Debating India


Justice, against all the odds


Wednesday 17 December 2003, by BUNSHA*Dionne

Article paru dans Frontline, Volume 20 - Issue 25, December 06 - 19, 2003.

For the riot victims of Gujarat who have been shoved to the margins, the recent rulings of the judiciary are a reminder that they still have rights.

IF there is a price to pay for justice, Nanubhai Maleik has definitely suffered more than his fair share. The police have tried every tactic in the book to silence him. But he remains defiant.

Nanubhai, in a statement to the police, accused powerful politicians of inciting communal violence in his neighbourhood, Naroda Gaam in Ahmedabad, during the pogrom against Muslims in Gujarat last year. In the relief camp, while police were taking down riot victims’ statements, he named Bharatiya Janata Party MLA Dr. Mayaben Kodnani and Vishwa Hindu Parishad (VHP) general secretary Dr. Jaideep Patel as people who instructed the mob and left the scene.

But the police say his statement does not exist. Nanubhai has fought to get his case registered. He proved to be too much of a nuisance. So 10 months later, the police framed him in a murder case and jailed him for four months.

That did not kill his spirit. Nanubhai still demands that the culprits be punished. Almost two years after the attack, he is without a home or a job. He lives on the edge of a swamp in Chandola talao, Ahmedabad, in a room that a kind stranger has allowed him to use. But Nanubhai is still fearless.

It has been a long and hard fight against all odds. But finally there was a flicker of light at the end of the tunnel for Gujarat’s riot victims. The Supreme Court stopped the proceedings in 10 of the main riot cases. It is considering re-investigations by the Central Bureau of Investigation (CBI) and the transfer of trials outside the State.

The Supreme Court responded to a petition filed by the National Human Rights Commission (NHRC), which argued that a fair trial is not possible in the current circumstances in Gujarat.

Senior advocate Harish Salve, appointed amicus curiae (friend of the court), suggested that a special investigation team headed by a retired High Court Judge be constituted to look into all the cases independently and report directly to the Supreme Court. A three-Judge Bench, comprising Chief Justice V.N. Khare and Justices S.B. Sinha and A.R. Lakshmanan, asked the Gujarat government to respond to his suggestions. After Salve narrated incident after incident of "gross miscarriage of justice", the Chief Justice said: "If this is the state of affairs, then we will transfer all cases outside the State"

Nanubhai’s persistence is paying off. "If the Supreme Court transfers the cases outside Gujarat, the Bajrang Dal and the BJP will know that they can’t get away with killing so many people," he told Frontline. "Until now they kept taunting us. They would tell us that in the last 50 years no one has been punished for killing during riots." The police arrested three more accused recently in the Naroda Gaam case. Nanubhai feels it could be a result of his four-hour testimony before the Shah-Nanavati Commission (inquiring into the communal violence) a few months ago.

Two days after the Supreme Court pulled up the Gujarat government, a district court sentenced 12 accused to life imprisonment in the Ghodasar case in Nadiad where 14 persons were killed. This was the first conviction in any riots case. Was it a happy coincidence? Or was a jittery Gujarat establishment trying to salvage its credentials?

"The difference in the Ghodasar case was that 46 witnesses deposed before the court," says M.I. Laliwala, a local lawyer who assisted the witnesses. The public prosecutor, Paresh Dholakia, an Rashtriya Swayamsewak Sangh (RSS) member, took the depositions seriously. There was no intimidation or efforts to jeopardise the case.

Even high-profile cases - Naroda Patiya, Chamanpura in Ahmedabad (where ex-Member of Parliament Ehsan Jafri and 67 others were killed), Odh village and Sardarpura village - have been riddled with discrepancies. The Supreme Court has stayed the trial of these and the Godhra case. "In most cases, the police have not even registered First Information Reports of several witnesses. They have closed many cases claiming lack of evidence. But they have not even bothered to investigate them," Harish Salve said. "When the accused are arrested, the public prosecutors do not even bother to oppose their bail applications. In cases where the accused have been acquitted, the State prosecutors have not even appealed against the judgment."

Several witnesses are under threat. Zakia Jafri, Ehsan Jafri’s widow, was terrorised by Bajrang Dal activists after she testified before the Shah-Nanavati Commission. "When the press was interviewing her, Bajrang Dal people ambushed us and started abusing us. The police did not do anything. We had to run," says her son, Tanvir. Other Chamanpura witnesses have been threatened to withdraw the names of the accused.

In Odh village (Anand district), witnesses tried to return to their homes a few months ago. They were beaten up and sent back. The police have declared around 30 accused as `absconding’ although they roam the streets freely. In Sardarpura, victims cannot go back to their village. Witnesses in Naroda Patiya have asked for police protection. But that does not offer much consolation. Most victims will tell you that the police are the ones sheltering the accused.

Public prosecutors, too, many of whom are VHP members, seem to be more interested in shielding the accused than representing riot victims. Flimsy police cases are further aiding the accused. The police have not taken down victims’ statements or collected evidence properly. Witnesses to the massacres (including those of Chamanpura and Sardarpura) are demanding re-investigations into the case. That prompted the NHRC to ask for CBI inquiries into the main communal violence cases as well as the Sabarmati Express massacre.

The Gujarat Police have selectively used the Prevention of Terrorism Act (POTA) against Muslims accused in the Godhra case. But none of the Hindus accused in communal massacres have been charged under POTA. "There are many questions about Godhra that still remain unanswered. But the Gujarat government is not bothered about finding out what really happened. They are only intent on nailing some Muslims to prove their point," says Mihir Desai, a human rights lawyer.

The Supreme Court has taken up only 10 of the major massacres. Looking at the larger picture, the police have closed around half (2,032) of the total 4,252 communal violence cases filed. They have been classified as `A summary’ - "true but undetected". In many cases, there has been no effort at detection. Bilkish was gang-raped while escaping from her village Randhikpur. She named the accused who raped her and killed 14 of her family members. But the police have closed her case citing insufficient evidence. Bilkish is in hiding while her rapists roam free.

For people like Bilkish and Nanubhai, who have been shoved to the margins, the recent rumblings in the judiciary are a reminder that they do still have rights, even if their voices are not heard at home.

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