Nanavati Report on Godhra Tragedy: Erasing the obvious truths

BY RAM PUNIYANI

Recently Justice Nanavati-Mehta (N-M) submitted their report to Govt. (Sept 2008). What it has done must be very close to the desire of the ruling establishment which reaped a rich harvest due to the Godhra train burning and the anti Muslim pogrom in the aftermath of the same.

The report after the investigation for six long years is just the first part. While legally it is tangible that the investigating judge can present the report in parts, the logic behind this is not very clear. In a way the outcome of the report should have been well predicted as just some months after being appointed, Nanvati and (then) Shah stated that there is not much evidence against VHP etc., and this gave the indication that the commission had already made up its mind as to what type of report was to be given. The depositions of the witnesses and the evidence presented was selectively constructed to ratify the pre arrived conclusions or what were to be presented as the conclusions.

N-M report operates on the basis that it was a preplanned conspiracy by local Muslims in collaboration with the ISI. It concludes that Haji Umarji the local cleric presided over the meeting of Muslims where this conspiracy was hatched. They bought 140 liters of petrol, cut open the vestibule between S 6 and S 7, spread the petrol and burnt the coach. This conclusion is arrived without even a single eyewitness to the burning of the train. There were 200 passengers in the overcrowded train but no eye witness account has been cited to ratify their conclusion.

This conspiracy theory has serious holes in it. That the train is carrying the returning Kar Sevaks was not a public knowledge, not even the state officials knew about it. The only people who knew that the Ram sevaks were returning by that train were the VHP-BJP combine. The train was late by five hours and this totally debunks the theory of conspiracy by Muslim community. If they did not know that train is carrying Ram Sevaks how could they conspire and how could they implement the same if train was late? If conspiracy is at all to be believed the finger of suspicion should be in some other direction!

Than, if the commission says the vestibule was cut open, why such valuable evidence was permitted to be sold in the scrap? The depositions show that the first train stoppage at Godhra station was due to the Ram Sevaks pulling the chain as some of them were left out on the platform and the second one was due to technical fault. For conspiracy by them they should have stopped the train, which is not the case. This again goes against the conspiracy by Muslims theory.

While trying to come to this theory first N-M operated on the line that the burning rags and some chemicals were thrown from the windows but soon it shifted to the theory that vestibule was cut. The earlier thesis that petrol was poured from outside was not tenable as Forensic laboratory, FSL, had strongly maintained that petrol cannot be poured from outside due to the height of the rail track and the height of the train. Then comes the vestibule theory. One imagines for cutting the vestibule the train has to be stopped by the conspirators, but second time the train stopped due to technical snag and not due to pulling of chain. And then to cut the vestibule to be able to enter the coach is not an easy job.

The report is a new low in the arena of investigation. So far we witness a good deal of objectivity in many inquiry committees. But this is totally silent on practically most of the crucial issues involved in the train burning. Sophia Bano was dragged by Kar Sevaks and she stated the same to the commission, but her testimony has been sidelined. The commission has based its total finding on the police officer Noel Parmar, whose findings were rejected by the Supreme Court and so it appointed R.K Raghavan. The hurry, in which N-M has submitted its part one, can easily be understood. As Lok Sabha elections are close, this part is meant to influence the elections. As such as is clear from the functioning of this commission it was already working on the theory propounded by Narendera Modi in the aftermath of Godhra train burning, and N-M have just ratified his thesis. They have selectively picked and chosen the evidences to suit their preformed opinion, ignoring the crucial testimonies which could have led them to the truth.

The N-M report is totally silent on Justice U.C. Bannerjee report. As per the Railway Act after every major accident, a probe has to be instituted. At that time BJP ally Nitish Kumar was the Railway Minister. He did not abide by the rule. No inquiry was done ostensibly to protect his ally. When Lalu Yadav became the Railway Minister he instituted the Bannerjee committee, which concluded that it was an accident. Now when N-M is coming with its report today, already one report is there, whose findings are contrary to its own. Therefore, it has to refute them to stand the ground. No such effort is made. One also fails to understand why the demand to cross-examine Modi was rejected as there was a case for interrorogating him, based on phone call records. Most importantly the whole thesis of burning by patrol falls to the ground with FSL report saying that the analysis of residues shows that petrol was not used.

R.B. Sreekumar, who has been one of the forthright officers and he refused to bow to the Modi administration. He filed his affidavit to N-M commission giving his version. He commented that he was threatened by state officials if he dares to speak the truth. He had recorded these conversations also. N-M was duty bound to take these seriously, either to accept them or reject them with due explanation, but there is a total silence on the submissions of Sreekumar.

All in all, this report is a disgrace on the norms of investigation. This also symbolizes that there are sections in professional life who are willing to play to the bidding of the rulers to please them for various reasons or they themselves are heavily under ideological influence to deviate from professionalism, objectivity and pursuit of truth.

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Chief Justice K. G. Balakrishnan must rethink

Last week, the Supreme Court took strong exception to an article by noted human rights defender Teesta Setalvad sharply criticizing it for the delay in hearing the bail applications of a large number of persons who are languishing in jail in connection with the Godhra violence.

In the article, Teesta Setalvad had given a chronological account of court proceedings over the past year to show that there had been undue delay in disposing of the bail applications. (See article below)

According to the Press Trust of India, an anguished court took umbrage at social activists blaming it for delays. (See PTI report)

The words attributed by the agency to the bench, comprising Chief Justice K. G. Balakrishnan, Justice R V Raveendran and Justice Dalveer Bhandari, make sad reading. "Who is this Teesta Setalvad? Is she a spokesperson of these persons or petitioners?" the bench reportedly asked. It also said, "There is one article that appeared (written by her). If she is representing these persons (Godhra accused) we do not want to hear them."

If the judges spoke in anguish, so did Teesta Setalvad. “Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations?” She wrote. “If so, where then do we turn?”

Even if Teesta Setalvad were not a social activist who has done much to secure justice for the victims of the Gujarat violence, as a citizen and a journalist she is well within her rights in raising the issue she brought up in the newspaper article.

The remarks reportedly made by the honourable judges in open court send a wrong message, which needs to be corrected. The Chief Justice must take the earliest opportunity to review the matter and make amends.

Teesta Setalvad

Shame, Shame: a travesty of justice

by Teesta Setalvad

COME February-March 2008, six years down after post independent India's worst ever communal carnage, victims, perpetrators and masterminds not only roam free but have now, obtained redoubled electoral legitimacy. In year 2002 itself, those accused who were politically powerful and monied in caste and monetary terms obtained easy bail from Gujarat's courts. (The Citizens for Justice and Peace has placed a tabulation of over 600 bail orders on the record of the Supreme Court demonstrating this and Tehelka's Operation Kalank has some further evidence in this regard). In sharp contrast, six years down, 84 persons accused of the Godhra coach fire ---- most of the accused are innocent having just been picked up on the basis of cooked up police witnesses, one is a boy 100 per cent blind!!--still rot in Gujarat's jails years after the incident.

The fact that many of them are ill, one is blind; the fact that their families have been reduced to penury and indignity while the main accused and masterminds of the post-Godhra carnages not only roam free but rule Gujarat by action and word, raises the niggling, troublesome question once again.

Discriminatory justice

Can a discriminatory system of justice be viable in principle, given what our Constitution espouses? What does this reality mean in practical terms, given that today we also face the challenge of another kind of terror, internationally supported bomb terror? Can such a blatantly discriminatory scheme of dispensation of criminal justice win the faith of each and every system, particularly a community that is at the receiving end of such a system. Bail is a natural and normal remedy for any accused according to our system of criminal jurisprudence. Even draconian laws, anti terror laws that have questionable provisions on bail, simply do not allow for sustained and continued detention of persons in this fashion. How then can Indian democracy, booming in its growth rate, shining with the glitter of development explain away the dark crevices of sustained institutionalised torture and prejudice?

Some interesting points in this shameful tale are: Godhra Hindu victims of the S-6 Coach of Sabaramati Express also asked the Supreme Court for transfer of the Godhra trial out of Gujarat. It was following an application by Citizens for Justice and Peace that the Godhra trial was stayed by the SC in November 2003.

There has been no bail order for the Godhra accused since October 2004 from the courts. The last bail order was granted by the Gujarat High Court on October 30, 2004. The court has simply not heard any bail applications since. One of the 22 absconding accused, a maulvi, was implicated in the crime by an accused/witness, Sikandar, who stated that the maulvi was allegedly seen on the terrace of a Masjid at Godhra (ostensibly planning the conspiracy) although it was later established that the maulvi was in Maharashtra and not even in Godhra on the relevant day.

There were many serious discrepancies in the arrests, glaring inconsistencies that have been pointed out to the state, which simply refuses to address these concerns.
Worst of all, after a change of government at the center in 2004 and the repealment of POTA, the Central Review Committee after examining the issues at hand, ruled that POTA is not applicable to Godhra, May 2005.

Legal provisions under POTA allow for the review of individual cases by a central review committee to prevent misuse of the Act and its draconian provisions. A decision by the Central Review Committee on May 16, 2005 ruled that none of the alleged offences in the Godhra case warranted the invocation of POTA. However, the committee's decision has not been taken into consideration by either the Gujarat government or the POTA court. Matters relating to bail for the accused, especially in view of the decision by the Central Review Committee, have been brought before the apex court. However these too have faced repeated delays.

Finally, the Supreme Court permits accused to file writs for bail, and there is no bail even after six hearings. Following an order of the Supreme Court in late 2006, giving liberty to all accused to file for bail while hearing the matters relating to the findings of the Central POTA Review Committee, seven separate such applications have been filed. Despite six or seven postings, the matter has not been seen fit to be heard.

Tomorrow the matter comes up before the Supreme Court. Will justice be done? In the ultimate analysis, genuine secularism and constitutional governance must mean that issues of mass violence, accountability, transparency, impunity for mass murderers and government officials, are not merely the stuff of election campaigns but the basis on which the balance sheets of our public servants and representatives are drawn. Only then would we have made the transition from a purely electoral democracy to true constitutional democracy.

Judiciary Watch
Once more a serious denial of basic fundamental rights has been caused today by the delay caused by either insensitive or unaccountable listing procedures of the registry of the apex court of India, the Supreme Court.

As a result, 84 of those allegedly accused of the Godhra train burning (one of whom is near hundred per cent blind) have been denied their personal liberty for six years. Bail is the fundamental prerequisite, inalienable fundamental right to any and every accused under Indian criminal law and civilized form of jurisprudence. Even draconian anti-terror laws that are severely contested because they vest untested powers on the police and executive, do not ever condone custody for such a long time.

Chronology

Here's the chronology of the Godhra bail matters before the Supreme :

22.2.07. Through an order of outgoing SC Judge BP Singh, the SC ruled that the Godhra accused could file bail applications before the SC. The matter being considered was the report of the Central POTA Review Committee that had held that the provisions of the POTA legislation could not be applied to the Godhra case.

10.4.2007. Bail applications are filed in the SC

9.4.2007. Matter is listed by the Registry but not heard because the court is hearing the All India Judges Association matter. Plus the summer vacation is after two days. The SC thus directs that the bail applications should be listed for " final disposal" on 18.7.2007 after the vacation.

What happens after these directions? After the vacation and on SC's reopening on 18.7.2007, there is no sign of the matter.

First week of August 2007. The matter is again listed on a miscellaneous day at which point, accused reps and counsel travelling at their own cost from Godhra again point out to the court that this matter must be listed on a non-miscellaneous day so final arguments can be completed. For two and a half to three months no matters are listed as judges are sitting on the Constitution Bench. Thereafter though matters are shown as pending on the SC list of November 18-19 they are not listed by the Registry.

21.11.2007. Matter is again mentioned by legal reps of the accused after which the court asks Registry to list it.

First Week of December 2007. Again bail matters that are clubbed with POTA Review Committee matter are listed on a miscellaneous day, which means that arguments be completed.
11.12.2007. Matters are shown as listed before the Chief Justice and Justice Panchal. Again reps of accused mention the matter on 11.12.2007 pointing out that since Justice Panchal hails from Gujarat and his brother is a Public Prosecutor for the state of Gujarat, the matter could not be before him. The court agrees. Again, what does the Registry do?

12.12.2007. Fully knowing the circumstances behind which the matter had been mentioned on 11.11.2007, the Registry still lists the matter before Justices Agrawal and Singhvi. (Justice Singhvi had heard the POTA Review Committee matter earlier and hence would face similar issues as Justice Panchal). Sure enough, the next day Justice Singhvi says " not before me." One more chance to argue the matter and get bail for the victims is lost.

12.12.2007. Agitated, the reps of the accused mention the matter again the same afternoon before the Chief Justice, pointing out the repeated problem from the registry. The CJ directs that the matter should be mentioned in the second week of January after which he would constitute a special three-judge bench and list it for the third week of January.

17.1.2008. Apparently unmindful of the CJ's order, the Registry lists it on Thursday, which may be a non-miscellaneous day but which also means that arguments will spill over to the following week. In the first instance, the matter is shown as listed before Justices Bhan, Sinha and Mathur. Late on the previous evening, that is on Wednesday 16.1.2007, it is shown as appearing before the CJ, Ravindran and Panchal. What does it mean? That the Registry again lists it before a judge who cannot hear the matter.

17.1.2008. Once again, the CJ says it would be posted next week or at the earliest. Personal liberty is denied and no questions are asked as to what is going on within the Registry of the highest court in the land.

Can no questions be asked about the systems in operation in the Supreme Court of India? Which matters get automatic priority and which do not? Which matters suffer because of the delays and interim orders of the Supreme Court? Is there no prioritization of cases where issues of personal liberty, denial of basic fundamental rights, mass crimes and impunity to the rich and powerful is concerned? If we ask no questions, we will receive no answers.

The time has come to question the basic accountability procedures of the highest court in the land. Has the Supreme Court of India lost its soul and is it turning a blind eye to cases related to fundamental rights violations? If so, where do we turn?