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Preventive Arrests
On 27th morning Godhra carnage took place. VHP gave a call for Bandh on
28th. It was obvious that the situation was tense and could get out of
hand. The minimum which the State does in these 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 a likelihood of a minor law and order problem.
Let alone in other parts of Gujarat, the preventive arrests made on 27th
in Ahmedabad itself throw a light on the intention of the police:
Numerous cases have come to light that the police either turned a blind
eye to the riots or even actually participated in the riots. All over
Gujarat there have been instances where the police despite being present
did nothing especially during the first few days to stop the mobs. On the
other hand, there have been widespread reportage of cases where the
police, in fact attacked the Muslims. For instance, in Ahmedabad on 28th
February, 40 persons died in police firing out of whom 36 were Muslims.
This is the day on which admittedly the attacks were completely one sided
namely, the Hindus having attacked the Muslims.
Omnibus F.I.R.s
It is the basic principle of criminal law that every offence needs to be
separately registered, investigated and tried. As set out in the Affidavit
of Vrinda Grover which has been published in this issue, filing omnibus
F.I.R.s 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 F.I.R.s in respect of each incident the police has registered
collective F.I.R.s 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.
F.I.R.s without names of accused
Most of the F.I.R.s which have been filed, especially where police is the
informant do not contain the names of the accused and only say that an
unidentified mob attacked.
There are a large number of cases where the victims actually named the
accused but the police refused to lodge names the accused in the F.I.R.s
and instead told the complainants that the F.I.R. would be lodged only if
the name of the accused is deleted.
For example, at village Por, 3 women and 3 children were killed. The
victims have identified and named 95 attackers the police refused to allow
their names to be included in the F.I.R.s
Wrong persons named in F.I.R.s and Persons arrested not named by anyone
In a number of other cases, the victims complained that though some people
have been named in the F.I.R.s they were not the persons actually present
at the site. This would cause the entire case to be disbelieved and the
real accused would go scot free. Similar is the case with a number of
persons who have been arrested. Because of the public pressure some
arrests had to be made. The easy way out found by the police in some areas
is to arrest persons not at all connected with the crime and not even
named in the F.I.R.s. This makes the case against the actual perpetrators
very weak.
Real culprits not arrested
In most of the cases the real culprits have not been arrested. Especially
when the perpetrators belong to the BJP, VHP or Bajrang Dal and even when
they have been named, these persons have not been arrested. Just to give
an example, in Bhavnagar, Om Trivedi, the city VHP president and 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.
Ministers and Mobs
Residents have actually identified Haren
Pandya, (then) Revenue Minister and Ashok Bhatt, Health Minister and Maya
Kotdani as having led mobs. No action was taken against them.
No Identification Parades
In a number of cases, the victims could identify the perpetrators by site
as they stay in the nearby localities but did not know their names. It was
essential for the police to conduct an identification parade in such a
case. But no such identification parades have been conducted.
Combing Operations
A large number of combing operations have been carried out in Muslim
localities and a number of persons have been arrested. What was essential
was to carry out combing operations in non muslim areas. If proper combing
operations had been carried out in these areas a large amount of stolen
goods, trishuls, words, gas cylinders, provocative leaflets, etc. could
have been recovered. But interestingly, no such combing operations have
been carried out.
Rape victims
Hundreds of women have been raped. As soon as complaints were made, it was
essential for the police to have taken the women for medical checkup but
this was not done. Thus, there is no proof of rape. Secondly, a number of
women have complained that though they informed the police about rape, the
F.I.R. does not mention rape at all.
No action against Media
Sandesh and Gujarat Samachar have especially played a very provocative
role in the genocide. Most of the fact finding reports including the
Editor's 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 authors could have been arrested but not even a complaint
has been lodged against them.
No action against VHP/ Bajrang Dal
It is obvious that 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 has been banned. VHP and
Bajrang Dal could also have been banned by the State or the Central
Government for inflaming communal passions under the POTA and under the
Prevention of Unlawful Practices Act. But this has not happened.
Non Implementation of NHRC Reccomendations
There can be an argument of bias against media reporting and private fact
finding initiatives. But 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 of such cases be handed over to the
C.B.I. for investigation. Even this has not been done.
It is quite clear that what happened in Gujarat, post 27th February was
not a communal conflagration. It was genocide pure and simple. Even in the
past, when state supported or sponsored communal killings take place, the
authorities ensure that no perpetrator is brought to book. This happened
in 1984 in Delhi and in 1993 in Bombay. What the BJP government and its
police force have done in Gujarat is to acquire total mastery over this
art. The only redeeming thing is that in Gujarat and all over the country
a number of individuals and groups are active in trying to ensure that
this time the perpetrators are made accountable. For justice is the only
way to bring lasting peace in Gujarat.
Mihir Desai
Mihir Desai is a lawyer
practising in the High Court of Bombay and joint
editor of Combat Law.
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Flouting the law, government-style
Combat Law, Issue #2
Communalism and the law
Combat Law, Issue 2 -
The Gujarat situation presents an excellent example of how the state
authorities have connived to ensure that laws are undermined. No doubt the
Godhra incident led to an outrage but it was not a case of the authorities
being overtaken by events or there being inadequate police force. Large
scale violence could have been avoided and perpetrators could have been
brought to justice if the authorities had even moderately carried out
their legal obligations. One is here not even talking about good
governance or ideal actions which should have been taken or the policy
measures which ought to have been adopted but those steps which the
authorities were obliged to take by merely implementing the letter of the
law. In order to allow the killings, rape and looting to take place and to
also ensure that no real culprits are ever brought to book the police and
the State Government have mastered methods of directly flouting the law in
favour of the perpetrators. The present article is an attempt to outline
some of these methods. I do not have the space here to go into the details
but in respect of each of the sub heading below, there are tens if not
hundreds of examples which can be given.
Police participation in the riots.
June - July 2002
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