Friday, October 25, 2013

Impunity Punctured

The Naroda Patiya Verdict

That there was a wider criminal conspiracy related to the Naroda Patiya incident now stands proved- Maya Kodnani, then a minister in the Narendra Modi-led government, has been convicted on serious charges. But will this verdict prove to be just a prelude to criminal conspiracy being established at a still higher level of the state's executive?
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For criminal minds to craft acts beyond the popular images of bestiality, even by our own Bollywood standards is rare, but it may happen. For these to be tracked down zealously and prosecuted is rare. For all this to happen and the powerful to be prosecuted and be awarded exemplary punishment, that too in the case of a mass communal pogrom, seemed an impossibility. Yet it all happened when Judge Jyotsana Yagnik somberly meted out punishment for arguably the worst incident of the post Godhra reprisal killings of 2002 that have always been labeled as state sanctioned, if not state sponsored. On August 29, 2012 presiding over a Special Court in Ahmedabad, in a trial that was monitored by the Supreme Court, she sentenced a sitting MLA and former minister in the Gujarat government to life imprisonment. The Judge in a 1990-worded verdict profoundly reaffirmed an article of faith; in the Indian system, and justice.
Over 300 incidents spread over at least 19 districts of the state had left 2,500 dead or missing, 19,000 homes trashed, 10,000 plus business establishments destroyed not to mention 297 Durgahs and Masjids a target. Naroda Patiya on the outskirts of Ahmedabad, where daily wage earners have been living for over a century was one such  sordid target.
It is the carefully crafted understanding of provisions of Indian criminal law on what constitutes a criminal conspiracy and the application of that understanding to the evidence available in the case that makes the judgement of Special Court Judge Jyotsana Yagnik both thorough and unique. Section 120-A of the Indian Penal Code (IPC) defines an act of criminal conspiracy as an unlawful act (or series of acts) between at least two persons, with unanimity of purpose, common intent and design, that is then successfully carried out. Criminal common intent, possession of arms, the presence of some of the conspirators at the scene of crime and sufficient evidence related to the occurrences of these ingredients are essential to satisfy the judicial mind that a criminal conspiracy is made out. In this case, as many as 81 victim witnesses and 52 other occurrence witnesses (133 in all) have deposed on the extensive character of organized violence that began in the morning (about 9.30-10 am) of 28.2.2002 with the assembly of crowds, shouting of incendiary slogans and  carried on virtually uninterrupted until late evening. The acts of premeditated violence claimed as many as 95 lives according to the charge sheet while survivors argue that over 120 lives were lost if those missing are added to the tally.
Detailed examination of all the evidence in Part 3 Chapter 1 of the famed Naroda Patiya trial court verdict delivered on August 29, 2012, outlines the reasons for  judicial acceptance of the conspiracy that was hatched. Eye witness testimonies specifically outlined the criminal roles executed by key accused (15 eye witnesses deposed about Kodnani’s role, another 21 on Bajrangi’s part) while several others deposed about the presence and violent behavior of all 33 accused since the morning of that day, when mobs gathered near Muslim residences and attacked their homes and place of worship (Noorani Masjid) and continued to spread through the area; rapes and sexual violence are admitted by the Judge to have taken place that evening.  Eye witness accounts form the bedrock on which a crime can be proved; in this case the evidence of witnesses had firm corroboratory evidence in the Sting Operation conducted by Ashish Khetan of Tehelka that has been accepted as extra-judicial confessions and relied upon by the Judge (Chapter II of the judgement). Seven years after an incident that remains an iconic reminder of the brutality of Gujarat 2002, the Naroda Patiya massacres, effective and valid testimonies of eye-witnesses were possible (between 2009 and 2011) due to the regular and thorough legal assistance *1 provided to victim witnesses availing of an amendment in Indian criminal law following the Best Bakery case and judgement on 12.4.2004.  Three high courts have since jurisprudentially upheld the right of the victim witness to independently file and argue in appeal against a trial court verdict. This is a tacit recognition that the fate of the criminal justice system cannot be left to the state alone.

*1 Citizens for Justice and Peace engaged three lawyers to assist Victim Witnesses through the Naroda Patiya trial

This amendment, Section 24(8)(2) of the Criminal Procedure Code (CrPC) effected in January 2009,  codifies the right of a victim and or witness to officially engage a lawyer to assist the prosecution by the state, ensuring that aspects of evidence
and argument that may be ignored are pursued. In the Naroda Patiya case, not only did we intervene during critical points of the trial, one of the advocates, Raju Mohammed Shaikh was threatened in open court by a powerful accused, Babu Bajrangi; we also
submitted over 650 pages of written arguments analyzing the evidence during the trial. The hatching of a criminal conspiracy is a mental process evident in the physical acts of illegality and violence that ensure. To prove this convincingly enough to
convict 32 accused (one accused died during trial) undoubtedly requires tested and reliable eye-witness accounts as also corroborative documentary evidence. The validation of Tehelka’s  exemplary efforts (Operation Kalank, October 2007) were therefore critical.  CJP moved to ensure preservation of the evidence by moving first the Gujarat High Court and then the Supreme Court for orders to authenticate the Tehelka tapes, concerned that such valuable evidence must be protected. This was the period when matters were lying before the Supreme Court since May 2002, on prayers for transfer of investigation to CBI. Both Courts declined to pass Orders. Concerned that such valuable evidence was lost with the passage of time, we moved the National Human Rights Commission to invoke its powers on preservation of evidence when gross human rights abuse has taken place. The NHRC took note and on March 5, 2008 passed a full bench Order and invoked its powers under the Protection of Human Rights Act (PHRA) and handed over the Tehelka Tapes to be authenticated by CBI.*2 But for this timely action by the NHRC the valuable corroborative evidence provided by Ashish Khetan of Tehelka would have been lost. Khetan was examined before the Special Court and his evidence

that runs into 110 pages provides further meat to already available testimonies on criminal conspiracy. If  the Tehelka tapes had not been preserved through authentication by the CBI  they would have met the same fate as another bit of valuable evidence—the Mobile Phone records CD provided by then DCP Crime Branch (2002) Rahul Sharma that were shoddily dealt with by the Supreme Court appointed Special Investigation Team (SIT) by the time the case reached trial. *3
Eye witness accounts successfully established that a mob, coming from the direction of Krishnanagar and Nartaj hotel, had gathered between the Noorani Mosque and the ST workshop at which point then elected MLA Mayaben Kodnani had come there with her bodyguard Kirpalsing, and had incited and excited the crowd to attack and kill Muslims (“Cut off Miyans” (Muslims) and also attack and brutalise women. Encouraged to violence and assured of protection by an elected member of the ruling party in power, members of the murderous mob began their attack on  Noorani Mosque,  had set it on fire,  while the police watched. It was the confidence and protection afforded by a powerful person in this case, Maya Kodnani an elected MLA that emboldened the mob to criminal actions. This also establishes a chain of command responsibility, from those who conspired, those who physically instigated to those who actually implemented the criminal conspiracy. Those in the mob who successfully carried out the criminal intent carried deadly weapons and inflammable substances like kerosene and petrol. There was also evidence led that revealed that the burned and distorted corpses of the victim community were disposed off at Teesra Kua but this aspect too has not been investigated by the SIT.
Several of the violent incidents that are linked to the same act of criminal conspiracy
Continued throughout the day and again Maya Kodnani and other accused persons had been seen between 12.30 – 1.45 p.m. coming in a vehicle, alighting, taking out swords

*3 Chapter III of the Naroda Patiya Judgement, pages 792-799 has serious observations on the SIT’s failure to effectively clinch ownership and use of certain mobile phones
from the car and distributing these weapons. The role of the sting operation was vital in proving further aspects of the criminal conspiracy; in his deposition before the Court , prosecution witness umber 322, Khetan confirmed what Babu Bajrangi had boasted of in his taped conversation, that 23 revolvers had been collected by him from persons owning revolvers from the Naroda area to further the conspiracy; gas shortages for ordinary residences in Naroda Patiya area for weeks before the incident point to a sinister premeditation that precedes even the mass arson of the Sabarmati S-6 Coach at Godhra on 27.2.2012. The high probative value of the sting operation stems from the nature of interviews that were recorded with no leading questions being asked, interviews given moreover to an independent and disinterested witness. The sting operation was validated through the scientific testing carried out by CBI pursuant to the NHRC order, the oral evidence of the forensic laboratory scientist and the evidence of Khetan.
Significantly the organizational links within the conspiracy that was hatched have also been substantially dealt with, the presence of an MLA of the ruling dispensation; four other accused were canvassers, propagators and election workers of Kodnani; another accused ran the election office of the ruling MLA; other accused are leading lights of fraternal organizations like the Rashtriya Swayamsevak Sangh (RSS), Vishwa Hindu Parishad (VHP) and Bajrang Dal. It was the VHP that called the bandh following the Godhra incident that was supported by the ruling BJP; and it was the accused Bajrangi a key conspirator who vowed after the Godhra incident to ensure that the death toll of Muslims was four times the number.
Gender driven brutalities and violence rarely sustain judicial scrutiny and the narrative of gender violence usually disappears with the onset of trial. In another first, the Naroda Patiya trial, monitored by the Supreme Court, with quality legal aid provided to witnesses, a conducive (not hostile Court atmosphere) ensured that the narrative of gender violence returned during prosecution. 
Women Victim eyewitnesses, emboldened by legal assistance and also physical protection given to them under the CISF by Orders of the Supreme Court, testified bravely about the extent of gender driven violence and rape on Muslim girls and women.*4*5

Between pages 368 to 1759 in the judgement that examines offences of gender driven violence, the Judge categorically observes, “… It would be absolutely incorrect to believe that gang rapes have not taken place. The extra judicial confession of  Suresh Langda Chara (A-22) and testimonies of many PW including of PW 205 (the solitary surviving victim of gang rape who has been awarded Rs 5 lakhs in compensation) can safely be relied upon which proves gang rape and rapes to have taken place on that day. In the separate chapter on incidents of that day, such occurrences have been discussed and decided. “ 

Proceeding to examine the testimonies of survivors and relatives of victims of gender violence, the Judge accepts that indeed such violence took place but severely criticizes the Supreme Court appointed SIT for failing to make any attempt to investigate the perpetrators of these offences. For example, in the case of the lone survivor, the truthfulness and validity of Zarina is accepted (PW 205) as also the testimony of her husband is accepted, the fact that gang rape took place proved but the identity of the assailants remains unproven due to the failure of the investigating agency. Similarly, the oral evidence of another woman survivor, PW 158 is accepted and gender violence against one Farzana, Saida and Saberabanu proved though the identity of the assailants is left unproven, again due to the lacunae in probe. Similarly charges of gender violence has been proven against Sofiyabano and Nasimobano.  Only one accused has actually been convicted under section 376 of the IPC, Suresh Langda Accused 22 and been given seven years punishment.

*4  In May 2004, on an application by CJP and argued by then amicus curiae, Harish Salve, 570 witnesses were given cluster protection by the central paramilitary including human rights defender Teesta Setalvad. Once trials began special witness protection was given to all victim witnesses ensuring that they deposed without fear or favour.
*5  In June 2010, the CJP submitted a CJP Survivors Report to the CEDAW Committee of the United Nations

Over 165 pages of the judgement are devoted to examining the kind of previous investigation conducted by the Gujarat police in this case (Chapter VI) that is before the further investigation was handed over to the SIT on 26.3.2008. Stepping back, a look at the findings of the National Human Rights Commission (2002) on its suo moto inquiry into Gujarat 2002 is warranted. The NHRC had severely criticised the partisan conduct of the Gujarat police,  the polarized atmosphere as also recommended that this case and eight others be transferred for investigation to the CBI. On the basis of the NHRC report, we had approached the Supreme Court on 2.5.002 praying for a transfer of investigation. The Supreme Court stayed the trials on November 21, 2003 but only transferred investigation to a self created SIT on 26.3.2008 that is six years down.  Among of the compelling reasons for the Supreme Court to accept our plea for transfer of investigation was the conduct of the Crime Branch of the Ahmedabad police in the Naroda Patiya case clubbing as many as 120 individual FIRs first being merged into 26 FIRs and these then clubbed into a single mammoth FIR, I-C.R.No.100/02. All these group of complaints viz. 120 complaints have been treated as part of the complaint filed at Naroda Police Station I-C.R.No.100/02.
What is often overlooked, or deliberately forgotten is that the names of powerful accused first emerged in the complaints accepted by the local police (between march and May 2002) and were dropped by the Crime Branch thereafter. The clubbing of complaints were effected to both dilute the magnitude of the crimes as also drop the name of powerful accused. This was vigorously argued before the Supreme Court that accepted these facts and stayed the trials before finally ordering a transfer of investigation in 2008. Discriminatory practices in granting bail were also noticed and put forward. While the accused in the Godhra mass arson case remained in detention until the completion of the trial in February 2011, those accused of the post Godhra reprisal killings, barring those few without patronage, had all been released on bail within months of the crimes being committed. This meant essentially that during trial powerful accused roamed free in neighbourhoods even as victim witnesses deposed against them.
 Unsubstantiated propaganda has blurred the strong vindication of both victim witness testimonies and human rights defenders that have essentially prayed for preservation of evidence and non partisan character of evidence gathering and prosecution. In her close examination of, and criticism of the previous investigation by the Gujarat police, Judge Yagnik details how PW 274, Shri K.K. Mysorewala, the first PI at the Naroda police station, despite being aware of the unlawful assembly, criminal intent, presence of accused at Naroda Patiya, does little to intervene, if at all the contrary. He does not make any attempts to stop the mob from its violent and criminal acts. After detailed examination of the conduct of both Mysorewala and other police officers, the Judge however refrains from accepting the Victim Witnesses plea to arraign Mysorewala and other officials as accused given the fact that evidence against them has emerged during the prosecution. This is a matter that will be agitated by victim witnesses in appeal.
The quality and authenticity of the victim witness testimony receives sound treatment by the Judge despite crude attempts by the defence to not simply discredit affected victim witness but deride their evidence. Yagnik observes at pages 368-370 that, “This Court has observed that during the deposition many of the witnesses were finding it very difficult to control rolling down their tears on their cheeks. They were eager to show their burnt limbs, their injured limbs and explain their losses to the Court. Many of the parent witnesses were unable to describe about the death of their children in the riot, they became so emotional that very often needed to be consoled and offered a glass of water to complete their deposition. Their pains, agonies, anxiety, effects of shock and trauma were very much visible and noticeable. Even on the date of the deposition they were … very much afraid. They were frequently assured about their security, but when they used to go to identify the accused, it was noticed that many of the witnesses have avoided identifing the accused whom they were knowing very well. Atleast two to three PWs were so much disturbed that their physical health was affected and ambulance had to be called to take them to the hospital.”
This flags another issue related to witness protection and prosecution that we pay scant attention to. The Naroda Patiya case took over ten years to reach judgement, there are still two rounds of appeal to go. Serious ethical questions of partisan appointments to public prosecutor posts  (from advocates chosen by the government of Gujarat who were active members of exclusivist organizations accused of organizing the violence) have been commented upon by the Supreme Court in the interim. As the years between 2002-2012, wore on and electoral victories of some among the perpetrators defied the demands for non partisan conduct and Constitutional governance, the state found another unique way of patronising the accused. Wary of being pulled up if prosecutors were directly partisan, the state of Gujarat has effectively worked out a system of patronage for an entire panel of advocates appearing for the accused in major trials by hiring them as special public prosecutors with high fees in other cases pursued by the state.*6 All the more does the debate for Independent Directorates of Prosecution controlled not by the executive but judiciary need to gain currency and momentum.
The writ of continuing mandamus is what the Supreme Court exercised when it monitored the major Gujarat 2002 trials in response to petitions by victim witnesses and rights defenders. This writ from the higher judiciary remains an exception rather than the rule, difficult to secure. Abiding questions of necessary judicial monitoring especially when executive misdemeanors are under scrutiny remain in the balance.
Today, while the wider criminal conspiracy related to the Naroda Patiya incident today stands proved with a member of the ruling party convicted on serious charges, the mass level criminal conspiracy alleged  to have taken place in 300 locations, remains at the Magisterial Court, at a fledgling stage. The Naroda Patiya verdict cannot but influence the judicial scrutiny and assessment of the wider substantive charges in the Zakia Jafri complaint dated 8.6.2006; Whether Kodnani executed a conspiracy in isolation or part of a ruling group that encompassed the highest levels of authority and governance ? Whether she acted on her own when she was inspired enough to instigate a crowd to commit mass violence or was she too offered the highest level of impunity from prosecution, the kind of impunity that her presence gave the executors of the rapes, burnings and bestialities committed at Naroda Patiya on 28.2.2002 ?
The path breaking verdict in the Naroda Patiya case could well be just the prelude to criminal culpability being established at a still, much higher level.

Teesta Setalvad, Secretary Citizens for Justice and Peace

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