Citizens for Justice and Peace
Gujarat Genocide 2002
Long wait for justice
Major Trials
Lend your Voice to Our Struggle!
Eighth Anniversary of the Gujarat Genocide 2002
FEBRUARY 27-28, 2010
Dear Friends,
On February 27-28, Citizens for Justice and Peace (CPJ) commemorated the eight anniversary of the Genocide in Gujarat. The victim survivors and the members of the legal support groups participated. The ceremony was organised at Gulberg Society Meghaninagar from 11am to 2pm on Sunday, February 28.
Meanwhile, our struggle for justice is at a critical stage. We approached the Honourable Supreme Court in October 2009 pointing out the grave failures in the Special Investigations Teams’ investigations that have betrayed the victims and the mandate of the Court.
The hearing of this critical case will be on March 15, a crucial day in our struggle for justice.
The following open letter is an appeal to you from all of us, the Victim Survivors of the Gujarat Genocide on 2002.
Open Letter:
We write this letter, personally addressed to you as a fervent appeal to lend your voice to the struggle of the victim survivors of the genocidal carnage in Gujarat (2002) a struggle for dignity, justice, reparation and against the impunity enjoyed by perpetrators of mass crimes in India.
This struggle is today at a critical and sensitive stage. And it is to lend our efforts, within the Supreme Court and the Trial Courts in Gujarat, weighty and successful that we write this detailed note to you. It comes with an appeal. To use the material detailed below to write individual and collective letters to important functionaries of the Indian State and the Media, cautioning against the efforts by powerful and malevolent forces within and outside Gujarat to thwart this battle that has reached a decisive stage.
Application filed by the Legal Support Group, CJP and Victim Survivors on the Failure of Investigation by the Supreme Court Appointed Special Investigation (TEAM) (SIT) and the Trials Afoot in Gujarat
Today our collective efforts for justice and reparation are at a critical stage. Eight major trials related to the carnage that cost 2,500 lives and also involve allegations of complicity in mass murder are being prosecuted within Gujarat under direct supervision of the Supreme Court of India.
For over eighteen months 210 eyewitnesses who are also victim survivors supported by CJP deposed before SIT and also submitted material evidence pointing towards direct complicity in the violence from high functionaries of the State.
Ms. Teesta Setalvad of CJP also filed a detailed statement running into 250 pages detailing various aspects of each investigation that SIT needs to investigate. Deplorably SIT has ignored most of the points and done a superficial job. At best there has been a twenty to thirty per cent improvement over the Gujarat polices earlier investigations. The historic mandate of the SC in imposing faith in a high-powered SIT has, in our view, been betrayed. SIT was mandated to not only investigate and further investigate but also, after May 1, 2009 ensured the protection of witnesses, order regulate and monitor both the appointments of the Special PPs and the functioning of the Courts. Since April 27, 2009 the SIT was also ordered to take over the second, more sensitive investigation ordered into the role of the CM and 61 others (SLP 1088/2008). The application made by Teesta Setalvad, CJP that will be heard on March 15 2010 highlights the following issues:
a) Problems with investigation; (we have obtained an order under 173 (8) for re-investigation in the infamous Gulberg society case in which former parliamentarian Ahsan Jafri was butchered that exposes SIT for deliberate exclusion of documentary evidence and non-investigation of specific instances state complicity; similarly we have filed 173(8) applications in two other trials as well.
The application details how i.) significant issues were not re-investigated by SIT, including state complicity and involvement revealed by Tehelkas Operation Kalank despite being provided all material by the petitioners in May 2008; ii.) Clear-cut attempts by SIT members to shield the favoured and higher ups from among the Gujarat police, administration and state executive;
b) Problems with the SIT members especially those from the Gujarat cadre and the roles that are being played by them; (The application details of one police officer from the Gujarat cadre, Ms. Johri who has been comprised by the state government both through pecuniary benefits (plot of land) and through an anti corruption case in which her husband is allegedly involved; how Mr. Shivanand Jha has always toed the state governments line including being appointed as Home Secretary by the very state opposing re-investigation ordered by the Hon apex court; how the third Gujarat member Mr. Ashish Bhatia today stands exposed for compromising the Gulberg society, and Naroda Gam and Patia investigations. We have also pointed out that Chairman SIT spends only two to three days a month in the state and hence has not paid any attention to this historically driven mandate;
c) Problems with the prosecutors and the Courts in some cases. Despite the SC supervision, some of the local Courts have shown a hostility towards victim survivors and witnesses refusing even to allow them independent legal representation and in one case, a copy of the charge-sheet!
Before the Special Investigation Team was constituted the interveners/petitioners by way of an application in the Transfer Petition filed by the National Human Rights Commission had raised their doubts about the officers suggested on 25.3.2008 by the State of Gujarat and agreed to by the Learned Amicus Curiae. The ream was finally appointed in line with the Gujarat states (accused of complicity) suggestions on March 26, 2008.
The issues raised then and those that have resurfaced now are:
a) Can the officers chosen by SIT investigate the highest political functionary at whose behest the entire massacre was orchestrated or whose role in containing the violence is suspected?
b) Can the officers investigate against their own then DGP (P.C. Pandey), whose role is under a cloud and who would be writing their ACRs (Confidential Reports)?
c) Can the officers keep the progress of investigations a secret from the DGP (The Director general of Police the highest police functionary in any state in India? Will the confidentiality of investigations be compromised?
d) How would the integrity of investigations be ensured?
The background of this historic process of litigation is that it has given a voice to the victim survivors and restored their faith in the Indian system. Through four painful years after the initial impetus, the matter was delayed by tardy system within the apex court. It is important and relevant to recall the history of this present litigation and especially the circumstances in which the State Government has agreed for reinvestigation and proposed the names of three senior officers to be part of the SIT.
i) The State Government had consistently opposed/resisted the reinvestigation of cases by an independent agency, and transfer of these cases outside the State.
ii) In 2004, the state of Gujarat misled this Honourable Court on the issue of Bail being granted to influential accused by filing only partial bail orders deliberately concealing the granting of bail by the high court. This was not appreciated by this Honourable Court.
iii) In early 2008, the Central Government expressed its willingness to get the cases investigated by CBI.
iv) The State Government vehemently opposed the investigation of these cases by the CBI and agreed for investigation by a SIT provided that the officers constituting the team are not from outside the State.
v) The State Government came to court prepared with a list of officers and immediately proposes the name of three senior officers which were accepted by the Court on the recommendations of the amicus curiae.
In retrospect it appears that this was actually a pre-emptive move of the State Government to prevent the transfer of cases to CBI, and forestall and independent investigation and man the SIT with pliable officers who would toe its line.
In the application that will be heard on March 15 we have asked for the following directions:
a) Re-constitute the SIT and appoint members suggested by us, the Petitioners;
b) Direct all the SIT members to spend at least 15-20 days in a month in Gujarat while the investigation and trials are on-going;
c) Order transfer of the trials out of the state of Gujarat;
d) Pass such other order or orders as this Honourable Court may deem fit in the facts and circumstances of the case.
It was in the fitness of things that we keep you abreast and informed of the latest developments in this case given the high stakes for justice on the one hand and the equally powerful and malevolent forces working towards its subversion on the other.
What makes your supportive actions both urgent and necessary is the parallel investigation being conducted under supervision by the Supreme Court, an investigation of mass murder and criminal conspiracy against the chief functionary of the state and 61 others. This investigation too is being carried out by the Special Investigation team (SIT) and hence it is mandatory that SIT is made to function with both transparency and accountability.
It does not need to be over emphasised that the malicious and malevolent designs of the most powerful within the Gujarat state are making every efforts to subvert a Supreme Court ordered, historic justice delivery process for which SIT was constituted to revive the faith of the victim survivor and common man in the process of justice not make a mockery of it. It is critical for us that this blatant attempt at subversion of the apex court itself by those who have been named as culprits and perpetrators and masterminds of a state sponsored genocide are thwarted.
Background to the litigation and the entire struggle:
The Citizens for Justice and Peace (a Victim Survivors Support and Legal Rights Group) has been at the forefront of the struggle for reparation and against impunity of the perpetrators of the genocidal pogrom in Gujarat in 2002. It was thanks to the publication first of the Gujarat Genocide (March April 2002) issue of Communalism Combat and thereafter the publication of the Concerned Citizens Tribunal Report Crimes against Humanity, 2002 that aspects of the Gujarat Genocide got widespread national and international attention. While several human rights reports on Gujarats were thereafter and since published, it is ironical that seven years down as the victim survivors battle it alone in Gujarat, we are the only civil rights groups openly and visibly backing their support for justice in Court. The success of the CCT can be seen in the fact that a former minister in state chief minister Narendra Modis Cabinet, Haren Pandya, testified before it, and revealed shocking facts of an illegal meeting held by the chief executive of the state ordering top policemen and administrators not to protect Muslim lives. He was killed a few months later. The investigation into that murder was shoddily conducted by both state and central agencies.
In 2004, the famous judgement by Indias Supreme Court (Zahira Shaikh and CJP v/s state of Gujarat) not merely transferred the BEST Bakery Trial to outside the state while ordering a re-trial. For the first time in post independent Indias judicial history, the apex court did not shy away from indicting the masterminds and perpetrators of anti-minority pogroms, calling those in power who had masterminded genocide, modern day Neros and observing also that religious fanatics are worse than terrorists. Jurisprudentially for the first time, victimology, victims voice and representation and reparation have become the focus of widespread attention and invited some legal reform. Four major lacunae in the Indian criminal justice system, interminable delays that reflect the cosy and unethical relationship between the Bench and the Bar, unprofessional investigations influenced by the elected Executive that enjoys an unhealthy control and relationship over central and state investigative agencies, absence of Independent Directorate of Prosecution and Lack of Witness Protection stood exposed through this process. The CJP can justifiably claim its share and role in highlighting these issues largely with the Gujarat carnage cases it has successfully (and unsuccessfully) handled and further expanded by this group to its understanding of Caste and Gender driven violence.
The CJP was the first to file a class action on reparation for the victims, ensured that the Central Government (2004-2005) gave an enhanced life compensation package to the victims as well as increased housing damage) while we are still arguing within the Gujarat High Court for comparative reparation for victims who died by police bullets, reparation for gender violence etc. CJP conducted an 18000 household survey to authenticate its claims before the Court.
The issue of missing persons after a violent carnage, the illegal dumping of bodies in mass graves etc was also highlighted through the struggles of victims supported by us.
The Extent of SITs Failure to investigate:
i. The Godhra Trial (58 persons killed)
In the Godhra Train Burning Case, [wherein 58 persons were burnt alive when a coach caught fire and the accused, a vast majority of whom (all Muslims) have been wrongly detained and lie without bail for over seven years] SIT has fully endorsed the theory put forward through the earlier investigations by the Gujarat police and has not probed at all into the revelations made through Tehelka magazines Operation Kalank. In this sting operation witnesses have stated on camera that they have been bribed by the Gujarat police to speak in favour of the conspiracy theory of the Gujarat police. Whatever the facts of the matter, given the sensitivities involved in the case, the SIT ought to have investigated it thoroughly and not leave it unexplored. Initially Mr. Noel Parmar, a police officer accused of complicity was given several extensions even after retirement from the Gujarat police and was continued by SIT and removed only after an uproar in the media. The special PP in this matter has been defending the state of Gujarats conspiracy theory as Special PP since almost the start of the trial and SIT has not seen fit to replace him even in the interests of transparency.
On June 30, 2009 and then again on August 15, 2009 the role of SP Panchmahals, Mr. Mothaliya was brought to the our attention, first through a letter by the son of one of the accused Shoeb Sattar Juzara and thereafter through senior Defence Counsel Advocate A Hassan appearing before the Honble Trial Court. Both communications annexed hereto and marked as Annexure B in the SC application suggest that SP Panchnalamhas Motahliya was in fact keeping witnesses to ransom hostage and thereby trying to influence testimonies. In fact advocate Hasan had objected to his presence in the court during trial because as an investigating officer, he cannot remain present in the courtroom when evidence is being recorded.
ii. Gulberg Trial (70 killed):
a) The SC appointed SITs failure to investigate, interrogate and produce before the court critical documentary evidence such as print outs of mobile phones of police officers, message books and wireless message books of Meghaninagar police station and the city control room, log books and inward telephone register;
b) The SC appointed SITs failure to interrogate senior police officers higher than the PI Erda, for example joint commissioner MK Tandon, and even CP PC Pandey (arraigned as accused on serious allegations of destruction of evidence (burning bodies to an unrecognizable state, thereby abetting the criminals);
c) The SC appointed SITs failure to investigate the failure of the Fire Brigade that did not arrive at the scene of crime, in the heart of Ahmadabad city for three days after the incident;
d) The SC appointed SITs failure to complete investigations related to the sting operation by witness 481, Ashish Khaitan of Tehelka that includes a failure to check the mobile phone records of accused named in the sting operation and reluctance to obtain original equipment to prove the evidence;
e) The SC appointed SITs failure of SIT to produce the video-graph of the scene of crime until the witnesses made an application for the same before the Trial Court; (after which it has been produced in a sealed cover)
f) The SC appointed SITs deliberate lapse in investigating the circumstance behind the vanishing phone record of former parliamentarian Ahsan Jafri who is reported to have made close to 200 distress phone calls for help;
g) The SC appointed SITs failure to prepare an effective site map of the scene of attack;
h) The SC appointed SITs failure to investigate or produce the log books of individual police officers assigned on duty, the Meghaninagar station diary among other lapses.
The victims made an application to the Trial Court and the Trial Court found merit in the application of the victims and ordered further investigation in the matter as per the request of the victims. The order of the Trial Court has been annexed to the application. This order was passed on September 7, 2009 and the Judge hearing the case ordered re-investigation on key points argued by victims advocates including obvious lacuna by SIT in investigating documentary evidence like station diary and inward registry entries of the local and city police stations, fire brigade records as also telephones of key accused in the massacre.
On October 5, 2009, a police witness in the Gulberg society case, Babubhai Pandor was declared hostile retracting from his earlier statements under section 161 Cr.P.C. made in 2002 and then before SIT. The Judge while declaring him hostile stated that it was pointed out that here is a policeman, a government employee and public servant turning hostile and this fact has been noted. A true copy of the evidence recorded has also been annexed to the application. It is a matter of concern that SIT allowed key witnesses to get into the witness box without guaranteeing security from the central paramilitary forces.
iii. Sardarpura Trial (33 persons burnt alive)
a) Key witnesses appear to have deliberately not been examined by SIT. These include Head Constable Devjibhai (P.S.O. Vijapur) at the time of incident (At the most critical time while the incident was taking place in Sardarpura village, from 8 p.m. of the night of 1.3.2002 till the morning of 2.3.2002) PSO HC Devjibhais presence required that his statement be recorded which has not been done; (2) V.H.F. Operator Babubhai (Wireless operator from the police who would be aware of all wireless calls and records has not been examined by SIT); (3) Jamaben Harchandji Thakor (Munsaf Khan stated in his statement before SIT that this Jamaben, resident of Sardapura that a meeting of Patels had taken place in the village an d hence big trouble and violence will happen); (4) Mansuri Nisar Ahmed Gulamnabi (Munsafkhan stated in his SIT statement that he had contacted Mansuri resident of Nisarg society Ahmadabad when the attacks started that night after 9.30 p.m. who had repeatedly contacted DGP Control Gandhinagar and Mehsana too for help from his mobile phone and yet his statement has not been not recorded by SIT);
b) SIT has been tardy and superficial in obtaining key documentary evidence related to the crime at the time. For instance, SIT has not obtained the mobile call records or details of calls of PSI Rathod and PSI Parmar between 28.2.2002 and 2.3.2002;
c) Police witnesses according to the charge sheet are PSI ML Rathod, Nayab Police officer, Visnagar division Bachuba Vesalji, DSP Mehsana, Anupamsingh Gahlot, PI Vijapur, KR Vaghela PSI Vijapur, GK Parmar and PSI BD Gohil. From the witness statements it appears that these officers roaming around in the police wireless vans were constantly in touch with each other on the wireless. However there is no corresponding message books in the charge sheets nor has SIT thought it fit during its investigations to inquire into whether their presence and movements is borne out in the records;
d) It is apparent from the charge sheet filed by SIT and statements of witnesses Munsafkhan Yasinkhan Pathan and police witness GK Parmar that witness Munsafkhan made innumerable phone calls from his own landline number 32328 and the mobile numbers of Nisar Ahmed Gulamnabi appealing for help from the police for the attacks on Muslims, for increased police protection and timely action. These phone calls were made from 8 p.m. of 1.3.2002 until 4 a.m. of 2.3.2002 to both the Vijapur police station and state Control room. Yet in the re-investigation, SIT has simply not bothered to investigate these distress calls, not recorded any statements in connection with these innumerable calls, not collected investigated or produced any telephone call records of the relevant time period, not produced the telephone vardi book or telephone incoming register. No statements have been recorded in this connection;
e) It appears clearly from the investigation papers that without panchnamas being carried out and recorded, bodies of the dead victims were removed from the spot. SIT has simply not bothered to investigate this major procedural lapse. Key documentary evidence is also absent from the SIT investigation papers;
f) The case papers in this case and the witness statement of Firojabano Bachumiya suggest that iron rods with an electric current were forced and suspended into the home of Mehmoodmiya where women, old men and children had fled to take shelter. These statements say that the electric connection was taken from an electric pole near the home of Nathubhai Karsanbhai but nothing in the SIT investigation has explored this aspect of the crime.
iv. Naroda Patia Trial & Naroda Gam Trials (110 persons killed)
a) Fifteen witnesses in their statements both before SIT and made earlier, at the minimum have named accused number one Babu Bajrangi Patel as not just accused but leader of the mob, mastermind etc. He is a key person behind the massacre that let to 95 (non official figures state 110) persons being slaughtered. Despite this evidence against him SIT has not sought to move the courts for cancellation of his bail and he is free, enjoys the special patronage of the Gujarat chief minister and is in every position to tamper with investigations and intimidate witnesses and victims;
b) Suresh Langda Richard Chara, another accused named by as many as 53 witnesses as also an accused figuring on a self-confession of heinous crimes in Tehelkas Operation Kalank for murder rape and ghastly crimes similarly has not sought to be re-arrested by SIT;
c) Similarly while SIT has arraigned second PI from the Naroda police station as accused, despite crucial criminal lapse being attributed by half a dozen witnesses to first PI KK Mysorewala (after 2002 promoted to rank of SP) no moves have been made to charge him until recently when some witnesses who were attacked allegedly at the behest of Smt. Maya Kodnani complained of this lapse to SIT;
d) Similarly names of other powerful and influential accused from among the state apparatus have been ignored by SIT;
e) the entire procedure for arrest of minister Maya Kodnani after notice was served on her allowing her time to go underground while attending official duties and failure of SIT to investigate any further during her and Dr Jaideep Patels remand period has also raised questions about SITs investigations.
There are three other key trials which are being supervised by the SIT. The Petitioners in this case have been assisting victims in one of those trials that is arising out of the Odh incident (27 persons killed). The Petitioners are not able to analyse its status as the Sessions Court has rejected their application to get a copy of the report/charge sheet filed by the SIT.
Teesta Setalvad
Secretary, Citizens for Justice and Peace
The Annexure to the Open Letter can be viewed here.
Please send your opinions and letters to:
1. Pratibha Patil Devi,
President, Office of the President, Rashtrapati Bhawan,
New Delhi, 110004
INDIA
Fax: +91 11 23017290
E-mail: pressecy@Sansad.nic.in
2. Dr. P. Chidambaram
Minister, Ministry of Home Affairs
Griha Mantralaya Room
No. 104, North Block Central Secretariat, New Delhi 110001
INDIA
Fax: +91 11 2301 5750, 2309 3750, 2309 2763
3. Mr. Narendrabhai Damodardas Modi
Chief Minister, Government of Gujarat
NewSachivalay, Gandhinagar – 382 010
Gujarat
INDIA
Fax: + 91 177 23222101
E-mail: cm@gujaratindia.com
4. Home Minister
Government of Gujrat
Block No.2, 3rdFloor, New Sachivalay
Gandhinagar – 382 010, Gujarat
INDIA
Fax: + 91 177 23250501
E-mail: pshome@gujarat.gov.in
5. Director General of Police
Police Bhawan Sector 18
Gandhinagar, Gujarat 382 009
INDIA
Fax: + 91 177 23253918
6. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax + 91 11 2338 6521
E-mail: chairnhrc@nic.in
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