SYYED MANSOOR AGHA analyses the Gulbarg Society massacre judgment delivered on 17 June, and pins hope in Judiciary which can still save the society from falling into a state of anarchy.
Pandit Asa Ram Sharma, an English teacher of mine, while giving a lesson on power of argument, once said, “If you have strong vocabulary and power of argument, you can prove this white wall as black and that black-board as white.” He added, “But reasoning is a virtue of quite different type. It does not gag the tongue but mollifies the mind.” This lesson flashed in my mind after 53 years while reading the media reports on Gulbarg Society massacre judgment delivered on Friday, 17 June, 2016. The killing of 69 persons (on 28 February, 2002) for no fault of theirs, by a mob frenzied on an unfortunate fire incident in a train at Godhra, a town 140 kms from Gulbarg Society, is one of the most barbaric kind of racial killings in India.
The prosecution has accused 69 persons in the case. The court convicted only 24, sentencing 11 of life imprisonment, one for 10 years and 12 for seven years in jail. Taking a lenient view of the gory crime, Justice P.B. Desai gave relief to the convicts that their sentencing would run concurrently and not consecutively. In other words, the years spent by the convicts in jail as under-trials would be counted as sentence served. As a result, two of the convicts, Surendra Vakil and Sandip Mehra, who have been in jail for over 13 years and now have been sentenced for seven years, would be free.
Accepting defence argument to spare the convicted persons from separate sentences for different offences, the court treated the murder, loot, arson and unlawful assembly, among others as part of a single offence. The court said, awarding consecutive sentence to the convicts to each offence did not hold ground.
In a strange argument, which does not satisfy mind, the Special Judge concluded that murderous mob “was largely involved in stone-throwing and attempting to burn and damage the vehicles and properties of members of the minority community outside Gulberg society”. He said, “Private firing on the part of the deceased Shri Ahsan Jafri, which resulted in some deaths from amongst the members of the mob and injuries… infuriated the mob who saw persons belonging to the majority community falling to the bullets being fired.” The mob, the judgment stated, “Suddenly turned into an ugly mob which indulged in the massacre of so many men, women and children of the minority community.” Mr. Ahsan Jafri was former M.P. from Congress Party.
The inference is based on forensic reports and claim of recovery of cartridges from Jafri’s terrace by Gujarat Police. The police could not produce even a single evidence of firing from Jafri’s terrace and of Jafri firing. No weapon of fire was produced with forensic report. There is no conclusive evidence of Gujarat police claim similar to other cases to buttress the theory of provocation.
Even if Jafri did fire, what can a person do in self-defence in such a situation while his frantic calls to police officers, district administration and party leaders failed to evoke a response? As acknowledged in the judgment, the mob was not peaceful but violent. It was randomly damaging the properties of the members of minority community. And it is an established law that a person can act fatally to save life of his family and himself. At the time of the mob attack, many people of the Society, including non-Muslims had taken shelter in Jafri’s house. It was his legal right and moral duty to act and stop the mob, which was so determined that even after firing, did not deter and went on to kill and burn alive whoever they could hold. The court rightly termed the killings “unfortunate” and the “darkest day in the civil society of Gujarat.”
But it is unfortunate that this judgment did not reduce the darkness. It delighted the guilty and saddened the victims. The approach of the Special Judge of SIT is diametrically contradictory to that applied by his sister Judge Jyotsna Yagnik in Naroda Patiya Case (Radiance: Vol. L No.24 / Kodnani ‘Kingpin’ of Naroda Massacre Jailed for 28 years with 31 others). Justice Yagnik hit hard on communal violence and human rights violations. She had observed, “Communal riots are like cancer on constitutional secularism and incident that happened in Naroda Patiya was a black chapter in the history of the Indian constitution.
“Acts of communal violence was brutal, inhuman and shameful, it was a clear incident of human rights violation as 97 people were killed brutally within the day which included helpless women, children, aged persons and the climax of this inhuman and brutal act of violence was reflected in murder of an infant who was just 20 days old,” the court said highlighting the enormity of the crime.
Gulbarg Judgment lacks this concern. The Naroda Patiya incident also saw a similar narrative of a truck having run over Hindus which the defence argued as having provoked the violence, but the court upheld that the killings were pre-planned and identified a kingpin in Mrs Mayaben Kodnani. In the Gulbarg case, the court did not see enough evidence to corroborate the conspiracy clause, which would have meant that the killings were pre-planned. In Gulbarg case, the court relied on the defence theory and the material provided by Gujarat Police, the partiality of which is an open book. Madam Yagnik was brave enough to hit at the root and punish the guilty without caring for threats she received. She is still living under security umbrella. People have faith in courts because courts are morally and legally upright and act in a way which deters the criminal mind and give a sense of relief to the victims. Prima facie the Gulbarg judgment does not evoke this desirable effect.
SIT counsel R C Kodekar reacted, “It is a very inadequate and lenient judgment. We are certainly not happy with it and we are going to challenge it in the high court.” While defence lawyer Abhay Bhardwaj said: “We are thankful to the honorable judge that he has not accepted the prosecution lawyer’s argument that the Gulberg convicts should be held more responsible than a terrorist. While they asked for capital punishment, the judge has also considered the Gulberg accused worthy of reform.”
Gulbarg massacre was not an isolate case. This was one of the series which occurred after Godhra. Gulbarg case is the eighth of the nine reinvestigated by the SIT to be tried in special courts, set up on orders and under the supervision of the Supreme Court. In two days more than two thousand people were killed after Godhra occurred. There are still clouds of suspicion whether Godhra train fire was an accidental case or a deliberate act. But mass killings afterwards have many similarities which prove that it was a well thought act of racial cleansing. VHP, the pallbearer of the show, without any legal authority, was handed over bodies of Godhra victims to be eventually brought to Ahmedabad. The coffins were toured in processions on the streets of the city to hype communal passions and thereby ignite the fire of violence. Gulbarg incident was most barbaric part of this heinous conspiracy. Unfortunately the Special Judge did not take cognizance of the overall situation.
The court also junked the testimony of the Investigating Officer (IO) of the Supreme Court-appointed Special Investigation Team (SIT), J M Suthar, who defended Jafri’s firing as “self-defence”. Giving reason, the court said, “No less than 15 persons were injured in such private firing, of which one person fatally succumbed to the injuries.”
Reacting to the Judge’s observations, Tanveer Jafri, son of Ahsan Jafri, told the Indian Express: “Our house was plundered and burnt, so how did they find the weapon? If they did, it was stolen by someone, or it should have been in a burnt condition. Also, have they produced even one witness who has said he saw my father opening fire? This is a very weak judgment and very unfair. That day, I took my mother out of the house, walking over bodies strewn around. The next morning, everything was burnt. All evidence was destroyed and the court has not done anything about this.”
Refusing firing theory, Zakia Jafri, widow of Ahsan Jafri, said her husband was “running from one part of the bungalow to another and could not even get time to drink water. He did not find a gun and how could he fire on the mob with thousands of people?”
It is unfortunate that Congress did not come forward to help Mr. Jafri, who was a leader of the party, and other victims of Gujarat carnage, though it did politics of “maut ke saudagar” (the merchants of death). However, social activist Teesta Setalvad firmly stood with the victims of communal violence and she was punished as the Union Home Ministry has cancelled FCRA of her NGO Sabrang.
The Gulbarg case is far from its logical end. We have a judgment in hand but justice is still awaited. Zakia has already said she would fight it further and appeal in High Court. Let us see what course the crusade of justice takes further turns. The nation has plunged into a situation where killers become victors and victims are punished. It all depends on our Judiciary, which is still alive to morality and integrity, to save the society from being converted into anarchy.
[The writer is a Civil Rights Activist, [email protected]]