Guest Writer- Teesta Setalvad

The struggle of man (or woman) against power is the struggle of memory against forgetting. — Milan Kundera

When news of the Nos. S-6 Coach of the Ayodhya-Faizabad returning Sabarmati express caught fire, or was set on fire the image of the burning coach and charred corpses of 59 persons, women, children and men gripped Indian television screens for weeks. Within hours of the ghastly tragedy, the chief minister with his cabinet had descended on Godhra, a town notorious –just like our Malegaon and Bhiwandi are – for intra-community clashes. What the Collector jayanthi Ravi called an accident –the exact words use by then prime Minister Atal Behari Vajpayee in Pariament that day – was swiftly, quickly converted into a “cross border ISI Conspiracy” by Gujarat’s recently elected chief executive (Bye elections to Rajkot Vidhan Sabha Seat got Modi elected by a slender margin just six days before Godhra), his cabinet colleagues Govardhan Zadaphiya (MOS Home) and Health Minister Ashok Bhatt (now deceased).

This declaration of a far from proven cross border plot theory relayed by Modi on Gujarati Akashwani caught the airwaves and suddenly an administration, all set to curb the fallout of this ghastly tragedy close to a Muslim Ghanchi basti at Godhra was re-directed to escort VHP stalwarts to escort burnt corpses to Ahmedabad, funeral processions with inflammatory slogans were allowed. Over the next 72 hours 300 locations spread over Gujarat’s 19 districts burned. As an administration held back, paralysed.

It was not simply the number of lives lost, though the number — perhaps 2,500 — is not insignificant. It was the cold-blooded manner in which they were taken. It was not simply that 19 of Gujarat’s 25 districts burned while Neros watched, fiddled and smirked but the sinister similarity in the way they were set alight. Militias were armed with deadly training, weapons, technology and equipment; with a lethal brew of deadly intent, inspired by constructed tales of hate, using the February 28, 2002 edition of a leading Gujarati daily that urged revenge; all combined with a deadly white chemical powder that seared to burn and destroy already killed bodies. And, of course, truckloads of gas cylinders, in short supply for cooking, were used instead to blast mosques and homes. Mobile phones and motorcycles made communications easy and movement swift.

Part of the plan was to humiliate, destroy and then kill. Another was to economically cripple. But at heart the desire was to construct a reality whereby a whole ten per cent of the population lives (and a few even prosper) as carefully whipped into shape, second-class citizens. Most incidents that racked the state, except the famed Best Bakery incident, took place in the glare of the day, not the stealth of the night. Critical to the plan to mutilate and humiliate was to subject women and girls to the worst kind of sexual violence. Tehelka’s “Operation Kalank” records victorious testimonies of rapists and murderers who claim to have received personal approbations from the man at the helm. Over 1,200 highway hotels were destroyed, more than 23,000 homes gutted, 350 large businesses seriously damaged (and are still unable to recover) and 12,000 street businesses demolished.

Genocide is about economic crippling as much as death and humiliation. The Concerned Citizens Tribunal — Crimes Against Humanity 2002 called the happenings in Gujarat a genocide, because of the systematic singling out of a group through widely distributed hate writing and demonisation, the economic destruction, the sexual violence and also because over 270 masjids and dargahs were razed to the ground. The bandh calls on February 28 and March 1 by rabid outfits and supported by the party in power enabled mobs free access to the streets while successfully warding off the ordinary citizen.

Eleven years down, it is this level and extent of complicity that is under high-level scrutiny. The involvement of high functionaries of the state in Gujarat did not begin, and has not stopped, with the violence. It has extended to destruction of evidence that continues until today, the faulty registration of criminal complaints, the deliberate exclusion of powerful accused and, worst of all, the utter and complete subversion of the criminal justice system by appointment of public prosecutors who were not wedded to fair play, justice and the Constitution — but were and are lapdogs of the ruling party and its raid affiliates. The proceedings in the Best Bakery case in the Supreme Court and the judgment of April 12, 2004 strips our legal system, especially lawyers, of the dignity of their office.

The hasty granting of bail to those involved in the post-Godhra carnage remains testimony to the discriminatory dispensation of justice. While over seven dozen of those accused of the Godhra train arson were in jail, without bail for eight years — until judgement was delivered in February 2011 — powerful men, patronised by the state’s political hierarchy who were accused of multiple rapes and murders roamed free in “vibrant Gujarat” even as the trials have resumed. The few that were in jail — ten of the 64 accused in the Gulberg society carnage, eight of the 64 accused in Naroda Patia massacre, two of the 89 in the Naroda Gaam killing remained there because they lacked political patronage.

On November 9, 2011, 31 accused in the Sardarpura killings were convicted to life imprisonment even as the Judge – once again exonerated me and my organization of any tutoring. Assisting the poor and marginalized to face the Courts, to stand brave against the cruelties of a legal system, is within the law.

The now famed Zakia Ahsan Jafri and Citizens for Justice and Peace case against Modi and 61 others is before a Magistrate;s Court in Ahmedabad. The Zakia Jafri Complaint alleges criminal conspiracy to commit mass murder in 19 of Gujarat’s 25 districts, to subvert justice, destroy evidence and intimidate public servants upholding the truth For the first time in our history criminal conspiracy and mass murder are the charges, the chief minister and 61 others the accused. Will the wealth of evidence be matched by the rigour of prosecution? Already the Supreme Court appointed Amicus Curaie Raju Ramachandran has in his report opined that there is enough evidence to prosecute Modi on charges of dereliction of duty and hate speech.(Sections 166, 153a and 505 of the Indian penal Code). Besides senior policemen, says Ramachandran, should also be prosecuted not just for criminal dereliction of duty but subverting of the criminal justice system and destruction of evidence. On September 11, 2011, the Supreme Court had directed that the Complaint of Zakia Jafri dated 8.6.2006 along with all the evidence collected by the SIT be placed before the Magistrate for further action and prosecution. The SC Order also said that in the event of the SIT stating that there was no evidence to prosecute chief Minister Narendra Modi and 61 others, notice should have been given to the complainant and thereafter all materials supplied to her to enable her to file a Protest Petition. (Paras 8 and 9 of the Supreme Court Order).

On February 8 2012, after a five month delay, without issuing any notice to complainant Smt Zakia Jafri in violation of Section 173(2)(ii) of the Code of Criminal Procedure, the SIT filed a Report stating there is no evidence against any of the accused without giving the complainant any of the evidence collected or investigation papers. On the very next day the complainant challenged this as a contempt of the Supreme Court Order dated 12.9.2011 (Paras 8 and 9). Finally after protracted hearings when counsel from Mumbai (Mihir Desai) had to argue the then Magistrate Bhatt granted all documents through an order dated 10.4.2013.

What followed was again excruciating formailities and delays. On verification of the 23,000 page record, it was found and pointed out by us on 10.5.2012, 28.5.2012 and 2.6.2013 that the SIT had displayed a bias in not including Investigating papers submitted in the context of the very same complaint submitted before the Hon’ble Supreme Court between 2010 and 2011. A reading of both, AK Malhotra’s report to the Supreme Court that clearly found enough evidence to urge further investigation under Section 173(8) and Himanshu Shukla’s report dated 8.2.2012 there were serious contradictions and anomalies. Misleading the Magistrate and passing abrasive remarks against the complaint, the SIT finally got an order in its favour dated 24.7.2012.

Smt Jafri backed by CJP had then again approached the Supreme Court for a clarification of its own order. In October 2012, Smt Jafri filed a Special Leave Petition SLP 8989/2012 but even while this was being filed in the Supreme Court (October 2012) and heard the SIT made aggressive and misinformed statements before Magistrate Ganatra leading to his closing Smt Jafri’s right to file a protest petition, a patently unlawful order (27.11.2012). This blatantly illegal order (struck down on February 7, 2013) was coincidentally, weeks before Gujarat went to the polls (three phases December 2012).

During the hearings of Smt Jafri’s SLP between December 2012 – February 2013, the Supreme Court finally restored the right of the complainant to file a protest petition as also granted her all the documents that she had sought. The contradictory and questionable role of the SIT, aggressively brow-beating the Complainant and Magistrate in the lower courts while remaining utterly silent during the hearing of SLP 8989/2012 in the Supreme Court bear understanding and condemnation.

The Supreme Court through its final order dated 7.2.2013, exactly one year after the SIT filed its Closure report on 8.2.2012, in defiance of the Supreme Court Order that outlined the requirement of the investigating agency to give all documents collected in evidence and previous investigation reports. Arguably the one year delay in the progress of this case is entirely because of the SIT’s reluctance to part with documents lawfully due to the Complainant to file her Protest Petition.

The final drama will now unfold in April 2013. By the middle of that month, the protest petition will be filed.

As we hold our breath, we ask, will justice ever be done?

(By Teesta Setalvad. The writer is the secretary of Citizens for Justice and Peace)