Who are the Guilty? Appeared in Rahstriya Sahara URDU June 2014

Who are the Guilty?

Teesta Setalvad

On 24 September 2002, six months after the pogrom following the Godhra train burning , two men with assault rifles murdered over 30 Gujaratis and security personnel in Ahmedabad’s Akshardham temple. The two killers—who we were so far told were Pakistani== though we are not sure, were shot dead. The Gujarat police picked up (the Supreme Court has now said, unfairly and indiscriminately) six Muslims who were thereafter convicted by the Prevention of Terrorism Act (Pota) court in Ahmedabad that heard the trial in camera (meaning in private rather than in open court). The Gujarat high court, which for some reason also heard their appeal in camera, for no apparent reason, agreed with the trial court and the prosecution. Three of the six men were awarded the  death penalty given in the rarest of the rare cases and others imprisonment. The men were in jail long, with one of them actually completing his sentence, before the Supreme Court (SC) heard the appeal. On May 16, the judgement of the Court was made public with the Supreme Court passing strong strictures against the state’s police and home department.

Acquitting all the six men, the Supreme Court said: “Before parting with the judgment, we intend to express our anguish about the incompetence with which the investigating agencies conducted the investigation of the case of such a grievous nature, involving the integrity and security of the nation. Instead of booking the real culprits responsible for taking so many precious lives, the police caught innocent people and got imposed the grievous charges against them which resulted in their conviction and subsequent sentencing” (page 280). Put differently, the actual culprits were allowed to go scot free. Who is responsible for thios lapse? Of Modi’s own role as home minister in approving Pota charges, the court said he had “simply signed the proposed note as a mark of approval” (page 107). The court added, “This would go to show clear non-application of mind by the Home Minister in granting sanction” (page 109).

There is more.  Incompetence or wprse? The Gujarat police had a handwriting expert who verified the Urdu handwriting of the accused, while admitting he knew no Urdu and could not tell it from Arabic or Persian.It appears that even in terror cases, and remember Modi’s claims that he is strong on terror, Gujarat follows no governance process.

The chief judicial magistrate (CJM), who had a critical role in verifying the confessional statements (the main evidence used to convict the accused), during cross-examination went on to record that:

“... I did not make inquiry with any police officers with regard to the said confessions. I had not asked the two accused produced before me as to whether they needed any lawyer or not. I had not taken the said accused persons in my custody. It is true that I did not issue any warrant for them to be sent to judicial custody. It is true that I did not inquire with the accused about where and at what time and who recorded their statements….“It is true that I have not kept any rojkam (daily register) or record in my court about the accused persons produced before me...” (page 127). This is more than shocking as it reflects on a lower level judicial officer’s conduct. On this, the SC says, “The statements by the CJM show how casually the mandates under Sections 32(4) and 32(5) were followed, rendering the said requirement a hollow and empty exercise” (page 128). What does it say about the state administration that its police and the judiciary can act in this fashion?

The Supreme Court judgement is sobering reading for those who equate slogans of good governance with substance.  Or does good governance not apply to the deliverance of justice? For those who think Gujarat is some ideally governed state. And for those who assume there will be instant transformation in the way Delhi functions now.

It was a division bench of AK Patnaik and V Gopala Gowda who delivered the verdict in the best and highest traditions of democracy. The pre conceived mind of the police, prosecution and lower Courts was evidentin their holding that the attack on the Akshardham temple was a “conspiracy against the Hindu community,” and that the said act of terror was a “revenge” for the 2002 Gujarat riots.

From the Gujarat ATS to the Ahmedabad Crime Branch the trajectory of this “terror” investigation is a sorry tale of incompetence and unprofessionalism. Hasty arrests were made as the anniversary of the event was approaching to satisfy political interests and reap benefits in public discourse.

On the evening of 28 August, 2003 a Fax was sent to this effect, transferring the case to the Crime branch and the very next day, on 29 August, 2003, five arrests were shown. Sixth accused Chand Khan who is a mechanic originally from Bareilly in UP, but also had a workshop in Kashmir, where he was apparently arrested on 31 August in Kashmir and later brought to Ahmedabad. Most of the accused had alreadt been in illegal detention since August 17 2003 being picked up from the Muslim dominated areas of Ahmedabad.The Prevention of Terrorism Act, 2002 (POTA) was a draconian anti-terrorism legislation enacted by the Parliament of India in 2002 that was later repealed by the UPA Government. Under POTA confessions made to police were admissible in the court of law. POTA was also not invoked until a year later. On August 28, 2003, the case is transferred to the Crime Branch, next day (Aug 29) arrests are shown to be made and the very next day, that is August the office of the State Home Minister signed a letter sanctioning POTA against them. The Special POTA Court subsequently found them guilty and convicted them with: Altaf Malek (5 years imprisonment), Adam Bhai Ajmeri (death penalty), Mohammed Salim Hanif Sheikh (Life imprisonment till death), Abdul Qaiyum Muftisaab Mohmed Bhai (death penalty), Abdullah Miya Yasin Miya (10 years imprisonment) and Chand Khan (death penalty).

The SC has questioned the then Home Minister’s “non-application of mind” and deemed it “not a legal and valid sanction.” The SC bench had contended, “The prosecution had failed to prove that the sanction was granted by the government either on the basis of an informed decision or on the basis of an independent analysis of fact on consultation with the Investigating Officer. This would go to show clear non-application of mind by the Home Minister in granting sanction. Therefore, the sanction is void on the ground of non- application of mind and is not a legal and valid sanction under Section 50 of POTA.

Vicious allegations made against Altaf Malek and Mohammed Salim that they used to send money to others and that they had hatched conspiracy of the attack were unproven. No records of call-details, nor any evidence of money transfer through Hawala or in bank accounts was produced by the prosecution.The SC hence not only acquitted all the five appellants but also “set aside the conviction and sentence awarded to that A-1 (Altaf Malek)”, who had already undergone the 5 years sentence and hence had not appealed in the Apex Court.

The question however is who pays for this unprofessional conduct of the police and home departments and what of the loss of precious years by the young men? Substantive compensation is just one step, prosecution of those guilty the next.

As the new government in power tests its grounds by sending feelers on legislating on obviously divisive issues like Article 370, a uniform civil code and Ram Mandir at Ayodhya the real whammy likely is a new form of  an anti terror law a la TADA or POTA. Not only were several Muslim youth the unfair quarry of institutionalized prejudice –and therefore detention and incarceration under the TADA and POTA regimes—but so were others. All those who protested in the late 1980s and early 1990s against the neo liberal policies of the Rao plus regimes, were jailed (in Gujarat and Andhra Pradesh) under TADA. With the next round in India to be one of unfettered, unchecked development (remember the new MOS Environment’s promise to pass projects worth Rs 80,000 crores in two days???) no first prizes for guessing where the repressions will lie. A regime that is already reflecting attacks on freedom of expression will, soon, use unchecked state power to stifle legitimate, democratic protest against the seizure of lands, water resources and minerals for the big companies. Happy days are here again…..

Ends