20th January 2011
Background
The major issue that the Supreme Court will decide on January 20 2011 is the
issue of the complaint against chief minister N Modi and 61 others sent,
with over 2,000 pages of official documents to be registered as an FIR by
Smt Zakia Ahsan Jafri to the Gujarat Director General of Police on 8.6.2006.
When no steps were taken to register the offence, the complainant with
Citizens for Justice and Peace approached the Gujarat High Court with a
prayer for registration of an FIR. (Details of the complaint ad offences
against all accused can be had from www.cjponline.org and
www.gujarat-riots.com)
The evidence that forms the basis for the initial complaint are over three
dozen affidavits filed by policemen from the Gujarat police on the carnage
including former Director general of Police RB Sreekumar and SP Bhavnagar
Rahul Sharma. Subsequently detailed analysis of Phone Call records and
Police Control Room records obtained by CJP and submitted before the
investigating agencies and the courts have provided further decisive
evidence.
After three benches declined to hear the matter in the Gujarat High Court,
a single Judge MR Shah, after hearing extensive arguments made by the
petitioner in 2007 dismissed the petition in November 2007. (Tehelka had, in
October 2007, exposed through Operation Kalank the extra judicial
confessions of many accused, CJP tried to get first the Gujarat HC and then
the SC to order investigation into the Tapes which was declined; thereafter
NHRC ordered CBI to authenticate the tapes which was done though 2008).
In appeal, Smt Zakia Ahsan Jafri and CJP filed an SLP 1088 of 2008 on which
the SC on 3.3.2008 issued notice and then, on 27.4.2009 directed the SIT
appointed by it a year earlier to probe the complaint. Shri Prashant Bhushan
was appointed amicus curiae by the Supreme Court.
(By August 2009 the SIT investigation into eight trials has been exposed foe
being superficial and worse non critical of the role of powerful accused
–this was revealed in the charge sheets filed in eight trials).
Now, these major trials are nearing completion, some rectification of
investigations have been done though in our view the investigations by SIT
continue to have glaring lacunae of deliberately ignoring investigations
into the roles of powerful politicians and policemen –despite the available
evidence of phone records and police control room records the SIT has
consciously turned a blind eye to them. For details on the struggle for
justice do visit www.cjponline.org and www.gujarat-riots.com
In the parallel investigation, SIT submitted its report on the Zakia Jafri
Complaint on May 14 2010. Thereafter former minister for home Govardhan
Zadaphiya offered to turn approver and every effort was made by the state
and the accused to derail the ongoing trials and especially influence the
course of the Zakia Jafri + CJP complaint in various ways including
slandering the groups and activists supporting the victim survivors. This
campaign was spearheaded by Pioneer (Chandan Mitra) and India Today (Uday
Mahapurkar) since September 2010. Affidavits filed by the victim survivors
in the SC, that have been accepted by them in the depositions before the
Court – while some factual aspects have been clarified – are being singled
out to create utterly false canards against us of “doctoring evidence”. (see
details below on Allegations)
On October 26, 2010 when Amicus Prashant Bhushan was scheduled to give his
opinion on what should further be done with the Zakia Jafri + CJP complaint,
he was confronted by a belated application from the state of Gujarat
expressing doubts about his ability to function independently as an amicus
when he had freely expressed opinions on the Gujarat 2002 carnage including
the role of the chief minister. On the day of the hearing, when asked by the
Court what he (Shri Bhushan) would choose to do under the circumstances,
Shri Bhushan recused himself after which the Court appointed a new Amicus.
Shri Rohinton Nariman declined the Court’s request after which Shri Raju
Ramachandran and Shri Gaurav Agarwal have been appointed. Tomorrow, i.e.
June 20 2011 they are expected to advise the Court on the next course of
action.
In the interim period, efforts are clearly afoot through the media, to
pre-empt the process on within the Supreme Court. On December 3, 2010 a
report in all editions of a national daily stated “SIT had given a clean
chit to Modi.” Nothing that had transpired in the SC the day before, pointed
to this, it appeared nothing short of a brazen bid to influence public
opinion, possibly even the Court. Today that is January 19, 2011, the day
before the critical hearing tomorrow, all editions of the Times of India
have carried a “lead story” on how a Deoband cleric says that there is “No
Discrimination Against Muslims in Gujarat.” That is not the issue under
consideration in the Zakia + CJP complaint. The issue is whether a grisly
conspiracy into mass murder, criminal conspiracy to take lives brutally,
commit rapes, destroy evidence and subvert the criminal justice system was
afoot in 2002 and continued to this day vis a vis the justice process!!.
It is indeed a test case for Indian democracy and the Rule of Law how this
case goes and its outcome.
Allegations on concocting affidavits and filing false evidence have
*only*been made by the State of Gujarat (accused in the State
Sponsored Massacre),
Accused who are facing Trial and now by a former employee of our
organisation Rais Khan who was discontinued from services with the CJP due
to irregularities. There is at present NO investigation into us though a
Court hearing one of the trials (Sardapura Massacre in which 33 persons were
killed) has asked him to be prosecuted for trying to derail the course of
justice!!
There are a bunch of documents on this issue that are available on the CJP
website or with us to mail you for any who are interested. Here is a brief
narrative. Victims filed affidavits through us in the Supreme Court of
India (2003). They also filed affidavits before various international and
national fora. They spoke of the heinous crimes. From day one the State has
questioned the version of the victims. Now nine years later when the SC is
monitoring some of the trials, most witnesses who are also victim survivors
have stood by their affidavits. They have on occasion denied one or other
"factual" aspect in the affidavit relating to crime details or a rape that
was committed. Rape victims as you know deny rape for a variety of reasons.
The victim who so did so has also filed an affidavit through another lawyer
before this, in gruesome terms describing the rape. CJP as a a whole and I
in particular do not want her o be victimised so we will be presenting this
evidence in sealed cover before the SC. The critical thing to remember is
that nine years down, we remain possibly the only group left legally
supporting the survivors. And that is why we have been made a target.
This happened with the 1984 massacres too when politicians rode to power,
"earned" respectability and sidelined the survivors. Please also do take the
time to go through www.gujarat-riots.com that has listed the overwhelming
evidence against Modi available on the website.
The propaganda spearheaded by counsel for the Gujarat government Mukul
Rohatgi in the SC began in May 2009 when he said that I had concoted the
story of Kauser Bano who, nine months pregnant had her womb slit open and
her nine month old foetus hurled and swrirled on a sword before being
brutally killed. This story that came to typify the barbarity of the state
sponsored carnage in Gujarat in 2002, was widely exported at the time by
Times of India, India Today (the same Uday Mahpurkar that is slandering
us!!), Deccan Herald among other national and international human rights
bodies. Do see the attachment Media Rights Groups and Mass Crimes. The story
of the Gujarat carnage is the story of a whitewash by money and corporate
interests to pretend that the barbarities never happened. This is a denial
of acknowledgement for the survivors.
Finally it is worth pointing your public editor to the Concerned Citizens
Tribunal Report headed by two former Supreme Court Judges, Justice Krishna
Iyer and PB Sawant who have dubbed Modi the "architect of a state sponsored
genocide."
Finally and possibly as significant as the above is the fact that the timing
of these baseless allegations comes at a time when substantive evidence
incriminating over 400 accused --powerful persons including elected
representatives and policemen --is afoot under the SC scrutiny in Gujarat.
Victim survivors are being actively supported by CJP. This spate of
suspiciously timed allegations is a bid to question the credibility of
witnesses and affect the course of justice in these critical trials.
Other Miscellaneous Issues:
After one year’s efforts victim survivors and legal rights groups managed to
affect the transfer of one of the judges hearing the Gulberg case. Despite
his offensive behaviour to the witnesses and victims of the massacre it took
a year for the change to be completed and the Judge to relinquish charge in
mid January 2011. The trial is at the final arguments stage. In January 2010
victims and witnesses had filed an application under Section 319 of the CRPC
praying for Joint Commissioner Police MK Tandon and PI Parmar to be
arraigned as accused for their criminally negligent and complicit conduct.
SIT had told the Apex Court five months ago that further investigations into
their role were being carried out. Nothing so far has been done by SIT.
Meanwhile in August 2010, after submitting over 300 pages of Phone Call
Records Analysis to the Nanavati Shah Mehta Commission, witnesses have filed
detailed phone call records in the Gulberg Trial.
Witnesses and Victims have also filed over 200 pages of detailed arguments
in the Sardarpura Case in Mehsana district that saw the massacre of 33
innocent members of the minority community. In these arguments it has been
pointed out that despite an application under section 173(8) of the CRPC
being made to the SIT, the SIT has failed to investigate the arms build up
and build up of provocative and aggressive atmosphere in Mehsana district
prior to the Godhra Train Burning incident of 27.2.2002. Evidence of such
build up is available through the testimonies of witnesses, through the
annexures to the affidavits of former Gujarat State IB chief, RB Sreekumar
and through Tehelka’s Operation Kalank. The reluctance of the SC appointed
SIT to probe these aspects is baffling.
Trial in the Godhra Mass Arson Case has been completed and judgement is
awaited.
Trials into the Naroda Gaam and Naroda Patiya cases as also two trials into
the Odh massacres are on. Over 450 accused are arraigned and face charges in
the trials related to the post Godhra massacres, a first in post-indepedence
India’s history ---Gulberg massacre, Naroda Patiya and Naroda Gaam carnages,
Sardarpura Massacre, Odh Massacre and Deepda Darwaza killings.
SIT Investigation
Aspects of the SIT investigation that ignored critical evidence, dropped
crucial witnesses were brought before the Supreme Court through CJP after
which Gujarat officers on the team were asked to step aside and the one who
remains asked to play a guarded role. Conduct and atmosphere within the
courtroom, a serious issue for victims of mass crimes especially when the
perpetrator dispensation had been twice elected to power in the State
compelled us to make a plea to the Apex Court (December 2009) that court
proceedings be recorded on CCTVs. This remains pending.
Systematic Victimization/Intimidation of Teesta Setalvad/Citizens for
Justice and Peace since 2009 (actually 2004)
Worse in the midst of this propaganda what is being missed is that despite
the fact that victims did through their efforts and the order of the Gujarat
High Court establish the identity of their dead relatives in 2005-2006, it
took an order from the Supreme Court (February 2008 and a subsequent order
of the Trial Court in December 2008) that dignified burial was finally
conducted with no one being allowed to be present in August 2010, ie six
years after the brutal massacre.
The malicious and motivated campaign against human rights activists and
their lawyers struggling for justice for the victims of the genocidal
carnage in Gujarat in 2002 is aimed at derailing the struggle for justice.
The patently false allegations of doctoring evidence are being orchestrated
at a time when crucial trials are nearing completion and accused among whom
are powerful politicians and policemen face charges of criminal conspiracy
and murder.
The allegations against Teesta Setalvad, Secretary Citizens for Justice and
Peace and the organisation she represents as well as advocate MM Tirmizi a
lawyer who has fought tirelessly for justice were spearheaded first by the
state of Gujarat, then fuelled by a former employee and widely publicised by
Pioneer edited by an MP of the same political dispensation that rules
Gujarat.
The timings of the malafide allegation are aimed at derailing the course of
justice and come at a time when the apex court is poised to hear a complaint
of conspiracy to commit mass murder, suppression of justice and destruction
of evidence.
The brazen attempts need to be seen for what they are given the seriousness
of the charges against the Gujarat state and its functionaries. In 2004 too
after the Best Bakery trial was shifted to Mumbai a star witness made
similar allegations. She had thereafter to serve a jail term for perjury
while those found guilty of inducing her into falsehood escaped penal
punishment. The allegations, baseless as they are remain the same though
persons making them have changed.
There is some suggestion and strong possibilities that the Gujarat Police
may try to stage an arrest of Teesta Setalvad, and others. The background of
the case is as follows:
In a nutshell:
On Dec 27, 2005 victim survivors of the Pandharwada massacre (where
officially 27 persons were massacred...actually figure is higher on
1.3.2002) who were frustrated after the studied refusal of the state
authorities to hand back skeletal remains of their dead which were dumped
illegally by the state’s police, began the digging themselves. The spot
where they had been illegally dumped was off the Paanam river Lunawada in
Godhra district.
For months before they started digging they had approached the authorities
to dig out their remains. There was no response. Frustrated, they started
the digging they had informed some members of the electronic media and also
Citizens for Justice and Peace( CJP). The CJP’s then coordinator Rais Khan
(who is since not with the organisation following irregularities since
January 2008) who contacted its Secretary in Mumbai. CJP through its
Secretary Teesta Setalvad clearly told them to wait at the spot till the
authorities came, we informed the Collector and SP and contacted lawyers and
moved the High Court of Gujarat the next day. The local police was informed
by fax of the frustration of the victims.
The victims and CJP together moved the Gujarat HC the next day got our
prayer for DNA sampling from Red HILL Hyderabad The DNA sampling proved that
the victim survivors were right. Nine of the 22 skeletal remains were found
to be of the relatives of the victims of the Pandharwada massacre.
After the initial order in the Gujarat HC which was a breakthrough, year
later the Gujarat HC dismissed the victims’ petition asking for transfer of
investigation of the massacre to the CBI. Ironically we had pointed out that
the panchnamas related to the crimes had nowhere mentioned the skeletal
remains.
The state has tried to say that this was never an illegal dumping but a
proper burial on Forest land off an river. Legally speaking not only has the
panchnama of the original crime of mass murder not list the skeletal remains
disproving the version of the Gujarat state and police. Victims and rights
activists have argued that Lunawada has a large Kabrastan hence if Gujarat
Police could in fact not trace relatives, what was the need to so dump the
remains rather than according them a dignified prayer cum burial in the
Kabrastan? Why dump them in an obscure spot off the river rather than give
them to community leaders for a dignified burial?
Worse in the midst of this propaganda what is being missed is that despite
the fact that victims did through their efforts and the order of the Gujarat
High Court establish the identity of their dead relatives in 2005-2006, it
took an order from the Supreme Court (February 2008 and a subsequent order
of the Trial Court in December 2008) that dignified burial was finally
conducted with no one being allowed to be present in August 2010, i.e. six
years after the brutal massacre.
Following in its tradition of victimising human rights defenders and
victims, the local police lodged an FIR on Jan 1 2006 against victim
survivors and Rais Khan of the CJP. CJP gave full legal aid to them and bail
was granted and a stay against their arrest also granted by the Gujarat High
Court.
In the interim Rais Khan has today is no more with the organisation, he was
dismissed from service. He is today under the influence been won over by the
accused in the Naroda Patiya case and powerful vested interests in Gujarat.
Inexplicably on November 24, 2010 the matter that had been stayed by the
Gujarat High Court was listed and the stay vacated. Rais Khan surrendered
and has in statement recorded under section 164 made false accusations
against mediapersons and Teesta Setalvad.
He appears to enjoy full immunity and security within the state of Gujarat.
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