LAST MONTH Justice Nanavati, who heads the Enquiry Commission into the Gujarat riots of 2002, made news by publicly proclaiming a “clean chit” for the Modi administration. He found no evidence, he said, that the riots had been engineered or encouraged by the government. He made no attempt to dig deeper and find out why people did not come forward to speak out to his Commission. The same story was repeated in the Best Bakery court case as well – witnesses turned hostile in court, and no one bothered to ask – “why?”
It is no thanks to the deliverers of justice (the Courts, Nanavati Commission or the NHRC), that Zaheera Sheikh chose to speak out, admit she had turned hostile under threat, and demand a retrial. Zaheera spoke out in Mumbai, saying she felt unsafe to do so in Gujarat, and could do so now since she had the support of a citizens’ platform. But a day before, in Vadodara itself, her mother Sehrunissa told a national daily, “dehalte-dehalte, kanpte-kanpte jhooth bola tha court mein” (Trembling and fearful, we lied in court – Indian Express, July 6, 2003).
If she was willing to speak the truth to a reporter, it is highly likely that she and others would have spoken truthfully had the courts or the NHRC or Justice Nanavati bothered to ask for the truth. Unfortunately, they were only too happy to accept the lies that people were being forced to tell. They made no attempt to win the confidence of the terrorized and silenced minority.
When all the accused got away in the Best Bakery case, the NHRC Chief Justice AS Anand said it was a “miscarriage of justice”. What he avoided admitting was that the NHRC itself did not make any attempt to prevent such a miscarriage, as it has the power to do. Few people know that Section 12(b) of the Protection of Human Rights Act expressly empowers the NHRC to “intervene in any proceedings involving any allegation of violation of human rights pending before court with the approval of such a court.” Had the NHRC chosen to act on this provision, the Vadodara court would have had to admit it as an intervener – and it could have intervened to make the court take notice of the fact that witnesses were being threatened. However, it is a sad fact that the NHRC as an institution, while it may occasionally speak out on violations, has, in its decade-long life, never chosen to intervene in any case in any court! So, we repeatedly see the sad spectacle of witnesses (the 1984 anti-Sikh riots was another tragic instance) who were bold enough to speak out in the first place, turning hostile under pressure and threats.
The Nanavati Commission had offered that those witnesses, who had been unable to depose in the first hearing, could choose to do so in the hearings beginning July 15, 2003. Are people breaking the terror-struck silence to do so? The Best Bakery judgment has reinforced the feeling of helpless futility. One victim, Anwar Khan, whose home was burnt down and who was thrown out of his job, says, “When the persons I accused for looting are roaming about free, what faith should I have in the legal process? What can one expect … another Best Bakery like result?” (TOI, July 19, 2003). However Zaheera’s example seems to have emboldened at least some. Dr. Yunus Mohammad Bhavnagari deposed before the Nanavati Commission, to testify that the BJP leader Haren Pandya who had been revenue minister in the then Modi ministry, had incited and led the mob that attacked his home. Dr. Bhavnagari himself was jailed – for the crime of firing shots at the mob in self-defence. But Bhavnagari at least lived to tell the tale: Ehsan Jafri was killed, and Modi claimed that he “provoked” the mob by firing at it. So the victim who was murdered was turned into the guilty party!
Of course, it is probably no coincidence that of all Modi’s men who were engaged in rioting, the only one to be officially named by a witness before the Commission is Haren Pandya. For one thing, he is dead, having been shot in March. For the other, Pandya is believed to have been a dissenter against Modi – and many believe Modi arranged to have him killed. So, naming him may seem to involve less danger than naming those who continue to receive Modi’s patronage. However, Pandya’s being named should not be seen as carrying less significance. Bhavnagari’s testimony must be seen as a clear proof for the Modi government’s active participation in the riots. After all, Pandya’s dissent against Modi was because Modi had refused to nominate him for last year’s Assembly polls, not on the grounds of any anti-communal principles!
It is interesting to compare how the Godhra case is being treated, with the Best Bakery fiasco. In the Godhra case, police got the key witnesses as well as the accused to depose under Section 164 Cr. PC. Under this, statements are recorded before a judicial magistrate, and are presumed to be ‘truthful and voluntary’. If any of these later changes their statement, they will be asked to explain why. Whereas in the Best Bakery case, no statements were recorded under Section 164. Also, of course, POTA has once again been invoked in Godhra case, despite charges of discrimination. When Hindus are killed, it is terrorism, when Muslims are killed, it is not – the Modi government is quite shameless about such double standards. What is significant is that Section 3 of POTA provides for “in camera” recording of evidence, and allows the court to keep “identity and address” of witnesses “secret’. The court can even avoid taking their names and addresses in “any records accessible to the public”. For Zaheera and Sehrunnisa, there was no such protection. They describe how MLA Madhu Srivastava of BJP and his cousin Congress councillor Chandrakant would intimidate them with glares in the courtroom, in addition to threatening them outside it. Chandrakant claims he had in fact ‘saved’ a Muslim family, while Madhu, a notorious local strongman claims the accusation is a Congress conspiracy (though he can’t explain why a Congress plot would indict a Congress councillor as well).
Most ominous of all is the attitude of the Judge himself. HU Mahida, the Judge in the fast track court who delivered the non-guilty verdict in the Best Bakery case, exposes his own mindset in his judgment. He throws in a reference to Parsis as an ideal minority: “Parsis progressed without creating hurdles to any caste or community. Even as they practice their religion, they inculcate the spirit of nationalism. We all should learn from this community.” Does this not imply that the Muslim community had created “hurdles”, was “anti-national”, and therefore provoked Hindus into attacking them? What does it mean when the judge from whom justice is expected, echoes the ideas that the RSS, VHP or Vajpayee’s Goa speech express?
The honourable judge also blames the Godhra carnage, the British policy of divide and rule, the “Soviet style” emphasis on industrialization at the expense of villages and the policy of reservations for the Gujarat riots – in fact, everything but the state-sponsored, planned communal violence! He says: “The Constitution provided reservations for only 10 years. But thanks to vote-bank politics, the period of reservations has been extended … at the expense of the country”. He only supports quotas for “physically or mentally handicapped persons.” He recommends that to avoid “frustrations” that can lead to riots, it must “be ensured that the meritorious are not affected by reservation policies as it would amount to human rights violations”.
The judge’s heart bleeds for the violation of the rights of the “meritorious” – his judgment makes no mention of the violation of the rights of the riot victims whose killers he is setting free!
Will the Modi Government and its saffronised state machinery get away with this blatant subversion of justice? Will the killers succeed in shamelessly passing themselves off as ‘saviours’? Democratic Indians must speak out to demand protection and fair trial for the witnesses to Gujarat’s genocide, to ensure that the killers are brought to justice.
– Kavita Krishnan