Gujarat Government Is
Obstructing Justice
By Human Rights Watch
24 September, 2004
HRWThe government of the Indian state of Gujarat continues to obstruct justice and prevent accountability for the perpetrators of violence committed during communal riots in 2002 that left as many as 2,000 Muslims dead.1 The riots occurred after some Muslims allegedly attacked a train carrying Hindu pilgrims and activists. One carriage caught fire and fifty-nine Hindus were killed in the blaze.2 In retaliation, Hindu extremist mobs, often with police participation and complicity, killed hundreds of Muslims and displaced thousands.3
The Gujarat state government, led by Chief Minister Narandra Modi of the Hindu nationalist Bharatiya Janata Party (BJP), not only failed to take appropriate action to prevent the violence, but has since failed to properly investigate the crimes committed. It has consistently sought to impede successful prosecutions of those allegedly involved in the massacres, leading the Supreme Court and National Human Rights Commission (NHRC) to intervene on several occasions.4
Activists and witnesses pursuing accountability continue to be targeted by influential extremists in Gujarat. The highest levels of government in Gujarat have created an extremely hostile environment.5 Chief Minister Modi has called human rights workers “five-star activists and pseudo-secularists” who are trying to tarnish the image of his state.6 This has encouraged a climate of impunity, where perpetrators of the riots and those that took part in the violence feel they can threaten activists and witnesses to discourage them from pursuing justice, without a response from state authorities.
The Gujarat police have initiated very few criminal investigations and have been largely non-responsive in cases where activists have lodged complaints about threats or attacks. No credible witness protection program has been established by the state government, which seems more interested in protecting those responsible for the violence than witnesses and victims.7
In fact, given the active police participation in the 2002 riots, their failure to protect Muslims as they were attacked and killed in plain view, the lack of any admission of responsibility, or refusal to reform since, witnesses are reluctant to approach the Gujarat police for protection or trust them with information.8 Responding to a demand from witnesses for protection by national forces instead of state police, the Supreme Court on March 15, 2004, indicated its lack of trust of state authorities when it asked the national government to identify key witnesses in nine Gujarat riot cases and deploy central police or paramilitary forces to protect them.9
The climate of fear in Gujarat is so great that activists and witnesses are often reluctant to publicly discuss or even be privately interviewed about the threats they receive for fear of retribution from those who make the threats or their allies, including some in powerful positions in the state government or police.
In several recent incidents, Hindu nationalists have threatened activists and lawyers and even assaulted them. One activist-lawyer working on a case against individuals accused of gang rape and murder, was threatened when she was attending a hearing in court. Although she sent a complaint to the Gujarat Director General of Police, no action has been taken. In another incident, in broad daylight Hindu extremists stoned the vehicles of activists calling for communal harmony and beat up one of the activists.
Documentary filmmaker Shubhradeep Chakravorty was verbally abused and threatened in Ahmedabad after the screening of his film that questions the official version of events in the attack on the train in Godhra and criticizes the violence that followed. An earlier screening had to be canceled because the venue owners pulled out following threats.10 Several websites, claiming to support the cause of Hindus in India, list human rights campaigners as “traitors.” For instance, the website of the Patriotic Sons of Mother India has listed several Gujarat activists, including many whose testimonies are listed in this report, as enemies of India. The website openly supports the BJP by including a list of twenty reasons one should not support Sonia Gandhi, leader of the Congress party. The lead entry says, “Shame Shame Indian Leftists! You want human rights for terrorists?” This kind of rhetoric could endanger the security of activists and spreads fear by providing the home address, phone numbers and/or email address of some of those it lists, calling them “anti-India, anti-Hindu activists.”11
So many witnesses have complained of threats that in May 2003, the NHRC asked the Director General of Police in Gujarat for a report on measures taken “to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses.”12 The Director General offered a disingenuous response, saying that in the absence of any specific complaint, it would not be possible for the state police to accord protection to each and every witness or victim.13 However, when the police have known the identity of activists who have been threatened, they have a poor record of protecting them.14
Aside from prominent activists with connections to senior government or police officials, few activists, witnesses, or victims can rely on protection from state authorities. Even witnesses who have received 24-hour police protection have complained that guards turn up sporadically.15 Many Muslim witnesses initially refused to give testimony to the “Nanavati-Shah Commission”16 appointed by Chief Minister Modi because they feared reprisal from local police and Hindu extremists.17 The People’s Union for Civil Liberties (PUCL) said that witnesses had no faith in the proceedings because it was “carried out in an atmosphere hostile to victims.”18 Protection offered by the Gujarat government has been refused by some witnesses because the local police were perceived as complicit and more likely to harm than protect the witness. Witnesses have repeatedly expressed fear of the Gujarat police, fear so great that in one case, witnesses, offered protection by local police, submitted their refusal in writing to the Police Inspector.19
Statements from leaders of the Vishwa Hindu Parishad (VHP),20 alleged by many of planning and executing the attacks on Gujarati Muslims in 2002, have added to the distrust. On July 3, 2004, two years after the riots, despite severe criticism from human rights organizations and constitutional authorities like the NHRC, VHP Working President Ashok Singhal declared that, “What happened in Gujarat after the Godhra carnage had the blessing of Lord Rama.”21
Realities on the ground in Gujarat have fueled the fears of activists, particularly Muslims.22 Muslims are often treated as suspected terrorists and were arrested under the recently-repealed draconian Prevention of Terrorism Act (POTA). Of the 287 cases registered under POTA in Gujarat as of December 2003, 286 were against Muslims.23 Muslim leaders and activists fear that they too will be investigated under POTA.24 That fear was heightened, activists say, after police arrested Haris Ansari under POTA. He is the son of Shakeel Ahmed Ansari, a member of the Islamic Relief Committee working with Gujarat victims. Shakeel Ahmed described the situation:
“Police pick up youths, whoever they want, from streets, keep them on remand for weeks and months. All this has filled Muslim psyche with fear in Gujarat.”25
Activists say that even now, almost three years after the riots, junior police officials in charge of local police stations are reluctant to record complaints by witnesses about threats and intimidation. According to activist Teesta Setalvad, who has received numerous threats for her work on the Gujarat violence, “In some cases when absconders have threatened witnesses, when the witnesses went to lodge an FIR (First Information Report), the police refused to register it. It needs an external push—we have to intervene personally and call senior officers in Gujarat or we have to send a lawyer along.”26
More subtle means have also been used to obstruct justice. Instead of pursuing the perpetrators of the violence, who often committed their crimes in full view of large numbers of witnesses, state police authorities have summoned human rights activists for questioning. In many cases the questioning has been based on unsubstantiated protest letters sent to the BJP government by its own party workers.27
Tax authorities and the Gujarat charity commissioner have allegedly singled out human rights activists working on the riots for investigation. Local activists say that income tax investigations have been threatened against many organizations run by Muslims in an effort to put pressure on Muslim leaders to encourage witnesses to drop charges and withdraw from cases.
The Gujarat government appears to be abusing its law enforcement powers to deter local activists by tying them up in lengthy legal proceedings. If spurious charges are filed, it could take years for activists or witnesses to prove their innocence, meanwhile limiting their ability to participate in efforts at justice for the 2002 riots. While the government has every right to examine or audit voluntary agencies, the alacrity with which the Gujarat government has been pursuing such investigations is in stark contrast to its attempts to arrest and prosecute those accused of taking part in the riots and committing crimes as serious as rape and murder.
India’s Supreme Court and the NHRC have taken the lead in addressing the failure of justice in Gujarat and the continuing threats and intimidation of witnesses and activists. Each has pointedly criticized Gujarat’s failure to protect the rights of its residents.28 Mallika Sarabhai,29 who has suffered tremendous harassment by the Gujarat government, said recently:
“The Supreme Court has been my beacon of light…It is the only institution that has stood by people fighting intolerance and hatred and taken on the government.”30
Recent crucial interventions by the Supreme Court, particularly in the Best Bakery case, have offered victims and their supporters new confidence to continue pressing for justice. In the Best Bakery case, the Supreme Court condemned Gujarat’s failure to investigate and prosecute those responsible for the 2002 violence.31 It ordered fresh investigations and specifically ordered the retrial outside Gujarat of individuals who had been acquitted after a widely criticized trial in Gujarat of twenty-one persons for setting on fire and killing fourteen people at a bakery in Vadodara, Gujarat.
Amicus curiae Harish Salve, former solicitor general for the Indian government and a senior lawyer, had filed an application to the Supreme Court stating that of the 4,252 cases registered by the police, nearly 2,100 had been closed.32 On August 17, 2004, the Supreme Court directed the Gujarat state government to set up a panel of senior police officials to review cases where the local police had filed closure reports instead of charge-sheets and asked the Director General of Police to report the progress of the committee’s review every three months.33 The court has also asked for a re-examination of all acquittals in riot trials to determine possibilities for filing appeals.34
In the case of Bilkis Yakub Rasool Patel, the Supreme Court ordered a change of venue after accepting evidence of police bias in favor of the accused and the threatening of witnesses.35 The court was responding to Bilkis’ prayer for transfer of the trial outside Gujarat because justice was not possible in Gujarat in the prevailing political environment.
The Supreme Court’s orders have rewarded a persistent campaign on behalf of the victims of the Gujarat riots by activists, lawyers, and victims. However, apparently fearful of the consequences of this tough action, Gujarat officials and Hindu nationalists—many connected to the BJP—have stepped up their harassment and intimidation of witnesses, human rights activists, and lawyers in order to discourage them from continuing with their efforts at demanding accountability for the 2002 violence.
Victims have started fighting back. Zahira Sheikh, a witness in the Best Bakery case who had retracted previous testimony against the accused at trial, announced that she had recanted her statement after being intimidated by a local BJP leader, and called for a fresh trial. This has encouraged other witnesses to come forward, bolstered by the legal protection which activists and lawyers are providing, sometimes at great personal risk, under the umbrella of Supreme Court and National Human Rights Commission rulings. As one victim said:
This is not my struggle alone. It is our struggle, of those countless Muslim women raped and humiliated during the riots whose names and faces I do not even know but whose pain I can feel. I will carry on my fight to till the end and I am confident that other Muslim women faced with similar trauma will come forward and fight their cases.36
But individual courage alone will not allow fair trials to proceed. The cases set out below are illustrative of the problem of threats and intimidation faced by many victims, witnesses and activists, but most remain too afraid to tell their stories in public.
The new Congress Party-led coalition government in New Delhi has raised hopes among activists and victims because of its promise of secular governance and its commitment to “preserve, protect and promote social harmony and enforce the law without fear or favor to deal with all obscurantist and fundamentalist elements who seek to disturb social amity and peace.”37 Now it needs to take strong action to ensure the investigation and prosecution of those guilty of committing crimes during the riots––and to identify and prosecute their sponsors.
To address the nature and scale of intimidation against victims, witnesses, activists, and lawyers, Human Rights Watch calls upon the new government in Delhi and the state government in Gujarat to:
1 Immediately take all necessary steps to ensure the safety of activists, lawyers, victims and witnesses who are fighting for justice in Gujarat and prevent retaliation by state agencies against witnesses, human rights activists and lawyers working on riot related cases
2 Ensure that a credible and effective witness protection program is created at the national level to protect victims, witnesses, and activists. Support and encourage the work of the Indian Law Commission on this subject. It is critical to note that physical protection alone is not enough to constitute witness security. In situations of mass violence, like in Gujarat, effective witness protection programs have to include long-term sustained rehabilitation of survivors/witnesses to the violence
3 Order the Central Bureau of Investigation to investigate all allegations of violence, intimidation, or witness tampering by officials of the Gujarat administration, local police, local nationalist organizations, and others. When such acts are found to have occurred, initiate prosecutions and take disciplinary action against offenders.
4 Initiate vigorous prosecutions in all cases related to the 2002 violence where there is sufficient evidence. Prosecute any civil servant, including police officers and prosecutors, who failed to fulfill their obligations towards Muslims or their representatives.
5 Ensure that tax investigations are not used as a political tool against witnesses and activists.
6 Take appropriate criminal or civil action against all individuals and organizations that incite violence.
7 Launch public awareness campaign in Gujarat and other states aimed at preventing future communal violence, including public service announcements condemning religious violence and extremism. Enact a comprehensive law against communal violence, as promised in the Common Minimum Program of the United Progressive Alliance and encourage each state to adopt that law.
Offer full support to the work of the NHRC and its Special Representative, including acting expeditiously on their recommendations.
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