A new study, “When Justice Becomes the Victim: The Quest for Justice After the 2002 Violence in Gujarat” (May 2014), authored by Stephan Sonnenberg, clinical supervising attorney and lecturer in law with the International Human Rights and Conflict Resolution Clinic (IHRCRC), Stanford Law School, has regretted that estimates of the percentage of criminal cases registered in response to the 2002 communal violence in Gujarat resulted in a criminal conviction of any sort range between 0.21% and 1.18%. “Even at the high end of this range (1.18%), the percentages are well below levels for similar criminal prosecutions in Gujarat. Thus, for example, the conviction rate is 9.6% in cases involving riot‐related charges (83 convictions out of a total 863 such cases completed in 2012)”, the study says.
In sharp contrast, the study says, “The figure for riot‐related cases ending in conviction across India as a whole is higher still — 18.5% (7,281 convictions out of a total 39,415 such cases completed in 2012)”. It suggests, “The over 15‐fold difference in conviction rates arising from 2002 communal violence‐related cases versus all other riot‐related cases in India needs to be examined closely.”
Quoting an advocate “familiar with the cases emerging from the 2002 violence”, the study says that even these convictions in small sub-set of cases were secured only after (1) the Supreme Court of India had removed the investigation from the Gujarat Police; (2) provided witness protection to the prosecution witnesses; (3) replaced the public prosecutors bringing the case; (4) the Gujarat High Court Chief Justice, under the supervision of the Supreme Court, appointed the presiding judges; and (5) the civil society had taken an active interest in the case.
Three high-profile cases
Pointing out that “12 years after the violence began, it is possible to take stock of the judiciary’s performance, focusing both on its successes and its failures”, the study says, the author conducted its analysis following examination of “available court documents and media coverage of three of the most prominent cases to emerge from the 2002 riots.” It adds, “These three cases were arguably the highest-profile and politically most controversial cases to emerge from the 2002 riots, and thus worthy of detailed analysis because of their capacity to highlight the strengths and weaknesses of the Gujarat judiciary when faced with high profile cases alleging high-level complicity in cases of communal violence.”
The first case was the Gulberg Society, in which victims alleged the existence of a criminal conspiracy by high-level police and political figures, along with a host of other criminal charges against individuals acting in a non-official capacity. The second case, focusing on the events at Naroda Patia, contained similar allegations, resulted in numerous criminal convictions. “The August 2012 judgment established in damning language that a criminal conspiracy involving one very high profile politician led to the violence at Naroda Patia”, the study says, insisting, “It established legal criteria and evidentiary standards that many of the other ongoing trials could also apply to evaluate the evidence presented in those cases.”
The third case was initiated in 2006, four years after the violence subsided – when “Zakia Jafri, widow of the politician killed at the Gulberg Society, drew on a variety of publicly available sources to allege a high‐level conspiracy involving 60 persons to plan, carry out and subsequently cover up the Gujarat-wide violence. One of those she accused was Narendra Modi, Chief Minister of Gujarat since 2001, who is currently campaigning to be Prime Minister of India.”
Regretting that her “entreaties have resulted in a prolonged investigation by the Special Investigative Team (SIT), an ad hoc investigatory body created by the Supreme Court of India in 2008 to inquire into a limited number of high profile, riot‐related cases”, the report recalls how in 2011, the SIT communicated to the Supreme Court its recommendation that the Jafri case be closed for lack of sufficient evidence of criminal wrongdoing.
While the SIT investigations did lead to some convictions, both of Muslims accused of orchestrating a February 27, 2002 attack on a train, and of Hindus involved in the subsequent rioting that swept across the state of Gujarat, the study says, strong allegations were made that the SIT “shied away from seriously investigating charges against high‐ranking political and civic authorities in Gujarat for their alleged complicity in the violence.”
Raju Ramachandran’s expectations
In light of the growing concerns over the SIT’s independence, the Supreme Court in May 2011 invited Raju Ramachandran, whom the study calls “one of India’s most well-‐respected and prominent lawyers, to serve as amicus curiae (friend of the court), and review the evidence gathered by the SIT during its into allegations made by Zakia Jafri.”
In its preliminary investigation the SIT had concluded that there was not enough prosecutable evidence to establish possible criminal charges against Modi and other high-ranking officials in the violence. “After conducting his review of the SIT’s investigation, however, Ramachandran came to precisely the opposite conclusion, arguing that the prima facie allegations against Modi and others could constitute gross criminal misconduct. More fundamentally, Ramachandran concluded that the proper forum for evaluating the evidentiary significance of Jafri’s case was a regular criminal trial, and not by the investigatory body charged with gathering relevant evidence of criminal wrongdoing”, the study says, pointing towards the need for the Indian judiciary to live up to “the basic principle articulated by Ramachandran: that the courts should remain open to allegations of criminal wrongdoing, no matter how controversial the subject matter or how high‐ranking the alleged perpetrator may be.”
Low conviction rate in 2002 riot cases, according to the study, was a matter of concern for the Supreme Court. “In 2004, the Supreme Court looked at this problem in the context of two individual cases: the Best Bakery case and the Bilkis Bano case. These two cases are noteworthy given the Court’s remedy: removal from the Gujarat judicial system. After investigating the various procedural and prosecutorial abuses that took place in those cases, the Supreme Court recognized that it would be impossible to guarantee a fair trial as long as the cases remained in Gujarat”, the study recalls.
The study says, the remedy of transfer was “perhaps justifiable as an emergency measure in truly remarkable circumstances”, but it “cannot be the solution for the thousands of cases arising out of the communal violence in Gujarat. While removal of controversial matters may resolve tensions and increase the likelihood of impartiality in a particular case or cases, this device is not a remedy for structural shortcomings.” It underlines, “Removal cannot, by its very nature, be employed on a widespread basis, in part because it violates the default principle articulated in the Indian Code of Criminal Procedure that ‘every offense shall ordinarily be inquired into and tried by a Court within whose local jurisdiction it was committed’.”
Thus, a year after deciding the Best Bakery and Bilkis Bano cases, the Indian Supreme Court ordered the police in Gujarat to reopen some 2,000 violence‐related cases that had earlier been closed. The police in Gujarat subsequently reopened 1,594 cases and reportedly announced 41 internal investigations against officers who had been found to have improperly disposed of cases. “Many of those reopened cases were summarily shut down again, and the status of the remaining cases continues to be unclear”, the study says, adding ,”The unfortunate reality is that many of the serious shortcomings the court noted in the Best Bakery and Bilkis Bano cases persist to this day.”
The study underlines, “Echoes of the behavior criticized by the Supreme Court in the Best Bakery and Bilkis Bano cases were also present in the Gulberg Society and the Naroda Patia cases. Witnesses in the Gulberg Society case complained about judicial bias, even after the Supreme Court began to monitor that case actively. The fact that such complaints persisted, even in such a high‐ profile case, raises serious concerns about the integrity of the many riot‐related trials that were not monitored by the Supreme Court or subject to the same level of media coverage. The impression persists that the Gujarat justice system remains compromised in any case that implicates the political leadership of the state.”
The study concludes that the State of Gujarat has “failed to pursue accountability vigorously for what transpired in 2002, nor has it effectively acted to alleviate the suffering of riot‐affected victims in the past twelve years.” It adds, “The fragility of the situation in Gujarat today suggests that necessary reforms may not be implemented in the absence of serious attention and oversight from outside of Gujarat. Such oversight would necessarily involve the Central Government of India.”
It highlights the need to look into six key areas where Gujarat state authorities and Indian federal authorities, acting individually or in concert, should focus their efforts to achieve compliance with international human rights norms:
1. Relevant federal and state authorities, acting individually or in concert, should redouble their efforts to settle ongoing disputes over the events of 2002. Troubling and unanswered allegations persist that the warnings issued by the Gujarat intelligence community about the potential for unrest failed to trigger an adequate law enforcement response in anticipation of the 2002 riots. The truth commission tasked with conducting an official investigation into the 2002 riots has yet to issue its report on the violence, and it is not clear when that report will be issued.
2. Gujarat judicial authorities must improve the process by which criminal cases are initiated. In many cases, victims faced insurmountable challenges while trying to trigger an investigation into crimes allegedly committed against them. In others, police inaction or malfeasance rendered the information victims provided legally irrelevant. The Supreme Court of India ordered the reopening of over 2000 cases arising from the Gujarat violence that, in its assessment, had been improperly closed. Many of those cases were allegedly closed again shortly after the Supreme Court ordered them to be reinvestigated. The perception persists, particularly among Gujarat’s minority community, that the failure of the police investigatory process led to a great number of cases never being properly investigated and heard in court. Gujarat judicial and police authorities need urgently to address this problem by implementing transparent and incorruptible procedures for members of the public to inform the relevant judicial and police authorities about alleged criminal wrongdoing.
3. Gujarat judicial authorities should ensure that public prosecutors in the State of Gujarat are not selected and evaluated based upon their political affiliations.
4. Relevant federal and state authorities, acting individually or in concert, need to ensure that criminal trials continue to become more victim-friendly. The Naroda Patia case made great strides in that direction, and should be seen as a precedent-‐setting starting point informing judges overseeing other sensitive trials. Riot victims who testified in trials following the 2002 riots in Gujarat were among the first in India to receive witness police protection. More needs to be done, however, to safeguard victims’ physical, social, economic, and psychological needs as they participate in the judicial process.
5. Relevant federal and state authorities, acting individually or in concert, must ensure that civil society actors, human rights defenders, and independent journalists continue to enjoy the freedom to carry out their work without interference or harassment by government or government-‐endorsed actors.
6. Relevant federal and state authorities, acting individually or in concert, should promulgate legislative and institutional safeguards designed to prevent communalist violence, such as the 2002 Gujarat riots. Federal lawmakers should consider passage of the proposed Prevention of Communalist Violence Bill as an important step in that direction.
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