People's Democracy

GUJARAT

Evidence for High Level Criminal Conspiracy does Exist

Teesta Setalvad

ON behalf of thousands of survivors of the 2002 genocidal pogrom that took place in Gujarat from February to May 2002, the Citizens for Justice and Peace (CJP) has expressed deep disappointment and anguish at the verdict of the magistrate court, Judge B J Ganatra, accepting the dismissal of serious criminal charges of criminal conspiracy against the Gujarat chief minister Narendra Modi and 59 others. One notes that the Special Investigation Team (SIT) appointed by the Supreme Court had filed a closure report in this case, despite finding many of the serious allegations in the Zakia Ahsan Jafri complaint dated June 8, 2006 to be true. The judge on December 26, 2013 accepted the closure report of the SIT.

FIGHT FOR JUSTICE

SURE TO CONTINUE

Differing significantly with the SIT, the amicus curiae in this unique case, senior advocate Raju Ramachandran, had opined that there was enough evidence to prosecute Modi under Sections 153(a), 153(b) and 166 of the Indian penal Code.

While asserting that the CJP will continue to assist Smt Zakia Ahsan Jafri in appealing to the higher courts for justice, the organisation said the three-four-tiered system of justice in India is designed to correct wrongs, if any, and that the CJP was confident that the serious charges of criminal conspiracy, abetment, murder, arson etc would finally result in the prosecution of the powerful. Meanwhile it remains a trying time for the survivors and human rights defenders who stand firm in their fight for justice.

While a detailed analysis of the 450 page judgement will be made available by the CJP within a week, it has meanwhile stated that the detailed construction of criminal conspiracy and abetments presented before the magistrate’s court on legal and factual grounds was completely ignored by the court despite substantive evidence from the investigation papers.

The counsel for the complainant, relying on statements recorded by the SIT, documentary and other evidence existing in the record of the trial court, had argued, in detailed oral arguments presented to the court between June and September 2013, that though the law requires establishment of only  a prima facie case of serious suspicion for framing charges against Modi and other accused in offences of cognisable nature, in fact, there exists more than ample evidence, which is not only sufficient for framing charges but also for proceeding with the trial and for convicting Modi and other accused on charges of conspiracy and abetment, for committing murder, arson and brutal massacre throughout Gujarat.

The widespread violence that engulfed Gujarat --- spreading to 19 of the state’s 25 districts, 14 very seriously --- after the tragic burning to death of 59 persons in the coach S-6 of the Sabarmati Express is perhaps the worst ever record of communal violence in reprisal in post-independence India.  It was not simply the number of lives lost, though the number — perhaps 2,000 — is not insignificant. It was the cold-blooded manner in which these lives were taken, as armed militias with high level government sanction, ensured a high level brutality in the killings, mutilation, rapes and burnings. Over 200 girls and women suffered sexual violence; 18,000 homes and 1,200 hotels were gutted. The unfortunate pattern behind the reprisal killings was that the loss of life and property was that of the minority.

PLENTY OF EVIDENCE

EXISTS FOR PERSECUTIONS

It was in 2002 when the National Human Rights Commission filed its interim and final reports, while in 2003 and 2004 the Supreme Court pulled up the state government for absence to ‘observe its Raj Dharma' and accused it of criminal negligence: “The Neros in Gujarat fiddled as Gujarat burned.” Serious allegations of top level criminal conspiracy in masterminding the violence have been made against the chief functionaries of the government.

The NHRC concluded in its report dated May 31, 2002 that “there was a comprehensive failure of the state to protect the constitutional rights of the people of Gujarat.” The Supreme Court of India, while severely indicting the Gujarat government, transferred two trials to outside of Gujarat i.e. the BEST Bakery and Bilkees Bano cases. The Supreme Court has been well aware of the larger conspiracy behind the 2002 carnage and the court's orders, one after the other in different cases related to the 2002 carnage, have reflected this. Various orders passed by the Supreme Court, including the path-breaking directions in the Best Bakery case and other important developments, ultimately led to the formation and reconstitution of the SIT on March 26, 2008 to further investigate nine of the crucial trials relating to the 2002 carnage.

Of the 300 violent incidents all over the state of Gujarat that took place with sinister precision and conspiracy, two of the worst in terms of intensity took place within Ahmedabad (Naroda Patiya and Gulberg Society), with the brutal massacre of over 200 persons, daylight rapes and burnings. This happened the day after the Godhra train burning on February 28, 2002. At the Gulberg society where Mrs Jafri and her husband lived, a total of 69 persons were massacred in cold blood; and young girls and women were raped. Over 200 distress phone calls, including several to the Ahmedabad commissioner of police and to the chief executive of the state had brought no relief. By August 2002 the government itself had recorded 185 cases of attacks on women, of which 100 were in Ahmedabad city, and 57 attacks on children, of which 33 were in Ahmedabad alone. A total of 225 women and 65 children were killed.

Evidence from the state intelligence given to the Chief Election Commission (CEC) in August 2002 revealed that communal incidents had taken place in 993 villages and 151 towns, spread over 153 assembly constituencies (out of a total of 182 in the state). By August 2002 (as recorded in the report of the women’s parliamentary committee), 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 recorded in the report of the women’s parliamentary committee), there had been 4,954 cases (2,023 urban and 2,931 rural) of residential houses having been completely destroyed. There were a further 18,924 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.  Thereafter a further 5,000 urban houses and a 1,000 rural houses were destroyed or damaged.

POLICE REFUSAL

TO LODGE A CASE

It was the sinister planning and systematic nature of violence that led the widow of the slain former parliamentarian,  Smt Zakia Ahsan Jafri, assisted by the Citizens for Justice and Peace (CJP),to file a complaint on June 8, 2006. It was about criminal conspiracy and abetment to commit mass murder, violation of established criminal law and police manual norms and destruction of records --- with plenty of evidence against Narendra Modi, the chief executive of the state, and 59 others.

On its part, however, the Gujarat police had refused to register a case of serious offences of cognisable nature. This compelled Smt Jafri and the Citizens for Justice and Peace to approach the Gujarat High Court with prayers to order registration of FIR and transfer of investigation to the CBI. When the High Court rejected the petition, Zakia Jafri and the CJP approached the Supreme Court. A notice was issued on their petition (SLP No 1088/2008) on March 3, 2008. Thereafter, vide an order dated April 27, 2009, the SIT, which was already probing into other incidents, was asked “to look into” the complaint dated June 8, 2006. An amicus curiae was also appointed to assist the court in this crucial case. The SIT submitted its final report to the Supreme Court in May 2010, stating that while several of the allegations were found to be true, no criminal prosecution could be initiated. The Supreme Court had then directed the amicus curiae to assess the evidence collected by the SIT and give an independent view. In his final report, then, the amicus curiae recommended the prosecution of accused Narendra Modi under Sections 166 and 153a and 153b of the Indian Penal Code (IPC).

In spite of there being enough material on record to frame charges against Modi and the other accused, the SIT chose to submit a final report. The Supreme Court directed that the said report of the SIT will be considered by the trial court. The Supreme Court also protected the right of the complainant to access the records collected during investigation and file her protest petition. (This is a right under Indian law but was specifically outlined by the Supreme Court in its final judgement dated September 12, 2011). Despite the voluminous evidence collected by the SIT during investigations and the clear-cut assessment of the amicus curiae, the SIT filed a closure report on February 8, 2012 and refused to provide the investigation papers to the complainant in contempt of the Supreme Court's order. The magistrate granted the complainant her right to the investigation papers on April 10, 2012 but it took Mrs Zakia Jafri and CJP another year to access all the investigation reports of the SIT submitted to the Supreme Court. The SC directed this on February 7, 2013 after which a protest petition was filed on April 15, 2013.

Existing statements and documentary evidence were clear indicators of a high level criminal conspiracy and abetment to ensure that mass murder and other offences are committed against innocent citizens. Detailed arguments were made by the advocates for the petitioner between June and August 2013, pointing out from the material on record that a strong case for framing charges against Modi and other conspirators is made out for the trial to proceed and that at this stage what the law requires is only establishing a prima facie case of strong suspicion.