By Rajeev Dhavan
IF JUDGMENTS are supposed to settle controversy, Judge P. R. Patel’s verdict of February 22, 2011 most certainly did not. The case relates to the burning of coaches of the ‘Ayodhya’ Sabarmati Express on February 27, 2002. It is difficult not to surmise that the Sangh Parivar’s Ayodhya rath yatras, rallies and bus and train trips are designed to provoke.
It is this designed and intentional provocation that has created tinder box situations that India has faced — especially since the wanton destruction of the Babri Masjid.
The present case concerns setting ‘ fire’ to the train in which 59 Hindu kar sevaks were burnt to death. The case acquired a ‘ whodunit’ quality, and provided a pretext for the massacre of Muslims allegedly with the complicity of State officials and possibly chief minister Narendra Modi himself. It is too easy to say Hindus provoked, Muslims torched the Hindu’s kar sevak train and Hindus ( with State help) massacred Muslims on a merciless scale. But justice cannot be reduced to Hindu- Muslim communalism and written off as a bad dream.
What really happened at Godhra station? Two reports precede this latest judgment. Justice U. C. Banerjee’s report to the Railways submitted on January 17, 2005 said that forensic evidence confirms that coach No. 6 of the Sabarmati Express caught fire accidentally and that 60 litres of petrol could not have been poured into the coaches in the light of the fact that the coaches were well- guarded by trishuls and included non- genuine passengers.
The Nanavati Report of September 18, 2008 opined a conspiracy was planned by Razzak Kurkur, Salim Paanwala and Maulana Hussain Umarji while conceding that provocative slogans had been shouted by the kar sevaks but emphasising that the Modi’s government was not involved in overt or covert participation.
The special court’s judgment of 815 pages by Judge Patel on February 22, 2011 is mammoth and was fast- tracked after the Supreme Court’s stay was lifted in April 2008. The Supreme Court fast tracked the case in April 2009. In the present case, 253 witnesses were examined, 268 witnesses were dropped. Way back, Jabir Binyamin Behra gave a confessional statement that Maulana Hussain Umarji was the lead conspirator.
First, let us look at the acquittals. They occurred because the police had simply randomly picked up 70 Muslims late in the evening on February 27, 2002 and decreed them to be terrorists under POTA. This shows the communal bias of the police and the State. On February 12, 2009, the High Court revoked POTA charges in the train case. The police story was absurdly conflicting even to Justice Patel. Random victimisation cannot be tolerated in any dispensation even one with non- secular credentials. Sadly, many have spent years in jail with the State opposing bail in the Supreme Court because they were all allegedly murderers.
Second, the POTA charges were frivolous unless we assume that all Muslims are, by definition, terrorists. Meanwhile on September 21, 2004, POTA was repealed. The POTA Review Committee had exonerated some of the accused.
Third, is the question of who was convicted? In the present case the chief conspirator Maulana Hussain Umarji was acquitted. Most of the convicted are allegedly part of mob violence or instigating mob violence or unlawful assembly or causing communal disharmony or conspiracy.
[ Sulaiman Hussain alias Tiger ( No. 1), Abdul Rehman alias Jamburo ( No. 2), Bilal Ismail Sujela ( No. 3), Kasim Abdul Sattar “ Biriyani” ( No. 4), Irfan Pada ( No. 5), Qasim Asla ( No. 18), Abdul Rauf ( No. 19), Ibrahim “ Bhano” ( No. 21), Siraj “ Bala” ( No. 22), Bilal Badam ( No.
23), Farook ( No. 24), Ayub Pataliya ( No. 27), Shaukat Yusuf Mohan “ Bibina” ( No. 31)]. No doubt, disorder unlawful assembly and mob violence took place.
Fourth, the judge says some broke windows.
( Mehboob Mitha “ Popa” No. 9) and causing damage to train doors ( Mehboob “ Latiko” No. 30). Some attacked fleeing passengers ( Siddiq Mora, No. 16 and “ Bibina” No. 31) … Some used petrol ( Kurkur No. 7, Kalandar No. 14, Ibrahim ( No. 21), some were indicted for common conspiracy with seven others ( Ghadiyali No. 20) and illegal assembly at the guest house ( Farook No. 24). At best this establishes mob violence. It may disagree with Justice Banerjee’s findings on fire caused within coach S- 6. But it does not establish pre- planned conspiracy but spontaneous violence possibly on provocation from slogan- raising kar sevaks.
Fifth, the question remains whether there was a pre- planned conspiracy. This hinges on the fact that petrol was transported and used by some accused. [ Abdul Razzak Kurkur ( No. 7), Siddik ( No. 8), Ramzani Behra ( No. 10) and Bhopo ( No.
25), Irfan Pataliya ( No. 26), Shaukat Badam ( No. 28), Hani Badam ( No. 29) who helped procure petrol. Hassan Lalu ( No. 11) who along with Behra ( No. 12) and Mehboob Chanda ( No. 13) carried petrol from Kurkur’s house — some in a Rickshaw with weapons Bhano ( No. 21).
There are allegations of conspiracy against Ghadiyali ( No. 20) and Pataliya ( No. 27). All this shows that petrol was at Kurkur’s place and carried to the train.
Sixth, does this show a pre- planned conspiracy? Alas, the alleged kingpin of the controversy, Maulana Hussain Umarji, was acquitted. In fact, apart from showing the movement of petrol to the train, the facts do not disclose a vicious pre- planned conspiracy. This story lies broken, weak and vacillating.
Seventh, questions of access to the train which was high from the ground and susceptible to mob violence, strains credulity as gallons and gallons of petrol were allegedly thrown in.
Eighth, clearly Justice Nanavati’s smooth conspiracy theory is not established.
Nobody denies that mob- violence took place, but was it more than that.
Right now, we have only glimpses of this massive judgment. When delivered, the press were excluded. The judgment will be torn apart by both the convicted as well as the State. No one can justify the death of 59 human beings. It does not matter whether there were provocative kar sevaks. Unfortunately, we take death too lightly in India and write off communal violence in haste.
But, the core issue of this case is whether the attack on coach 6 was premeditated murder, or manslaughter with malice forethought.
This judgment seeks to convict and, somehow, hands over the pre- planned conspiracy on a silver judicial platter.
What we do know from the past is that in the aftermath of this violence, a massive backlash was engineered with the covert and overt participation of the State, possibly leading to the chief minister.
We also know from the Zahira and other cases, the Supreme Court was unhappy with the manner in which Gujarat courts have dealt with the Muslim killings. These matters will emerge when these cases are fully decided. The State left a lot to be desired as far as relief and rehabilitation was concerned. Invoking POTA seemed a quick reflex reaction.
We know that Gujarat’s record on using TADA was dismal and partisan.
In this scenario, it may be comforting for the State of Gujarat to present Justice Patel’s judgment as a showcase confirmation of a pre- planned conspiracy. But who conspired? Who put the conspiracy together? These questions remain not fully answered. The full fledged conspiracy theory has collapsed in view of the judgement. In criminal cases, all this has to be proved beyond reasonable doubt.
“Justice Justice ye shall deliver” says the Old Testament. There are two levels of justice. The second level is more comprehensive and has not been achieved in Modi’s Gujarat.
The writer is a Supreme Court lawyer
Source: Mail Today