillity.

Section 506 – Criminal Intimidation.

This is the first time that such a comprehensive petition against the chief executive of a state, and his cabinet colleagues and administration has been filed. So far the judiciary in Gujarat, which has been diffident about honouring its constitutional obligations, has delayed hearing it. The petition carries over 4,000 pages in annexures, including certified copies of all the affidavits filed by serving police officers before the Nanavati-Shah Commission. Despite the existence of these affidavits, the state of Gujarat has not initiated any investigations into the incriminating evidence available before it. On the contrary, as RB Sreekumar’s fourth affidavit to the commission states, efforts were made to pressurise him not to depose honestly before a commission of enquiry instated by the state government itself. Critical questions that ought to have been put to him and other officers were deliberately omitted by all advocates appearing before the commission, including those appearing for non-governmental organisations.

The complaint sent by Zakiya Jaffri to the DGP points out in detail how the undeclared but insidious objective was to manipulate, focus and channel the Godhra incident – to create and germinate the ire of the Hindu population, facilitate a free play of their baser instincts as seen in the large-scale brutalities and thereby reap political and electoral dividends in the election year of 2002.

The chain of circumstances and the details of evidence, post-Godhra, establish that the chief minister, Narendra Modi, and his cabinet colleagues had conspired, planned, prepared, organised and perpetrated multifarious crimes against the Muslim minority by causing and contriving to mobilise armed anti-Muslim mobs.

Modi’s government and administration stand severely indicted for the violence of 2002 especially by police officers who have tendered accurate records of this critical period before the ongoing Nanavati-Shah Commission

The pogrom was made possible by simultaneously restraining the bureaucracy through the various instruments of punishment and reward at the government’s disposal. Consequently, the officials figuring in the FIR connived with and abetted the political leadership of the state in the execution of the numerous crimes as delineated in the complaint.

Not surprisingly, the Gujarat police dithered. On March 1, 2007, Zakiya Jaffri along with CJP filed a petition urging directions from the Gujarat High Court that such an FIR, encompassing all these offences, be registered forthwith and the CBI be asked to take over a case that involves over three dozen police stations in the state. So far, three dates for hearing have come up. The first judge refused to hear the case. Since then, on two occasions the state has sought time to file an affidavit in reply. The matter now comes up on July 23, 2007.

The truth about Godhra

Crime Against Humanity – the report of the Concerned Citizens Tribunal – Gujarat 2002 and ‘Genocide-Gujarat 2002’ (Communalism Combat, March-April 2002) had poked serious holes in the false claims by the Hindutva brigade and Narendra Modi about the Godhra incident. Both these publications revealed how the state government’s Ahmedabad based Forensic Science Laboratory Report (FSLR) itself exposed the theories pushed by the state. Without investigation, Modi and saffron organisations had pinned Godhra Muslims, backed by Pakistan’s Inter-Services Intelligence (ISI), as being the main culprits behind the arson. Since then, an important film, Godhra Tak, takes the FSLR report even further. The film reveals, through forensic experts, that the location of the Sabarmati Express’ S-6 coach ruled out the possibility of inflammatory liquid being flung by a mob from outside. The current union government’s railway ministry has since published its own enquiry report – the Banerjee Committee report – into the incident. Put together, Modi’s theory behind Godhra stands thoroughly exposed.

Given these findings, the blatantly biased attitude of the state (including judicial bodies in Gujarat) towards those accused in the Godhra mass arson is deeply disturbing.

Unfolding conspiracy and other crimes

Late in the evening of February 27, 2002, on his return from Godhra, Chief Minister Narendra Modi convened a meeting of senior officials attended by Addl. Chief Secretary Ashok Narayan, DGP K. Chakravarti, Commissioner of Police (CP), Ahmedabad city, PC Pande, and others. He instructed these officials to give vent to the Hindu anger against minority Muslims. (The fact that former revenue minister of Gujarat, Haren Pandya, deposed before the Concerned Citizens Tribunal in 2002 is widely believed to have led to his murder in February 2003. His father, Vithal Pandya, has alleged that the chief minister was behind his killing.)

The CM’s attitude proved a major obstacle to officers in initiating action against Hindu communal elements who were on the rampage against Muslims. By not opposing the illegal instructions of the CM and later facilitating the rioters through inaction and non-compliance of regulations, and the dereliction of statutory duties, these officials became consenting conspirators and abettors to the crimes committed by Modi and others.

Subsequent developments in Gujarat between 2002 and 2006 confirm that a series of motivated actions were carried out by the state to execute targeted attacks on Muslims, and later to deny due relief, assistance and protection to victims. Subversion and manipulation of segments of the state administration, particularly the executive magistracy (from mamlatdar to district magistrate) and the police, were the core modus operandi in the enactment of various crimes against Muslims.

There is adequate material and circumstantial evidence to prove the role of the accused persons in the commission of the crimes. A few illustrative strands of evidence are:

a. The non-initiation of preventive measures, as laid down in specific regulations, against potential offenders who were likely to indulge in anti-Muslim violence on the day of the bandh i.e. February 28, 2002.

In fact, targeted attacks on Muslims started on the evening of February 27, 2002 itself. The amount of brutalities, their intensity and range, had steadily escalated, hour after hour. But no effective actions, as preventive and deterrent measures, invoking relevant legal provisions of the CrPC and the Bombay Police Act, were resorted to. All over India and also in Gujarat, police have been periodically guided by detailed instructions on how to tackle an outbreak of communal violence through a Communal Riot Scheme. The conventional police response, in the form of arrests of potential troublemakers in the event of communal tension, as specified in the Communal Riot Scheme and other confidential police records, was conspicuously absent post-Godhra.

In none of the affidavits filed by police officers such as the CP, Ahmedabad, or the DGP, Gujarat, before the Nanavati-Shah Commission is there any mention of the arrest of communal minded persons or leaders of communal organisations, particularly those belonging to the BJP, the Vishwa Hindu Parishad (VHP), the Bajrang Dal and the Shiv Sena. From a reading of these it is clear that the police were reluctant to arrest leaders of Hindu communal organisations even when FIRs lodged by riot victims specifically named prominent political players. In the few cases where they were arrested, the judiciary was quick to grant bail.

b. The Bombay Police Act and other regulations empower district magistrates and police officers not to release dead bodies for the purposes of a funeral procession if such a public display of the dead could intensify communal strife and jeopardise the law and order situation. Despite such regulations, the authorities (in Godhra and Ahmedabad city) permitted a parade of the bodies of the Godhra train fire victims through Ahmedabad city although many of the bodies had not yet been identified and many did not even belong to Ahmedabad city or district. This unholy exercise was carried out to fuel the communal frenzy of Hindus against Muslims.

c. Another factor that aggravated Hindu communal passions soon after the Godhra incident was the local press. False or highly exaggerated reports with a clear anti-Muslim flavour repeatedly appeared in the Gujarati print media and played a significant role in fomenting and escalating the violence. Yet no action was initiated by the state government against the offending newspapers despite specific reports in this connection by then ADGP, RB Sreekumar.

d. The inexplicable delay in requisitioning additional central police units and calling in the army also created a situation conducive for rioters to inflict their brutalities on the Muslim minority.

e. Anti-Muslim violence in Ahmedabad city started on the evening of February 27, 2002 and huge mobs comprising activists of the VHP and Bajrang Dal had attacked Muslims on the morning of February 28. However, the imposition of curfew in Ahmedabad was inexplicably delayed until about 12.30 p.m. on that day (February 28). Was this delay to help or facilitate rioters? In areas that were less communally sensitive, such as Bhavnagar, Surat and so on, curfew had been imposed in the early hours of February 28, 2002.

f. Two cabinet ministers (who were not supervising or in charge of the state home department) were positioned by the chief minister, Narendra Modi, in the offices of the DGP, Gujarat and police commissioner, Ahmedabad. Urban development minister, IK Jadeja, was in the DGP’s office whereas health minister, Ashok Bhatt, was in the police control room, Ahmedabad city. This was done to facilitate illegal interference in the law enforcement duties of the police chiefs of the state and Ahmedabad city. These facts were in fact first brought to light in articles published by the English daily, The Indian Express, in 2002.

The resultant inactivity/indifference of the police generated a feeling that Muslims could be attacked and their houses and property destroyed with impunity.

And the execution of this conspiracy, ensured by the compliance of the state administration and the police, resulted in the brutal carnage that rocked Gujarat and India. Mass murders took place in Gulberg Society, Ahmedabad city (70 persons were killed, including those missing); Naroda Patiya, Ahmedabad city (83 killed); Ode village, Anand district (27 killed); Sardarpura village, Mehsana district (33 killed); Pandharwada, Panchmahal district (40 killed); Kidiad, Sabarkantha district (65 killed) and Best Bakery, Vadodara city (14 killed).

Pathetic living conditions: Pandharwada relief camp, March 2007

Rape, killings and arson resulting in the loss of lives and property also took place in several other cities and districts of the state. In many parts of Ahmedabad Rural, Banaskantha, Dahod, Gandhinagar, Godhra, Kheda, Patan and Vadodara Rural, brutalities were inflicted on the Muslim minority by frenzied crowds instigated or led by the BJP/VHP and supported by the state administration under pressure from the political leadership in Gujarat.

Additional collateral evidence also supports the charge of conspiracy and other offences by the chief minister and his administration.

Though the most brutal atrocities on Muslims were enacted in the weeks immediately following the Godhra incident, at the time the SIB sent no analytical intelligence reports depicting the gravity of the situation to the Centre. But from April 2002 onwards, the SIB has documented the extent of state involvement and subversion of the criminal justice system in four critical reports. Copies of these reports, dated April 24, 2002, June 15, 2002, August 20, 2002 and August 28, 2002, were appended to ADGP Sreekumar’s second affidavit before the Nanavati-Shah Commission. Significantly, neither the state government nor DGP Chakravarti, to whom these assessment reports were addressed, responded with any comments or queries about their contents. Nor did they initiate any remedial action as suggested.

Numerous illegal instructions were issued by higher authorities to RB Sreekumar. The ADGP recorded these in his personal register and attached this document to the third affidavit he filed before the Commission.

The state government orchestrated its vengeance well. Modi used the instruments of transfer, promotion and post-retirement benefits to cajole, persuade and pressurise officials to follow his illegal agenda.

The declaration of a bandh on February 28, 2002, in response to the Godhra arson, was cleverly manipulated by the chief minister and the octopus-like tentacles of the sangh parivar. Although the bandh was clearly a potential threat to law and order, a communal tinderbox, there were no orders from the state government instructing the organisers to call it off nor were there any directions to the police to treat the bandh as illegal.

Further, as part of its grandiose scheme to manipulate the criminal justice system in favour of criminals who brutalised an innocent minority, the state chose to subvert proceedings at the trial stage itself. The government appointed pro-VHP advocates, including actual office bearers of the VHP, as public prosecutors to conduct cases against those accused of anti-minority crimes – where the accused belonged largely to the VHP and sister organisations. This first came to light during the hearing of the Best Bakery case in the Supreme Court in early 2004. Even as late as 2006, an unremorseful administration appointed Vinod Gajjar, who had previously appeared for the accused in the Gulberg Society massacre, to represent the government in the transfer cases before the apex court.

Moreover, to starve the Nanavati-Shah Commission of relevant data and inputs, officials of the Gujarat home department have been systematically briefing government officials summoned by the commission as witnesses. ADGP RB Sreekumar’s third affidavit describes the attempts made by state home secretary, GC Murmu, to force him (Sreekumar) into supporting the conspiracy theory with regard to the Godhra incident, and other attempts even to intimidate him.

Needless to say, the state government took no action against senior police personnel and other officials who deliberately neglected the supervision of investigation of anti-minority cases – conduct that is in gross violation of Rules 24, 134, 135 and 240 of the Gujarat Police Manual-Vol. III.

In fact, in a number of cases uniformed police personnel were found marching behind or mingling with the mob. In some cases policemen joined in the mayhem and ensured that no resistance could be offered to the rioters even as those associated with the Bajrang Dal, the VHP and the ruling BJP were in the forefront of the rioting. District magistrates/collectors/district police in several of the worst affected districts did not take appropriate action to contain the riots in those areas where mass murder, rape and other heinous crimes were taking place.

The worst indictment against the state of Gujarat is however the state’s unrepentant attitude towards victims of the genocide. Contrary to the claims made by the state administration in its affidavits before the courts and its reports to the NHRC, the ground reality is in fact far from conducive for the successful rehabilitation of riot victims. There is a serious discrepancy between victim survivors’ claims with regard to housing compensation paid and the state’s unabashed efforts to brazen it out with blatant untruths. Instead, victims of the violence have been consistently intimidated into compromising with the perpetrators as a condition precedent for their safe return and rehabilitation in their pre-riot habitats. In some of the worst carnages of the 2002 genocide, in instances of massacre where judicial trials have been stayed by the Supreme Court, victim survivors simply cannot return to their villages. Photographs taken by Communalism Combat illustrate that in many cases the state of their destroyed homes remains unchanged – they are in exactly the same condition as they were five years ago, on the day that tragedy struck. Not only has there been no closure, their wounds fester, their pain renewed at the hands of a callous administration.

Internally displaced persons

The plight of those internally displaced from their homes as a result of the violence is a continuing one. They have no permanent citizenship today, the only proof they have are election cards (recently issued) that may or may not save the day. Relief committees have built them homes on land allotted by the government, land that is often purchased at commercial rates but on an ad hoc basis and not regularised. With elections around the corner, rights groups have petitioned the election commission to ensure that election cards are issued to residents in their new locales.

As far as rehabilitation is concerned, the reality is that survivors and eyewitnesses of the Sardarpura massacre cannot return to Shaikh Mohalla in their native village. They still live as refugees in Satnagar, in a neighbouring district. Survivors of the Gulberg massacre cannot return to their middle class housing colony. Survivors of the Ode massacre cannot return to their village. Well over five years after the carnage, only a few victim survivors from Naroda Gaon and Patiya have returned to their locality. Even after Supreme Court orders have been issued, the security provided to witnesses is inadequate and threats continue.

An estimated 2,50,000 individuals were displaced as a direct result of the Gujarat genocide in 2002. Of these, a vast majority have reportedly left the state or have bought or rented accommodation mainly in Muslim localities across the state. An approximate 8,000 families still live in what are currently referred to as "relief colonies" in four districts of Gujarat. Over the past five years, these habitats have become permanent places of residence for those who are too scared to return home. In the People’s Union for Civil Liberties’ right to food petition currently being heard in the Supreme Court, court commissioner, NC Saxena, has recently submitted a report on the pathetic living conditions of Gujarat’s refugees. A petition challenging the state of Gujarat’s cavalier approach to compensation was filed by CJP and Communalism Combat in March 2003. In October 2006, for the first time in five years, India’s National Commission for Minorities also visited these "relief colonies" following appeals by several rights groups.

Showing no remorse whatsoever for its part in the killings, five years later, the Gujarat government has failed to provide full – or in most instances, any – reparation to victims and their families, including restitution, rehabilitation and justice. This includes the failure to adequately recompense those families whose houses were partially or completely destroyed. The government of India must ensure that it respects its obligations under both national and international law to provide appropriate and adequate reparation commensurate with the harm suffered by victim survivors and sufficient to enable them to rebuild their lives.
 
Archived from Communalism Combat, June 2007 Year 13    No.123, Genocide's Aftermath Part I, Introduction

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