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When Justice Becomes the Victim the Quest for Justice After the 2002 Violence in Gujarat

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When Justice Becomes the Victim the Quest for Justice After the 2002 Violence in Gujarat The Quest for Justice After the 2002 Violence in Gujarat When Justice Becomes the Victim The Quest for Justice After the 2002 Violence in Gujarat May 2014 International Human Rights and Conflict Resolution Clinic Stanford Law School http://humanrightsclinic.law.stanford.edu/project/the-quest-for-justice International Human Rights and Conflict Resolution Clinic at Stanford Law School Cover photo: Tree of Life jali in the Sidi Saiyad Mosque in Ahmedabad, India (1573) Title quote: Indian Supreme Court Judgment (p.7) in the “Best Bakery” Case: (“When the investigating agency helps the accused, the witnesses are threatened to depose falsely and prosecutor acts in a manner as if he was defending the accused, and the Court was acting merely as an onlooker and there is no fair trial at all, justice becomes the victim.”) The Quest for Justice After the 2002 Violence in Gujarat When Justice Becomes the Victim: The Quest for Justice After the 2002 Violence in Gujarat May 2014 International Human Rights and Conflict Resolution Clinic Stanford Law School http://humanrightsclinic.law.stanford.edu/project/the-quest-for-justice Suggested Citation: INTERNATIONAL HUMAN RIGHTS AND CONFLICT RESOLUTION CLINIC AT STANFORD LAW SCHOOL, WHEN JUSTICE BECOMES THE VICTIM: THE QUEST FOR FOR JUSTICE AFTER THE 2002 VIOLENCE IN GUJARAT (2014). International Human Rights and Conflict Resolution Clinic at Stanford Law School © 2014 International Human Rights and Conflict Resolution Clinic, Mills Legal Clinic, Stanford Law School All rights reserved. Note: This report was authored by Stephan Sonnenberg, Clinical Supervising Attorney and Lecturer in Law with the International Human Rights and Conflict Resolution Clinic (IHRCRC). The Stanford IHRCRC is one of ten clinics in the Mills Legal Clinic at Stanford Law School. The IHRCRC provides direct representation to victims, and partners with communities that have suffered or face potential abuse, or human rights advocacy organizations. The IHRCRC seeks to train Stanford Law students to be effective human rights advocates while simultaneously advancing the cause of human rights and global justice worldwide. This report was drafted with the support of several student-attorneys in the IHRCRC. The report was prepared in partnership with various human rights lawyers, community activists and non- profit organizations. IHRCRC's research was conducted independently of these actors, and IHRCRC is grateful for their advice, and technical assistance. The views expressed in this report are those of the author alone, and do not necessarily reflect the official policy or position of Stanford University, Stanford Law School, or the Mills Legal Clinic. The clinic wishes to warmly thank the student-attorneys who helped compile the data for this report, as well as the Armed Conflict Resolution and People’s Rights Project at UC Berkeley, Prashant: Center for Human Rights, Justice, and Peace, Gujarat, and the Center for Justice and Peace for their valuable comments during the review and editing process. The Quest for Justice After the 2002 Violence in Gujarat Table of Contents EXECUTIVE SUMMARY I SECTION I: INTRODUCTION 1 METHODOLOGY 4 SECTION II: THE EVENTS OF FEBRUARY 27, 2002 7 SECTION III: THE EVENTS FOLLOWING THE GODHRA TRAGEDY 9 THE ATTACK AT THE GULBERG SOCIETY 11 THE NARODA PATIA ATTACK 14 EVIDENCE OF CONSPIRACIES IN THE ATTACKS ON MUSLIMS 17 THE JAFRI CASE EMERGES 20 SECTION IV: ANALYSIS & RECOMMENDATIONS FOR SYSTEMIC REFORMS 25 SOME NOTEWORTHY SUCCESSES 28 THE NEED FOR FURTHER REFORMS 33 PROMOTE LEGISLATIVE, ADMINISTRATIVE AND OTHER INITIATIVES TO PREVENT COMMUNAL VIOLENCE 34 INVESTIGATE AND PROSECUTE ALLEGED INSTANCES OF COMMUNAL VIOLENCE 35 PROVIDE VICTIMS OF COMMUNAL VIOLENCE WITH EASY ACCESS TO SEEK JUSTICE 49 PROVIDE EFFECTIVE REMEDIES TO VICTIMS OF COMMUNAL VIOLENCE, INCLUDING REPARATIONS 52 THE SOLUTION AT HAND: THE PREVENTION OF COMMUNAL AND TARGETED VIOLENCE BILL 55 SAFEGUARD THE INDEPENDENCE OF CIVIL SOCIETY & MEDIA 59 SECTION V: THE ROLE OF THE INTERNATIONAL COMMUNITY 61 SECTION VI: IMPLICATIONS FOR THE GULBERG SOCIETY AND JAFRI CASES 63 CONCLUSION 65 APPENDICES 67 International Human Rights and Conflict Resolution Clinic at Stanford Law School The Quest for Justice After the 2002 Violence in Gujarat Executive Summary In late February 2002, riots spread across Gujarat (pop. 60 million), one of India’s most prosperous states. The violence began on February 27, 2002, when one carriage of a train carrying sevaks (lit. “volunteers;” here, the term suggests Hindu nationalist activists) was attacked by a Muslim mob and subsequently engulfed in flames. The fire killed more than 50 passengers. Hours after the attack, the Vishva Hindu Parishad (VHP), the organization that had organized the journey, called a statewide bandh (or privately enforced general strike), claiming that Muslim groups had conspired to attack and kill the Hindus on the train. The Gujarat state government, meanwhile, hastily ratified the call for a bandh, and made preparations for the bodies of the dead to be transported by road a few hours north to the State’s largest city, Ahmedabad (see below, Sections II and III). Before the bodies even arrived in Ahmedabad, anti-Muslim violence had already broken out across the state. A number of riots broke out along the path of the convoy carrying the bodies, including in Ahmedabad where riots branched out from the hospital where they were received shortly after midnight. The following morning, on February 28, Ahmedabad was in chaos. Police were unable or unwilling to intervene against mobs of attackers, many wielding knives, tridents, swords, guns and gas canisters (used to blow up concrete walls). These mobs often numbered in the thousands, and roamed unencumbered through the city (see below, Sections III). At around 9:30 AM on February 28, two simultaneous attacks took place. The first took place at Naroda Patia, a poor and mixed Hindu-Muslim neighborhood on the outskirts of Ahmedabad. The second took place at Gulberg Society, a small, middle class complex housing mostly Muslim inhabitants, including one prominent politician, Mr. Ehsan Jafri. Both attacks continued into the afternoon hours, despite repeated desperate calls for help by the inhabitants to the police. When the dust settled, the cumulative death toll from these two locations alone included at least 165 men, women and children, with many more injured. Included in the death toll was Mr. Jafri himself, who had been killed and brutally dismembered by the rioters. Survivors told ghastly stories of abuse, including mass sexual violence (see below, Section III). The most large-scale violence lasted for three days, although sporadic attacks against Muslims continued for several months.1 Civil society activists and newspaper reporters often refer to the violence as the “Carnage.” Some scholars have urged for the events to be described collectively as a “pogrom.”2 All told, between 1000 and 2000 people lost their lives,3 thousands more were injured,4 and hundreds of thousands were displaced as a result of the violence and destruction (see below, Sections III and IV). This report focuses on the response of India’s judiciary to the criminal cases emerging from Gujarat’s communal violence in 2002. Early on, it became clear that the courts would face intense scrutiny as they evaluated the cases brought before them. Under India’s judicial system, the cases were first handled by the lower courts of original i International Human Rights and Conflict Resolution Clinic at Stanford Law School jurisdiction. The police failed to bring charges against most of the alleged perpetrators of the violence, and even when they did, they failed to provide crucial evidence needed for their conviction (see below, Sections III and IV). An analysis of the lower courts’ handling of the cases reveals a number of significant shortcomings, as well as some noteworthy successes (see below, Section IV). Many victims of the violence feel that courts overlooked police bias, leading to an improper dismissal of cases (see below, Section III and IV). Many of the accused received bail and were able to carry on with their lives. In some instances, these accused threatened victims and witnesses in the cases against them (see below, Sections III and IV). Nonetheless, human rights activists, lawyers and victim families were able to overcome barriers and use the court system to produce a small but growing number of convictions against those who committed atrocities in 2002. According to one advocate familiar with the cases emerging from the 2002 violence, convictions were secured in only a small sub-set of cases: those in which the Supreme Court of India had (1) removed the investigation from the Gujarat Police; (2) provided witness protection to the prosecution witnesses; and (3) replaced the public prosecutors bringing the case, and additionally (4) where the Gujarat High Court Chief Justice, under the supervision of the Supreme Court, had appointed the presiding judges; and (5) civil society had taken an active interest in the case.5 The Gujarat High Court heard a number of appeals in the cases initially brought to the lower district and sessions courts, and the Supreme Court of India intervened as early as 2003 to ensure that some of Gujarat’s highest-profile cases were handled appropriately. The trickle of cases that led to convictions (estimated in 2012 to be no higher than 1.2% of the complaints originally filed with the police, compared to a 9.6% conviction rate for riot-related cases nationwide)6 nonetheless rekindled the hope for many riot survivors that they too might someday see justice done in their cases. Twelve years after the violence began, therefore, it is possible to take stock of the judiciary’s performance, focusing both on its successes and its failures. To conduct this analysis, the author of this report examined available court documents and media coverage of three of the most prominent cases to emerge from the 2002 riots.
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