IAMC Weekly News Roundup - February 27th, 2012 - IAMC
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IAMC Weekly News Roundup – February 27th, 2012

In this issue of IAMC News Roundup

News Headlines

Opinions & Editorials

India: A Decade on, Gujarat Justice Incomplete (Feb 24, 2012, Human Rights Watch)

Authorities in India’s Gujarat state are subverting justice, protecting perpetrators, and intimidating those promoting accountability 10 years after the anti-Muslim riots that killed nearly 2,000 people, Human Rights Watch said today. The state government has resisted Supreme Court orders to prosecute those responsible for the carnage and has failed to provide most survivors with compensation. The violence in Gujarat started on February 27, 2002, when a train carrying Hindu pilgrims was attacked by a Muslim mob and caught fire, killing 59 people. In a retaliatory spree by Hindu mobs, hundreds of Muslims were slaughtered, tens of thousands were displaced, and countless Muslim homes were destroyed. “The 2002 violence against Muslims in Gujarat persists as a dark blot on India’s reputation for religious equality,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “Instead of prosecuting senior state and police officials implicated in the atrocities, the Gujarat authorities have engaged in denial and obstruction of justice.” Efforts to investigate and prosecute cases inside Gujarat were stalled and activists and lawyers involved in the cases have been harassed and intimidated, Human Rights Watch found. It has taken repeated interventions by the Supreme Court following appeals by activists and victims’ families to order re-investigations, oversee independent inquiries in some cases, or shift trials out of Gujarat to ensure progress towards justice.

In the past decade, increasing evidence has emerged of the complicity of Gujarat state authorities in the anti-Muslim violence, Human Rights Watch said. In 2002, Human Rights Watch, in its report on the riots, quoted a police officer who said that there were no orders to save Muslims. Human Rights Watch also reported that the government’s political supporters had threatened and intimidated activists campaigning for justice. While investigations in the Godhra train attack proceeded rapidly, investigations into cases related to the anti-Muslim riots that followed were deliberately slowed down or simply not pursued, Human Rights Watch said. Officials of the Gujarat state government, led by Chief Minister Narendra Modi of the Hindu nationalist Bharatiya Janata Party (BJP), which is serving its third term running the state government in Gujarat, failed to conduct serious investigations and obstructed justice. State courts dismissed many cases for lack of evidence after prosecutors effectively acted as defense counsel or witnesses turned hostile after receiving threats. State police failed to investigate senior BJP leaders despite telephone records proving their presence at the scene of the riots in Naroda Patia and Naroda Gaam, and witness testimony that these senior leaders provided the mob with lethal weapons and instigated attacks on Muslims. It was only in March 2009, after the Supreme Court-appointed Special Investigation Team took over the inquiry, that two leaders, Mayaben Surendrabhai Kodnani, a minister in the state cabinet, and Jaideep Patel, a leader of the Hindu militant group Vishwa Hindu Parishad, were arrested for aiding and abetting a mob that killed 105 people, injured several others, destroyed property, and sexually assaulted women. Both are still on trial.

Strong evidence links the Modi administration in Gujarat to the carefully orchestrated anti-Muslim attacks, Human Rights Watch said. Rioters had detailed lists of Muslim residents and businesses, and violence occurred within view of police stations. An independent media organization, Tehelka, used hidden cameras to capture some of the accused speaking openly of how the attacks had Modi’s blessings. In August 2011 the Gujarat state government filed charges against a police officer, Rahul Sharma, for passing on Kodnani’s and Patel’s telephone records to the judicial commission inquiring into the violence. In September, another senior police officer, Sanjiv Bhatt, was arrested after his former driver filed a complaint alleging that Bhatt had threatened him into signing a false affidavit that on February 27, 2002, after the Godhra attack, Chief Minister Modi had, in Bhatt’s presence, instructed the police to “allow the Hindus to vent their anger.” Bhatt alleges that this showed that Modi gave instructions to the police to allow the attacks on Muslims. In 2005, a police officer, R. B. Sreekumar, was denied a promotion because he criticized the Modi government for its failure to order prompt action that could have prevented the riots. In 2005, the US government denied Modi a visa to visit the United States. “Modi has acted against whistleblowers while making no effort to prosecute those responsible for the anti-Muslim violence,” said Ganguly. “Where justice has been delivered in Gujarat, it has been in spite of the state government, not because of it.” The National Human Rights Commission and the Indian Supreme Court have ordered investigations in response to appeals from victims, lawyers, and human rights activists. In 2004, the Supreme Court called for a review of 2,000 cases that had been dismissed due to lack of evidence. After fresh inquiries, the police said they reexamined 1,600 cases, arrested 640 accused, and opened investigations against 40 police officers. However, only a small number of these cases have been brought to court and only a few of these resulted in convictions.

In March 2008, the Supreme Court strongly criticized the Gujarat administration’s attempted cover-up of its role in the massacres and ordered a Special Investigation Team to investigate nine crucial cases under its supervision. The Supreme Court had earlier stayed trials in some of these cases after victims and activists appealed, pointing out that the Gujarat police had failed to carry out proper investigations, and that the accused with connections to the political establishment were granted bail or simply dropped from inquiries. Two of the Special Investigation Team cases have resulted in convictions: a special court in Gujarat in November 2011 sentenced 31 people to life in prison for the killing of 33 Muslims in the village of Sardarpura in Gujarat’s Mehsana district in March 2002. The case against those who attacked the train in Godhra resulted in 31 convictions and 62 acquittals. In a landmark case, the Supreme Court intervened to ensure fair trials in what is known as the Best Bakery case. In this case, a mob attacked and burned down the Best Bakery in Vadodara, killing 14 people, including 12 Muslims. In a trial before a “fast-track” court, all 21 accused were acquitted in June 2003 after several witnesses turned hostile, later admitting that they had faced intimidation. Following intervention by the Supreme Court, a retrial in Maharashtra state resulted in convictions in 2006 of nine of the accused, each sentenced to life in prison. In one major trial, of those accused of attacking Bilkis Yakub Rasool Patel and her family, the Supreme Court found that intimidation of witnesses and the police bias in favor of the accused were so strong it transferred the case from Gujarat to Maharashtra. In 2008, a Mumbai lower court convicted 12 people in the gang-rape of Bikis Bano and the murder of 14 members of her family.

Another important case concerned the killing of 69 people, including a former Congress Party member of parliament, Ehsan Jafri, at the Gulmarg Society, a Muslim neighborhood. In a petition against Modi and 62 other officials, Jafri’s widow, Zakia Jafri, accused the Modi administration of “inaction” to contain the riots and “various acts of omission and commission.” She alleged that her husband had continuously called and appealed to top officials in the police and the government, including the chief minister, but no one came to the rescue of the people trapped inside the walled residential compound. A local court in February will start hearing a Special Investigation Team report to the Supreme Court after questioning several people, including Modi. The report has not been made public, but Modi’s statement denying any role in the violence has been leaked. “The Supreme Court has been indispensable in compelling the government to do its job to hold the people responsible for the Gujarat violence accountable,” Ganguly said. “Successful prosecutions of cases moved outside Gujarat show that the government can provide adequate protection to victims and witnesses when it wants to.” The Gujarat courts, in contrast, reacted slowly to the riots, Human Rights Watch said. However, in February 2012, the Gujarat High Court issued a contempt notice to the Modi government for failing to compensate 56 people whose shops were destroyed during the riots. The High Court also ordered the government to fund the repair of nearly 500 religious buildings that were targeted during the riots, which the court described as “negligence of the state.” New instances of harassment, threats, and intimidation against activists and lawyers involved in 2002 riot cases are being reported, Human Rights Watch said. In a January 27, 2012 affidavit to the Supreme Court, Teesta Setalvad of the Citizens for Justice and Peace alleged continuing legal harassment in which she was accused of manipulating evidence. She said that these attempts were “a sordid sub-text of the struggle for justice that the petitioner and her organization, who have stood by the struggle for ten long years, have had to suffer this indignity of vicious and mala fide allegations.” On February 21 the Supreme Court criticized the Gujarat government for initiating a probe against Setalvad for her alleged role in a case of illegal exhumation of the bodies of the 2002 riot victims. The court said it was a “100 percent spurious case to victimize” her and that bringing such a case “does no credit to the state of Gujarat in any way.” “In addition to ensuring that the top officials in the Gujarat state government involved in the riots are brought to justice, Indian courts need to expedite remaining cases and protect activists,” Ganguly said. “Ten years on, India owes it to the victims of the Gujarat riots to end the culture of impunity and prosecute those responsible for this open wound on the country’s reputation.”



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Gujarat authorities must face justice over mass killing (Feb 21, 2012, Guardian)

A magistrate’s court in Gujarat has postponed a decision on whether a dossier on the horrific murder of a former MP and 68 others should be disclosed to his widow and others. Despite mounting evidence, a special investigation team had urged that no charges be brought against the state authorities, including chief minister Narendra Modi, for their alleged role in the killings, and that the report be kept secret. The team was ordered to submit all papers to the court by 15 March. This landmark case is not only about justice for the victims but also about whether the Indian constitution and rule of law apply in Gujarat. On 28 February 2002, ex-Congress MP Ehsan Jafri, and scores of other Muslims seeking shelter in his home, were brutally murdered. Repeated phone calls had been made pleading for help as the mob gathered outside Gulbarg Housing Society in Ahmedabad, but none came. Many others, too, in Gujarat were killed or injured at around that time, when state government leaders failed to stop anti-Muslim violence to rage unchecked while police stood by.

With the support of human rights activist group Citizens for Justice and Peace, his elderly widow Zakia Jafri began a lengthy legal battle to bring some of the most powerful figures in Gujarat to justice. Modi, a shrewd and ruthless politician of the far-right Bharatiya Janata party (BJP), had won popular support by portraying himself as a champion of Hinduism – though there are numerous Hindus who deplore his attitude to minorities and suppression of dissent. Despite widespread condemnation of his role in 2002, he has managed to remain in office in Gujarat. India’s supreme court had to intervene to force those in charge of the state justice system to look into the Jafri case. But evidence has emerged, including records of the increasingly frantic phone calls and the testimony of whistleblowers. Modi has consistently denied his role in the massacre and has condemned the violence. But reports indicate that the amicus curiae – a senior lawyer appointed to advise on the legal aspects – has urged that he be prosecuted on several charges.

There are some people in India who cling to the false notion that only Islamist terror is a threat and remain in denial that Hindutva terror threatens the peace and stability of the nation, as well as the safety of its citizens. Internationally, too, this form of extremism is often downplayed, though occasionally it becomes the focus of attention after a bout of violence or the praise of a figure like Norwegian killer Anders Breivik. Yet now, even in states such as Gujarat, cracks in the facade of respectability are becoming more apparent. On 15 February, the day that a magistrate ruled on the Gulbarg Society massacre report, the Gujarat high court issued a contempt notice to the Modi government for its failure to compensate those whose shops burned down in the riots. A week before, the high court had ordered the Gujarat authorities to pay for the restoration of hundreds of religious structures that were destroyed, describing the 2002 riots as the result of “negligence of the state”. The fact that “anarchy continued unabated for days” suggested “lack of appropriate action or adequate action, if not inaction, on the part of the state in handling the situation”.

On 17 February, Modi’s problems got worse. Retired judge H Suresh revealed that evidence supplied to the special investigation team included an audio recording he and colleagues made of former Gujarat home minister, Naren Pandya. This described a meeting on the night of 27 February, when Modi allegedly ordered the police not to intervene if violence took place. Pandya himself was subsequently murdered, but his statement remains on record. After the 2002 riots, the National Human Rights Commission, a statutory watchdog, had sent a team to Gujarat to investigate. It reported “a comprehensive failure on the part of the state government to control the persistent violation of the rights to life, liberty, equality and dignity of the people of the state”. As the commission also pointed out, “critical and cruel as the communal dimension was to the tragedy of Gujarat, what was at stake, additionally, was respect for the rights of all Indians – irrespective of community – that are guaranteed by the constitution”. The persistence of Zakia Jafri has helped to highlight the importance of this principle.



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SC slams Modi govt for ‘spurious’ case against Teesta Setalvad (Feb 21, 2012, Times of India)

The Supreme Court on Tuesday questioned the Gujarat government for initiating a probe against social activist Teesta Setalvad for her alleged role in a case of illegal exhumation of the bodies of the 2002 riot victims, saying it is a “spurious” case to victimise her. “This is a hundred percent spurious case to victimise the petitioner (Setalvad),” said a bench of justices Aftab Alam and Ranjana Prakash Desai. While criticising the state government for beginning the probe against Setalvad, it added, “this type of case does no credit to the state of Gujarat in any way.” “This case is hundred percent spurious. In other cases against petitioner, there may be something,” the bench said.

Besides this case, the Gujarat government has also lodged criminal proceedings against her in other riot-related cases. The bench was of the view that it was not correct on the part of the Gujarat government to go ahead with the case. It asked senior advocate Pradeep Ghosh, who appeared for the Gujarat government, to go through the First Information Report (FIR) of the case and advise the government not to proceed with it. “You advise your client not to proceed with this type of case. You should show some responsibility and tell the government not to proceed with the case,” the bench said. While posting the matter for March 23, the bench asked the senior counsel to go through the FIR “passionately” and tell the court what he felt about it.

The bench also asked Gujarat government’s standing counsel Hemantika Wahi to go through the FIR. The bench was hearing a petition by Setalvad against the May 27 order of the Gujarat High Court, which had refused to quash the FIR registered against her at a police station in Panchmahal district of the state on exhumation of the bodies from a graveyard near river Panam. While making the critical remarks against the Gujarat government for initiating the probe against Setalvad in the body exhumation case, the bench said its interim stay, imposed on July 29, 2011 on criminal proceedings against Setalvad in the case would continue till the next date of hearing. “Interim stay to continue till the next date” it said.

Responding to the apex court notice, the state government had in its affidavit justified its probe against Setalvad in the case saying she actually planned and executed the digging of the graves without any permission in 2006. It had claimed that during the probe into the case, it has emerged that “Teesta Setalvad, the petitioner herein, was the main accused, who actually planned and executed this operation of digging of graves near Pandarwada through her staff.” The government had said the other accused have claimed innocence and had blamed Setalvad for instigating them to carry out the exhumation, which is a penal offence.

“Exhumation of the dead bodies without prior permission of the competent authorities constitutes an offence under sections 192 (fabricating false evidence), 193 (punishment for false evidence, 201 (causing disappearance of evidence), 120-B criminal conspiracy), 295(A) (deliberate and malicious acts intended to outrage religious feelings) and 297 (trespassing on burial places) of IPC,” the affidavit had said. It was alleged that in 2002, about 28 unidentified bodies of the riot victims from Pandarwada and surrounding villages in Khanpur taluka were buried in the graveyard. Earlier, the high court had declined to scrap the FIR, but had quashed the summons, which had termed her as absconding.



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Encounters:SC raps Guj Govt on appointment of probe panel head (Feb 24, 2012, IBN)

The Narendra Modi government was rapped by the Supreme Court today for bypassing it on the appointment of new chairman of the monitoring authority which is looking into the investigations of 22 encounter killings between 2002 to 2006 in Gujarat, saying it was “complicating” the matter. The apex court disapproved the manner in which the Gujarat government appointed former Bombay High Court Chief Justice K R Vayas in place of former apex court judge, Justice M B Shah, who quit as the head of the panel on personal and health grounds.

“We should also have been told about the proposal for the appointment of new chairman,” a bench comprising Justices Aftab Alam and Ranjana Prakash Desai said. “We shall not change the basic structure as to who will be the monitoring person,” the bench said in an apparent reference to giving the slot to a former High Court judge instead of a former apex court judge. Senior advocate Ranjit Kumar and Additional Advocate General of Gujarat, Tushar Mehta told the bench that the notification on appointment of Justice Vayas, former Chairman of Maharashtra Human Rights Commission, was issued yesterday as Justice Shah has refused to continue as chairman.

They said there was urgency on the appointment of new chairman as the apex court, by its January 25 order, had asked the monitoring authority to file its interim report in a time- bound manner. However, the bench said that the appointment should have been made after consulting the court as it had passed the order. “You (Gujarat government) have unnecessarily complicated the matter. You should have come to us. You should have waited,” the bench observed. “This concerns our order. You should have brought this fact to our notice,” the bench said, adding, “there can be many considerations (for appointment) and some may be taken consciously or sub-consciously”.



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PIL wants policemen booked for murder over ‘encounter’ (Feb 24, 2012, Hindustan Times)

A PIL was filed on Friday in the Madras high court for a direction to Tamil Nadu government to register a case of murder against six state policemen, including a Deputy Commissioner of Police, for killing five persons suspected to be involved in bank robberies here, in an alleged fake encounter in the city on February 22.

In the petition, also seeking a CBI inquiry into the deaths, advocate and Director of Prisoners’ Rights Forum P Pugalenthi claimed once a plea of self defence was advanced by the police, the state had a constitutional obligation to immediately register a case against those responsible for the killings under section 302 (murder) and prosecute them in accordance with law.

The advocate said the City Police Commissioner had narrated to the media the sequence of events that led to the gunning down of the young men. “Thus, according to the respondent four (Commissioner), five persons aged about 30-35 (years of age) were murdered by the police in exercise of their right of self-defence,” the advocate said.

The police, he said, had released the footage of a man, suspected to be the ‘king-pin’ behind the robberies of the Indian Overseas Bank at Keelkattalai on information that the man was seen in a flat in posh Velachery area, a team of policemen went to the flat and asked the inmates to surrender. However, when they started firing, the police opened fire in self-defence killing the five, the Commissioner had told the media.

The advocate said that according to residents of the area, the police had cordoned off the area by 10 pm on the night of February 22 whereas the Commissioner had told the media that the police had got specific information at about midnight and had cordoned off the area at around 1 am. Thirty special teams had been set up by the police after the branches of Bank of Baroda and Indian Overseas Bank in Chennai were robbed in daylight by armed men within a month of each other of Rs 19 lakh and Rs 14 lakh on January 23 and February 21 respectively.



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Police arrest ‘dacoits’, find ‘Hindu extremist bombers’ (Feb 21, 2012, Express India)

Five men arrested last week in Patiala on charges of planning a dacoity have confessed to carrying out at least four bombings targeted at Muslims in Haryana in 2009 and 2010, police in Haryana and Punjab said today. The men allegedly belong to a Hindu extremist group called Azad Sangathan, headed by a Jind resident called Azad, also known as Sagar and Kala. Azad was arrested along with his comrades Praveen Sharma, Ram Niwas, Gurnam Singh and Rakesh Kumar at Shambhu barrier in Patiala. All are in Haryana Police custody.

“They have told interrogators that they wanted to spread terror among Muslims and chose Muslim targets for their attacks,” Inspector Rohtash Singh, station house officer of Jind city police station, who is investigating the attacks, said. “They chose a madrasa and a meat factory in Jind district, and a mosque in Mehlab village of Mewat district. They wanted to target Muslim buildings.” Jind superintendent of police Ashok Kumar said, “So far they have confessed to carrying out blasts at four places. It is a sensitive matter. We are not in a position to divulge many details.”

The Jind-Mewat area was rocked by a series of apparently unexplained blasts in 2009-10. Apart from a madrasa and meat factory, bombs went off in Nuh in Mewat and Safidon in Jind. All were low intensity explosions in which no one was killed, police said. Haryana Police have been treating the madrasa blast, which took place in October 2009, as triggered by a leaking septic tank. “All the accused are school dropouts and between ages of 22 and 28. Azad is the head who roped in the others. We have so far not found evidence that they were in touch with any other Hindu extremist group,” Inspector Singh said.

He said one of the accused, Rakesh, had come to know of potassium sulphate as an explosive while working as a tractor driver at a mine in Tosham in Haryana’s Bhiwani district. “He (Rakesh) stole a bag of potash, and the explosive was used by the members of Azad Sangathan to carry out the blasts,” Singh said.



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Samjhauta blast: NIA finds incriminating papers on Chouhan (Feb 22, 2012, Daily Bhaskar)

The residents of Moorkheda village, around 40 km from here, were tense on Tuesday. A car and an anti-riot vehicle screeched to a halt on the dusty roads in the afternoon and National Investigating Agency (NIA) officers alighted to conduct a search at the house of Kamal Chouhan who has been accused of planting a bomb in Samjhauta Express. The team, led by deputy superintendent of police (NIA) Devendra Singh, went straight to Kamal’s house and met his father Radheshyam, explaining their motive. Radheshyam was allowed to speak to Kamal over phone, following which the team started search operation.

Every nook and corner of the house was searched, almirahs opened and contents studied in detail. “We were trying to gather clues that would support our case,” NIA team members told DNA, while recording the details of objects seized. The team collected large number of documents, some of which told the story of Kamal’s educational and personal life. Kamal was arrested by NIA on suspicion of planting explosives in the train that connected India and Pakistan in 2007. Sixty-eight persons were killed in the blast. He was later sent on police remand by a Greater Noida court, following which he was being interrogated by the NIA in Delhi.

The NIA team members later told DNA that they had found some valuable inputs that would help in the investigation. “More people are expected to fall into the NIA net after this search,” a senior officer said. Highly-placed sources claimed that NIA was keeping a track of Kamal’s activities since April 2010. He had gone missing when another blasts suspect Lokesh Sharma was arrested from Mhow. Kamal was among the four persons NIA was trying to arrest in the case. Radheshyam told DNA that Kamal had told him over phone to cooperate with the NIA team, following which every door was opened for the investigators. Two of Radheshyam’s lawyers also confirmed the letters of authority NIA was carrying to conduct the raid.



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‘Witnesses’ who didn’t cave in, gave Amir freedom back (Feb 26, 2012, Times of India)

It’s not easy to be a prosecution witness – certainly not when you are summoned to depose on the same issue in 19 cases in far-flung courts. Yet, Chander Bhan and Abdul Sattar responded to the summons every time, spread over a decade, putting up with all the harassment, inconvenience and expenses involved. More remarkably, they held steadfast to testimonies that they believed to be true, even if they were completely at odds with the statements that the police had attributed to them. The public spirit displayed by Bhan and Sattar is a major reason why Mohammad Amir, the alleged mastermind of the serial blasts of 1996-97 in Delhi and NCR, has been acquitted in 17 of the 19 cases and was released last month after being incarcerated for 14 years. TOI tracked down these two extraordinary witnesses: In the spring of 1998, Chander Bhan was as usual minding his tea stall in Chandni Chowk when an acquaintance of his asked him to come with him to the Chanakyapuri police station. “He just told me to accompany him to the police station. I went along with him as he was known to me, not knowing what it was about. Once at the police station, the police officers were very nice and friendly.

They showed me some chemicals that they had kept on a table and asked me to take a close look at them. Then they asked me to sign on a piece of paper. I didn’t understand English but I thought I was stating that I had seen those chemicals and so I signed in good faith and left,” recalls Bhan, now 52 years old and working as a security guard in Delhi. Six months after that visit to the police station, Bhan received a summons from Tis Hazari court. “I was scared,” he recalls. “I didn’t know what it was about and I had never been to a court earlier. The cops told me that I just had to say that I saw the explosives and I could leave. But then what they asked me in the court was if I had been to Pilkhua with the police. Since I had never accompanied the police on any such raid, let alone ever visit Pilkhua, I denied the whole thing,” says Bhan.

Recalling the first day at court, Bhan says he wasn’t sure what the case was about. “I was asked to identify a young boy who I had never seen earlier. Later I found out that the whit of a boy was on trial on allegations of being a terrorist. I was stunned,” he says. Bhan claims that though he never faced any pressure from the cops to toe their line, he was unprepared for what happened in the next decade and half. For him, this was only the beginning of a long-winded legal process that wreaked havoc in his life. “After that, I was summoned regularly to Rohtak, Sonepat and Ghaziabad besides the Delhi courts. As my life started to be dictated by court dates, my tea stall business folded up, I fell into depression and was constantly worried. I lamented the day I had agreed to sign on those papers. Now I know better than to sign without knowing exactly what I was signing,” says a dejected Bhan, while sitting at his narrow one-room house in north Delhi’s Burari area. Still, Bhan diligently reported to the courts whenever summoned.

“Sometimes, I was tempted to stop going for the hearings altogether. But even as other witnesses dropped out, I kept going. Once the cops gave me some money because I didn’t have sufficient fare to come back home from Rohtak,” says Bhan. Many years after the first court hearing, in 2006, Bhan received a letter from Tihar Jail. “Two young boys had come knocking on our door to deliver a letter. Later, I came to know that they were Amir’s nephews and had been asked to deliver the letter to me. In it, Amir had written that he was grateful for my testimony and offered his love. I didn’t know him, and had only seen him in court. I was touched. I told his nephews that I was only stating what was true and there was no nobility in that,” says Bhan, his face a wrinkle of smiles.

It is news to Bhan that Amir has been released. “Yes, the number of court summons has reduced. Perhaps it will be over soon,” he trails off. Abdul Sattar sits in the sun in front of his house in Pilkhua, UP. The wizened owner of the premises of a factory in Pilkhua where police conducted a raid 14 years ago has a sharp memory despite his old age. “Police never found any explosives in the factory. There are some chemicals that are used in printing textiles which are also used in explosives. You can find these chemicals in the scores of textile printing units spread in each street of Pilkhua. Does it make all of them terrorists?” Sattar asks indignantly.



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Police harassment led to suicide, says Aqeel’s family (Feb 22, 2012, Twocircles.net)

The suicide of Mohd Aqeel, 24, has brought into limelight once again the police harassment of Muslim youths involved in false or petty cases. Mohd Aqeel was a resident of Nasheman Nagar area of old city. He studied till 12th standard and then started his own footwear shop, but 18 months back the city police opened an old case of his alleged involvement in the 2010 communal riots in the city. Three days back Aqeel committed suicide allegedly due to the police harassment since opening of the sheet. He hanged himself at his residence in the late Sunday night while his family members were away for a marriage function. He left behind a hand written and signed suicide note in which he mentioned police harassment as the reasons of his extreme step. He reiterated in the note that he is innocent. News about the suicide spread like a wildfire and soon local political parties got involved in accusation and counter accusation. Soon the tension in the area escalated when former CPI(M) MP P. Madhu tried to visit the victim’s home to console the family. The MIM party workers led by local corporator and MLA allegedly stopped Madhu and his associates from entering the house of the deceased, which led to clashes between two political parties. Then as usual the real issue got diverted and the political blame game began.

It was in the year 2010 when Mohd Aqeel and his brother Mohammed Khaleel were arrested by the Special Investigation Team. They were booked for allegedly inciting communal riots, attacking police and attempting to murder. When they got released Bhavaninagar and Moghulpura police stations opened a rowdy sheets against Aqeel and his brother Khaleel. Their rowdy sheets were opened by the police without even filing a chargesheet in the court on the FIRs in the above cases. They were among those hundreds of Muslim youths whose rowdy sheets are being opened by the AP police after 2010 riots. TCN visited the home of Aqeel. Political environment was still charged even after 3 days of the suicide; police informers and men from different political parties surrounded the house keeping tab on every move of the family. His brother Mohd Khaleel told TCN that from the day of the opening of the rowdy sheet all the doors for the troubles were opened in their life. According to him he and his deceased brother have never taken part in any conspiracy or fight. He said, “We are normal middle class people, we have no interest whatsoever in fighting with police or others, we were happy with our small life and business. But after the rowdy sheets were opened against us we were seriously tortured by the police. Police used to visit our house 3 days before every festival and arrested us, they used to demand huge mamools (bribe) from our family members in order to release us; Moghulpura police station inspector Mohd Fayaaz, ASI Mohammed Basheer made our life hell by collecting money from us.

My younger brother was a sensitive person when he saw his life getting ruined, his business getting failed due to sitting in police station every week and we were not able to buy medicines for our mother who is diabetic patient, then he took this drastic step.” When asked why police handpicked them to open rowdy sheets if they were not involved, his another brother Mohd Shakeel replied: After the communal riots police informers were in pressure from the police to give the names. Police have informers in every Galli of old city, according to him some police informers named his brothers in the riots case as they belong to poor working class family, and they became escapegoats for those Pehalwans who actually participated in those riots, as those informers and Pehelwans have nexus so they won’t name them, and police will act blindly and arrest innocents as they have to show to their superiors ‘progress’ in the case. His family members told TCN that they went to the local corporator Wajahat Ali khan and MLA Mumtaz Ahmed Khan for help.

“They always used to shoo us away by saying that the matter will be solved but no political leader ever took it seriously till my brother committed suicide.” Mohd Khaleel said his brother was always apolitical; he never took part in any political activity; he said their family is traumatized to see politics is being played on his name by different political parties by diverting the real issue of police harassment. Mohd Khaleel said police harassment is still continuing to his family. The rowdy sheet is still open on my name for no fault of mine, when all the media attention which we got will fade away in some days then again police will come and settle their score with me or even with my younger brothers for speaking against them. Then I am seeing my way on the same path of my brother, I think I will also commit suicide in the coming days.” He said with tears in his eyes. Local social worker of Bhavani Nagar area, Mohd Salahuddin told TCN, that “nowadays in old city if a person wants to survive he should have political affiliations or the money power otherwise they are easy target for the police. By arresting those innocent youths, they will open their history sheets and will force them to become informers.”

Coming under stiff pressure from many Muslims across the city on 21st February Majlis-e-Ittehadul Muslimeen Assembly members demanded discussion on the harassment of Muslim youths by AP police in the 2010 communal riots cases. The MIM MLAs Ahmed Balala, Ahmed Pasha Quadri, Mumtaz Ahmed Khan and Virasat Rasool Khan went to the Speaker’s podium and started raising slogans against police harassment on Muslim youths. MIM floor leader Akbaruddin Owaisi was standing near his seat and demanding a discussion. Home Minister P Sabitha Indira Reddy announced that she would conduct a meeting on Friday with police officers to discuss the issue of rowdy sheets of Muslim youths then the discussion will take place on this issue in the house. It will be interesting to see in the coming days what is going to be the response of the Muslim leadership in Hyderabad, to win back the trust of their strong hold Muslim dominated areas by addressing this issue of police harassment, which is seriously denting their image. MBT corporator Amjedullah Khan was among the first to visit the victim family. He also led a protest demonstration demanding check on the police harassment of Muslim youths.



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Rajasthan: 3 cops booked for ‘custody death’ (Feb 22, 2012, IBN)

Three policemen in Rajasthan’s Bikaner city were on Tuesday booked for the death of a Dalit youth after he was detained and allegedly tortured at a police station last week, officials said. Four people, including two policemen, had sustained injuries on Monday as villagers in Bikaner’s Chhattargarh town clashed with police while protesting the alleged torture of Dalit youth Kishan Meghwal in police station.

“Keeping in view the villagers’ protest, a head constable and two constables who were on duty at the time when Kishan was brought to the police station have been booked under section 302 (murder)of the Indian Penal Code. Further investigation is on,” said a police officer. The official said four youths belonging to a Dalit community had been found creating nuisance at a public place in drunken condition on Friday night.

“A police patrolling team tried to catch them, but three of them escaped. Only one of them, Noralal Meghwal, was arrested but released Saturday morning,” said the officer. However, the villagers said that police had also detained Noralal’s brother Kishan Meghwal. Kishan was missing since Saturday morning. Villagers alleged that Kishan was kept under illegal custody at the police station on Friday night and tortured. They also claimed that Kishan was dead.



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Opinions and Editorials

A decade of shame – By Anupama Katakam (Feb 25, 2012, Frontline)

Sairaben Sandhi and Rupa Mody sit quietly on the back benches at the Metropolitan Magistrate’s Court in Ahmedabad watching the proceedings in the Zakia Jafri case. Both the women have witnessed immense tragedy. One saw her son killed, while the other has been searching for her missing son for the past 10 years. In the courtroom, there are others too who survived the gruesome massacre at Gulberg Society in Ahmedabad in 2002. All of them have gone through the trauma of seeing immediate family members hacked or burnt to death. The judge eventually postpones the hearing to another day and the survivors file out. They seem used to this routine. There is a level of tension and disappointment among them, but they are not entirely disheartened. “We come for every hearing in this case. Until we are alive we are not going to give up. We are not going to leave him [Chief Minister Narendra Modi]. We know we will get justice even if it takes another 10 years,” says Rupa Mody. The Zakia Jafri case has begun to symbolise the struggle for justice for all the riot victims and is reaching a crucial stage. It is the only case in which Modi is named as an accused and is, therefore, seen as critical in nailing the perpetrators of the pogrom. Coincidently, as the tenth anniversary of the Gujarat riots approaches, the case has taken a significant turn. The Special Investigation Team (SIT) has filed a “closure report” saying there is not enough evidence to prosecute Modi. Zakia Jafri’s legal team has gone in appeal. Its main contention is that the riots were meticulously planned and those in seats of power deliberately turned a blind eye to the attacks on Muslims across the State.

In the past few years, Modi has tried hard to get rid of the taint of the riots and get what he calls a “clean chit”. However, each time the “clean chit” has been within grasp, the law has intervened to thwart him. … February 28, 2012, will mark a decade since the Gujarat riots, undoubtedly one of the worst chapters of communal violence in the country’s history. Official estimates put the death toll, of both Hindus and Muslims, at a little over 1,000, while unofficially it has been pegged at more than 2,000. At least 600 children were orphaned and more than 400 were reported missing. Ten years later, the wounds are still to heal. The investigation into the riot cases are plodding along with no closure in sight. The only case to reach a conclusion is Sardarpura, where a mob burnt alive 33 Muslims trapped in a house. Thirty-one people were imprisoned for life in this case. There are eight other cases that are pending trial. For many victims the memories of the violence are still fresh in their minds. “Only justice will help heal. But nothing they do can bring back my son,” says Rupa Mody. If the nightmares of the 2002 violence were not bad enough, the minority communities have had to cope with severe marginalisation. Thousands of families have been hounded out of the State, and they have moved with just the clothes on their back to areas such as Mumbra in Maharashtra. On issues relating to the minority community, the dominant view is that over the past decade Gujarat has become more polarised than ever before. Access to education, employment, housing and other fundamental needs is becoming increasingly difficult. What is worse is that there are few rays of optimism – there is only a sense of helplessness.

Zakia Jafri saw her husband, Ehsan Jafri, a former Member of Parliament, being hacked to death. Ehsan Jafri thought that his house in Gulberg Society offered the best protection to other residents of the locality from the rampaging mobs. Unfortunately, in spite of several phone calls to the police and senior politicians, help never arrived and Jafri had to handle the mob single-handedly. Eventually, he stepped out of his house in an attempt to placate the mob. They killed him and then burnt his body in front of his family and neighbours. Zakia Jafri remembers vividly every moment of those two horrific days. As many as 69 people died in Gulberg Society and 28 went missing, one of them was Azhar, Rupa Mody’s 13-year-old son. To date they remain missing. Zakia Jafri, along with several activists and members of the Citizens of Justice and Peace (CJP), a non-governmental organisation, has maintained that the Gujarat riots were a pogrom and that there is enough evidence to prove this. Leading a protracted legal fight for justice for the past eight years, the feisty 70-year-old says she will not back down until the perpetrators and killers of her husband and thousands of other Muslims are punished. “Now, at this stage, we won’t let them close the case so easily. We will keep it going for however long it takes to get justice,” says Zakia Jafri, who lives with her son in Surat. “You cannot say that in 10 years nothing has happened. Modi’s name is linked to terrible communal riots. His name is badnaamed (sullied) all over the world. Everyone knows his true colours since this case has got so much attention. The fact that he has blood on his hands … he cannot wipe that off so easily,” she said to Frontline.

Zakia Jafri’s case reached a critical juncture in February, when the SIT decided to file a “closure report” citing lack of prosecutable evidence against Modi. Zakia Jafri’s legal recourse is to appeal for the report. On February 15, she was told the report would be given within a month. This could mean the end of her case but she does have the provision to appeal in the higher courts and eventually in the Supreme Court. In 2006, Zakia Jafri petitioned the court alleging that Modi and 61 others, including politicians, policemen and bureaucrats, had colluded to ensure that the victims of the mob attacks during the riots did not receive help. Zakia Jafri, along with other witnesses, testified in court that Ehsan Jafri repeatedly called Modi when they were under attack. But no help came. She accused Modi of abdicating his duty as the constitutionally elected head of the State government to protect the right to life of all its citizens regardless of their caste, community and gender and becoming the architect of a criminal conspiracy. In 2007, the Gujarat High Court rejected her petition for a first information report (FIR) to be filed. Zakia Jafri and the CJP then filed a special leave petition (SLP) in the Supreme Court, which appointed Prashant Bhushan amicus curiae. In 2009, the court appointed a Special Investigation Team led by R.K. Raghavan, former Director of the Central Bureau of Investigation (CBI), to probe the Zakia Jafri case. In 2010, Zakia Jafri and thousands of others saw some manner of justice when the SIT summoned Modi for questioning. This was the first time in the country’s history that a Chief Minister was questioned in a criminal complaint that dealt with communal violence. But two years later the SIT in its report cited lack of substantial evidence to prosecute him.

In an interview to Frontline, at that time she said: “Yes. It has been a long time. But when I heard Modi had been summoned, I said, ‘Insaf ho jayega’ [Justice will happen]. Someone like Modi cannot be accused of such a major crime without adequate evidence. We have persevered at collecting every relevant detail to implicate him. One day it will pay off. If he admits his guilt, that itself would be a punishment for someone like him.” In what seemed like a victory for both parties, in September 2011 the Supreme Court sent the Zakia Jafri case back to the trial court in Ahmedabad as it chose not to pass judgment on whether Modi should be prosecuted or not. Modi celebrated the order, saying this essentially let him off the hook. Zakia Jafri and Teesta Setalvad, activist and lawyer with the CJP, too, welcomed the order and saw it as a move in the right direction. “This is part of the judicial process and we welcome and respect the Supreme Court’s directive. It has not, by any length, given Modi a clean chit. They are just following the correct procedures,” said Teesta Setalvad. “Of course, we couldn’t expect the Supreme Court to make a major decision, but this is as good. The reason why it is a victory for us and not for Modi or the BJP is that it has gone past the FIR stage,” she said. This February the SIT, however, took what is now being seen as a predictable step and filed a “closure report”. Activists and those involved in the case exploded at the move. Sanjiv Bhatt, a suspended police officer who was named as a witness by Zakia Jafri and who testified against Modi, said: “In spite of substantial direct evidence and overwhelming circumstantial evidence to establish Modi’s complicity in the anti-Muslim pogrom of 2002, the SIT says they do not have enough to prosecute him.” He added: “The SIT has deliberately suppressed and concealed data which would implicate Modi.” In 2010, Raju Ramachandran was appointed amicus curiae as Prashant Bhushan stepped down. Informed sources say Ramachandran’s report is damning and flies in the face of the SIT’s “closure report”. The next few weeks will determine where this case goes, says Teesta Setalvad. “But we will pursue it relentlessly. The Zakia Jafri case has become a symbol of justice and we have to keep it going.” …



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A tale of two reports – By V. Venkatesan (Feb 25, 2012, Frontline)

The Ahmedabad Metropolitan Magistrate, M.S. Bhatt, on February 15, rejected pleas seeking copies of the Supreme Court-appointed Special Investigation Team’s (SIT) report on the 2002 Gujarat carnage until March 15 on a technicality – that the SIT needs more time to submit its full report along with all documents, evidence and other details, besides the report of the Supreme Court’s amicus curiae, Raju Ramachandran. There are seemingly intractable disagreements between the SIT’s report and that of the amicus curiae, which the Magistrate will have to apply his mind to during this period. The disagreements are, among other things, on the nature of the investigation undertaken so far and the degree of culpability of those named in a complaint on the horrendous events of February 2002. Zakia Jafri, wife of Congress leader Ehsan Jafri who was killed along with 68 others in the Gulberg Society massacre, had, in her complaint, made 32 specific allegations against 62 persons, including Chief Minister Narendra Modi, functionaries of the Bharatiya Janata Party (BJP), civil servants and police officers. The most serious allegation was that Modi had convened a meeting at his bungalow in Gandhinagar on February 27, 2002, in which he instructed the Director General of Police (DGP), the Chief Secretary, and other senior officials to allow Hindus to vent their anger at Muslims for the Sabarmati Express train tragedy in Godhra. The SIT, in a “summary closure report” filed before the Magistrate’s court on February 8, reportedly said there was no “prosecutable evidence” against Modi. The SIT’s report is yet to be made public though leaked portions of the report have been carried in the media.

The Supreme Court handed the charge of Zakia Jafri’s complaint to the SIT in April 2009. After the SIT submitted three interim reports to it, the court felt the need to appoint an amicus curiae to assess the reports independently. Thus, in November 2010 it appointed Raju Ramachandran, Senior Advocate of the Supreme Court, the amicus and gave him a wide mandate, including permission to talk to the witnesses and arrive at an independent conclusion, uninfluenced by the SIT reports. After the amicus submitted his report, the Supreme Court, on September 12 last year, sent the case to the trial court along with the SIT and amicus reports. As Raju Ramachandran explained in interviews he gave to the media at that time, the Supreme Court did not suggest lack of trust in the SIT when it appointed him the amicus. The court, he said, only wanted an alternative view to be available to the Magistrate for consideration. He had told The Hindu: “Under the Criminal Procedure Code, 1973, it is the investigating agency which investigates and files a report in the court. On the other hand, the Supreme Court – in exercise of its powers under Articles 136 and 142 of the Constitution – has made the report of the amicus curiae a relevant factor to be taken into consideration…. This is an additional safeguard which the court has found fit to introduce, which is not done as a matter of course. The SIT would be entitled in law to disagree with the amicus curiae, but… the amicus report will also be before the court. If there is a conflict, it is the court which has the final word, after hearing the complainant.” The magistrate, therefore, has the onerous responsibility of having to consider the conflict between the SIT and amicus reports carefully. According to reliable sources, the SIT and amicus reports agree on most aspects of the investigation. They disagree essentially on two issues. One pertains to the treatment of the suspended IPS officer Sanjiv Bhatt’s testimony. Bhatt corroborated Zakia Jafri’s allegation against Modi, as to what he told the officers present at the meeting held at his residence on February 27, 2002. Bhatt claimed he was present at the meeting, and presented evidence to corroborate it.

The SIT, in its report, considers Bhatt an unreliable witness. But the amicus, according to sources, has suggested that Bhatt should be cross-examined before any conclusion can be reached. The SIT’s reluctance to cross-examine Bhatt is inexplicable, especially because it has cast doubts about other senior police officers who were present at the meeting. Bhatt had filed an affidavit in the Supreme Court in April last year stating that he had informed the SIT about his presence at the said meeting at the Chief Minister’s residence and that he was willing to testify after a criminal case was registered. He had also alleged that the SIT was not conducting an impartial and thorough probe into the allegations of a larger conspiracy and administrative complicity behind the carnage. When the SIT examined Modi on March 25, 2010, he knew what Bhatt had told the SIT earlier. Asked by the SIT who all were present at the meeting on February 27, 2002, Modi named seven officers but added, without any prompting, that Bhatt was not present as this was a high-level meeting. Bhatt was the Deputy Commissioner of Police in the State Intelligence Bureau at that time. Since the State intelligence chief, G.C. Raigar was on leave, the DGP wanted Bhatt to be present at the meeting. Of the seven officers Modi claimed were present at the meeting, only one denied Bhatt’s presence, while the replies of three officers were vague. Three officers pleaded loss of memory owing to passage of time. They neither confirmed nor denied Bhatt’s presence. The SIT itself, according to reports, found these officers unreliable, as three of them had secured post-retirement jobs from the Modi government. Yet, the SIT appears to have concluded that Bhatt’s presence at the meeting could not be proved, and therefore, his statement had to be ignored.

Bhatt had made serious allegations against the SIT in his affidavit to the Supreme Court. One is that the SIT was disinclined to follow up important leads he provided on the cover-up operations of high officials of the State administration to undermine the investigation. Second, he alleged that the SIT chose to intimidate certain witnesses and coerce them into refraining from stating the facts. The SIT, according to reports, appears to have treated Bhatt as an unreliable witness simply because he now has pro-Congress leanings. The amicus, on the contrary, has seemingly suggested that the weight of the evidence favoured Bhatt, and therefore, his statements ought to be examined with an open mind. The relevant factor to test his reliability would be whether he enjoyed Modi’s confidence before that fateful meeting, and the SIT has apparently found nothing to suggest that he did not. Secondly, there is no evidence to suggest that Bhatt was elsewhere and not at the Chief Minister’s residence during that meeting. Reports carried by Tehelka suggest that the amicus has found prosecutable evidence against Modi in the SIT reports. The evidence, according to the amicus report as accessed by Tehelka, may not be sufficient to charge Modi for criminal conspiracy with the rioters. But it does point to prima facie commission of offences under Sections 153A, 153B, 166 and 505 of the Indian Penal Code. These offences are punishable with imprisonment up to three years. The SIT reports, the amicus report has seemingly revealed, referred to Modi’s several communally provocative statements, which are hate speeches punishable under the law. Section 153A relates to promoting enmity between different groups on the grounds of religion, race, place of birth, residence, language, and so on, and doing acts prejudicial to the maintenance of harmony. Section 153B pertains to offences such as imputations and assertions prejudicial to national integration.

Section 166 prescribes imprisonment up to one year for public servants found guilty of disobeying the law with intent to cause injury to any person. Section 505 will apply to anyone who makes or circulates any statement with intent to incite any class or community of persons to commit any offence against any other class or community. It prescribes imprisonment up to three years. Only when the SIT’s closure report becomes public will one know why it disagrees that these provisions cannot be invoked against Modi although it found overwhelming evidence against him to justify these charges. Informed sources have told Frontline that the amicus report and the SIT report differ on another crucial finding. It is about two senior police officers, P.B. Gondia and M.K. Tandon, against whom serious allegations have been levelled. The SIT has found that Tandon, who was then the Joint Commissioner of Police, Ahmedabad, did not help the victims in Gulberg Society and Naroda Patiya even though he knew that massacres were taking place in those places. The SIT has found evidence that Tandon had false cases registered in other parts of the city (where he claimed he had gone) to justify his absence in Gulberg Society and Naroda Patiya. Besides, Tandon was in telephonic contact with the accused politicians Jaideep Patel and Mayaben Kodnani, according to previous SIT reports submitted to the Supreme Court. Gondia was deputy to Tandon and faced similar allegations. Still, the SIT did not find it necessary, apparently on the basis of dubious legal advice, to proceed against Tandon and Gondia. The amicus, informed sources told Frontline, however, had advised criminal prosecution of these two police officers since these were grave allegations.



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Building confidence – By V. Venkatesan (Feb 25, 2012, Frontline)

The judgment delivered on February 8 by a Gujarat High Court Bench comprising Acting Chief Justice Bhaskar Bhattacharya and Justice J.B. Pardiwala in defence of secular values will have a significant impact on State governments conniving at wanton attacks on religious property owned by minority communities. The Gujarat government admitted that approximately 535 places of worship had been damaged in the violence after the Godhra incident on February 27, 2002, and out of them, 292 places of worship had been repaired by the end of that year. The Islamic Relief Committee of Gujarat, a public charitable trust, however, disputed the government’s claim regarding the number of places repaired. It sought a direction from the court to the State to make a detailed survey of the mosques, dargahs, graveyards, khankahs and other religious places and institutions desecrated, damaged or destroyed in 2002 and to compensate suitably the trusts and institutions that were in charge of them to restore them. The government said it had taken a policy decision not to spend any public money for the restoration of places of worship as it would violate Article 27 of the Constitution. Article 27 states that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. However, the High Court concluded that if the State government had decided to spend money from the public exchequer for the restoration of all religious places, including those of worship irrespective of religion, such decision a would in no way be in conflict with Article 27.

The court also held that the fact that the riot continued for several days suggested lack of adequate action on the part of the State in handling the situation. The court considered the fact that the annual report of the National Human Rights Commission (NHRC) on the issue had not been placed before the Legislative Assembly for discussion. The State government had got the report in early 2005. Such inaction, the court said, was a grave defiance by the State of Section 20 of the Protection of Human Rights Act, 1993. The court held that in view of the inadequate endeavour of the State government to effectively handle the situation, which resulted in the destruction of more than 500 places of worship belonging to one religious community, it was the duty of the government to bring them back to their condition before the riots. In the case of structures already restored, the government was bound to reimburse the amount spent by the persons in charge of those religious places, the Bench added. The State government contended that the court should not interfere with the policy decision of the government not to spend public money for the restoration of religious places. The Bench, however, pointed out that the State government had already accepted its liability to compensate the affected persons for its failure to protect residences and places of business under Article 21 of the Constitution, guaranteeing the right to life and liberty. Therefore, the Bench reasoned, the same failure to protect the right of citizens to freedom of conscience, free profession, practice and propagation of religion and freedom to manage religious affairs, as protected by Articles 25 and 26, would enable the persons who are in charge of the religious places to get compensation for their restoration.

The Bench said it was preposterous to suggest that the State government, in spite of its failure to protect the rights under Articles 25 and 26, was entitled to take a policy decision not to restore the religious places damaged. Such a policy, the Bench reasoned, would give a wrong signal to citizens that for the protection of religious places from the attack of ruffians, they should take up arms in their own hands because in the event of destruction, no financial help would come from the government. This would encourage religious bigots to destroy religious places of the economically weaker sections of other communities in order to establish their superiority over them because the poor would not be able restore these places from their own resources. On the grounds that fundamental rights cannot be waived, the Bench dismissed the suggestion that the damaged property had already been restored at the cost of the persons wronged and that the State government was not bound to reimburse the cost of its restoration. The State government argued that at the time of the Gujarat earthquake in 2001, many religious places were destroyed, and the government had not spent anything for their restoration. But the Bench dismissed this argument, saying that a policy decision taken in tackling an incident of an act of God cannot be applied to handling a situation arising out of culpable inaction, inadequate action, or negligence on the part of the State government in protecting the fundamental rights of citizens.

The court made it clear that if at the time of repair further additional construction had been made in excess of the one existed at the time of damage, no amount should be payable by the State government for such additional construction. The court appointed all Principal District Judges and Principal Judges in City Civil Courts as Special Officers to decide the amount of compensation for the restoration of the damaged religious places of worship situated within the territorial limits of their respective courts. The aggrieved persons are to lodge their claim with these Special Officers within two months of the order, with documentary and oral evidence in support of their claim of damages. The State government is allowed to contest such evidence, but the Special Officers will decide and fix the amount of compensation within six months of the lodging of the claim by the aggrieved persons, which will be confirmed by the High Court. The State government is entitled to recover the amount to be spent for such repair from the persons found guilty of destruction of those religious places by the competent criminal court.

The Modi government told the High Court during the hearing of the case that it was bound to compensate Muslims only for the losses they suffered in their residences and business establishments during the riots. However, as the proceedings before another Bench of the High Court showed, the government was not at all committed to fulfilling even this undertaking. A Bench comprising Justices Akil Kureshi and C.L. Soni, on February 15, sought an explanation from the State government why contempt proceedings should not be initiated against it for not complying with a court order on compensating a group of riot victims. Fifty-six victims had applied for compensation for their uninsured shops, which were burnt down at the Rakhial area in Ahmedabad in 2002. The High Court, in September 2011, ordered the State government to pay compensation according to the additional relief package announced by the Centre in February 2008. However, the Ahmedabad Collector informed the victims that the government had dismissed their claims in August 2011. In their petition seeking to punish the government for contempt of court, the victims alleged that the government had fudged facts before the court in order to deny them due compensation.



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Spectrum shocks – By V. Venkatesan (Feb 25, 2012, Frontline)

Four judicial verdicts delivered within the span of a week from January 31 have the potential to leave a significant imprint on the anti-corruption crusade of civil society activists in the country. A major challenge faced by these activists whenever they tried to expose corruption by public servants was Section 19 of the Prevention of Corruption Act (PCA), 1988. This section makes it mandatory for a court to take cognisance of an offence punishable under the Act and committed by a public servant only after the government concerned sanctioned it. This provision was enacted to prevent frivolous and vexatious litigation against public servants. However, governments, both at the Centre and in the States, often misused the provision to delay inordinately a decision on the grant or refusal of sanction, in order to protect corrupt public servants.

In the landmark Vineet Narain case in 1998, the Supreme Court had held that governments must adhere to the time limit of three months for grant of sanction for prosecution. The court allowed an additional time of one month where consultation with the Attorney General was required. On the basis of this and other related High Court judgments, the Central Vigilance Commission (CVC) framed certain guidelines in 2005. These guidelines made it clear that while granting or refusing sanction, the Competent Authority should only see whether the material placed by the complainant or the investigating agency prima facie disclosed commission of an offence and that a detailed inquiry was not required at that stage. In the 2G case, the Central government did not comply with either the Vineet Narain judgment or the CVC’s guidelines while disposing of Janata Party president Subramanian Swamy’s petition for sanction to prosecute the former Telecom Minister A. Raja.

Swamy first made his representation to the Prime Minister on November 29, 2008, when he sought sanction to prosecute Raja under the PCA; he kept sending one reminder after another until 2010. Swamy had alleged that Raja had allotted new licences in 2G mobile services on a first-come-first-served (FCFS) basis to novice telecom companies, Swan Telecom and Unitech, in clear violation of the guidelines issued by the Ministry of Communication and Information Technology in 2005 and thereby caused a loss of over Rs.50,000 crore to the government. However, the government chose to respond to Swamy’s petition only on March 19, 2010. The Department of Personnel and Training wrote to him saying that the Central Bureau of Investigation (CBI) had registered a case on October 21, 2009, and therefore, it would be premature to consider grant of sanction for prosecution. It was at this stage that Swamy filed a writ petition in the Delhi High Court seeking issue of mandamus to the Prime Minister to grant sanction. The High Court dismissed his petition.

Meanwhile, Raja resigned as Union Minister, and the Supreme Court admitted Swamy’s appeal against the High Court order. Despite Raja’s subsequent resignation and prosecution, the issue of grant of sanction needed to be examined in order to fix accountability at the highest levels. On January 31, a Bench comprising Justices G.S. Singhvi and Asok Kumar Ganguly reminded the government that investigation against Raja had begun only with the Supreme Court’s intervention and that the delay in the grant of sanction by the Prime Minister was impermissible. However, the Bench did not hold the Prime Minister personally responsible for that. It said that he was not expected to look into the minute details of each and every case placed before him and had to depend on his advisers and other officers, and that they had failed to provide the full facts to him. Had the Prime Minister been aware of the factual and legal position, he would surely have taken an appropriate decision and would not have allowed the matter to linger for more than a year, the Bench said.

The Bench, however, laid down two significant principles to be strictly adhered to in future by any government in the country. It held that all citizens had a right to seek sanction to prosecute a public servant accused of corruption and that every Competent Authority should take appropriate action on the citizen’s representation for sanction of prosecution of such public servant in accordance with the Vineet Narain judgment and the CVC’s guidelines. To this, Justice Ganguly added, in his separate opinion, that Section 19 of the PCA must be construed in such a manner as to advance the causes of honesty and justice and good governance as opposed to the escalation of corruption. Delay in granting sanction for prosecution thwarted the purpose of a speedy trial, and the absence of a time limit in granting sanction was against the requirement of due process of law, he said. He, therefore, recommended that Parliament amend Section 19 to provide that , if no decision is taken at the end of a four-month period after a citizen submits a recommendation seeking sanction, sanction will be deemed to have been granted for prosecution and the complainant/prosecuting agency will be free to file complaint/charge sheet to commence prosecution.



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Spies shouldn’t police us – Editorial (Feb 19, 2012, The Hindu)

In September, 1970, J. Edgar Hoover wrote a secret memo which pithily explained the difference between criminal investigators and spies: the “purpose of counter-intelligence action,” it stated, “is to disrupt, and it is immaterial whether facts exist to substantiate the charge.” Four decades on, as Union Home Minister P. Chidambaram prepares to give teeth to India’s new National Counter-Terrorism Centre, the words of the Federal Bureau of Investigation’s legendary – and paranoiac – founding director should help Indians understand why the idea is profoundly misguided.

For years now, India’s intelligence services have complained – sometimes with justification – that State governments have been reluctant to act on credible intelligence of counter-terrorism value. Political motives, they point out, have led governments as disparate as Gujarat, Uttar Pradesh, West Bengal and Bihar not to arrest figures involved with Hindutva, Islamist or Maoist groups. India’s Constitution, Mr. Chidambaram has pointed out, makes it incumbent on the Central government to “maintain internal security.” The Ministry of Home Affairs’ proposal to arm the NCTC with the power to conduct searches and make arrests derives, he argues, from this obligation.

Mr. Chidambaram may be right about the Constitution but there are three sound reasons why the mounting concerns over the NCTC must be taken seriously. First, the Intelligence Bureau is not an organisation that is, or ought to be, concerned with criminal justice. Like other intelligence services across the world, its task is to gather information that the police can use to guide and inform the course of a criminal investigation, not to make judgments on whether that intelligence has value as evidence. Blurring the distinction between intelligence-gathering and policing will open up the possibility of abuses – abuses for which Hoover’s FBI became notorious. The Union government already has an investigative service with a nationwide mandate, the National Investigation Agency. This makes it even less clear why the NCTC needs the same powers.

In India, secondly, the concerns are amplified because the IB has historically taken an expansive view of national security – notably, by devoting extensive resources to political surveillance. Handing it the power to arrest will expand the possibility of political misuse. Thirdly, as experts have pointed out, India’s counter-terrorism efforts have floundered because State police forces lack the training, resources and manpower needed to conduct effective investigations. Arming the NCTC with the power to arrest will not solve this core problem. Like other intelligence-related reforms, the NCTC’s powers ought to have been subject to an informed and vigorous debate in Parliament. It still isn’t too late to conduct one.



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Diluting a law – By T.K. Rajalakshmi (Feb 25, 2012, Frontline)

A report of the Law Commission of India on “Compounding of (IPC) Offences” suggesting that Section 498A of the Indian Penal Code, which prescribes punishment for a husband or his relatives for subjecting a woman to cruelty, be made compoundable with the permission of the court, is fraught with several implications. The report explains compounding in the context of criminal law as “forbearance from the prosecution as a result of an amicable settlement between the two parties”. The definition of cruelty as given in the clause covers conduct that can drive a woman to suicide or cause grave injury or danger to life, limb or health (mental or physical), or cause harassment of the woman by coercing her or her relatives to meet an unlawful demand for property or valuable security. Thus, dowry-related harassment and violence are covered under the scope of the clause. The Law Commission report observes that quite often prosecution under Section 498A of the IPC is coupled with prosecution under Sections 3 and 4 of the Dowry Prohibition Act, 1961. The argument in favour of compounding an offence is that if a woman is prepared to condone the ill-treatment and harassment meted out to her, either because her husband is repentant or because she has received some reparation for the injury caused to her, the law should not stand in the way for terminating the criminal proceedings. The section should not be allowed to become counterproductive and a balanced and holistic approach is called for in “handling a sensitive issue affecting the family and social relations”, the report observes.

The report suggests that a doctrinaire and isolated approach cannot be adopted while dealing with the issue. Also, the sensitivity of a family dispute and individual facts and circumstances cannot be ignored. In sum, the argument is that there is little social good to be achieved by criminalising 498A. The argument against making offences under the section compoundable is that dowry is a social evil and the law designed to punish those who harass their wives with a demand for dowry should be allowed to take its full course and private compromises should not get a seal of legal approval. Women’s groups have argued that often women victims are forced to compromise either for the sake of their children or for their own economic survival. The conditions of compromise and reconciliation are often unfair to the victims. Women’s organisations also find that women facing violence in their marital homes do not seek recourse under 498A as frequently or as indiscriminately as it is made out to be.

The Law Commission’s view is that undesirable consequences will follow if compounding is not allowed. Social harm or societal interest cannot be considered in a vacuum and that a holistic and rational view needed to be taken, the report says. “While no impediments shall be placed against the effective operation of law enacted to curb a social evil, it should not be forgotten that society is equally interested in promoting marital harmony and the welfare of the aggrieved women,” it says, arguing for a rational and balanced approach where more avenues are open to the aggrieved couple to put an end to the criminal proceedings. “If a wife who suffered in the hands of the husband is prepared to forget the past and agreeable to live amicably with the husband or separate honourably without rancour or revenge, the society would seldom condemn such a move nor can it be said that the legal recognition of amicable settlement in such cases would encourage the forbidden evil, dowry,” says the report.

It dismisses as non-substantive the argument that uneducated women with no means of livelihood may be forced to withdraw the legal proceedings and purchase peace even if the grievance remains unaddressed. The report argues that courts will play an active role while dealing with an application for compounding the offence under 498A. It has also recommended the introduction of a subsection, (2A), into Section 320 of the Criminal Procedure Code (CrPC), laying down the procedure for dealing with an application for compounding an offence under Section 498A. The issue is a problematic one. Women’s organisations, at least those that are closely identified with the women’s movement, have repeatedly spoken out against the dilution of the section. They point out that laws meant to protect women are seldom put into effect, and misuse is a bogey that should be addressed as a separate issue. There is a provision for the quashing of criminal proceedings under the section. So the argument that estranged couples wanting to get back together will be left with no recourse if Section 498 is not made compoundable seems overstretched.

Government reports showing low conviction rates, low reporting of crimes by women victims and an increase in IPC crimes against women seem to bolster the arguments of women’s groups. The fifth periodic report “Staying Alive”, prepared by the Women’s Rights Initiative of the Lawyers’ Collective, reviewing the implementation of the Protection of Women from Domestic Violence Act, 2005, indicated that knowledge of the law was poor and implementation by the state tardy. The process of looking into the alleged misuse of 498A began in the 1990s. But it has picked up momentum in recent years. In 1996, the 154th Report of the Law Commission espoused the inclusion of the section under the list of compoundable offences. The Law Commission reiterated the stance in its 177th report in 2001. The Department of Legal Affairs sought the Law Commission’s view in December 2010; the Home Secretary’s office had sought its view a year earlier, in September 2009. The rationale for seeking a view on making the said clause compoundable is rooted in the premise that the law is being misused. A Supreme Court order in 2010 observed that it was time the legislature took into consideration the pragmatic reality and made suitable changes in existing laws. …



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