VICTIMS of the 2002 Gujarat communal riots have new hope of getting fair trial and justice as the Supreme Court on May 1 ordered the High Court to set up six fast-track courts, as suggested by the Special Investigation Team (SIT), to hear the nine sensitive cases on a day-to-day basis. The court had stayed the hearing of the cases in 2003.
The cases have long suffered jurisdictional challenges as the State police were alleged to have organised the pogrom against Muslims. The survivors and the civil liberty groups that advanced their cause contested the attempt by the State government to take up the investigation and prosecution of the cases.
In 2003, the National Human Rights Commission (NHRC) moved the Supreme Court for shifting the trial of some of the cases to other States, so that witnesses were not intimidated or influenced.
A three-judge Bench of the Supreme Court, comprising Justices Arijit Pasayat, P. Sathasivam and Aftab Alam, which disposed of the National Human Rights Commission vs State of Gujarat case, while ruling that the trial would be held in Gujarat, took into account the apprehensions of the victims.
Underlining the importance of fair trial, the court observed: Denial of fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.
Even during the hearing of the case, the Supreme Court took some crucial steps to render justice. On March 26, 2008, it directed the State government to constitute a five-member SIT headed by R.K. Raghavan, former Director of the Central Bureau of Investigation, to investigate the nine cases. The government constituted the SIT on April 1, 2008. On February 11, 2009, the SIT submitted its report to the Supreme Court, indicating the progress it had made in the cases. These include the Godhra train burning case (59 dead), Narda Gam and Patiya (about 110 dead), Gulberg Society (70 dead), Sardarpura (33 dead), Odh (27 dead), Deepla Darwaza (14 dead) and the British national case (11 dead).
The SIT completed the investigation into five of the nine cases and claimed that it had almost completed the investigation into the remaining four. The court noted in its judgment that owing to the efforts of the SIT, persons who were not earlier arrayed as accused had now been brought to book. In most of the cases, a large number of persons have been additionally brought into the prosecution net. Besides, a large number of witnesses were also examined in each case. Considering the thoroughness with which the SIT has conducted its probe, the court directed that it should continue to function until the completion of trial in all the cases and, if required, undertake further inquiry.
In 2004, the court transferred the trial of the Best Bakery case, one of the worst carnage cases, to Mumbai. This signalled the lack of confidence of the court in the impartiality of the public prosecutors appointed by the State government in prosecuting the cases.
In its May 1 order, the court made it clear that the appointment of public prosecutors to try the nine sensitive cases should be made in consultation with the SIT, whose opinion would be binding on the State government. The Chairman of the SIT could seek the change of any public prosecutor if his/her performance was found inadequate, or recommend the appointment of an additional public prosecutor to assist or lead the existing one, the court held.
It directed that if a witness needed protection, he or she should make an application to the SIT, and the agency should pass the necessary orders. The court held that the State should abide by the direction of the SIT in this regard. The SIT would be the nodal agency to decide which witnesses required protection and what kind of protection was to be made available to such a witness. The SIT could also consider relocation of witnesses outside the State in order to ensure their security and protection, the court held.
In order to expedite the trial, the court requested the Chief Justice of the High Court to designate special courts in each district where the cases were to be tried and select senior judicial officers to conduct the trials as soon as possible and in the most satisfactory manner.
Responding to the Supreme Court judgment, Raghavan expressed satisfaction that the court reposed trust and confidence in the SIT and hoped that the fast-track courts could complete the trial within a year.
The judgment was delivered in the backdrop of the controversy over the timing of the courts directive to the SIT on April 27 to investigate a complaint against Chief Minister Narendra Modi and 62 others, alleging their involvement in the 2002 carnage. As the directive came three days ahead of the Lok Sabha elections in Gujarat, it was felt that Modi would use it to his advantage to polarise voters. The Chief Minister did try to do that by suggesting that the Congress was behind the directive and that he would be arrested immediately after the elections.
The complaint was made by Jakia Nasim Ahesan, widow of former Congress Member of Parliament Iqbal Ehsan Jaffri, who was killed in the Gulberg Society massacre. Jakia Nasim Ahesan first sent her complaint to the Director-General of Police, Gujarat, on June 8, 2006. As the police did not register a first information report (FIR), she petitioned the High Court in 2007 seeking a direction to the police to register an FIR. In her petition, she said that the State police were biased, especially with regard to its own complicit role in the massacres of 2002. Therefore, she claimed that after registering the FIR, the same should be handed over to an independent investigating agency. She furnished oral and documentary evidence on the nature and extent of involvement of the accused and sought further investigation into the offences she had alleged.
A significant part of her complaint was the allegation that Modi, as the Chief Minister, presided over a Cabinet meeting on February 27, 2002, after the burning of the Sabarmati Express at Godhra, and advised his officials not to interfere with the expression of anger by Hindus the following day. She claimed that this was corroborated not only by the affidavit filed by the then Additional Director-General of Police, R.B. Sreekumar, before the Nanavati Commission, but also by the testimony of the former Home Minister, Haren Pandya, to a Citizens Panel, which inquired into the pogrom. This panel comprised Justice V.R. Krishna Iyer and Justice P.B. Sawant, former Judges of the Supreme Court. Pandya was killed in March 2003 under mysterious circumstances.
In his November 2, 2007, judgment, Justice M.R. Shah of the High Court rejected Jakia Nasim Ahesans petition, saying her allegations were on the basis of some affidavits filed by third parties before the Justice Nanavati and Shah Inquiry Commission and that these affidavits had no evidentiary value. The High Court rejected her contention that her allegations extended beyond the jurisdiction of a magistrate or a police station, and directed her to approach the appropriate magistrate if the police refused to register an FIR. Jakia Nasim Ahesan appealed to the Supreme Court against this order. Admitting the petition on March 3, 2008, Justice Pasayat and Justice Sathasivam held that the High Courts order did not render the petitioner remedy-less.
But they noted that it raised various important aspects for consideration. The judges said: In a given case, a person who has knowledge of the commission of a crime may not be examined by the police. The question is what is the remedy available to such a person?
The Supreme Court Bench felt that the question was of critical importance in the administration of criminal justice.
Counsel for the petitioner, Prashant Bhushan, who was appointed amicus curiae in this matter, told Frontline that the Supreme Court registry did not list the matter for a year. Thereafter he mentioned the matter before Chief Justice K.G. Balakrishnan and Justice Pasayat, who ordered the registry to list the matter. It was thus listed as item No. 62 (SLP (Crl.No.1088/2008) before Court No 3 comprising Justice Pasayat and Justice Ashok Kumar Ganguly on April 27. The matter was thus listed in the normal course, and its hearing could not have been deferred because of the impending elections in the State. The court rightly took notice of Modis contemptuous speech attributing motives to the court for its directive, and issued him a contempt notice, on the plea of Prashant Bhushan.
Jakia Nasim Ahesan had raised a number of other issues in her complaint, which included:
(a) Why were the bodies of the Godhra train fire victims paraded through the streets of Ahmedabad city and that too when over 50 per cent of the deceased persons belonged to places outside Ahmedabad city and a few bodies were not even identified at that juncture (on February 28, 2002)?
(b) Did the then Commissioner of Police of Ahmedabad, P.C. Pandey, or the then Director-General of Police, K. Chakravarty, report to the Chief Minister or higher officers about the possible adverse repercussions on law and order if parading of bodies was permitted?
(c) Why was there such delay in responding to distress calls from prominent Muslim citizens, such as Ahesan Jafri, despite their contacting the Chief Secretary, the DGP, the Commissioner of Police, etc. Why have the phone records of Jafri vanished?
(d) Why were the minutes of the Cabinet meeting held on February 27, 2002, not maintained?
The SIT has been asked to submit a report to the Supreme Court on its probe into the complaint within three months.
The SITs reports to the Supreme Court are intended to help the court to monitor the investigation and trial of the sensitive cases. Although copies of the report are given only to counsel for their perusal, the reports purported leak to sections in the media caused considerable disquiet. The Times of India had reported that the SIT had insinuated that activists working among the carnage victims could have fabricated the victims affidavits. Citing the SIT report, the newspaper reported that Teesta Setalvad, a respected activist of the Citizens for Justice and Peace (CJP), had cooked up cases of violence to spice up the incidents and that she and other activists of non-governmental organisations had tutored false witnesses to give evidence about imaginary incidents.
The newspaper alleged that according to the SIT report, the much-publicised case of a pregnant Muslim woman, Kausar Banu, being gang-raped by a mob and the foetus being removed with sharp weapons, was also fabricated and false.
A day later, the newspaper published a letter from the CJP, claiming that the report in question was not the SIT report but a report by the Gujarat government. The newspaper denied the claim, but Raghavan remarked that the alleged leaks from the SIT report were inspired by dubious motives. The Supreme Court itself condemned the leaking of the SIT report as a betrayal of trust.
Pratiksha Baxi of the Centre for Law and Governance, Jawaharlal Nehru University, New Delhi, called the distorted reporting of the courts proceedings to malign the activists as an example of tabloidisation of law. She pointed out that there was enough writing on how the suppression of the testimonies of sexual and reproductive violence on womens bodies was manufactured through the very process of state law whereby the riot machinery erased evidence of gendered violence. This has been the biggest obstacle to prosecuting such crimes in independent India.
She said, We must ask ourselves whether the tabloidisation of law rests on extinguishing womens voices, by making a spectacle of our bodies, and treating our suffering as a myth.
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