For justice in Gujarat

The second anniversary of the post-Godhra pogrom is a grim reminder of the genocidal character of the violence and the continuing climate of fear and terror in Gujarat. There is a crying need for justice, not for forgetting.

THE Gujarat High Court's latest judgment in the Best Bakery case, dismissing the State government's amended appeal challenging the acquittal of the 21 accused and seeking their retrial, is utterly, deeply, shocking. The 90-page judgment not only rules that a retrial should not be ordered; it goes on to observe that "there seems to be a definite design and conspiracy to malign people by misusing... witness Zaheera (Sheikh), who is hardly 19".

Having declared that Zaheera "can easily fall prey to anyone and play in[to] the dirty hands of anti-social and anti-national elements", the judgment wantonly attacks civil rights defenders: "An attempt has been made by journalists, human rights activist Teesta Setalvad and advocate Mihir Desai to have a parallel investigating agency. We do not know how far it is proper, but we can state that it is not permissible under the law."

The High Court held that the prosecution did not produce convincing evidence for holding a retrial: "It can never be said that the [original] trial was not fair and it was heavily loaded in favour of the accused and the witnesses had not deposed fearlessly." Having thus overruled even the possibility of any of the witnesses having turned hostile owing to intimidation and pressure, the court went on to attribute motives. "Once again, almost a similar (sic) attempt is made not only to cause indirect financial loss to the State but create a rift between two communities and spread hatred among the people ... This time, the target is none else but the judiciary ... which is a matter of grave concern."

This judgment runs counter to the entire rationale laid out by the Supreme Court while hearing the Best Bakery appeals. Overwhelming evidence exists to show that Zaheera Sheikh was intimidated and threatened. The day she changed her testimony, she was accompanied to the court house by lumpen elements belonging to the Vishwa Hindu Parishad (VHP) and the Bharatiya Janata Party (BJP). The Judges evidently did not share the deep anguish of the Supreme Court, which observed last August that Gujarat's "criminal justice system is not in sound health".

It is because of the prodding of the Supreme Court that the Central Bureau of Investigation (CBI) acted this past January 22 to arrest 12 people for the alleged rape of Bilkis Yakub Rasool and the killing of 15 persons in Randhikpur in Dahod district. Among those arrested were Ramesh Chandana, former aide of former Minister Jaswant Bhabhor and Limkheda BJP MLA, and a VHP functionary from Dahod, Sailesh Bhatt.

The Supreme Court's salutary observations have had little effect on the Gujarat High Court. Its verdict could strengthen the widely held view that the victims of the worst pogrom of a religious minority in independent India cannot possibly expect justice in Narendra Modi's Gujarat. This can only bring great ignominy to India and to Gujarat from all over the world and further disgust the Indian secular public.

The very week the judgment was pronounced, Prime Minister Atal Bihari Vajpayee inaugurated the Vishwa Parivar Mahotsav in Gujarat, an event organised by the State government to coincide with the kite festival. Instead of promising justice to the victims, Vajpayee lavished praise on Modi for bringing "peace and prosperity" to Gujarat and asked other States to "take a lesson" in turning themselves into "investment destinations" like Gujarat.

Vajpayee appealed to Gujaratis to "forget the past" and said: "There is peace right now, and I want this peace to stay because we have had enough of bloodshed and murder here. Even women and children were not spared." Vajpayee gave away the first State-instituted "Gujarat Garima" awards to industrialists Ratan Tata and Mukesh Ambani, and to the Right-wing economist Jagdish Bhagwati, among others. Tata sang the praises of Modi's Gujarat - a trend set by other captains of industry and bodies like the Confederation of Indian Industry, which once criticised Modi for his role in the carnage.

Vajpayee's sanctimonious appeal to "forget and forgive" demolishes any hope that the BJP's central leadership would exercise restraining or sobering influence on Modi, remind him of his constitutional duty, and promote the cause of justice for the victims. Modi himself continues to brand maliciously all human rights-defenders as "five-star activists and pseudo-secularists" bent on "trying to tarnish Gujarat's image".

We citizens are all being asked to erase our memory of what happened and to condone gross injustice and internalise prejudice. Now important international voices have joined Indians who refuse to practise such amnesia, through the International Initiative for Justice in Gujarat. The Initiative recently released its report entitled Threatened Existence: a Feminist Analysis of the Genocide in Gujarat. Published 22 months after the carnage, this document is an extremely serious reminder of the continuing violence and climate of fear and intimidation in Gujarat, as well the exceptional nature of the orgy of killing, rape, plunder and arson that took place following the Godhra killings.

The authors of Threatened Existence visited Gujarat nine months after the worst phase of anti-Muslim violence. The team consisted of feminist jurists and scholar-activists from the United States, Algeria/France, United Kingdom, Germany, Sri Lanka and India. Its members are known for their writings on women, conflict and violence - for instance, in Bosnia and Rwanda. They visited Gujarat in December 2002 and met 180 women and 136 men from seven districts, including teachers, lawyers, activists from women's and human rights groups, and survivors of the pogrom.

What makes Threatened Existence uniquely valuable is not so much its documentation of the different episodes of the communal violence in Gujarat - which has been done by many other groups like the Concerned Citizens' Tribunal too - as its incisive analysis of the character of the violence and its purpose and place within the larger Hindutva project. Equally important are the implications of the pogrom for national and international jurisprudence and the report's recommendations for bringing the culprits to justice.

Threatened Existence rigorously establishes that the post-Godhra violence was organised and directed by the BJP-controlled State and that it constitutes a crime against humanity under international law. Indeed, it fits the description "genocide" as defined in the International Convention on Genocide, 1948.

The report shows how rape, especially gang rape, and defiling and mutilation of the female body were central planks of the sexualised violence of Gujarat. Thousands of Muslim women suffered horrific forms of bestiality when they were raped to the shouts of Har Har Mahadev and "Go to Pakistan, why are you in Hindustan?" The cutting off of women's breasts, the splitting open of their bellies, the spearing and burning of their foetuses were virtually ubiquitous in Gujarat. As Tanika Sarkar says: "The pattern of cruelty suggests three things. One, the woman's body was a site of almost inexhaustible violence, with infinitely plural and innovative forms of torture. Second, their sexual and reproductive organs were attacked with a special savagery. Third, their children, born and unborn, shared the attacks and were killed before their eyes." Such sexual acts were integral to the communal carnage.

Threatened Existence goes on to argue that the Gujarat violence conforms to the notion of crimes against humanity because it was "part of a widespread or systematic attack against [a] civilian population, carried out by the perpetrator - whether leader, instigator, aider and abettor, or direct attacker - with knowledge that his or her acts were part of the larger attack". The violence was carried out by Hindu communalists with the full awareness that their acts are part of a broader game plan. "There is no doubt that both State and Hindutva leaders, adherents of the Hindutva organisations and those who joined the mobs or who participated in the persecution of the Muslim community, for the most part, knew that their acts were part of a larger attack. The notoriousness of the violations, their concerted nature, the numbers of participants and the scale of the attack make ignorance virtually impossible."

The report methodically shows that the violence fits the legal criteria of Article 2 of the Genocide Convention: "Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group."

Gujarat's Muslims were targeted and killed on the basis of religion. The attackers caused serious bodily and mental harm to them and inflicted "conditions of life" to bring about their destruction. No less significant were measures imposed to prevent births within the group and the "use of rape as a means to change the identity of a group, and impart to the child an identity that is different from the one acquired at birth". The intent to destroy a group, "in whole or in part", is fully established.

Threatened Existence convincingly relates this genocidal violence to the Hindutva ideology, which proclaims that "Hindus alone are the legal citizens of Bharat... and the non-Hindus... may stay in this country, wholly subordinated to the Hindu nation, claiming nothing, deserving no privileges, far less any preferential treatment - not even citizen's rights" (M.S. Golwalkar). Hindutva finds the prescribed treatment of non-Hindu minorities, particularly Muslims, in the example of Nazi Germany.

The violence followed from the Hindutva project of cleansing India of non-Hindus. Golwalkar was not alone within the Rashtriya Swayamsewak Sangh (RSS) to praise Hitler for keeping up "the purity of the [German] race and its culture" by "purging the country of the Semitic races". Similar sentiments were aired by the Sangh in its March 18, 2002 resolution in Bangalore: "Let Muslims understand that their real safety lies in the goodwill of the majority."

International working president of the VHP Ashok Singhal was even more explicit: "Godhra happened on February 27 and the next day, 50 lakh Hindus were on the streets. We were successful in our experiment of raising Hindu consciousness, which will be repeated all over the country now."

A particularly valuable section of the report pertains to the continuing climate of intimidation in Gujarat, related to "fear generated both by threat of violence and actual attacks, displacement and non-rehabilitation, continuing economic violence including an economic boycott of Muslims, long-term impact on Muslim women including the impact on their physical, reproductive and psycho-social health, and long-term impact on children".

The IIJG report makes a damning indictment of the Indian judicial system and its failure to provide even a semblance of justice to the victims and punish the culprits. It asks the Indian government to "enact legislation to implement the Convention on the Prevention and Punishment of the Crime of Genocide", "accede to the Rome Statute of the International Criminal Court and implement its provisions in domestic law", and "invite and facilitate an international mission of enquiry, including visits by the relevant U.N. Special Rapporteurs to monitor the development of genocide and state responsibility".

It recommends that the Indian judicial system must "transfer all the major cases of carnage outside of Gujarat, establish special independent courts and appoint special prosecutors, as well as staff who are not connected to communal organisations, with the authority to try the crimes committed in Gujarat as crimes against humanity and genocide under customary international legal standards, including the international crimes of rape and sexual violence". The judiciary should "establish witness protection programmes" and "ensure prosecution of all instances of sexual violence, including those where the victim has been killed". Our courts, it argues, must "broaden the understanding of rape to include insertions other than penile penetration and the broad circumstances of coercion recognised in international law".

As for the international community, the report holds that it must "declare a genocidal alert" and "challenge the charitable and tax-exempt status of organisations that support, directly or indirectly, the Hindutva agenda and spew hatred and violence with public money". It must "investigate and prevent the funding of organisations participating in the instigation and implementation of genocide and crimes against humanity against the minority communities".

The report is an analytical landmark, and will be very useful to those who stand for a secular and democratic India and believe in justice.