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Judging Genocide In Gujarat

By Praful Bidwai

The Hindustan Times
18 September, 2003

As the public awaits the Supreme Court judgment in the Best Bakery
case with bated breath, we are fast approaching the 65th anniversary
of Kristallnacht (Night of Broken Glass), the Nazis' infamous pogrom
of Jews after a German diplomat's assassination in Paris. The
comparison is not hyperbolic. Last year's butchery in Gujarat was 200
times greater in scale and much more bestial than Kristallnacht - the
prelude to the gassing of 6 million Jews.

The Supreme Court's pronouncements last Friday - including its
unsparing admonishment of Narendra Modi, its description of his
government's appeal as an "eyewash", and its declaration that "we
have no faith in [Gujarat's] prosecution or government" - have raised
hopes that it will take extraordinary steps to do justice to the
victims of Gujarat.

Those hopes were buoyed by the judgment convicting the Bajrang Dal
activist/supporter Dara Singh for the gruesome burning alive of
Graham Staines and his two children. That this followed two eyewash
attempts, the first by a central ministers' group and the other by
the Wadhwa inquiry, affirms the citizen's faith in the possibility of
justice in India.

If Staines' murder belonged, as President Narayanan put it, to the
"world's inventory of black deeds", the post-Godhra killing of 2,000
Muslims opened a disgraceful new book of horrors - unprecedented
globally for a half-century, except perhaps in Rwanda and Bosnia.
Special international tribunals are now trying those genocidal crimes.

The post-February 27 Gujarat violence was unique in independent
India. Never before did a state government collude so openly with
communal thugs, rapists and murderers to target one religious group.
(Indeed, it planned and organised some of the violence.) And never
before did central functionaries, including the prime minister, so
persistently shield the guilty by advancing the repugnant logic of
"action-reaction" and citing non-existent "security threats".

There could be two opinions on whether the thoroughly condemnable
Godhra episode was spontaneous or organised. (Evidence supports the
first view.) But this is emphatically untrue of the planned,
premeditated, systematic, violence that followed. In that danse
macabre, thousands were torched or speared to death by frenzied
anti-Muslim mobs. Horrific sexual violence was unleashed. Property
worth hundreds of crores was destroyed/looted. Lakhs became refugees
in ethnic cleansing in vast areas.

Crimes Against Humanity, the report of the Concerned Citizens'
Tribunal, comprising eminent jurists and scholars, documents this
after examining 2,094 statements and 1,500 witnesses. The pattern of
violence shows the selective targeting of Muslims, inhuman forms of
brutality, military precision and planning, the key role of the RSS,
the BJP and the VHP-Bajrang office-bearers, use of Hindu religious
symbols and complicity and participation of policemen and
bureaucrats. This was planned, sustained and prolonged through
hate-speech, intimidation and terror.

The defining characteristic of this violence was that Muslims were
targeted simply because they were Muslims. The attackers' main
slogans were: "Kill, burn, destroy their society, finish them off..."
This highlights the genocidal nature of the violence.

Article II of the International Convention on Genocide, 1948, defines
genocide as "any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or
religious group" like: "(a) killing [its] members; (b) causing [them]
serious bodily or mental harm; (c) deliberately inflicting on the
group conditions... calculated to bring about its physical
destruction...; (d) imposing measures intended to prevent births
within the group; (e) forcibly transferring [its] children... to
another group".

Gujarat unambiguously fits the definition. The violence involved the
(partial) physical destruction of a community; economic destruction;
sexual assault as an instrument of domination and terror inspired by
"dark obsessions" with destroying women's sexual organs; sabotage of
relief and rehabilitation; and the publicly declared intention to
liquidate, mentally harm, humiliate and subjugate Muslims.

India is a signatory to the convention. This casts on it a duty to
punish those responsible for genocide through a competent legal
forum. This could be best done by creating a special independent
national tribunal for hate-crimes and genocide. The Supreme Court
must go beyond the specifics of the Best Bakery case to create this
tribunal, composed of personnel selected by the Chief Justice of
India, the prime minister and the leader of the opposition. Put in
perspective, Best Bakery involved the killing of 14 people. Gulberg
was much bigger (70), as was Naroda-Patiya (200).

Justice for Gujarat entails going beyond even these discreet cases.
Its genocidal hate-crimes must be seen in their totality, not just as
this or that case of murder, arson, rape or psychological
subjugation. This means that there must be fresh investigation,
re-framing of (wrongly dropped) charges, and re-trial.

Equally relevant are some related issues. Gujarat witnessed a
fundamental, total, prolonged breakdown of the rule of law and the
Constitution, in which the Centre became complicit. It refused to
defend fundamental rights, or investigate or criticise the barbaric
violence. Vajpayee first vaguely, mildly, criticised Modi, but soon
started blaming the victims. Fanciful conspiracies were concocted to
link Godhra to al-Qaeda and demonise Muslims. This continues. All 240
people charged under POTA in Gujarat are Muslims.

Because the Gujarat case is extraordinary, the court is called upon
to do extraordinary things, the more because the government failed,
and because the state administration has little integrity or autonomy
to conduct a fair trial. This entails the creation of new,
independent investigation and prosecution agencies which take their
directions from the Supreme Court. The trials must take place
primarily outside Gujarat.

It is equally imperative to extend the prosecution to the links
between the pogrom and the hate-speech which became part of Modi's
electioneering - a clear case for invoking Section 153 of the IPC.
These organic links concern the political use of hate-speech.

That still leaves a huge problem: How to ensure that witnesses
survive Gujarat's vitiated climate and are not terrorised into
changing their testimony? (Even Ehsan Jaffrey's widow was intimidated
by Sangh parivar goons this week). This can only happen if there is
serious, humane, rehabilitation and adequate protection for the
victims through a comprehensive supportive infrastructure. The
Gujarat government cannot be trusted to provide this.

The infrastructure should have come into being 18 months ago, but the
governments of the day failed. In particular, the Centre refused to
apply Article 356 and impose President's Rule when a constitutional
breakdown was manifest. Thus, even the processes of recording and
registering crimes, listing witnesses, collecting evidence, etc., got

To rectify this, the Supreme Court must step into an area which is
not its classical, normal, domain - simply because the ends of
justice cannot be met in any other way. The court is empowered to do
"complete justice in any cause or matter" before it by Article 142.

This might seem onerous. But there is no alternative to a
comprehensive sui generis process of creating a national tribunal,
and independent agencies for investigation and prosecution. We have
failed far too often to bring the perpetrators of hate-crimes to book
- to the point that the government's lawyer last week cited that
failure as an excuse for condoning the Gujarat genocide! India cannot
afford a culture of impunity for grave human rights violations and
hate-crimes. That will make a cruel mockery of our democracy.
Democracy is an empty shell without fundamental rights, norms of
public accountability, representative institutions and the rule of

Letting the Gujarat culprits get away and papering over the gravity
of what happened would be the surest way of destroying the
constitutional edifice of governance - indeed, this society. The
Supreme Court must not disappoint the public.