Incriminating Video Transcripts Yet Untested as Evidence

Written by Teesta Setalvad | Published on: June 1, 2016

First Published on: February 23, 2016

 

While the nation agitates over the authenticity or otherwise of Videos aired by private television channels pinning blame on students of the Jawaharlal Nehru University (JNU) for allegedly raising "anti-national" slogans on February 9, 2016, certain Video Transcripts tested for their authenticity by a Special Order of the National Human Rights Commission (NHRC) dated March 5, 2008 are still to be used as evidence in a criminal trial.


In October 2007, Tehelka made public a sting operation, Operation Kalank that was aired on the Aaj Tak channel between October 25-27, 2007. In its November 3, 2007 print edition,The Truth in the Words of the Men Who did it. (link http://archive.tehelka.com/story_main35.asp?filename=Ne031107gujrat_sec.asp)





The sensational investigation, probed over six risky months by journalist Ashish Khetan had several components:

Conspirators and Rioters: First hand accounts from the men who plotted and executed the genocide in Ahmedabad, Vadodara and Sabarkantha. This revealed how the mayhem was meticulously planned

Bomb Makers:The VHP and the Bajrang Dal manufactured and distributed lethal weapons across the state, often with the connivance of the police, even before the Godhra incident took place of February 27, 2002

What they said about Modi: Key BJP, RSS, VHP and Bajrang Dal activists speak openly of how Narendra Modi blessed the anti-Muslim pogrom

Role of Police: Shocking accounts of how the guardians of the law colluded with the outlaws to make Gujarat’s horror even worse.

Legal Subversion: How public prosecutors ran with the hare and hunted with the hound, keeping their sympathies strictly for the accused. Government Counsel Arvind Pandya on how he hopes to subvert justice by manipulating the Nanavati-Shah Commission, set up to ascertain the truth.

Dance of Hate: The truth behind Naroda Patiya, the grisliest massacre of 2002. Ahmedabad police’s collusion in the pogrom and its cover-up. Gory details of how former Congress MP Ehsan Jafri was hacked limb by limb at Gulbarg Society, in the words of those who did it.

Godhra Mob Fury Not Terror: How spontaneous mob fury was shown as a premeditated conspiracy by the police who produced fake witnesses by bribing, coercion and torture.

In criminal law, once tested as authentic, these video taped conversations have the status of extra-judicial confessions, in evidence.

At the time, in October 2007, the Zakia Jafri writ petition praying for directions of an FIR to be registered against powerful accused was then pending before the Gujarat High Court. Arguments were over and judgement was awaited. In an affidavit before the Gujarat High Court, Zakia Ahsan Jafri submitted the text and transcripts of the sting operation urging that they be treated as extra-judicial confessions. Her plea was rejected. The author of this article, also Secretary, Citizens for Justice and Peace thereafter approached the Supreme Court of India for an urgent and early hearing of the petition(s) for transfer of investigation pending, in the light of the damning evidence unearthed through the Tehelkasting. The Supreme Court declined the application. The Special Investigation Team (SIT) was appointed only on March 26, 2008.

At this stage, the National Human Rights Commission (NHRC) took suo moto cognisance of the matter, exercised its special powers and directed that Central Bureau of Investigation (CBI) authenticate the voice samples and tapes. This order was passed on March 5, 2008.

In the order the NHRC, full bench consisting of Justice S. Rajendra Babu, Chairperson, Justice Y. Bhaskar Rao, Member, R.S. Kalha, Member and P.C. Sharma, Member, the NHRC said:

“The ghosts of post-Godhra violence in Gujarat never seem to die. On 25th October, 2007, a T.V. Channel "Aaj Tak" telecast a programme captioned "Opertaion Kalank" which brought out more skeletons. The programme included confessions of some persons who implicated themselves and also many state functionaries of Gujarat in the unleashing of violence on the minority community. The revelations bode ill for the future of human rights in the country. Therefore, the Commission which is already seized of the unfortunate episode since 1st March, 2002 in Case No. 1150/6/2001-2002, decided to direct a CBI investigation regarding the authenticity of the tapes and the allegations made therein and vide proceedings dated 5th November, 2007 advised the State Government of Gujarat to communicate its consent for CBI investigation to the Central Government and the Commission within two weeks.

The Government Gujarat, vide letter No. SBII/COM/1007/337/SPL TEAM dated 22.11.2007 expressed inability to give its consent for CBI investigation. It submitted that "the aspects under consideration of the Hon'ble Commission are very much in seisin before the Justice Nanavati and Justice Shah Commission and because of that also, the Hon'ble Commission would not like to invite the intervention of CBI even as per the provisions of the Protection of Human Rights Act, 1993." The State Government also pointed out that National Human Rights Commission had filed petitions before the Supreme Court seeking transfer of nine cases for trial outside Gujarat and after the telecast of 'Operation Kalank' Ms. Teesta Setalvad had moved a petition for early hearing of all the petitions pending in the Supreme Court and the Supreme Court did not entertain the said request of early hearing. It has also been contended on behalf of the State Government that no investigation by an agency like CBI into the alleged exposure by the telecast of "Operation Kalank" is necessary in-as-much as in respect of various incidents and offences reflected in the said telecast, necessary actions have already been taken and the trials are pending and in the meantime, if any further material is made available, the same can very well be placed before the concerned courts as per the provisions of Section 173 (8) of Cr. P.C.

The Commission has thoroughly deliberated on the submissions made by the State Government of Gujarat and it had bestowed careful thought on all aspects of the issue….”

Despite a stiff resistance from the Gujarat police and in exercise of its powers under Section 12 (1) of the Protection of Human Rights Act, 1993 (for short 'the Act'), the NHRC issued the directive to CBI. Section 12(1) mandates the Commission to enquire into any violation of human rights or negligence in preventing such violation. The status of the Commission conducting the enquiry under the Act is that of a Civil Court (Section 13 of the Act). It is not an administrative or fact-finding Commission such as those constituted under the Commission of Enquiry Act 1952, but a quasi-judicial body whose jurisdiction cannot be easily ousted. Thus, the NHRC directed that the tapes be authenticated.