Concerned Citizens Tribunal - Gujarat 2002: An inquiry into the carnage in Gujarat

The events that took place in Gujarat prior to the Godhra tragedy, during and after it, and during and following the state-sponsored carnage are marked by a singular and shameful collapse of the criminal justice system.

1.1. The conduct of the police machinery in Gujarat is marked by a lack of intelligence about the likely commitment of offences against public order, which was not collected from all over the state. The lack of systematic surveillance on the conduct of kar sevaks going to and fro from Ayodhya, for at least a month before the Godhra tragedy, especially given their recorded propensities to break the law by consistently provoking religious minorities and even behaving aggressively with them, has been dealt with by the Tribunal extensively in the chapter on Godhra.

2.1. The Godhra tragedy took place on the morning of February 27, 2002. The VHP gave a call for a bandh on February 28. It was obvious that the situation was tense and could get out of hand. The minimum that the state does in similar situations is to effect preventive arrests of persons who are likely to cause violence. Such lists are available with all police stations. Such arrests are affected routinely, even if there is the likelihood of a minor law and order problem. Leave alone other parts of Gujarat, the preventive arrests made on February 27 in Ahmedabad itself throw a light on the intentions of the police:

2.2. Section 151 of the Criminal Procedure Code (CrPC) permits preventive arrests by the police. It reads: "151(1). A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a magistrate and without a warrant, the person so designing, if it appears to such officer that the offence cannot be otherwise prevented."

2.3. Similarly section 3 of the National Security Act, 1980, allows preventive arrests by the central or the state government of any person likely to act in a manner prejudicial to the maintenance of public order. The Gujarat police, by abdicating its responsibility in the matter of preventive arrest, revealed not just its unprofessional character and conduct. In the longer term, the failure of the law and order machinery to act and to act fairly and swiftly, often against politicians and their cadres, is reflective of the symptomatic erosion that has taken place in the criminal justice system in India. Today it would be no exaggeration to say, in the context of Gujarat, that the criminal justice system in India has collapsed.

3.1. Numerous cases have come to light that have exposed the conduct of police personnel during the Gujarat carnage. Police either turned a blind eye to the mass and systematic assaults by large mobs led by political leaders or even actually participated in the violence.

3.2. During the first 48 hours in the city of Ahmedabad, while the assaulting mobs and their leaders clearly belonged to the lumpen, communal elements from the Hindu community, police single-mindedly targeted innocent victims, who were, overwhelmingly, Muslims. On February 28, 40 persons died in police firing, out of whom 36 were Muslims. Besides, the Tribunal has recorded evidence from all over Gujarat that shows a sinister pattern — the police, despite being present, did nothing, especially during the first few days, to stop the mobs. Detailed instances of police misdemeanour have been extensively recorded by the Tribunal. It must be noted here that inaction during such a situation is punishable under section 166 of the Indian Penal Code (IPC).

4.1. Evidence from various towns and districts of Gujarat, recorded by the Tribunal, reveals a shocking pattern of behaviour among the police in:

u police complicity in not naming the accused despite repeated insistence of the victims/survivors that all accused should be named;

u worst of all, their insistence on recording omnibus FIRs for whole areas, regions and towns instead of separate detailed ones for every crime and offence committed.

Section 154 of the CrPC deals with the First Information Report of cognisable offences and is the first crucial step in the prosecution of offenders.

It is a fundamental principle of criminal law that every offence needs to be separately registered, investigated and tried. Filing omnibus FIRs is one of the simplest ways of avoiding detailed investigations and effective trials. In many cases in Gujarat, where 80 or 90 shops have been burnt or a large number of people have been killed, instead of filing separate FIRs in respect of each incident, the police has registered collective FIRs, thus virtually scuttling the possibility of detailed investigation or conviction. Apart from this, many incidents, separated over time (sometimes days) and place and concerning different victims and accused, have been clubbed together. Moreover, when individuals came forward to lodge their FIRs, they were told that the FIRs have already been recorded, and that no second FIR was possible.

Most of the FIRs which have been filed, especially where the police are the informants, do not contain the names of the accused and only say that an unidentified mob attacked. There are a significant number of cases (see Detailed Annexures, Volume III) where the victims actually named the accused but the Gujarat police have refused to lodge their names in the FIRs. Instead, the police took on the role of a partisan intermediary in the evidence recorded from Naroda, Chamanpura, Ode, Sardarpura, Bharuch, Ankleshwar, Vadodara, Mehsana, Himmatnagar, Sabarkantha and Banaskantha. In these cases, the police told the complainants that the FIR would be lodged only if the names of the accused were deleted. For example, at village Por, 3 women and 3 children were killed. The victims have identified and named 95 attackers but the police refused to include their names in the FIRs. The detailed area-wise list of incidents is covered by the Tribunal.(See section on Incidents of Violence, Volume I).

In a number of other cases, hundreds of victims have testified before the Tribunal, stating that though some people have been named in the FIRs, they were not the persons actually present at the site. This would not only subvert investigations by casting serious doubts on the intentions of the complainant but would also let the real accused go scot free.

Similar is the case with a number of persons who have been arrested. Due to public pressure, some arrests had to be made. To take an easy way out, the police has, in some areas, arrested persons not at all connected with the crime and not even named in the FIRs. This makes the case against the actual perpetrators very weak.

All the above series of actions by the police are offences under section 167 of the Indian Penal Code but the Tribunal notes with shock that not a single police officer has been charged under this section.

4.5. The police has failed to respond to the threats and intimidation meted out, as a matter of course by organisations affiliated closely to the ruling party in Gujarat--theRSS/VHP and BD. Senior jurist, Shri Girishbhai Patel was threatened in his home by young leaders of the VHP-BJP after the genocide simply because of his staunch espousal of human rights issues that in recent years has meant defending minority rights at great risk to his person. It was not the police that checked the threats and posturings but the intervention of Shri Arun Oza, state public prosecutor who is a senior member of the RSS.

5.1. Apart from targeting sections of the Muslim population with bullets, the Gujarat police have further blackened their conduct by indiscriminate arrests of innocent young Muslims all over the state. The Tribunal has recorded details of these arrests and we estimate that at least 500 innocent Muslims languish in police lock-ups and jails of the state.

6.1. Both the Godhra tragedy and the post-Godhra carnage show up the criminal justice system for tardy and loose investigations.

u The police, who are the investigating agency, have simply not collected the forensic evidence in many of the mass crimes that took place in Gujarat.

u Panchnamas have not been recorded or not recorded properly. Irregularities in search and seizure operations are amply evident.

u The list of victims and witnesses directly related to different offences has not been compiled.

7.1. Whether it is the Naroda Gaon, Naroda Patiya and Gulberg society mass killings or the Sardarpura, Ode, Godasar, Pandharwada, Vishnagar, Unhava massacres, the major masterminds who led the mobs and co-ordinated the attacks, have not been arrested. State cabinet ministers who have been named in FIRs are also scot free. The criminal justice system of Gujarat has been especially lax with those among the accused and perpetrators of mass crimes who belong to the BJP, VHP or Bajrang Dal. Even when they have been named, these persons have not been arrested. For example, in Bhavnagar, Shri Om Trivedi, the city VHP president and Shri Mansukh Panjwani, a city BJP office-bearer, have been named as having led mobs which set fire to 80 Muslim shops. Neither has been arrested.

7.2. Similarly, in Naroda Gaon in Ahmedabad, Dr. Jaideep Patel, leader of the VHP and Sushri Maya Kotdani, MLA from the BJP, have been named as perpetrators in a number of offences. But not only have they not been arrested, they have in fact been discharged in respect of these offences. State ministers Shri Ashok Bhatt, Shri Bharat Barot, Shri Haren Pandya, Shri Narayan Laloo Patel, Shri Nitin Patel, Shri Prabhat Singh Chavan and Shri Ranjitsingh Chawda too, have escaped any criminal action.

8.1. In a number of cases, the victims could identify the perpetrators by sight as they hailed from the neighbourhood, but did not know their names. It was essential for the police to conduct identification parades in such cases. But no such identification parades are known to have been conducted.

9.1 A large number of combing operations have been carried out in Muslim localities and a number of persons have been arrested. However, given who the mass offenders were, given the fact that it was the communal and lumpen element among Hindus who were the aggressors in the post-Godhra carnage, what was essential was that combing operations be carried out in non-Muslim areas. If proper combing operations had been carried out in these areas, a large amount of arms and ammunition like trishuls, swords, gas cylinders, provocative leaflets, and later on, stolen goods could have been recovered. But interestingly, no such operations have been carried out. Even as the combing operations were being carried out, the police resorted to indecent behaviour against women and children, the real motive being to harass and humiliate them and to terrorise them on the pretext of searching their houses.

10.1. Many women have been molested and raped. The investigations by various civil society groups, including the evidence recorded by the Tribunal, suggest that as many as 250 young girls and women were victims of gross sexual crimes. It was incumbent upon the law and order machinery to facilitate speedy medical examinations of the victims. But this was not done. Thus, there is no medical proof of rape. Secondly, a number of women have complained that though they informed the police about rape, the FIR does not mention rape at all.

11.1.Sandesh and Gujarat Samachar have especially played a very provocative role in the carnage. Most fact-finding reports, including the Editors’ Guild report, have found them guilty of generating communal propaganda against Muslims. The police has sufficient powers under section 153 B of the Indian Penal Code to take penal action against these papers. The editors and the authors could have been arrested but not even a complaint has been lodged against them.

12.1. It is obvious that the VHP and Bajrang Dal played a major role in the carnage. Their leaders have made highly provocative statements and have justified the carnage. Again, they could have been arrested under section 153B of the Penal Code but this has not been done. SIMI (Students Islamic Movement of India) has been banned. The VHP and Bajrang Dal could also have been banned by the state or the central government for inflaming communal passions under POTA and under the Unlawful Activities (Prevention) Act. But this has not happened.

13.1. The Tribunal notes and records with concern the callous indifference with which the interim and final recommendations of the NHRC have been regarded by the criminal justice system in Gujarat. When the National Human Rights Commission, presided over by a retired Chief Justice of the Supreme Court, visits Gujarat, meets victims and officials and makes certain elementary recommendations, one would expect that a government which is keen to bring about normalcy would at least accept these recommendations. But even this has not been done. Police are the accused in many of the cases. NHRC, for instance, recommends that at least five such cases be handed over to the CBI (Central Bureau of Investigation) for investigation. Even this has not been done.

13.2. Even the existing provisions of Indian criminal law, if applied with stringent regard to the rule of law, could have helped ensure that the entire carnage was avoided. None of the more than 2,000 persons who died would have died if the State had implemented the letter of the law.

14.1. Under section 3 of this Act, any area within the state can be declared as Disturbed Area –

"Where a state government is satisfied that there was, or there is, in any area within a state extensive disturbance of the public peace and tranquility, by reason of differences or disputes between members of different religious, racial, language or regional groups or castes or communities, it may, by notification in the official Gazette, declare such area to be a disturbed area."

14.2. Once an area is declared as disturbed, all scheduled offences within the notified area have to be tried quickly by specially designated judges. Murder and rape are some of the scheduled offences.

14.2. If the affected areas in Gujarat had been declared as Disturbed Areas, the prosecution of the cases would have been quick and, possibly, effective.

14.3. Since section 3(2) of the Act limits any notification to incidents that have taken place three months prior to it being issued, today this provision of law cannot be invoked. Thus, now the opportunity under this law is lost.

15.1. Under this Act, any person who commits mischief in respect of public property can be imprisoned for a period of up to 5 years. Though a majority of the violence, arson and looting has been in respect of Muslim property, there have been certain major incidents of targeting public property. The office of the state minorities commission at Gandhinagar and the shrine of Wali Gujarati are two of the many instances of public properties, in respect of which mischief has been committed. However, to the best of our knowledge, no case under this Act has been registered against any one.

The overtly partisan behaviour of the Gujarat police can be assessed from the language contained in the chargesheets related to the major incidents of mass massacre. For instance, the chargesheet filed in the Gulberg society killings, where no less than 60-70 persons were brutally killed, virtually begins with a defence of the accused and paints the victims as instigators.

"It was after the firing by Jafri on members of the mob (of 23,000) that the mob got violent and attacked the locality". This recording of the offence is shocking to say the least. Gulberg society was under a violent siege since 7.30 a.m. on February 28; the commissioner of police, Shri PC Pandey visited Shri Jafri at 10.30 a.m. and assured him protection; the crowds grew ominously by 11.30 a.m.; and finally Shri Jafri gave himself up to the aggressors, in order to save innocent men, women and children who had sought shelter in his home, at 2.30 p.m.

16.2. In a similar misrepresentation, the Tribunal records with horror the way the Naroda Patiya chargesheet reads: "The unruly crowd at Naroda Patiya went on the rampage after a mini-truck driven by a Muslim ran over a Hindu youth and the mutilated body of a Hindu was recovered from the area… the crowd was anguished by the incident."

17.1. Sardarpura massacre, Mehsana: Thirty-three persons, mostly women and children, were burnt alive in a small room in Sardarpura village in Mehsana district. In all, there are 46 accused and they have been released on bail following four different applications filed before the additional sessions judge, Mehsana, Judge DR Shah. Four applications have also been filed by representatives of the survivors, for cancellation of bail of the accused. The public prosecutor (PP) in the district court, Shri Dilip Trivedi, is also a general secretary of the Vishwa Hindu Parishad, Mehsana district. (He gave an extremely provocative statement on February 28 to the Sandesh daily). The four applications for cancellation of bail are on the grounds that after being released on bail, the accused attacked a mosque in the same Sardarpura area. (FIR no. 110/2002 dated May 13 is lodged with the Vijapur police station.). The PP did not take any interest in the cancellation of bail. The High Court has issued notices in all these four matters filed under section 439(2) of CrPC. Chargesheets have been filed. This case and the conduct of the PP reveals the clear and criminal anti-constitutional conduct.

17.2. Deepla Darwaja, Visnagar, Mehsana district: Eleven persons were hacked or burnt to death. Thereafter, with a view to destroy the evidence, the culprits collected their remains and dumped them in a lake situated in a Patel community area. Two cancellation of bail applications have been filed against the 43 accused who were released on bail. Predictably, the same PP (Shri Trivedi who is also general secretary of the district VHP) who never objects to bail applications by the VHP and the BJP, had, registered his ‘no objection’ to bail being given to the accused in this case as well. These applications have made several pleas, the main ones being that the police conduct in non-registration of names of the accused, deliberate non-recording of panchnamas and subsequent failure to help locate the victims’ bodies, all ensured that easy bail was obtained. Prima facie, there appears to be biased police conduct, a patent example of culpable negligence. A special criminal application has also been made challenging the same.

17.3. Gomtipur police atrocities case, Ahmedabad: This case pertains to the death of six persons in reprisal killings by the police on April 21, after a police constable was killed at Danilimda. Significantly, there were no disturbances in the area on that day and no members of the majority community reside anywhere around where the victims were targeted or shot dead. The police killed Sushri Hanifabibi Bashir Ahmed Sheikh (42), a woman residing at Modi Chawl, for no reason. So also, Shri Kalubhai Sheikh (20), male, residing at Jhoolta Minara, Ahmedi society, was shot dead. He suffered a head injury and died on the spot. Sushri Naziabibi and Shri Mehmood Husein Sheikh (daughter and father) aged 18 and 42 respectively residing at Patel Chawl, Kamdar Maidan were similarly killed. Sushri Naziabi was cooking in the kitchen. Her father was shot at in the same incident, outside the house. Shri Abrar Ahmed Hanif Qureshi (22), male, was killed in the compound when the police aimed from a hole in the gate and shot him. He suffered neck injury and died on the spot. Similarly, one Shri Mehboobbhai Sultanbhai Sheikh (22) was shot after the police entered the chawl from a private house. All the post-mortem reports show that the victims died as a result of fire-arm injuries. Yet, no FIR has been filed. Four different applications have been filed before the Gujarat High Court on behalf of the victims and supported by the Islamic Relief Committee, praying for special investigation by the crime branch and inquiry against the culprits/police constables and for compensation. They are all pending.

17.4. Dr. Bhavnagari case, Ahmedabad: On February 28, when many areas of Ahmedabad and the state of Gujarat were being attacked, a large mob of 5-7,000 had targeted the Paldi area of Ahmedabad. Dr. Bhavnagari, a respected doctor, and his son lived in Delite Apartments at Paldi, which was also severely attacked and damaged by the mobs. Dr. Bhavnagari owns a licensed gun and is also an ace shooter, being a member of the National Rifle Shooters’ Association. When the mob advanced close and threatened the doctor and his family, he used his gun and fired. Two persons were injured and later, one fell victim to the bullets.

The police arrested Dr. Bhavnagari, despite there being a strong case under section 76 onwards of the Indian Penal Code, which permits a person firing in self-defence when his life is endangered. The police also filed an FIR against both Dr. Bhavnagari and his son on the ground that both had fired. The son surrendered to the police in late March.

Though the police met one of those who survived the bullets on March 3, they recorded his statement only on March 14. In his statement, the young man stated that both father and son had fired, in which two persons died. Applications for anticipatory bail, filed for both father and son were rejected in the City Civil and Sessions Court, Ahmedabad. The bail applications were then pending before the Gujarat High Court. In its report, the police stated: "If he had not fired, he would have died. A mob of 1,500-2,000 had attacked the building; shops were burning; they had deadly weapons and it was only when sections of this mob climbed the staircase of Delite Apartments that Dr. Bhavnagari and his son fired." When this report was filed in the Sessions Court, Shri Chetan Shah, advocate for the VHP (he is appearing for them in all their cases), asked to be joined as party. Magistrate Purani turned down the application saying that he had no locus standi. The matter for deliberation on the police report under section 159 was pending. Meanwhile, 90 days had passed since Dr. Bhavnagari’s arrest. Under section 167(2) of the CrPC, if no chargesheet has been filed within three months, a person has to be released. Both appeals for bail came up before the HC. Granting bail, the judge, Justice Behram J Sethna passed strictures against two police officers — additional commissioner of police Shri Satish Sharma and police inspector Shri NH Joshi — for filing the report, which only stated the truth. It appears that the learned judge recommended departmental action against the police officers, which we consider as rather unwarranted.

17.5. Best Bakery Case: In the Best Bakery Case in Vadodara where 12 persons were killed by a mob of around 1,000 people, the police have played a shocking role by booking one Muslim, Shri Yasin Alibhai Khokhar, among others, and charging him with murder, robbery and arson.

18.1. After the Godhra tragedy, the Gujarat police initially arrested 62 persons, including at least seven boys, all said to be under the age of 16. They were booked under the Prevention of Terrorism Act (POTA) by the government railway police (GRP) for the February 27 attack on the Sabarmati Express at Godhra. Following public outrage, the application of POTA to these seven boys was withdrawn. But all the accused, including the seven boys, still faced charges of murder, attempt to murder, criminal conspiracy, arson, rioting and damaging public property. Family members of the arrested minors were not informed, in direct contravention of the orders of the Supreme Court in the Joginder Singh case. The boys are: Haroon Iqbal, Farooq Kharadi, Firozkhan Pathan (residents of Signal Falia); Asif Kader, Altaf Diwan and Naseer Pathan (residents of Vejalpur Road); and Hasankhan Pathan of Dahod. The attitude of the police after arresting these minors was telling. The inspector of Godhra town police station, Shri K Trivedi said it was not possible to check their ages at the time of arrest. "They were seen near the site of the incident, so we arrested them. The rest will be taken care of by the judiciary," he said.

Hasankhan Pathan, who is a Class IX student in Dahod in the Panchmahal district, 150 km. away, had come to Godhra to meet his aunt and uncle on February 26. His date of birth according to school records is October 31, 1986. Evidence recorded by the Tribunal records his relative Hussain Khan Pathan as saying: "In the morning, he was playing with some other local boys, including Firoz and Mustaq, when they heard of something going on near the railway track. They got scared and came inside their houses. After a few hours, the police came and picked up Hasan near Ali Masjid, on charges of mass murder." Under the Juvenile Justice Act, minors below 16 years of age have to be sent to a juvenile home, not to a police lock-up. "But they have been kept in police custody, along with the other accused in this case. We showed the age-proof documents of these minors to the police, but they did not listen to us," said Shri Soukat I Samor, a senior advocate, who represents some of the accused. This is one more instance of police misconduct in the context of the Godhra tragedy and the carnage that followed.

18.2. The Godhra police failed in their first major case, when additional sessions judge Viram Y Desai acquitted all 73 accused of all charges against them on September 22, 2002. The judge accused the police of extracting the names of the accused from those who were arrested first, and the investigating officer (IO) of fabricating evidence. He expressed doubts over whether one of the incidents occurred at all. These findings by the judge cast a major cloud on the conduct of the police in the Godhra investigations.

Following the Godhra incident, these 73 who were arrested, were charged with conspiracy, rioting, arson, inciting communal passions, attacking the police, robbery, etc. All the Hindus got bail, whereas most of the Muslims (accused of burning property belonging to their own community, including a mosque and school), remained in custody till the trial was over. Some of them continue to be in custody on the charge of burning the train. The witnesses for the prosecution were all policemen. The prosecutor argued that since the area was under curfew at the time of these incidents of violence, it was difficult to find independent witnesses. Hence, the testimony of the policemen should be believed, as also the panchnamas made on the spot by them.

18.3. The judge found that none of the charges were proved because of the conduct of the investigating officer (IO) who first brought in a set of accused persons to the police station, who in turn named others as co-accused, who were later arrested in combing operations. The judge held that this revealed that "there is no concrete evidence against the 73 accused, who were picked up out of 2,000 people." This verdict of the Sessions Judge points out several serious lacunae in police investigations. (See Detailed Annexures, Volume III).

19.1. During the post-Godhra carnage, government and municipal hospitals that gave post-mortem reports recorded shocking lapses when detailing causes of injury in the case of police firings. The post-mortem reports in such cases mention nothing about injury by bullets but state that death was due to injury and shock. These lapses, we hope, were not deliberate, as otherwise it would legitimately invite the criticism that hospitals in Gujarat are not different from other public institutions, which have been communalised.

20.1. The Tribunal records that the overall conduct of the judiciary, higher and lower, when in times of serious law and order breakdown and when complete anarchy prevails, is decidedly wanting. While we are clear that, as a rule, courts cannot play the role of the legislature or the executive and take charge of the maintenance of public order, there comes a time when the judiciary is looked upon as the last resort. At such times, and such moments were evident during the Gujarat carnage and remain important to date, the judiciary is expected to rise to the full capability of its constitutional obligations and duties and take swift and clear suo motu action, if necessary, to restore the belief of the disillusioned, marginalised and alienated sections of our population, who have been victims of state sponsored massacres. In not doing so, the courts fail in their primary duty. We state with regret that the casualness with which matters relating to the Gujarat carnage have been handled by the court(s), high and low, is a matter of serious concern for the rule of law and the survival of constitutional principles in any real sense in this country. Even open acts of threat, against two high court judges belonging to the minority community, did not stir the high judiciary into any action against the government. This is a sad reflection on the judiciary, which in the past, had considered the slapping of a magistrate a sufficient enough reason to invoke the contempt jurisdiction of the Apex Court!

The evidence shows that the investigation process

was totally inactive, in that,

u There was no recording of complaints made by affected persons, even while

the incidents were taking place.

u FIRs were recorded after several days.

u Even the recorded FIRs contained incorrect versions and not the versions as

reported by the complainants.

u The names of the culprits, even when disclosed, were not recorded.

u In fact, the complainants were told not to name the accused, otherwise the

complaints would not be recorded.

u The FIRs of individual victims were not recorded and omnibus complaints

containing several incidents were recorded, which would deny proper investiga

tion and stall the delivery of criminal justice.

u In many cases, the panchnamas of the scenes of offence have not been made. The forensic

evidence has not been collected.

u The leaders of the mob violence have not yet been arrested.

u The police participated in the violence and, in spite of clear and well-docu

mented evidence against the police, no policeman has been prosecuted or pro

ceeded against otherwise.

u Search and seizure of weapons and looted material have not been effected at

all, despite direct evidence of armed mobs committing the crimes.

u Most of the prosecutors who are in charge of these cases owe allegiance to the

organisations perpetrating the crimes, with the result that the victims have no con

fidence in the due process of law.

From the evidence recorded, many persons, politicians and officials among others,

have been repeatedly mentioned by witnesses, as directly taking part and inflicting

violence on innocent victims and also leading the mobs.