TOO LITTLE TOO LATE: THE GULBERG SOCIETY JUDGMENT

Neha Dabhade

(Secular Perspective June 16-30, 2016)

On 2nd June 2016, judgment on the Gulberg case was pronounced, in which, out of 66 accused, the special designated court convicted 24 and acquitted 36 of the accused. The Gulberg massacre had claimed 69 lives during the 2002 pogrom which took in various places in Gujarat. The verdict has evoked various reactions from different quarters. While some express satisfaction that 24 of the accused are convicted, some including survivors of the Gulberg violence have expressed disappointment that 36 accused have been acquitted after 14 year of excruciating long wait. The judgement is significant because it yet again points towards the justice denied to the survivors of communal violence in India. The cases related to communal violence in India have been characterized by low rate of convictions and lengthy trials. According to a study carried out by Stephan Sonnenberg, clinical supervising attorney and lecturer in law with the International Human Rights and Conflict Resolution Clinic (IHRCRC), Stanford Law School, the figure for riot‐related cases ending in conviction across India as a whole is— 18.5% (7,281 convictions out of a total 39,415 such cases completed in 2012). In comparison, till 2012, the conviction rate for 2002 riots related cases are a paltry 0.21% and 1.18% the study says (counterview.org, 2014). This conviction rate too was possible because of the herculean efforts mounted by civil society organizations and activists particularly Teesta Setalvad and Citizens for Justice and Peace. This speaks volumes about the response of the criminal justice system in India to communal violence and the struggle of the innocent citizens whose rights are adversely affected.

A nuanced understanding of the Gulberg judgment is in order for fully gauging the difficulties and journey undertaken by the survivors and civil society organizations on one hand and the lacunae in the justice system on the other hand. The judgment, apart from the stark number of acquittals against the number of convictions, is a dampener for justice since it rules out criminal conspiracy behind the riots and the subsequent loss of lives. Though the orchestrators, sponsors, planners and executors of communal violence always claim that riots are spontaneous, impulsive and unplanned, facts and studies have revealed otherwise. Scholars like Paul Brass have maintained that riots are well orchestrated and political parties mobilize people for by flaming hatred and rumors. Riots on large scale like the ones in Gujarat could assume the proportions it did only because it was well and deliberately planned. The places where the BJP was strong like Junagadh and Navsari and didn’t face a threat politically riots didn’t take place. Similarly in places like Bhavnagar where the police officials were serious about stopping communal violence like in Bhavnagar, riots didn’t take place. Riots took place where the BJP was facing electoral challenges and wanted to mobilize votes like in Kheda and Anand (Dhattiwala, 2013). The question asked earlier too was why did the riots take place so unevenly across Gujarat? If it was just the reaction and anger of the people that led to riots then why didn’t riots erupt in the whole state, and moreover at the epicenter Godhra? Riots took place because there was a deliberate conspiracy. But by ruling out criminal conspiracy, the judgment only goes on to validate the theory put forth by BJP that the riots were a spontaneous reaction to the burning of the train at Godhra. More importantly it completely exonerates the BJP leaders who were in a position to prevent and stop riots and frees it of any responsibility and accountability. This judgement comes in contrast to the Naroda Patiya where charge of conspiracy was upheld. The Naroda Patiya trial was presided over by Justice Jyotsna Yagnik and convicted include former Gujarat minister and BJP leader Mayaben Kodnani and VHP leader Babu Bajrangi. She stated that Kodnani was the “kingpin” of the conspiracy. Jyotsna Yagnik held in the Naroda Patiya case, “This was a pre-planned conspiracy and it cannot be mitigated just by saying it was a reaction to [the] Godhra train burning incident.” (The Wire, 2016) For this judgment, Justice Yagnik is facing threats to her life and inadequate security from the State government. The question arises whether the court considered how riots at different places like Naroda Patiya and Gulberg society having the same trigger point and in the same time frame be different? While one had conspiracy behind it, how can the other not?

While some hail this judgment as an example of substantial judgment as 24 accused have been convicted, what is overlooked is that amongst those acquitted included duty bearers like KG Erda and Bipin Patel. While KG Erda was the then deputy superintendent of police in the area, Bipin Patel is a BJP corporator (The Indian Express, 2016). By acquitting such important duty bearers and simultaneously ruling out conspiracy, the judgment has not punished those who have the power and constitutionally obliged to protect citizens. Ehsaan Jafri, former Parliamentarian from Gulberg society was hacked to death amongst the 69 deceased. Evidence recorded by SIT showed that he had made frantic calls to the then police commissioner. In spite of such calls, the rioting continued for six long hours. A determined police force can reach the scene of riot and the response time is usually a few minutes or at the most an hour. No help came from the police or politicians. The mob mainly consisting of VHP workers and yielding swords (another sign of planning and well preparedness) dragged the residents of Gulberg society out and brutally killed them. How can this delay be explained? The only plausible explanation is that is collusion between the State and the rioters.

This brings the discussion to the independence of the police and judiciary from the executive. Independence of the different organs of the state is a pre condition for democracy and impartial functioning. So embedded is the influence and interference of political interests in the structures that even if the police or judiciary want to carry out their duties fearlessly they are not allowed to. It is time and again seen that upright officials who have spoken against vested interests in the government have been penalized in different ways. While officers like Sanjiv Bhatt (he suggested that the then CM had asked the police to allow Hindus to vent their anger on Muslims when riots broke out) have been suspended, lot of pressure and threats are mounted on judges like Yagnik.

In a separate case related to Malegaon blasts, special public prosecutor Rohini Salian was asked to be lenient to the accused belonging to Hindutva organizations in the case by the NIA ( (DNA India, 2015). The name of Hindutva leaders like Sadhvi Pragya whose links were well established by the Anti Terror Squad (ATS) headed by Hemant Karkare has recently been dropped from the chargesheet. Police are entrusted with crucial task of protecting innocent citizens and also collecting evidence of wrong doing and crime when it is committed. Communal violence targeting one particular community and on a scale where thousands are killed, displaced and missing, amounts to crime against humanity. Communal violence is underlined by communal ideologies and discriminating attitudes. Such ideologies violate rights of citizens enshrined in the Constitution. The police have on most occasions demonstrated tardy and shoddy collection of vital clinching evidence. Their resistance begins from registering an FIR! This doesn’t help the cause of the survivors in the court of justice when powerful accused are acquitted citing inadequate evidence.  If the response of the criminal justice system is not adequate in meeting out justice to the accused right till the upper echelons of power in a timely fashion it amounts to mockery of justice.

The struggles of the survivors of Gulberg society and also the other cases related to Gujarat riots have seen repeated harrowing journeys where the survivors have run pillar to post to make their voices heard and appeal for justice. Due to hasty acquittals of powerful Hindutva leaders, the survivors took the battle to the Supreme Court which transferred these cases out of Gujarat. This amounted to the SC showing little confidence in the criminal justice system of Gujarat. The SC also constituted a Special Investigation Team (SIT) in 2008 to look into Gulberg case along with eight other cases. The SIT however when it came to fixing responsibility of high ranking ministers and political leaders gave a clean chit to them. This made the SC appoint Raju Ramachandra as amicus curie to relook at the complicity of the then Chief Minister of Gujarat Narendra Modi and other officials. The amicus curie registering his disagreement with the SIT, suggested that there is adequate evidence at the pre trial stage to proceed against the then CM. Despite such stands, convictions at the level expected haven’t taken place, shaking the little faith vested in the SIT.

This is not the first time though as pointed out right at the outset that large number of convictions hasn’t taken place. Since independence number of riots took place and 31 inquiry commissions were constituted. Some of the inquiry commission reports like the Srikrishna Commission Report clearly pointed out to the role of Shiv Sena and its leader Bal Thackeray. “From January 8, 1993 at least,” says the Commission, “there is no doubt that the Shiv Sena and Shiv Sainiks took the lead in organising attacks on Muslims and their properties under the guidance of several leaders” from the level of shakha pramukh to that of Sena chief Bal Thackeray. It describes Thackeray as the “veteran general commanding his loyal Shiv Sainiks to retaliate by organised attacks against Muslims.”(Padmanabhan, 1998)

Despite the indictment, no criminal action was initiated against the Shiv Sena and its leaders. The report also squarely blamed the BJP for fanning communal flames by organizing rallies, Maha aratis, processions and delivering hate speeches smacking of communal incitement. Its quite ironic that on one hand when a state constituted commission of inquiry comes out with such a clear report, no convictions take place and claims of conspiracy are rubbished. On the other hand as soon as the Godhra train burning happened, without any investigation pointing towards the involvement of Muslims, the then CM had emphatically announced that it was the Muslims who were responsible for burning the train and subsequently the death of 58 Kar Sevaks. This was cited as a pretext then to attack Muslims in the State in the most unspeakable brutal manner.  The Gulberg society case judgment charges only 11 for charges of murder for 69 deaths and others convicted for lesser offences.

The above discussion reflects a rather grim and discouraging scenario in the country when it comes to delivering justice to survivors of communal violence which has claimed over 40000 lives since independence (Engineer, 2013). In order to reinstate the faith of citizens in law and the grievance redressal mechanism system installed in place some measures must be taken.

  1. The collection of evidence by police which sets tone to the whole trial and helps in securing convictions must be done in the most incorruptible manner. Most of the times it is observed that FIRs are not registered. Even if they are registered, names of the perpetrators are not clearly mentioned. As it happened in Gujarat and other riots as well, most cases are hasty shut under A and B summary. Only after approaching higher courts and dogged efforts by civil society organizations, cases were reopened. This must be paid attention to and resolved. Proper training and orientation must be given to the police in this regard.
  2. The prerequisite to above is the independence given to the police and negation of the influence of the political masters. The police machinery and judiciary shouldn’t be pawns for political parties but function without fear and favours. Appointments of police officials and public prosecutors should not be left to the government. The political affliations of such officials can not be a criterion for their appointments.
  3. After the traumatic experience of riots and its aftermath, it is understandable that the survivors are in fear. In this atmosphere it is not easy for them to approach the police stations especially when they are situated near communities which are inhabited by perpetrators. A more survivor friendly approach must be integrated in the system so that witnesses and survivors can fearlessly depose in the trial. The survivors must be encouraged to come forward and initiate proceedings and for this purpose adequate security must be provided to them.
  4. The completion of trial cases related to communal violence must be ensured in a time bound fashion. Above all, what is required is legislation for the prevention for targeted violence. Such legislation must clearly spell out the mechanisms and procedures for criminal justice in an impartial environment. Though such an attempt was made in the form of the prevention of targeted violence bill, it is now in the cold storage due to lack of political will to see it through. India is facing a onslaught of communal ideology and this communal politics has claimed lives, property, dignity and peace of numerous people. It is about time that justice is delivered to the survivors and their pain and tribulation is not mocked at after showing them a mirage of hope and justice for decades. Democracy and rule of law can survive only when citizens have faith in the justice system and justice is done.

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Centre for Study of Society and Secularism

Mumbai.

E-mail: csss2work@gmail.com