‘When the ghastly killings take place in the land of Mahatma Gandhi, it raised a very pertinent question as to whether some people have become so bankrupt in their ideology that they have deviated from everything which was so dear to him. When large number(s) of people including innocent and helpless children and women are killed in a diabolic manner, it brings disgrace to the entire society. Criminals have no religion. No religion teaches violence and cruelty-based religion is no religion at all, but a mere cloak to usurp power by fanning ill-feeling and playing on feelings aroused thereby. The golden thread passing through every religion is love and compassion. The fanatics who spread violence in the name of religion are worse than terrorists and more dangerous than an alien enemy."
— From the Supreme Court Judgement in the Best Bakery case.
There are rare moments when the system rises to the occasion and meets the hopes and aspirations of the bruised and the downtrodden. April 12, 2004 was one of them. Two years after democratic India’s worst examples of state terrorism – when 19 of Gujarat’s 25 districts allowed violence of the most base kind to be unleashed on innocent girls, women, men and boys, the – the Supreme Court of India has delivered a verdict that vindicates all that had been said about the happenings in that state.
The judgement by Justices Doraiswamy Raju and Arijit Pasayat in the Best Bakery case is a victory not just for the brave witnesses who showed the determination to get justice against all odds. It is a landmark and historic verdict for human rights defenders on the whole issue of impunity for mass crimes.
It has been argued by us and others for long that when community-driven division and hatred translates itself into rape and killing, it is tinged with irrationality and brutality of a kind that requires intervention at all levels to be made from a position of neutrality. At the specific point of time, and the months that precede and follow it, civic atmosphere gets tainted by this unreason and bias which is rooted in manipulated facts and hatred. Violence and terror become the easy and accepted weapons and means.
At such critical times, barely some institutions of the system remain immune to it and stay committed to time-tested norms of constitutional equity and non-discrimination. For the first time, through the historic Best Bakery judgement, there is a judicial vindication of this argument.
By ordering the historic transfer of this trial outside Gujarat to Maharashtra, the highest court has deliberated upon and accepted the arguments being made for decades – that were amplified a thousand times in the case of the Gujarat genocide – that such incidents underline the need for the system to operationalise areas and mechanisms of neutrality to avoid subversion of the process of fair investigation and justice, in short, due process of law.
The unfortunate instances of communal violence that in the past decade-and-a-half have taken the distinct character of pogroms against religious minorities – Muslims and Christians – reveal distinct patterns and similarities. These were evident in full blown measure in the Gujarat genocide.
The first is the months of insidious preparation by outfits committed to the politics of hatred and division. They initially use hate-speech and hate- writing to vilify and demonise a particular section, here a religious minority, and create a climate conducive to violent crimes against the demonised section. This technique, which has been well-honed, and also proven by over two dozen commissions of inquiry after every bout of communal violence, has, after the Gujarat genocide, acquired even more vicious dimensions. Documented cases of such a bias guiding or rather affecting the conduct of the police are now legion. Those of justice being delivered are rare and few.
Preparations for communal carnage are not now restricted to hate pamphlets and speeches though these form a vital ingredient to cooking up such a hate-filled atmosphere. As I personally experienced and witnessed in Gujarat (see Communalism Combat, March-April 2002), preparations are now taking the form of full-fledged training camps of young men and women, where violence is projected as the sole means to self-empowerment and weapons are openly distributed, unchallenged by wings of the state and the law and order machinery. The potent drug that intoxicates these camps is hate anecdotes against communities wherein history is interwoven with current day politics and the demonisation legitimised.
The system on its own does not intervene to deliver justice, condemn discrimination and slaughter; it has to be pushed to do so. It has been rare that our system has delivered in the case of communal carnage and crime. The pogrom against Sikhs in 1984 in the nation’s capital, or the post- demolition pogrom targeting Muslims in Mumbai have escaped judicial condemnation and correction and therein lies a tale. If the victims of earlier bouts of communal violence or pogroms did not have the satisfaction of a resounding judicial verdict in their favour, it doesn’t speak well of the role of the police and the state and the existing legal and justice system. Our Constitution remains on paper. Rarely do our courts initiate suo motu action on issues of mass homicide and rights atrocities.
Within weeks of the Gujarat carnage, or genocide, as some of us plainly put it, citizens at different levels had petitioned the highest court in the land, praying for a judicial pronouncement on the utter constitutional breakdown in that state. Unfortunately, the courts preferred to wait, possibly to see if corrective action was forthcoming from the executive and legislative arms of the state.
Within six months of the carnages across several districts, two of Gujarat’s lower courts in the Panchmahals district had acquitted all accused of the slaughter of 70 human beings in the village of Pandharwada, and others accused for burning alive 62 Muslims trying to escape in two tempos at Limbaidiya Chowkey in Sabarkantha district. The state of Gujarat did not file any appeals against the acquittals. The CJP has since intervened in both massacres.
It was only after the country experienced Zahira Sheikh’s sensational testimony in a press conference organised by Citizens for Justice and Peace, Mumbai that the true import of the situation in Gujarat became real and was addressed by the courts.
What became transparent before the SC was not simply that a huge human tragedy had befallen Gujarat in 2001; the tragedy was compounded by an unrepentant administration and executive that two years later was without guilt or remorse. All police officers who had functioned without fear or favour, and they were many, are today sidelined in Gujarat.
The role of the public prosecutor has been truly subverted by the state, with persons with distinct allegiance to the outfits who perpetrated the hatred and violence against the minorities being asked to appear for the victims! The struggle for justice has meant meticulously documenting all this before the courts so that any claim that we made was backed by irrefutable facts.
The issue of investigation in communal case trials being deliberately subverted by the police so that the names of the influential and powerful politicians from the ruling BJP party in Gujarat and leaders from its allied VHP and Bajrang Dal outfits are not recorded in FIRs, the charge-sheets and all other documents are unsubstantiated and repeated pleas by witnesses under section 173(8) of the CrPC for re-investigation are ignored.
These crucial issues have been addressed by the Hon’ble Judges in this historic judgement. The 70 page-long verdict charts path-breaking territory for a revived Indian judicial system.
Another critical aspect, where we come in, both individually and as Citizens for Justice and Peace, was how the apex court has dealt with the issue of rights’ activists and groups intervening actively to be with the victims and to see their fight through. The Gujarat HC had seen fit to pass scathing remarks against us. Even on this, the SC ruling has created a judicial precedent. By not simply expunging the remarks but doing so actively with stern observations on the baseless observations by the HC, the judgement lends credibility and strength to legal interventions by human rights defenders in the future.
"The high court appears to have miserably failed to maintain the required judicial balance and sobriety in making unwarranted references to personalities and their legitimate moves before the competent courts – the highest court of the nation, despite knowing fully well that it could not deal with such aspects or matters. Irresponsible allegations, suggestions and challenges may be made by parties… But such besmirching tactics, meant as innuendoes or serving as surrogacy ought not to be made or allowed to be made, to become part of solemn judgements, of at any rate by high courts, which are created as courts of record as well. Decency, decorum and judicial discipline should never be made casualties by adopting such intemperate attitudes of judicial obstinacy."
Through the agony of the past two years, the role of the National Human Rights Commission (NHRC) in the Gujarat carnage must be appreciated. Both at the time of the carnage, under Justice JS Verma, and thereafter, after the Best Bakery acquittal under the stewardship of Justice AS Anand, this statutory body has done India proud. And the Supreme Court of India through its judicial verdict of April 12, 2004 has done India and Indian democracy proud.
Even as we revel in this first flush of victory, reports from Orissa and Rajasthan (CC March 2004) and Madhya Pradesh too are truly frightening. Hate-driven polarisations within villages, kasbahs and big towns are being systematically engineered by ideological and organisational affiliates of the perpetrators of the Gujarat genocide through ominously similar preparations for violence. Even as we all savour the current success, we need to ponder what needs to be done here, there and everywhere else, not simply to demand punishment for the perpetrators of violence after the carnage, but to proactively intervene and prevent blood on the streets.
Personal note: Even as we relish the verdict and the first step to victory, we make a resolve that in the case of the Godhra and Gujarat carnages, justice will be done. We shall dream and we shall overcome. It is rare to experience such moments of vindication in the struggle that we are involved in. I was in Ahmedabad on the day of the judgement. Of the numerous calls that I received, those from victim-survivors and eye-witnesses from the other major massacres, Gulberg, Naroda, Sardarpura and Ode, were overwhelming. They wept as they talked and so did I.
For when such a victory comes, how can you not remember your own dear ones, lost for ever by brutal flourishes of the sword and raging flames, and for whom this struggle for justice is being fought? At great personal cost, both emotional and physical, the one lesson I have learnt in the past two years has been: at no cost should battles for justice be fought without keeping the survivors of the violence central to the struggle.
In the same week of the historic judgement in the Best Bakery case, the CBI filed its charge-sheet (on April 19, 2004) after the Supreme Court directed investigation into the Bilkis Yakub Rasool gang rape and massacre case. (We have reproduced the same in full here). Bilkis has stoically stuck to her account of the horror since March 4, 2002 when she sent her FIR to the DySP Dahod. We had earlier reproduced the FIR in full in, ‘Genocide: Gujarat 2002. All the seven persons named by her in her FIR at the height of her trauma, are included in the CBI’s charge-sheet.
There is a lesson here for the system that treats victims of violence with contempt and insensitivity: victims of mass crimes do not lie, they do not manufacture facts; even in the midst of such brutalisation and trauma, they speak the truth. The reason is simple: their motive is, never was, revenge.
Their motive is, simply, to ensure that justice is done: For the sake of their own peace of mind, for the vindication of their deep commitment to their loved and lost ones, and most importantly, so that such violent and heinous crimes do not happen again, anytime, anywhere. It would be good for our lofty institutions of democracy to internalise and remember this fact. Only then can they become more humane.
- Teesta Setalvad