Justice: available outside

The blatant human rights abuses in Gujarat has prompted the National Human Rights Commission to petition the Supreme Court to move the cases outside the state.

DIONNE BUNSHA

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

Nanubhai testified to the police accusing powerful politicians of inciting communal violence in his neighbourhood, Naroda Gaam in Ahmedabad during Gujarat’s pogrom against Muslims last year. In the relief camp, while the police was taking down riot victim’s statements, he named BJP MLA Dr Mayaben Kodnani and VHP general secretary Dr Jaideep Patel as people who instructed the mob and left.

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

That didn’t kill his spirit. Nanubhai is still demanding that the culprits should be punished. Almost two years after the attack, he is still without a home or a business. 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’s 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 (SC) stopped the proceedings of ten of the main riot cases. It is considering re-investigations by the Central Bureau of Intelligence (CBI) and transferring trials outside the state. The SC 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.

Advocate Harish Salve, appointed as amicus curea (friend of the court), suggested that a special investigation team headed by a retired High Court Judge should be constituted to look into all the cases independently without the State's interference and report directly to the SC. A three-judge Bench, comprising the Chief Justice V.N. Khare, Justice S.B. Sinha and Justice A.R. Lakshmanan, asked the Gujarat Government to respond his suggestions. After Mr. 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'' (‘Supreme Court stays proceedings in 10 Godhra-related cases’, The Hindu, 22nd November 2003).

Finally, Nanubhai’s persistence is paying off. “If the SC transfers the cases outside Gujarat, the Bajrang Dal and 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.” Better still, the police recently arrested three more accused 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 back.

More good news. Two days after the SC pulled up the Gujarat government, a District court sentenced 12 accused to life imprisonment in the Ghodasar case in Nadiad where 14 were killed. This was 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 advocate who assisted the witnesses. The public prosecutor, Paresh Dholakia, an RSS member, took the depositions seriously. There was no intimidation or efforts to jeopardise the case, unlike in most other communal violence cases.

Even high-profile cases – Naroda Patiya, Chamanpura in Ahmedabad (where ex-MP Ehsan Jafri and around 67 others was killed), Odh village and Sardarpura village– have been riddled with discrepancies. The SC has stayed the trial of these and the Godhra case. “In most cases, the police have not even registered FIRs of several witnesses. They have closed many cases claiming lack of evidence. But they haven’t even bothered to investigate them,” said Mr Salve. “When the accused are arrested, the public prosecutors don’t even bother to oppose their bail applications. In cases where the accused have been acquitted, the state prosecutors haven’t even appealed against the judgement.”

Several witnesses are under threat. Zakia Jafri, Ehsan Jafri’s widow, was terrorised by Bajrang Dal activists after she gave her testimony before the Shah-Nanavati commission. “When the press were interviewing her, the Bajrang Dal people ambushed us and started abusing us. The police didn’t 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 back. They were sent back with a thrashing. 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 doesn’t offer much consolation. Most victims will tell you the police are the ones sheltering the accused.

Public prosecutors too, many of who are VHP members, seem more interested in shielding the accused than representing riot victims. Flimsy police cases are further aiding the accused. The police haven’t taken down victims’ statements or collected evidence properly. Witnesses to the massacres (including 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 this act. Under POTA, it is very easy to convict the accused. “There are many questions about Godhra that still remain unanswered. But 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. He feels an independent inquiry might help get to the truth.

The SC has taken up only 10 of the major massacres that occurred in Gujarat. Looking at the larger picture, the police have closed around half (2032) 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 – 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 aren’t heard at home.

Frontline, 6 – 19 December, 2003 Also available here