By Jyoti Punwani
Oct 03, 2012
Mumbai’s victims of communal violence have failed to get justice because the accused are as politically powerful as those in Gujarat
Amit Shah, Gujarat’s former Home Minister, accused in the Sohrabuddin Sheikh fake encounter killing of 2005, will now stand trial in Mumbai, not Gujarat, the scene of the encounter. His clout in his home state is obviously the main reason for the Central Bureau of Investigation (CBI) asking the Supreme Court to transfer the case. When you consider that two other major cases of the 2002 Gujarat violence were also sent to Mumbai for trial by the Supreme Court, the conclusion is clear. In Bhartiya Janata Party-ruled Gujarat, a fair trial is an impossibility when the accused are Hindu BJP supporters, and the victims are Muslims.
This assumption was proved wrong by the recent Naroda Patiya judgment convicting 32 Hindus. But this was a case monitored by the Supreme Court. And, it came after nine years of continuous intervention by the apex court after the farce in the name of justice that was being played out in Gujarat immediately after 2002. Public prosecutors sympathetic to the ruling party were making sure that the Hindu accused got away in cases already botched up by communal policemen.
Thus the Best Bakery case, named for the incident during the 2002 riots in which 14 persons were burnt alive, saw all 21 accused acquitted in Gujarat. Tried in Mumbai, nine were convicted. The Bilqis Bano case had 12 of the 20 accused convicted in Mumbai.
It seemed obvious then, that away from the ruling party’s malevolent influence, a fair trial was possible. A thrilled Maharashtra Home Minister, basking in the flattering implications of the cases being sent to his State by the highest court, promised to do everything to ensure justice. And he delivered. In the Best Bakery case, sent here in 2004, he appointed P.R. Vakil, one of Mumbai’s best criminal lawyers as the public prosecutor. The judge assigned to the case was also one of the best. The Bilqis Bano case was investigated by the CBI, which chose the public prosecutor from Gujarat, and ensured that the main eyewitness, Bilqis, was protected. But the location of the trial was crucial — guaranteeing a neutral, non-threatening court machinery.
The 1990s riots
So why does this treatment of Mumbai as a haven for justice seem like a tasteless joke to Mumbaikars?
In the same city, with its formidable judiciary and lawyers, its own citizens have failed to get justice. The 1992-93 riots that ravaged this city aren’t history. Some riot cases are still going on. Here too, as in Gujarat, there are politically powerful Hindu accused and helpless Muslim victims. Here too, cases have been botched up by communal policemen and thrown away by indifferent, if not communal prosecutors. Of the riot cases, 60 per cent were simply closed. Maharashtra too had a ruling party determined to shield its wrongdoers. When the Shiv Sena defeated the Congress in 1995, some riot cases were underway, most of them blood-curdling incidents that had the Terrorist and Disruptive Activities (Prevention) (TADA) Act applied to them. Most of the accused were Shiv Sainiks. All were acquitted, without the defence having to do much: the eyewitnesses, all Hindu, turned hostile. In one case where the main witness, a Muslim and the only surviving victim, stuck to her stand, the TADA judge insisted on corroboration, agreed with the technical objections raised by the defence lawyer and acquitted the Shiv Sainiks. In most of these cases, the defence lawyer was the son of a Shiv Sena Rajya Sabha member.
Only in three cases, were the accused convicted. They were all Muslims. The Supreme Court acquitted them.
In 1998, the Srikrishna Commission of Inquiry submitted its report indicting the Sena and the police. Of course the ruling party rejected it.
This Kalyug came to an end in 1999. “Secular forces” defeated “communal forces.” The bulk of the riot cases remained to be heard. Sena MP Madhukar Sarpotdar was the most important accused, charged with hate speech; leader of the Opposition Gopinath Munde and his secretary Pradip Moitra were other important offenders, charged under the Arms Act. Did the Congress government appoint a special prosecutor and fast-track these cases? Did it reopen the closed cases? Did it vigorously start implementing the Srikrishna Report? You must be joking.
One of the prosecutors appointed in Sarpotdar’s case resigned after not being paid for six months. As the seven accused took turns not to appear in court, magistrates went through the motions.
Charges were framed in 2000, after a tabloid front-paged the state of affairs. Even then, it took a conscientious magistrate presiding over a special court to try riot cases seven years later, to convict Sarpotdar and two others. Vilasrao Deshmukh, then chief minister, promised to appoint a special prosecutor to fight Sarpotdar’s appeal. Four years later, it is a promise that is still to be kept. The appeal meanders from court to court, each prosecutor more clueless than the other. Munde’s case died a silent death.
The other VIP accused were policemen charged with murdering innocent Muslims. The minority-loving Congress booked them only when forced by the Supreme Court, and then made sure they went unpunished. Former Commissioner R.D. Tyagi, charged with killing eight Muslims, was discharged thanks to a lacklustre prosecution. The government didn’t go on appeal. But for sub-inspector Nikhil Kapse, charged with the killing of six Muslims, the same government ran to the Supreme Court to stay the High Court-ordered CBI inquiry against him. The CBI’s closure report exonerating him is now being challenged by a victim, just as Tyagi’s discharge was. The ruling “saviour-of-Muslims” party is nowhere in the picture.
24/7 TV coverage of the violence, a host of NGOs, a proactive National Human Rights Commission (NHRC) and Supreme Court, and international attention have ensured justice for Gujarat’s Muslims. Mumbai’s Muslims had only a commission. No wonder they laugh when another Gujarat case is sent here.
Jyoti Punwani is a freelance journalist based in Mumbai.