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Asian Tribune is published by World Institute For Asian Studies|Powered by WIAS Vol. 12 No. 2964

Godhra: Shining India’s Discriminatory Justice

By Subash Mohapatra

Raipur, 17 January, ( Acknowledgement, remorse, justice and reconciliation are the accepted steps required for collective healing when wounds of an indescribable nature have been inflicted on a whole population. In Gujarat, five years after independent India's worst genocide, there has been little or no acknowledgement of the crimes and no question therefore of any expression of remorse from perpetrators and masterminds. Justice, except in a few isolated cases, dodges Gujarat's survivors. It must therefore be a while before we talk of reconciliation.

Similar or worse questions arise from Gujarat today. An analysis in detail of the evidence placed before the Nanavati-Shah Commission. Thousands of victim survivors braved threats and intimidation from a vindictive administration to place their affidavits on record. (In August 2004, victim survivors and members of citizens' groups were assaulted and threatened by riot accused, Babu Bajrangi, in the premises of the circuit house where the commission sits.) The rare courage of two police officers has exposed the cynical nitty-gritty that shaped the orchestration of the genocide. The tenacity of groups in deconstructing the Godhra fire before the commission pokes serious holes in the barefaced lies behind the Godhra train burning. Today, more than ever, it appears that the incident was an accident and not an 'ISI-inspired conspiracy' as touted by former union home minister LK Advani and Gujarat's chief minister, Narendra Modi.

Now, even as the Godhra fire can no longer be used to justify the post-Godhra massacres, 84 accused languish in Ahmedabad's Sabarmati jail. Meanwhile, escaping the long arm of the law, perpetrators of the genocide, many with powerful political connections, roam free. Details of the illegal continued custody of those accused in the Godhra arson have been placed before our apex court for three years now. However, despite sincere efforts by legal action groups and counsel, these men have been denied bail.

The fact that 84 accused still remain in Gujarat's jails five years after the incident, the fact that many of them are ill, one is blind; the fact that their families have been reduced to penury and indignity while the main accused and masterminds of the post-Godhra carnages not only roam free but rule Gujarat by action and word, raises the niggling, troublesome question once again.

Discriminatory justice. Can a discriminatory system of justice be viable in principle, given what our Constitution espouses? What does this reality mean in practical terms, given that today we also face the challenge of another kind of terror, internationally supported bomb terror? In the ultimate analysis, genuine secularism and constitutional governance must mean that issues of mass violence, accountability, transparency, impunity for mass murderers and government officials, are not merely the stuff of election campaigns but the basis on which the balance sheets of our public servants and representatives are drawn. Only then would we have made the transition from a purely electoral democracy to true constitutional democracy.

The plight of those accused in the Godhra train arson case is a grim travesty of justice. They have been denied a fair hearing and deprived of basic freedom. While in trials related to the 2002 carnage incidents, influential accused have been let off, repeated efforts to obtain bail for the Godhra accused have proved futile.

A total of 135 persons were accused in the Godhra arson. Of these, 22 persons are absconding. Twelve of the accused were released under Section 169 of the CrPC, which provides for release of accused if, after investigation, there is found to be insufficient evidence against them. One of the accused died while in judicial custody. Of the remaining 100 persons, 84 persons are still in judicial custody, including two persons who were minors at the time of the incident. Only 16 persons have been granted bail.One of the 22 absconding accused, a maulvi, was implicated in the crime by an accused/witness, Sikandar, who stated that the maulvi was allegedly seen on the terrace of a Masjid at Godhra (ostensibly planning the conspiracy) although it was later established that the Maulvi was in Maharashtra and not even in Godhra on the relevant day. There were many serious discrepancies in the arrests, glaring inconsistencies that have been pointed out to the state, which simply refuses to address these concerns. Some of these anomalies have been laid out below.

Legal provisions under POTA allow for the review of individual cases by a central review committee to prevent misuse of the Act and its draconian provisions. A decision by the Central Review Committee on May 16, 2005 ruled that none of the alleged offences in the Godhra case warranted the invocation of POTA. However, the committee’s decision has not been taken into consideration by either the Gujarat government or the POTA court. Matters relating to bail for the accused, especially in view of the decision by the Central Review Committee, have been brought before the apex court. However these too have faced repeated delays.

Following an order of the Supreme Court giving liberty all accused to file for bail while hearing the matters relating to the findings of the Central POTA Review Committee, seven separate such applications have been filed. Despite six-seven hearings in the matter, the matter has not been seen fit to be heard. The Special POTA Court and the High Court have passed stereo-typed orders of rejecting the bail applications, without taking into consideration the evidence against the accused, and only on singing a song that the case is very serious. The Special POTA Court have passed order of temporary bail releasing the accused for one day, or two days under the strict police escort for serious illness, death ceremony, marriage ceremony and social ceremonies, and they are passed on the strict conditions and with the escort and the accused should be kept in Godhra Sub Jail in the evening time. At least 20 of the accused persons were arrested as members of the mob, several hours after the event, without any statement or complaint naming them at the time.

Five of the Godhra accused are shown as identified by a witness, Dilip Ujjambhai Dasariya. A schoolteacher, Dasariya has stated on affidavit that he was not present at the spot but on duty 25 kilometres away when the incident took place. The school where he teaches has certified to this fact. The prosecution has however refused to place this fact on record. Aminabibi, the wife of accused, Saeed Abdulsalam Badam, a resident of Chikhodra village in Godhra taluka, has filed an affidavit before the Supreme Court stating that her husband, a poor labourer, has been falsely implicated based on the solitary statement of Dilip Dasariya who, by his own admission, was not present at the scene of the crime on February 27, 2002.The plight of those accused in the Godhra train arson is indeed a sorry one. Accused No. 54, Ishaq Mohammed Mamdu, is totally blind. In 1997, years before the train arson took place, the civil surgeon at the district hospital issued a certificate confirming that Mamdu suffered from 100 per cent blindness, following which he received assistance as a handicapped person from both the state and central governments. Mamdu’s father has made applications for reinvestigation into his arrest but this has not been done. On the contrary, in a pathetic attempt to justify Mamdu’s arrest, the state of Gujarat has obtained a doctor’s statement dated June 2002 that states, vis-à-vis the 1997 certificate, that though Mamdu is blind his eyesight allows him to see up to a distance of one metre. Moreover, there is no record of a physical examination being conducted on Mamdu prior to the doctor’s certificate being issued. The state’s contention is that he was part of the mob. Despite this, and though the only allegation against him is that he was part of the mob, Ishaq Mamdu’s bail application has been consistently rejected.

Another of the accused persons, 42-year-old Fakruddin Musalman, died while in judicial custody on April 30, 2003. Fifty-year-old Siraj Abdulla Jamsa, a cancer patient, passed away after he was granted bail. Gulzar Agnu Ansari, aged about 23, suffers from tuberculosis even today. Maulana Hussein Umerji, aged about 60, suffers from kidney malfunction, high blood pressure and arthritis.

Siddiq Abdulla Badam, aged about 38, suffers from bone tuberculosis. Anwar Mohammed Menda, aged about 33, suffers from serious mental depression. Idris Ibrahim Charkha, aged about 32, also suffers from serious mental depression. Anwar Hussein Ahmed Pittel, aged about 30, suffers from severe haemorrhoids. Leaders of the minority community who played a significant role in providing relief to victims of the post-Godhra carnage were specifically targeted and arrested without evidence. Maulana Umerji, Harun Abid and Harun Rashid are some examples.

The misconduct by investigating agencies and the prosecution in the Godhra trial is potentially extremely dangerous not only because it violates the rule of law and the basic rights of the accused who have been unfairly implicated. In the wider context it epitomises the discriminatory system of justice at work in the state of Gujarat. Discrimination is particularly apparent with regard to bail, where many of those accused of mass murder in the post-Godhra violence roam free while most of those allegedly responsible for the Godhra arson are denied bail five years after the event. This sends a detrimental message to society as a whole.

The Citizens for Justice and Peace has placed on record before the Supreme Court the sworn affidavits of five Hindu victim survivors of the Godhra arson, family members of victims who died in coach S-6 of the Sabarmati Express, who have also made a plea to the apex court for transfer of the Godhra arson case out of Gujarat. They cite threats, intimidation and political manipulation by the state administration that precludes a free and fair trial within Gujarat.

They have stated that the VHP has influenced public prosecutors to present a partisan and unsubstantiated theory behind the tragedy. The case for transfer of the Godhra trial was made and supported by family members of the accused and supported by Hindu victim survivors of the train arson incident.

A glaring example of injustice to the accused detained in the Godhra case, is that though a request was made to the Special POTA Court that the accused had preferred Transfer Petition in the Hon’ble Supreme Court of India being Transfer Petition (Criminal) No.54 of 2003 and also preferred a review application before the POTA Review Committee under section 60, in spite of that the POTA Court has framed charges in the case of the subject matter of POTA Case No.10 of 2003. Result: The accused are suffering and are not in a position to exercise their legal right with a view to save themselves from the draconian law.

The illegal invocation of POTA (enacted on March 28, 2002) in the Godhra train arson case was itself both mala fide and illegal. On February 27, 2002 i.e. when the alleged offence occurred, POTO (Prevention of Terrorism Ordinance, 2001) was not applicable in the area. It was on February 28, 2002, after the Godhra incident, that the state of Gujarat issued a notification declaring the whole area to be a notified area under POTO.

The Gujarat government did not publish the necessary circular in the state gazette announcing the application of POTO to Godhra on February 28, 2002. In spite of this, an attempt was made to wrongly apply POTA in the Godhra arson case by declaring that POTO could be applied to the Godhra incident on February 28. This attempt failed.

It was nearly a year later, on February 19, 2003, that POTA was invoked in the Godhra case. It appears clear that this followed the confessional statement by Jabir Binyamin Behra dated February 5, 2003, a statement that Behra ultimately retracted, stating that the confession had been extracted under torture. Behra’s confessional statement drew the first picture of a pre-planned conspiracy behind the train arson incident. Interestingly, five days before POTA was applied in the Godhra train arson case i.e. on February 14, 2003, bail was granted to most of the accused for the first time by the Gujarat High Court. It is evident that POTA was applied to ensure that further bail orders were not passed.

Shockingly, over 45 of the accused have made written applications voicing their apprehensions about the likelihood of a fair trial within the state of Gujarat. From a perusal of these applications it is clear that the accused see little hope of facing a free and fair trial in the state. The persistent refusal by investigating agencies to follow up and investigate the facts raised by these applications, and the failure of the special POTA court to ensure this, also suggest that the Godhra arson case is not being conducted in a manner that inspires confidence in the people.Some of the accused persons who were jailed at the Vadodara central jail were subsequently transferred to the Sabarmati central jail and they have also challenged this transfer. The jail transfer has meant that families of these accused persons, all from economically backward sections, already reduced to penury by the absence of an earning family member, cannot even exercise their basic fundamental right and visit their kin in prison.

There are also severe discrepancies in the discovery panchnamas relating to the recovery of weapons. These too have been detailed before the Supreme Court.There are similar and serious lapses in the timing and statements/complaints in the arrests of the accused.

All police witnesses who provided statements are employees of the Godhra railway police station and serve under the same investigating officer who has been investigating the case. This further implicates the investigating agency on charges of bias. In fact, 36 of those accused in the Godhra train arson case were acquitted in another case, related to the Neelam Lodge (Godhra town CR No. 66/2002), on the same day. Ironically, the police witnesses are common witnesses for the same accused in both cases. After the police filed the first charge sheet in May 2002, the government’s own Forensic Science Laboratory report came out. Far from strengthening the government’s position, the report exposed the prosecution’s case. This led to the entire team of police investigation officers being changed.

The statements before the police as well as the witness statements that allegedly led to the accused, clearly indicate that some of these witnesses were also active participants in the commission of the crime. What is more, if their own statements are to be believed, these witnesses are guilty of far more serious offences than those who were booked and denied bail for the past few years.

The very magistrate who had earlier recorded statements by two such witnesses under Section 164 of the CrPC, refused to record a statement by accused/witness, Jabir Binyamin Behra, on January 29, 2003 when he realised the seriousness of the lapse. Instead, he directed that Behra should be brought before the chief judicial magistrate (CJM) or a high court judge because the judicial first class magistrate’s court did not have the appropriate jurisdiction.

Following these developments, Behra was brought before the CJM in February 2003 and a confessional statement by him was recorded on February 5. All three of Behra’s recorded statements are practically identical and adhere to a strange prototype – there is virtually no change in their content. Yet the law is clear in that such statements must be in the language and words of the accused.The Gujarat police and prosecution have also denied the Godhra accused access to vital documents. For instance, confessional statements and statements by the Patels dated April 10, 2002 were not initially supplied to the accused persons. As the accompanying story shows, Prabhatsinh and Ranjitsinh Patel, employees of a petrol pump in the area, had clearly stated that no petrol had been bought from them (petrol that the prosecution claimed was used in the arson).

The stay by Supreme Court on Godhra carnage cases by the Supreme Court did not extend to staying the investigations. The state of Gujarat, which is the prosecution in all these cases, has, in the case of the Godhra arson, continued with an aggressive investigation apparently to suit political ends. In the post-Godhra cases however investigations have simply not proceeded as they should. True investigations would involve serious complaints by victim survivors about doctored FIRs, incorrect naming of accused and several other harmful revelations.

(Input from Teesta Setalvad)

- Asian Tribune -

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