Sunday, December 2, 2012

A great verdict and what it signifies

Gujarat EDN
DNA  04SEP2012

Families of those convicted feel that only ordinary people are jailed, and not the powerful who really organized the 2002 riots
Girish Patel
The verdict in the Naroda Patia massacre case is a landmark judgment in many respects. It is a well-reasoned verdict showing boldness, courage, independence, a determination to do justice according to the law and a deep commitment to the Constitution and human rights. Such judgments inspire among all threatened minorities, liberals and democrats, confidence in the judiciary.

The judgment is particularly significant as it accepts the prosecution’s theory that the massacre was the result of a conspiracy and punishes all those — high or low — involved in the conspiracy.

Earlier, communal riots were the result of certain isolated incidents and the individuals behind the incidents were punished. Nowadays, however, communal riots are the product of exclusivist communal ideology and are preplanned with the support, direct or indirect, of those in power. In such a situation, the theory of conspiracy was necessary to cover all those who had, directly or indirectly, instigated, abetted, aided and conspired to commit heinous crimes and punish the guilty.

The acceptance by the learned special court that there was a conspiracy behind the massacre has exposed the widely propagated falsehood that the riots of 2002 were a ‘spontaneous reaction’ to the Godhra train carnage. As most people remember, chief minister Narendra Modi had tried to justify this falsehood on the basis of Newton’s law of action and reaction.

Further, the complicity of the Modi government and the constituents of the Sangh Parivar, including the Bharatiya Janata Partry, Vishwa Hindu Parishad and the Bajrang Dal, in the communal riots of 2002, is established by the conviction of Maya Kodnani, Babu Bajrangi and two other BJP leaders.

The involvement of Kodnani (a BJP MLA) in the Naroda Patia massacre was well-known right from day one. As the killings had continued for the whole day, it was impossible to believe that Modi, who was also the home minister of the state at the time, was not aware of his MLA’s presence and her active role in the killings.

Not only that. For seven years she was protected by the state police on orders from above. What was even worse was Modi’s audacity in appointing her in 2007 as the minister of state for women and child development, as if it were a reward for successfully carrying out the massacre. She had to resign in 2009 only after she was arrested by the Supreme Court-appointed special investigation team (SIT). The special court rightly observed that she was not a political victim but a political beneficiary.

The defense of health minister and spokesperson of the BJP government, Jaynarayan Vyas, that she was not a minister at the time of the massacre and that one MLA does not represent the government, is ridiculous.

The Vishwa Hindu Parishad (VHP) had called for a Gujarat bandh on February 28, 2002, the day Muslims were killed across the state by highly organized rioters. The VHP’s call for Gujarat bandh was supported by the ruling BJP and Kodnani, a fact that legally establishes the link between the killings of the Muslims, the state government and the Sangh Parivar.

What will be the effect of the Naroda Patia verdict on Gujarat society as a whole? One thing is certain: the judgment will definitely have a deterrent effect on unscrupulous political parties and politicians who will now think 10 times before organizing and participating in such communal killings. It will also deter ordinary people, driven by insane passions, from jumping into the riots as their families will stop them from doing so.

But whether the judgment will make Gujarat’s communalised society more tolerant or further polarise and communalise it is difficult to say. The deliberate refusal on the part of the chief minister, his government, the ruling BJP and the Sangh Parivar to express any remorse for the massacre is not a good sign for the future.

Lastly, the common feeling among the families of ordinary people convicted and punished for the massacre is that only ordinary people are convicted and not those higher up who are really responsible for the riots of 2002. This shows the inadequacy of criminal law. In the current legal situation, the conspiracy argument cannot hold heads of government and top leaders of a political party responsible for communal riots.

If heads of government and top leaders of political parties are to be held responsible for such high crimes, Indian Criminal Law will have to adopt a principle of International Criminal Law, namely, the principle of Joint Criminal Enterprise, or Command Control. This is the challenge before our Parliament — to make such a law or to amend the Indian Penal Code to include the principle of Command Control.