People's Democracy

 Mass Crimes in Gujarat: Questions Unanswered

 Teesta Setalvad

NEARLY 19 months after the genocidal violence that rocked the western Indian state of Gujarat, searing questions that the tragedies have raised related to justice and rehabilitation remain completely unanswered. Specifically, issues of state accountability after mass violence, independent policing, adequate reparation and the response of democratic institutions of the judiciary to such crimes hang suspended in mid-air, as the proverbial shortness of public memory betters the best efforts to keep some of these issues alive.

Post-independence, India has had its shocking share of mass violence driven not just by community but, equally brutally, by caste during which the archaic Criminal Procedure Code, penned by colonial masters, has proved itself inadequate. Often official or other commissions of inquiry have sat, examined these lapses and made suggestions. One common feature of these has been that the political class, whatever its ideological hue, has simply not bothered to publicly debate or implement these suggestions. The Indian judiciary, at all levels, has restrained itself to minimal intervention in matters of social justice and violence.

PIVOTAL CASES

What happened after Gujarat 2002? Something similar. Senior jurists and others sat in a Concerned Citizens Tribunal (CCT) and actually recommended the establishment of a Statutory National Crimes Tribunal that must contain its own evolved jurisprudence drawn from the International Law on Genocide and further urged urgent and quick reforms in the Indian police force. (Crimes Against Humanity, Vol II: Long Term Recommendations, report of the Concerned Citizens Tribunal, headed by Justice V R Krishna Iyer and with Justice P B Sawant, Justice Hosbet Suresh, K G Kannabiran, K S Subramaniam, Aruna Roy, Tanika Sarkar, and Ghanshyam Shah as members.) Drastic reforms in the Indian police system including guaranteeing its independence and ensuring representation and diversity had been recommended as far back as 1981 by the official National Police Commission itself (ibid, section on recommendations about police). The work of the Concerned Citizens Tribunal, that lasted several months with no assistance from any official machinery, is available in a two-volume report published from Mumbai (ibid, published by Sabrang Communications on behalf of Citizens for Justice and Peace, Mumbai).

Today, judicial matters related to the genocidal violence in Gujarat have been brought centrestage through two pivotal cases currently being heard in the Supreme Court. The fact that this has happened at all is due in large measure to the initiatives taken by the statutory National Human Rights Commission (NHRC) since the justice process in the state was systematically de-railed, backed by a gritty citizens group, Citizens for Justice and Peace (CJP), that has mandated itself the responsibility to continue the struggle for justice and reparation for the victim survivors, however tough this may turn out to be. (The NHRC’s report and recommendations during and after the last year’s carnage in Gujarat proved particularly embarrassing for the state.)

Efforts are alive through these judicial interventions to move the criminal trials of the worst carnages outside the state of Gujarat. (The SLP filed by the NHRC, dated August 1, 2003, and the SLP (Criminal) filed by CJP and Zahira Shaikh, dated August 8, 2003, in the Supreme Court plead for it.)  This argument for turning over both the investigation and conduct of the criminal inquiries to an area outside the control of the current chief minister, Narendra Modi, and the state and administration under him, has been made since the start of the carnage last year, both by the NHRC (April 2003) as also by public interest litigations filed in the Supreme Court in April 2003 itself. (See the petition filed by D N Pathak and others and that by Mallika Sarabhai and others for the transfer of key cases to the CBI and investigations in these through an independent agency.) If these had been heard judiciously and promptly by the apex court when it had been first approached last year, concerns related to the utterly subverted and paralysed local atmosphere in the state of Gujarat would have been met and more promptly answered.

PATHETIC RECORD OF JUDICIARY

Unfortunately, judicial record in dealing with such mass community driven carnages remains pathetic. Sikh widow survivors of the 1984 pogrom against their community in the country’s capital (that followed the assassination of former prime minister Indira Gandhi by her Sikh bodyguard) battle in vain for justice that nineteen years later cynically and brutally evades them. (Darpan Kaur, a Sikh widow, lost 12 family members in these riots. She filed an FIR with the police against former Congress minister H K L Bhagat. She was offered a bribe of Rs 25 lakh and, when she refused, brutally beaten. She has refused to give in.) Similarly, Muslim women survivors of 53 young males shot dead in cold blood in Meerut-Hashimpura (a town in western Uttar Pradesh) in 1989 still struggle for justice. (Vibhuti Narain Rai, a police officer of the rank of SP filed an FIR in this crime, in his own name. Rai is today the IG of Uttar Pradesh.) The recent conviction of Dara Singh and associates for the burning alive of Christian pastor Graham Staines and his two sons in January 1999 is a rare case of a sessions court punishing those guilty of communally driven crimes.

Most pertinently, the examples of these and many more such survivors to see justice done decades after the crime are living testimonies to the fact that human beings need to believe and find justice for unspeakable crimes before peace and reconciliation can be effected. A failure to administer to this cry for justice renders a system vulnerable, torn from within by festering wounds and hurts that do not heal but in fact create their attendant aberrations. This is the unfortunate reality in India today.

What actually happened in Gujarat?

It was the incident of the mass burning of 58 passengers on board the S-6 coach of the Sabarmati Express returning from the temple town of Ayodhya that was used to justify the mass crimes committed in the statewide carnage that took no less than 2,500 lives and economically and culturally crippled the Muslim minority. (Primary economic loss to the community was estimated at no less than Rs 4,000 crore and this does not include irreparable damage to or loss of homes and agricultural lands that have been usurped as Muslims have fled villages where they were a small minority.) 

What is notable here is that, as of today, there are no pointers as to who committed this crime, while some indicators do exist that it may have been a tragic accident. More and more, however, the clever manipulation of the incident at Godhra by the leadership of the Hindu right wing at different levels including no less that the Indian prime minister Atal Behari Vajpayee and deputy prime minister L K Advani as a stick to beat India’s largest religious minority with has been blatant and cynical. Until 7 p m, on the fateful day of the mass burning at Godhra that led to a cycle of the worst and most unspeakable violence in 19 of Gujarat’s 24 districts through 72 hours of organised sexual violence, killing, loot and destruction, official versions called the incident an accident. The PM’s speech at 2 p m in the Indian parliament too echoed this version. Mysteriously, after 7 p m that day, led by Gujarat’s chief minister Narendra Modi who termed it the act of traitorous Muslims and the ISI, Godhra’s Ghanchi Muslims whose track record in social harmony is not envious and who had gathered in a large mob after karsevaks behaved in an unruly and provocative fashion at the station at Godhra that morning, joined the ranks of the traitorous lot who had dared attack the far-from-peaceful pilgrims returning from the political project of building a Ram Temple at Ayodhya.

The reason we used the well-tested term genocide (see Gujarat Genocide 2002, the special March-April 2002 issue of Communalism Combat), and later by the CCT to apply to what happened in Gujarat was because these and other jurisprudentially tested criteria were evident in the crimes against humanity in Gujarat --- brutal sexual violence was used against at least 200-300 Muslim women and no less that 270 mosques and dargahs (religio-cultural shrines) were also desecrated and then destroyed. The calculated and state sponsored attempt to attack the dignity of a community was evident. Article 2 (C) of the UN Convention on Genocide clearly reads: “Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” And therefore the fact that every single Muslim was not forced to flee for threat of slaughter (sic) is not an argument that decries definition of the mass crimes as genocide. Attempts were made both by the Gujarat chief minister and also his close supporters among the existing BJP leadership in New Delhi, the dominant partner in the National Democratic Alliance that governs India, to scoff at the use of this term.

STRUGGLE NARROWS DOWN

The struggle for justice to the victim survivors of the Gujarat genocide has narrowed itself down today. The weight of the system that we are battling forces us to pick and choose cases even in our struggle for justice. The magnitude of what happened in Gujarat has died in public memory; worse, even our battles are today constrained to attempting to get justice for only those victim survivors of the worst incidents where over a dozen persons were butchered and slaughtered. 

What of the innocent victims, many minors, who were shot dead by an unaccountable police? What of the girls and women who were killed after brutal sexual violence? What of some of those who survived and have been forced back to live in the same villages where the crimes were committed? (See CCT report, op cit, Vol II, Short Term Recommendations on Reparation, Relief and Rehabilitation.)

What of the 10,000 odd homes that were destroyed so thoroughly that the pathetic Rs 5,000 to 40,000 paid in compensation to only a few  is barely enough to pick up the threads and start living again? What about the reparation for the businesses destroyed and the agricultural lands seized?

No less than 1,16,000 persons were internal refugees thrown out of home and hearth and living in relief camps for over seven months last year. During this period, the state of Gujarat refused to give them food, water and medicines despite their constitutional mandate that they bear the cost of this internal displacement. Again, it took legal interventions in the Gujarat High Court ---two writ petitions supported by CJP which included flying down a senior lawyer from Mumbai since the atmosphere was so communally surcharged in the state that few wanted to appear in defence of minority community victims! (Mr Apsi Chenoy along with Mr Suhel Tirmizi argued the matter for over five hours before the judge actually appointed a committee and thereafter passed orders that made the state government liable to make good the damages to the organisers of relief camps.) As a result of this legal intervention, Rs 10 crore had to be paid out from state government coffers to the relief camp organisers.

International aid that flowed easily into the state just a year before the carnage, when a tragic earthquake struck Kutch in Gujarat close to the Indo-Pak border on January 26, 2001, was sorely missing, as an utterly callous central and state government simply did not allow international aid agencies to come to the aid of the victim survivors of the genocide. This raises serious questions of the ethics of the international aid --- issues that have arisen before whether it was during the UN sanctions in Iraq and what this meant for children and women or in Afghanistan.

HATE SPEECH AND HATE WRITING

The violence in Gujarat in 2002 was preceded for some months by the systematic distribution of material, some anonymous, that systematically spewed hatred and venom against the Muslim minority in the state. Even during the outbreaks of violence thousands of these pamphlets could be found --- some advocated systematic economic boycott of Muslims and even printed an address of the Vishwa Hindu Parishad’s office at the bottom (see Pamphlet Poison, Communalism Combat, March-April 2002); others that were even more graphic and vicious advocated mutilation and rape (ibid).

The systematic use of hate speech and hate writing has been a crucial part of the politics of communalism within India, especially since the mid-1980s when the movement of the construction of a Ram temple at Ayodhya began. This period saw the sharp rise of communal forces from both within the Hindu majority and the Muslim minority. The opening of the locks of the Babri Masjid in 1986 was preceded by the parliamentary enactment of a law that excluded rightful maintenance rights to Muslim women, a demand made by the patriarchal and communal Muslim male leadership. The cleverly constructed movement to ‘construct’ a Ram temple at Ayodhya was in fact always to destroy a Mosque and thereby teach a much deserved lesson to the Muslim minority. Brute violence and threat was an integral part of this movement led and inspired by none less than India’s deputy prime minister L K Advani when he began his rath yatra from Somnath, in Gujarat in 1990. His close aide and organiser of the procession was none less than Narendra Modi, today Gujarat’s chief minister and ‘chief architect of the state sponsored genocide’ (see State Complicity, CCT report, op cit, Vol II).

Many of these questions come to mind even as we battle on in the Supreme Court for justice. This struggle took a sharp turn in July this year after a Vadodara based fast track court acquitted all accused in the Best Bakery case on June 27, 2003. This incident related to the brutal massacre of 14 persons on the night of March 1, 2002 and could be highlighted due to the singular courage of an eyewitness and survivor, Zahira Shaikh who testified to official and other forums on what she saw. When the case came for hearing in the court in May 2003, facing threat, alienation and intimidation this key witness turned hostile. Despite the fact that 37 key witnesses thus turned hostile, neither the public prosecutor did anything to find the reasons for their reversal nor did the police intervene. The prosecutor in fact did not conduct himself as representative of a state that (by its constitutional mandate) desires to prosecute those guilty of such mass crimes. He in fact behaved as if he was in league with the defence. 

VICTIMS SPEAK UP

I had personally covered the Gujarat carnage and was working as secretary of the CJP in supporting the struggle for justice. Since May 2003, when I read about Zahira turning hostile, I could not believe that she could have gone back on what she had seen and so courageously testified to. I was in touch with the family and fortunate enough to inspire faith in her to break out of what circumstances forced her to do.

On July 7, 2003 at a press conference in Mumbai, she bared her all. (“I was threatened with my life before and in court,” she told television cameras and newspapers that day. Her courage and strength to stand up for what she believed was right, and her quest for justice, shook the country as a whole.) Soon after, with our help and support, she testified before the NHRC on July 11, 2003, following which the legal battles started. The NHRC had, since May 2003 itself, called the sessions court judgement acquitting the accused “a miscarriage of justice” and even re-visited the state.

Three months later, Hindu victim survivors who lost their family members in the burning of the S-6 Sabarmati Express coach bravely sought the aid and support of the Citizens for Justice and Peace in Mumbai and demanded that they too be given justice. Things seem to have turned a full circle and there appears a stunned response to the cry of help from these Hindu victims because they have pleaded before the country that they should not be used as pawns in the politics of hatred and violence.

There could be no better way to end this piece than with an excerpt from Dr Girishbhai Rawal, an 82 year old man who’s wife Sudhabehn was one of the 58 burnt alive last year. He has courageously filed an affidavit before the Supreme Court of India along with four others demanding also that the Godhra investigation be transferred out of Gujarat. Coming from them the plea that many human rights groups have been making to shift investigation and trial of key massacres out of the state gets the ultimate stamp of legitimacy. In the polarised society that we live in, innocent Muslims being mercilessly booked under POTA for alleged (but unproven) involvement in the mass burning has been passed off as unfortunate but necessary. The fact that relatives of the over 60 allegedly innocent persons jailed for the Godhra crime have not even seen them for over a year is a violation of the very basic principles of justice and criminal law jurisprudence. Yet it happens and continues even as mass and unaccounted arrests under this newly enacted anti-terrorism law continue.

The latest twist in the struggle for justice in Gujarat is the plea from Hindu victims of the mass burning that this investigation be moved outside. Dr Rawal’s affidavit filed in the Supreme Court includes a demand for:

1) (a) A ban on future Ayodhya yatras, especially the one planned from October 15, 2003.

(b) Adequate reparation and compensation, material, psychological and physical to all victims of the Godhra and post-Godhra violence from the VHP, BJP, Gujarat government and railway ministry, irrespective of caste, creed and community and with total impartiality.

c) The investigation of source of funds and their use by the VHP and BJP received in the names of the Godhra victims after February 27, 2002.

(d) The immediate transfer of the Godhra inquiry and also other inquiries like the Naroda Pattiya and Gulberg and other major massacres inquiries outside Gujarat and to be conducted in the immediate vicinity of the Honorable Supreme Court.

The affidavit says: “I approached Teesta Setalvad, secretary, Citizens For Justice And Peace, known to me through the newspapers and then, through their Ahmedabad office, since I believe that this organisation would help us get justice. The Citizens for Justice and Peace has given me this opportunity and I wished to avail of it. I wish to seek justice for what happened, for the lives lost and the destruction caused not just to my family but to thousands others after the Godhra carnage all over Gujarat.

“The compensation in the case of my son’s death I leave to the matter to the Honorable Court.”

There could be no better description of how innocent persons can be made victims to the politics of hatred and division, i e communalism. Dr Rawal’s 18 years old daughter Khushboo lost both her father and grandmother to the politics of hate. She told The Times of India in Mumbai on October 5, 2002, “My father, a Bajrang Dal worker, was drawn to the politics of Hindutva (Note: to convert Indian democracy to a Hindu state). We were never drawn to it….. The construction of a Ram temple is not important. Peace and communal harmony are most important.”

Zahira and Khushboo are the voices of the victim survivors. Does Indian democracy have the resilience and maturity to respond to their pleas for reparation and justice?

(Teesta Setalvad is the co-editor of Communalism Combat.)