I actually believed that after the first flush of activity
things would pack up. So there was a great sense of satisfaction when as
an advocate I experienced, in matter after matter, legal action groups
like Citizens for Justice and Peace (CJP) persisting with their work even
today. Even after such a long time and with many ups and downs, especially
for social activists, the fight continues.
I would particularly like to mention that CJP has looked
after countless victims and witnesses all over the state and undertaken
legal interventions in scores of cases. And it has been there right from
the start. It was in March 2002 that CJP began its legal interventions,
first with its writ petition on behalf of the relief camps running in the
city and state. Thereafter it has intervened in dozens of matters related
to the victims and complaints of the mass carnage. There were also
compensation claim cases, hate speech cases and many others.
The relief camp matter came up before the court in April
2002. The petition sought basic amenities from the state for the hapless
residents of relief camps who were internally displaced refugees and to
whom the state had turned a deaf ear. (Relief camps in Gujarat were all
run privately by individuals and groups belonging to the Muslim community.
The state of Gujarat did not operate a single relief camp for victims of
the genocidal violence.)
The court made a verbal request to the public prosecutor
(PP), state of Gujarat, asking him to agree to make a voluntary statement
increasing the per day expenses for each resident (from Rs six to Rs
eight) and improving the water supply, the provision for bathrooms and so
on. The atmosphere in court was especially hostile at the time. Almost
every lawyer present in court was hoping, willing the court to simply
dismiss the petition. On the other hand, those representing the relief
camps – senior counsel, Aspi Chinoy from Mumbai, and I – expected the
court to issue firm orders and directions rather than to "request the
state government to agree to oblige the poor displaced victims" by giving
them the basic amenities that are their due as citizens of this country.
There was immense pressure on all of us as a team. As I
stood in the courtroom, and as relief camp managers and the CJP secretary
(Teesta Setalvad) arrived, the place filled up not just with lawyers but
also intimidatory crowds. In the Gujarat High Court sick notes from all
lawyers are generally accepted as a matter of course and without much ado.
On one occasion during the hearing, I was quite unwell – a result, I
believe, of the constant tension, the pressures of work and the many
sleepless nights. I was running a high fever and had no option but to file
a sick note. So on the day the matter was to be heard I sent my junior,
Anil Verma, to the court, requesting an adjournment. The court responded
angrily (a sharp contrast to its amenability and courtesy towards the
state of Gujarat) and passed an order stating that all petitioners
would thereafter have to remain personally present in court each time the
matter was to be heard. Now, the relief camp managers were also performing
a sterling service for the community, providing food, water and shelter to
victims while the whole of Gujarat was burning. But thanks to the court’s
attitude, the relief camp managers had to interrupt their activities and
be personally present in court. In the end the state was "obliged" to
provide more bathrooms, toilets and quality food to the riot victims.
Another case that stands out was the one related to an
incident in Abasana in rural Ahmedabad where six members belonging to the
Muslim minority had been killed – an offence registered at the Daithroj
police station. Three of the accused had approached the high court for
bail. I appeared on behalf of the complainant and filed an affidavit by
the complainant witness narrating the role of each of the accused. Some of
the accused had used a sharp metal weapon (dhariya) to cause
injuries to a victim, an injury that resulted in a fracture of the skull.
The deceased victim was then thrown into a fire by other accused. In the
post-mortem notes, the cause of death was shown as ‘burning’ although
column 17 of the post-mortem report did indicate a fracture to the skull
of the deceased victim.
I had opposed bail for these accused as well. However, the
defence lawyer argued for bail for the accused persons who had brutally
assaulted the deceased on the grounds that the skull fracture was not the
cause of death. I then requested a stay on the order granting bail for
four weeks so that we could approach the Supreme Court. The court referred
the question to the PP (in itself a highly questionable practice)
whereupon the PP advised the court that the order should not be stayed and
thus my request for a stay was denied. The court then asked me if any
conditions needed to be imposed on the accused. I stated that the order
should constrain the accused into staying outside rural Ahmedabad until
the trial was over. Once again the court referred to the PP who refused to
accept these conditions saying that all the accused persons should not
have to suffer such hardship. Ultimately, all the accused were constrained
into staying outside Abasana for four to six months.
In its judgement the high court also recorded that it was
the complainant who had not insisted on a reasoned order (one that
provided a detailed explanation of the rationale behind its decision).
However, while hearing the complainant’s case for cancellation of bail,
the Supreme Court took the view that the high court must record a detailed
reasoned order. Following the Supreme Court judgement, the high court
should have cancelled the bail granted to the accused. However, due to the
long time lag, bail was not cancelled. For a substantial period of time
during which the trial was being heard, the accused roamed free. It
appears that during this time the witnesses had been won over by the
accused persons who were allowed out on bail and they had then turned
hostile. The delay in the trial forced them to bow to the influence of the
accused.
There is another case related to 2002 that has been
pending since December 16 that year. The petitioner, Abdul Hakim Khan, had
filed a complaint at the Satellite police station, Ahmedabad, seeking
registration of offences against the newspaper, Sandesh, under
sections 153 A and 153 B of the IPC for publishing false and provocative
reports on February 28 and March 1, 2002. The reports in question were
extremely inflammatory and the police should themselves have registered a
complaint against the newspaper concerned. Since the police did not, a
private complaint was filed under Section 200 of the CrPC. The magistrate
concerned dismissed the private complaint on the grounds that state
government sanction was necessary for permission to prosecute. So the
complainant applied to the state government seeking such sanction. As
expected, the state government did not heed the representation and
ultimately the complainant had to file a petition in the Gujarat High
Court on December 16, 2002 when the petition was admitted and posted for
"final hearing without any returnable date". Five years have passed and so
far the matter has not been heard. It is still pending before the court
and I am not sure when or if it will ever be heard. If, say, the matter
were heard in 2008 or 2009, this would be six or eight years after the
offence was committed. Where would the trial be then?
Another case filed by a victim, Abdul Rasool D. Aljuwalla,
in 2002 sought directions from the high court to allow all six
co-petitioners possession of their shops. The petitioners all had shops in
Raigad village, Sabarkantha district. They had been dispossessed of these
on February 28, 2002. Like others in Raigad, they were forced to leave
their village and could not go back because of the ongoing violence. When
they did attempt to return about 10-15 days later, they found that their
landlords had taken over the shops and even looted their wares. The FIR
listed offences under sections 435, 436 and 390 of the IPC for looting,
dacoity and rioting. As in so many other cases, the writ petition was
"admitted" and is still awaiting final hearing, five and a half years
later. The landlords have already rented the shops out to other people
thereby making the victims’ task, the retrieval of their shops, difficult
if not impossible. As far as the trial goes, the sessions court has
acquitted the accused for want of evidence. The complainants i.e. the
victims filed a revision application in the matter but the high court
dismissed this on the ground that a revision application had less scope,
as "evidence cannot be re-appreciated". The case can now be reopened only
if an appeal is filed by the state of Gujarat but this, predictably, is
yet to happen.
There are also individual petitions where petitioners have
sought adequate compensation from the state of Gujarat. One such petition
supported by CJP was filed on March 28, 2003 by Patni Arvind and others
asking for compensation from the Ahmedabad district collector. Other
matters that CJP has supported include a petition filed by Abdul Hamid
Abdul Inamdar on July 30, 2003 seeking compensation for victims of mass
violence in Ahmedabad district and a writ petition filed by Ilyasbhai Khan
Khatri on September 20, 2003, seeking compensation for loss of property.
All these petitions are pending final disposal with no specified date of
hearing being ordered. Given the backlog of cases, these matters will have
to wait 10 years or more, testing the petitioners’ tenacity and courage.
The matters all pertain to the pathetic sums of compensation (Rs
1,000-15,000) paid to victims whose losses, in fact, run into lakhs.
Another major public interest litigation (PIL) filed by
CJP relates to expansion of the compensation scheme. This matter has also
been repeatedly delayed by the state government (with the court’s
compliance) even as petitioners and their advocates remained present and
ready.
Rubina Salimbhai Ghanchi filed a petition in July 2003
asking for the appointment of a special PP in place of Arvind Pandya at
the Gujarat High Court. Pandya is an advocate of some notoriety, known to
be close to the chief minister, Narendra Modi, and is the state
government’s counsel before the Nanavati-Shah Commission. The matter was
disposed of when Pandya himself withdrew from the case in question. There
were also other petitioners seeking the arrest of absconding accused in
some cases that achieved limited success. It was only after the court
issued notice to senior police officers that the police were forced to
arrest some of the accused.
In a case filed some time in 2005 the petitioner was Zahir
Bashir Shaikh whose mother was killed in reckless police firing. The
petition challenged the role of the investigating and prosecuting
agencies. According to the prosecution’s case in the trial, there were
incidents of stone pelting whereupon the police constable opened fire and
one such bullet hit the petitioner’s mother. The petitioner argued that no
stones were found or recovered from the street where his mother had been
killed. Shaikh alleged that the police constable deliberately fired at the
Muslim house because miscreants had set fire to the policeman’s shop.
After the constable got off duty he came to Shaikh’s locality and, using
his private revolver, fired at Shaikh’s mother. The police tried to shield
the constable by filing a false complaint stating that after five or six
incidents of stone pelting, the police had no option but to fire. It was
only later on (following the state of Gujarat’s own affidavit) that the
petitioner learnt that the firing was a private firing, that the
constable’s shop had been burnt and that he was not on duty when the
firing took place. Again, the matter was admitted and has been posted for
final hearing.
My most telling experience was however during the Best
Bakery case appeal in December 2003. The matter was first listed before
justices KR Vyas and AL Dave but the bench declined to hear the matter. We
were then told that another two-member bench was assigned to the case but
they also declined to hear the matter. Ultimately, the matter came up
before justices BJ Sethna and JR Vohra. The witness, Sairabano (sister of
key witness, Zahira Shaikh), had filed a revision petition challenging the
order of acquittal (of the accused) before the high court even as the
state government had to file a criminal appeal against the same acquittal
under pressure from the Supreme Court. The Supreme Court had also passed
strictures about the state of Gujarat’s lacklustre attitude towards
justice. There was about a 17-day delay in filing the revision application
so when the matter was finally heard, the revision application and the
application for condoning the delay were heard together. The court
rejected our revision application and directed me, appearing for the
witness, to assist the PP in the state’s appeal.
Thereafter the appeal was heard in an extremely hostile
atmosphere. The courtroom was packed with supporters of the accused and
possibly none, or few, in that hostile and crowded courtroom wanted the
state’s appeal to be allowed. I submitted my written arguments on behalf
of the witness. The court, however, refused to accept these. I also filed
an affidavit by the witness, Sairabano, and as is common procedure in the
high court, this was served to the accused and the prosecution five days
earlier. It was submitted through the computer at about 4.10 p.m. on
December 12, 2003. I also obtained a status report recording the submitted
affidavit as item 16. At the time, the appeal was still being heard on a
day-to-day basis.
However, the court did not accept the witness’ affidavit
and it was returned as per court directions. Entries on the computer were
deleted and the status report now showed item 16 as "missing". The
operative part of the judgement in the state’s appeal, confirming the
acquittal, was pronounced on December 26, 2003 while the detailed
judgement followed after the winter vacation on January 12, 2004. When
courts reopened I was surprised to find that written arguments on behalf
of the accused and those by the PP had been submitted and accepted for
consideration after the court had decided on the matter. This by
the same court that had rejected written arguments on behalf of the
witness, Sairabano! Not only was the atmosphere fraught and hostile, these
developments were deeply shocking.
Much of what took place within the courts was reflected at
social functions within the legal fraternity. During this period judges
were even heard commenting that some lawyers and activists were only
trying to rake up old issues to keep them alive and defame Gujarat’s image
in the world.
More recently, events in the court during the hearing of
the Pandharwada mass graves case are worth a mention. Here we were asking
for a transfer of the whole investigation to the CBI. During the course of
the hearing in the high court, at one stage even counsel for the CBI made
hostile remarks about the co-petitioners, CJP. There were humiliating
comments from the court as well, suggesting that the petitioners’ legal
interventions were motivated by personal gain.
Notwithstanding the many stumbling blocks, I still believe
that if we work, as we must, with full faith and honesty, it can be a
truly rewarding experience. Even so, the continuing hostility makes this a
frightening exercise. There will be moments when we are disheartened. And
there have been many such moments. At one stage during a crucial matter a
government pleader attempted to browbeat me, saying that if I carried on
like this prosecutors would be instructed to oppose me in all my regular
matters as well. But I refused to give in. I have done my job with great
satisfaction.
Recently we filed a petition asking that an FIR be
registered against the chief minister and 62 others on charges that
include criminal conspiracy, mass murder, manslaughter and intimidation
(the PIL filed by Zakiya Jaffri and CJP). Some lawyers telephoned me to
say that my role in the proceedings, where senior policemen and
bureaucrats were also accused, was a recipe for disaster. I would be
making formidable enemies.
These are but cheap threats to block the sterling work
being done by organisations like CJP.