Fwd: 130803 (Detailed) Press Release Eleventh Day of Arguments(Zakia Jafri protest petition)
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From: Teesta Setalvad <teestateesta@...>
Date: 3 August 2013 17:03
Subject: 130803 (Detailed) Press Release Eleventh Day of Arguments(Zakia Jafri protest petition)
August 2, 2013
Despite strong strictures by four or five statutory bodies commenting harshly on the complete breakdown of the rule of law in 2002, a breakdown that could be attributed not just to dereliction of duty but criminal negligence, the Special Investigation Team completely ignored contemporaneous investigations conducted by the National Human Rights Commission (NHRC) headed by former chief justice of India JS Verma in 2002. Worse, it did not take their detailed assessment after field visits to the state into consideration. The Zakia Jafri criminal complaint dated 8.6.2006 seeks to assign criminal culpability to this dereliction of duty that has been heavily and vastly commented upon argued advocate Mihir Desai in the eleventh day of arguments before the 11th Metropolitan Magistrate in Ahmedabad today.
The question before the Magistrate’s Court is when, four to five Constitutional and Statutory bodies, the National Human Rights Commission (NHRC), Central Election Commission (CEC), Supreme Court of India and Gujarat High Court repeatedly, after field visits and detailed examination, say that there is a “comprehensive and systemic failure of the state government, its Home Department, Police and Bureaucracy to perform fundamental tasks, the crucial question arises now, with much greater rigour and when reams of evidence have been collected to substantiate and fortify these conclusions, whether certain substantive and objective criteria exist for prosecuting responsible persons in office for these criminal lapses. Seen in this overall context, this shows not just a dereliction of duty and criminal negligence but ass up to criminal acts of conspiracy and abetment. The reason for citing these critical observations of these bodies made in 2002, 2003, 2004 and 2012. Desai forcefully argued, is to bring out a link and establish that when seen all together these failures amount to more than derelictions of duty and amount to criminal conspiracy and abetment to allow Gujarat to burn.
Significantly unlike the much touted “normalcy after 72 hours” mantra uttered by A-1 Modi and faithfully reproduced by not just co-accused, A-37 chief secretary Subha Rao, A- 25 then DGP Chakravarthi or then ACS (Home) A-28 Ashok Narayan and finally pliantly accepted by the Special Investigation Team (SIT), the NHRC report of March – July 2002 and August 2002 resoundingly establish otherwise. In its Preliminary Comments at 20 (x) the NHRC states “20.(x) As indicated earlier in these Proceedings, the Commission considers it would be naïve for it to subscribe to the view that the situation was brought under control within the first 72 hours. Violence continues in Gujarat as of the time of writing these Proceedings. There was a pervasive sense of insecurity prevailing in the State at the time of the team’s visit to Gujarat. This was most acute among the victims of the successive tragedies, but it extended to all segments of society, including to two Judges of the High Court of Gujarat, one sitting and the other retired who were compelled to leave their own homes because of the vitiated atmosphere. There could be no clearer evidence of the failure to control the situation.”
In its report of August 16, 2002, the CEC is as dismissive of this cynical claim. It states at Para 31(iv) that “ Everywhere there were complaints of culprits of the violence still moving around scot-free including some prominent political persons and those on bail. These persons threaten the displaced affected persons to withdraw cases against them, failing which they would not be allowed to return to their homes.”…” The team has cited many other such cases from almost all the 12 districts covered by them. [In Ahmedabad, the Commission itself observed that a large group of Muslim families could not move to their houses because the culprits of the riots had blocked the accesses to their houses.]. Further it also states at Para 32 that whereas “...Before the Commission, the Chief Secretary and Director General of Police painted a similar picture of normalcy in Gujarat. But the Additional Director General of Police (Intelligence), Shri R.B. Sreekumar, whose views were supported by the new Commissioner of Police, Ahmedabad, Shri K.R. Kaushik, stated before the Commission that an undercurrent of tension and fear was prevailing beneath the apparent normalcy in the State. He further added that there was no interaction between the two communities even though moderates were trying their level best, as there were hawks in both the groups. He added that additional forces would be required to ensure that there were no communal clashes. And the State Government have on the Commission’s queries subsequently been avoiding giving a clear picture on the number and identity of persons complained against, similar details of persons included in the FIRs, similar details of persons who have been arrested, similar details of persons named in the FIRs who have been enlarged on bail, similar details of persons enlarged on bail as against whom appeals have been filed for cancellation of their bail bonds. “
Both the NHRC and the CEC take strong note of the fact that in a cynical and disruptive form of governance those officers who were complicit in allowing violence to break out and spread, participative in the conspiracy to subvert justice by registering false or diluted FIRs were promoted and rewarded whereas those who did lawful and Constitutional work were roundly punished. At Para 31(vii), the CEC states that “A large number of IPS officers who did commendable work in preventing the spread of violence were soon replaced. A common complaint received was that these officers were punished for their impartiality.”
Despite this overwhelming contemporaneous evidence, the SIT simply did try and arrive at an understanding of the ground level truth stated Desai, the SIT did not bother to record statements of Justices Verma or Justice Anand or the rest of the NHRC or even try and collect evidence from them. Co-petitioner in SLP 1088/2008 before the Supreme Court, Teesta Setalvad had repeatedly written to AK Malhotra of the SIT requesting that such evidence be collected and assessed.
The NHRC had first issued notice; suo moto to the state of Gujarat on March 1, 2002, then after a formal hearing on March 6, 2002 actually conducted a field visit to the state of Gujarat between March 19-22, 2002. Thereafter it had sought a detailed response from the state government which was given in mid-April 2002 by then chief secretary Subha Rao (A-37 in the complaint). This response of the state government was strongly and adversely commented upon by the NHRC in its hearings in May 2002, said Desai. He also read out a letter addressed by retired high court judge Justice Divecha to the NHRC (attached) which exposed the complete targeted violence against members of the Muslim minority in Ahmedabad right from the evening of February 27, 2002. Finally Divecha’s home was torched and destroyed the next day as a complaint machinery watched. Justice Kadri a sitting judge of the High Court also had to flee and change homes for safety. (NHRC report link given below and Attached is the letter of Justice Divecha).
The NHRC had first recommended transfer of investigation of major cases to the CBI following which citizens of Gujarat and Mumbai including Professor DN Pathak and Teesta Setalvad had approached the Supreme Court (May 2002) for transfer of investigation. The NHRC itself had sought the transfer of trials out of Gujarat. It was on this writ petition filed by citizens that the Supreme Court, in May 2008 finally appointed a SIT, it was pointed out.
The NHRC, The CEC, the Supreme Court appointed Amicus Curiae all feel that there is ample evidence to put before a court for trial only the SIT wishes to close the case with no prosecution, Desai alleged.
Desai also argued against the common refrain that past failures to prosecute mass crimes, be it Partition or 1984 should be negatively offered to allow the powerful perpetrators and conspirators to go scot free. A mature civilization and democracy takes action when evidence exists and when the situation critically demands. Desai argued.
Arguments will now continue on August 12.
NHRC Report Links:
Taizoon Khorakiwala Nandan Maluste Teesta Setalvad
I.M. Kadri Cyrus Guzder Javed Akhtar
Alyque Padamsee Anil Dharker Ghulam Pesh Imam
Rahul Bose Javed Anand Cedric Prakash
'Nirant', Juhu Tara Road,
Juhu, Mumbai - 400 049
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