Wednesday, December 26, 2012

Impunity Punctured

Impunity Punctured
The Naroda Patiya Verdict
carried out. Criminal common intent, possession of arms, the presence of some of the conspirators at the scene of crime and sufficient evidence on these ele- ments are essential to satisfy the judicial mind that a criminal conspiracy took place. In this case, as many as 81 victim witnesses and 52 other occurrence wit- nesses (133 in all) deposed on the exten- sive character of organised violence that began in the morning (about 9.30-10 am) of 28 February 2002 with the assembly of crowds shouting incendiary slogans that were carried on virtually uninterrupted until late evening. The acts of premedi- tated violence claimed as many as 95 lives according to the charge sheet while sur- vivors argue that over 120 lives were lost if those missing are added to the tally.
The Evidence
A detailed examination of all the evi- dence in Part 3, Chapter 1 of the Naroda Patiya trial court verdict delivered on 29 August 2012 outlines the reasons for ju- dicial acceptance of the conspiracy that was hatched. Eyewitness testimonies specifically outlined the criminal roles executed by key accused (15 eyewitnesses deposed on the role of the then minister and MLA Maya Kodnani, another 21 on Babu Bajrangi’s part), while several others deposed about the presence and violent behaviour of all 33 accused since the morning of that day, when mobs gathered near Muslim residences and attacked the homes and place of worship (Noorani Masjid) and continued to spread through the area. Rapes and sexual violence are admitted by the judge to have taken place that evening. Eyewitness accounts form the bedrock on which a crime can be proved; in this case the evidence of witnesses had firm corroboratory evi- dence in the sting operation conducted by the journalist Ashish Khetan of Tehelka that has been accepted as extrajudicial confessions and relied upon by the judge (Chapter II of the judgment).
Seven years after an incident that remains a major reminder of the brutality of Gujarat 2002, effective and valid testi- monies of eyewitnesses were possible (between 2009 and 2011) due to the reg- ular and thorough legal assistance pro- vided to victim witnesses, availing of
Teesta Setalvad
That there was a wider criminal conspiracy related to the Naroda Patiya incident now stands proved – Maya Kodnani, then a minister in the Narendra Modi-led government, has been convicted on serious charges. But will this verdict prove to be just a prelude to criminal conspiracy being established at a still higher level of the state’s executive?
For criminal minds to craft acts be- yond popular images of bestiality that are extreme even by our own Bollywood standards is rare, but it can happen. For these criminals to be track- ed down zealously and prosecuted is even more rare. For all this to happen and the powerful to be prosecuted and be awarded exemplary punishment, that too in the case of a mass communal pogrom, seemed an impossibility. Yet it all happened when judge Jyotsana Yagnik sombrely meted out punishment for argu- ably the worst incident of the post-Godhra reprisal killings of 2002 that have always been labelled as state sanctioned, if not state sponsored. On 29 August 2012, pre- siding over a special court in Ahmeda- bad, in a trial that was monitored by the Supreme Court, judge Jyotsana Yagnik sentenced a sitting member of legislative assembly (MLA) and former minister in the Gujarat government to life imprison- ment. The judge, in a 1,990-word verdict, profoundly reaffirmed an article of faith in the Indian system and justice.
Over 300 incidents spread over at least 19 districts of the state had left 2,500 dead or missing, 19,000 homes demolished, 10,000 plus business establishments de- stroyed not to mention 297 dargahs and masjids being made targets. Naroda Patiya, on the outskirts of Ahmedabad, where daily wage earners have been living for over a century, was one such target.
It is the carefully crafted understand- ing of provisions of Indian criminal law on what constitutes a criminal conspiracy and the application of that understanding to the evidence available in the case that makes the judgment of Special Court judge Jyotsana Yagnik both thorough and unique. Section 120-A of the Indian Penal Code (IPC) defines an act of criminal conspiracy as an unlawful act (or series of acts) between at least two persons, with unanimity of purpose, common in- tent and design, that is then successfully
Teesta Setalvad ( is secretary, Citizens for Justice and Peace.
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an amendment in Indian criminal law following the Best Bakery case and judg- ment on 4 April 2004.1 Three high courts have since jurisprudentially upheld the right of the victim witness to independ- ently file and argue in appeal against a trial court verdict. This is a tacit recogni- tion that the fate of the criminal justice system cannot be left to the state alone.
This amendment, Section 24(8)(2) of the Criminal Procedure Code (CrPC) effected in January 2009, codifies the right of a victim and/or witness to offi- cially engage a lawyer to assist the pros- ecution by the state, ensuring that as- pects of evidence and argument that may be ignored are pursued. In the Nar- oda Patiya case, not only did Citizens for Justice and Peace (CJP) intervene during critical points of the trial, one of the ad- vocates, Raju Mohammed Shaikh was threatened in open court by a powerful accused, Babu Bajrangi. We also submit- ted over 650 pages of written arguments analysing the evidence during the trial. The hatching of a criminal conspiracy is a mental process evident in the physical acts of illegality and violence that en- sued. To prove this convincingly enough to convict 32 accused (one accused died during trial) undoubtedly requires tested and reliable eyewitness accounts as also corroborative documentary evidence.
The validation of Tehelka’s exemplary efforts (Operation Kalank, October 2007) was therefore critical. Concerned that such valuable evidence must be protected, CJP moved to ensure preservation of the evidence by first moving the Gujarat High Court and then the Supreme Court for orders to authenticate the Tehelka tapes. This was the period when matters were lying before the Supreme Court since May 2002, with prayers for trans- fer of investigation to the Central Bureau of Investigation (CBI). Both courts de- clined to pass orders. Concerned that such valuable evidence would be lost with the passage of time, CJP moved the National Human Rights Commission (NHRC) to invoke its powers on preserva- tion of evidence where gross human rights abuse has taken place. The NHRC took note and on 5 March 2008 passed a full bench order and invoked its powers under the Protection of Human Rights
Act (PHRA) and handed over the Tehelka tapes to be authenticated by the CBI.2 But for this timely action by the NHRC, the valuable corroborative evidence pro- vided by Ashish Khetan of Tehelka would have been lost. Khetan was examined before the Special Court and his evi- dence that runs into 110 pages provides further meat to already available testi- monies on criminal conspiracy. If the Tehelka tapes had not been preserved through authentication by the CBI, they would have met the same fate as another bit of valuable evidence – the mobile phone records CD provided by the then deputy commissioner of police Crime Branch (2002) Rahul Sharma that were shoddily dealt with by the Supreme Court appoint- ed Special Investigation Team (SIT) by the time the case reached trial.3
Eyewitness accounts successfully est- ablished that a mob, coming from the direction of Krishnanagar and Natraj Hotel, had gathered between the Noorani Masjid and the ST workshop where Maya Kodnani had come with her bodyguard Kirpal Singh, and had incited and excit- ed the crowd to attack and kill Muslims (“Cut off Miyans” (Muslims)) and also attack and brutalise women. Encour- aged to violence and assured of protec- tion by an elected member of the ruling party in power, members of the murder- ous mob began their attack on Noorani Masjid and set it on fire while the police watched. It was the confidence and pro- tection afforded by a powerful person in this case, Maya Kodnani, an elected MLA, that emboldened the mob to crimi- nal actions. This also establishes a chain of command responsibility, from those who conspired and those who physically instigated to those who actually imple- mented the criminal conspiracy. Those in the mob who successfully carried out the criminal intent carried deadly weap- ons and inflammable substances like kerosene and petrol. There was also evi- dence that revealed that the burned and distorted corpses of the victim commu- nity were disposed off at Teesra Kua but this aspect too has not been investigated by the SIT.
Several of the violent incidents that are linked to the same act of criminal conspiracy continued throughout the
day and again Maya Kodnani and other accused persons had been seen between 12.30 and 1.45 pm coming in a vehicle, alighting, taking out swords from the car and distributing these weapons. The role of the sting operation was vital in proving further aspects of the criminal conspiracy. In his deposition before the court, prosecution witness number 322, Ashish Khetan, confirmed what Babu Bajrangi had boasted of in his taped con- versation, that 23 revolvers had been collected by him from persons owning revolvers from the Naroda area to further the conspiracy. Gas shortages for ordi- nary residences in Naroda Patiya area for weeks before the incident point to a sinister premeditation that precedes even the mass arson of the Sabarmati S-6 coach at Godhra on 27 February 2002. The high probative value of the sting op- eration stems from the nature of inter- views that were recorded with no lead- ing questions being asked, interviews given, moreover, to an independent and disinterested witness. The sting opera- tion was validated through the scientific testing carried out by the CBI pursuant to the NHRC order, and by the oral evi- dence of the forensic laboratory scientist and the evidence of Khetan.
Organisational Links
Significantly, the organisational links within the conspiracy that were hatched have also been substantially dealt with: the presence of an MLA of the ruling dispensation, four other accused were canvassers, propagators and election workers of Kodnani, another accused ran her election office, other accused were leading lights of fraternal organi- sations like the Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP) and Bajrang Dal.
It was the VHP that called the bandh following the Godhra incident that was supported by the ruling BJP; and it was the accused Bajrangi, a key conspirator, who vowed after the Godhra incident to ensure that the death toll of Muslims was four times the number.
Gender-driven brutalities and vio- lence rarely sustain judicial scrutiny and the narrative of gender violence usually disappears with the onset of trial. In
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another first, the Naroda Patiya trial, mon­ itored by the Supreme Court, saw quality legal aid being provided to witnesses. A conducive (not hostile) court atmosphere ensured that the narrative of gender vio­ lence returned during prosecution.
Women victim eyewitnesses, embold­ ened by legal assistance and also physi­ cal protection given to them under the Central Industrial Security Force (CISF) by orders of the Supreme Court, testified bravely about the extent of gender­driven violence and rape of Muslim girls and women.4,5
Gender Violence
Between pages 368 and 1,759 of the judgment that examines offences of gender­driven violence, the judge cate­ gorically observes,
... It would be absolutely incorrect to believe that gang rapes have not taken place. The extra judicial confession of Suresh Langda Chara (A­22) and testimonies of many PW including of PW 205 (the solitary surviving victim of gang rape who has been awarded Rs 5 lakhs in compensation) can safely be relied upon which proves gang rape and rapes have taken place on that day. In the separate chapter on incidents of that day, such occurrences have been discussed and decided.
Proceeding to examine the testimo­ nies of survivors and relatives of victims of gender violence, the judge accepted that indeed such violence took place but severely criticises the Supreme Court­ appointed SIT for failing to make any attempt to investigate the perpetrators of these offences. For example, in the case of the lone survivor, the truthfulness and validity of Zarina is accepted (PW 205) as also that of the testimony of her hus­ band, the fact that gang rape took place was proved but the identity of the assail­ ants remains unproven due to the failure of the investigating agency. Similarly, the oral evidence of another woman sur­ vivor, PW 158 is accepted and gender vio­ lence against one Farzana, Saida and Saberabanu proven though the identity of the assailants is left unproven, again due to lacunae in the probe. Similarly, charg­ es of gender violence have been proven against Sofiyabano and Nasimobano. Only one accused has actually been con­ victed under Section 376 of the IPC, Suresh Langda (Accused 22), and has been given seven years punishment.
Over 165 pages of the judgment are devoted to examining the kind of previous investigation conducted by the Gujarat
police in this case (Chapter VI), that is, before further investigation was handed over to the SIT on 26 March 2008. Step­ ping back, a look at the findings of the NHRC (2002) on its suo motu inquiry into Gujarat 2002 is warranted. The NHRC had severely criticised the partisan con­ duct of the Gujarat police and recom­ mended that this case and eight others be transferred for investigation to the CBI. On the basis of the NHRC report, the CJP had approached the Supreme Court on 2 May 2002 praying for a transfer of investigation. The Supreme Court stayed the trials on 21 November 2003 but only transferred investigation to a self­created SIT on 26 March 2008, that is, six years later. Among the compelling reasons for the Supreme Court to accept CJP’s plea for transfer of investigation was the conduct of the crime branch of the Ahmedabad police in the Naroda Patiya case, clubbing as many as 120 individual first information reports (FIRs), first being merged into 26 FIRs and these then clubbed into a single mammoth FIR, I-C.R.No.100/02. All these group of com­ plaints, viz, 120 complaints, have been treated as part of the complaint filed at Naroda Police Station I-C.R.No.100/02.
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What is often overlooked or deliber- ately forgotten is that the names of the powerful accused first emerged in the complaints accepted by the local police (between March and May 2002) and were dropped by the Crime Branch thereafter. The clubbing of complaints was effected to both dilute the magni- tude of the crimes, as also to drop the name of the powerful accused. This was vigorously argued before the Supreme Court, which accepted these facts and stayed the trials before finally ordering a transfer of investigation in 2008. Dis- criminatory practices in granting bail were also noticed and put forward. While the accused in the Godhra mass arson case remained in detention until the completion of the trial in February 2011, those accused of the post-Godhra reprisal killings, barring the few without patronage, had all been released on bail within months of the crimes being committed. This meant essentially that during the trial, the powerful accused roamed free in neighbourhoods even as victim witnesses deposed against them.
Unsubstantiated propaganda has blurred the strong vindication of both victim witness testimonies and human rights defenders that have essentially prayed for preservation of evidence and non-partisan character of evidence gath- ering and prosecution. In her close exami- nation of and criticism of the previous investigation by the Gujarat police, judge Yagnik details how PW 274, K K Mysore- wala, the first police inspector (PI) at the Naroda police station, despite being aware of the unlawful assembly, crimi- nal intent, presence of accused at Naro- da Patiya, did little to intervene. If at all he did the contrary. He did not make any attempts to stop the mob from its violent and criminal acts. After detailed exami- nation of the conduct of both Mysore- wala and other police officers, the judge however refrained from accepting the victim witnesses’ plea to arraign Mys- orewala and other officials as accused given the fact that evidence against them had emerged during the prosecu- tion. This is a matter that will be agitat- ed by victim witnesses in appeal.
The quality and authenticity of the victim witness testimony received sound
treatment by the judge despite crude attempts by the defence to discredit the affected victim witness but also to deride their evidence.
Yagnik observes at pages 368-70:
This Court has observed that during the deposition many of the witnesses were find- ing it very difficult to control rolling down their tears on their cheeks. They were eager to show their burnt limbs, their injured limbs and explain their losses to the Court. Many of the parent witnesses were unable to de- scribe about the death of their children in the riot, they became so emotional that very often needed to be consoled and offered a glass of water to complete their deposition. Their pains, agonies, anxiety, effects of shock and trauma were very much visible and no- ticeable. Even on the date of the deposition they were ... very much afraid. They were frequently assured about their security, but when they used to go to identify the accused, it was noticed that many of the witnesses have avoided identifing the accused whom they were knowing very well. Atleast two to three PWs were so much disturbed that their physical health was affected and ambulance had to be called to take them to the hospital.
This flags another issue related to wit- ness protection and prosecution that we pay scant attention to. The Naroda Patiya case took over 10 years to reach judg- ment, there are still two rounds of appeal to go. Serious ethical questions of partisan appointments to public prose- cutor posts (from advocates chosen by the Government of Gujarat who were ac- tive members of exclusivist organisa- tions accused of organising the violence) have been commented upon by the Supreme Court in the interim.
Larger Questions
As the years between 2002 and 2012 wore on, and electoral victories of some among the perpetrators defied the demands for non-partisan conduct and constitutional governance, the state found another unique way of patronising the accused. Wary of being pulled up if pros- ecutors were directly partisan, the state of Gujarat has effectively worked out a system of patronage for an entire panel of advocates appearing for the accused in major trials by hiring them as special public prosecutors with high fees in other cases pursued by the state. There is a need, all the more, for an Independent Directo- rate of Prosecution controlled not by the executive but the judiciary.
The writ of continuing mandamus is what the Supreme Court exercised when it monitored the major Gujarat 2002 trials in response to petitions by victim witnesses and rights defenders. This writ from the higher judiciary remains an exception rather than the rule, diffi- cult to secure. Abiding questions of nec- essary judicial monitoring, especially when executive misdemeanours are un- der scrutiny remain in the balance.
Today, while the wider criminal con- spiracy related to the Naroda Patiya inci- dent stands proved with a member of the ruling party convicted on serious charges, the mass-level criminal con- spiracy alleged to have taken place in 300 locations remains at the magisterial court at a fledgling stage.
The Naroda Patiya verdict cannot but influence the judicial scrutiny and as- sessment of the wider substantive charg- es in the Zakia Jafri complaint dated 6 August 2006. Did Kodnani execute a conspiracy in isolation or was she part of a ruling group that encompassed the highest levels of authority and govern- ance? Did she act on her own when she was inspired to instigate a crowd to com- mit mass violence or was she offered the highest level of impunity from prosecu- tion, the kind of impunity that her pres- ence gave the executors of the rapes, burnings and bestialities committed at Naroda Patiya on 28 February 2002?
The path-breaking verdict in the Nar- oda Patiya case could well be just the prelude to criminal culpability being established at a still much higher level.
1 Citizens for Justice and Peace engaged three lawyers to assist victim witnesses through the Naroda Patiya trial.
2 NHRC’s orders can be read at http://www. CORDERSTehelka.pdf
3 Chapter III of the Naroda Patiya judgment, pages 792-99, has serious observations on the SIT’s failure to effectively clinch ownership and use of certain mobile phones.
4 In May 2004, on an application by CJP and ar- gued by the then amicus curiae, Harish Salve, 570 witnesses were given cluster protection by the central paramilitary including human rights defender Teesta Setalvad. Once trials began special witness protection was given to all victim witnesses ensuring that they deposed without fear or favour.
5 In June 2010, the CJP submitted a CJP Survi- vors Report to the CEDAW Committee of the United Nations.
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