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home > News/Analysis  > Archive: Selected Analytical Articles  > Gujarat experience explodes the myth of a strong and an independent Indian judiciary

Gujarat experience explodes the myth of a strong and an independent Indian judiciary
Vahida Nainar, Researcher/Consultant, International Law, Bombay, India
August 2003

    The acquittal of alleged perpetrators for 'lack of evidence', in one such case of the Best Bakery in Baroda, firmly sealed off any expectations of justice from the state judiciary.

    The level and extent of infiltration of individuals from the Hindu right wing network in positions of power in different institutions of governance in the state of Gujarat in India and their complicity in the pogrom in February-March 2002, left victims and survivors with very little hope that those responsible will be brought to justice. Yet, there were incidences of violence with such compelling testimonies that if investigated and law allowed to take its normal course, may have resulted in convictions. The acquittal of alleged perpetrators for 'lack of evidence', in one such case of the Best Bakery in Baroda, firmly sealed off any expectations of justice from the state judiciary.

    Often after violence of a scale as witnessed in Gujarat in 2002 in which state officials was involved, there is a tendency to bury the past and move on. An impartial investigation would likely go against the government in power and expose its involvement. Political deal-making prevents action when the government changes and the opposition takes over thereby generally encouraging a culture of impunity to prevail. Impunity to the state officials in positions of power that were involved in planning, ordering and abetting serious crimes and human rights violations, impunity to the lower level officials that implemented the plan and finally impunity to the mob and its leaders that actually perpetrates the crimes, with each group having an inescapably 'guilty-mind' hold over the other. In Gujarat, the members of the Rashtriya Swayam Sevaks (RSS), Vishwa Hindu Parishad (VHP) and Bajrang Dal (Hindu right wing youth group) that formed the mob, its leaders, some of the local elected representatives, some officers of local police stations, some of the cabinet ministers and finally the chief minister, Mr. Narendra Modi represents the chain that enjoys impunity.

    The persecuted Muslim minority against whom the pogrom in 2002 was targeted however finds it extremely difficult to bury the past and move on. During the pogrom, they were often left with no identifiable bodies to bury and now, the ever-present threats, intimidations and humiliation makes even memories difficult to bury. The violence continues - the withdrawal of statements by victims accompanied by local legislative members of the state government and sympathizers of the Hindu right agenda at the Court in the Best Bakery Case speaks volumes of the extent of pressure put on the victims not to pursue investigation and prosecution. At many places, withdrawal of complaints and statements at the police stations is a condition upon which the victims are allowed to return to their own, often destroyed homes.

    Life for Muslims in Gujarat is allowed but as promised by the leaders of the Hindu right groups only upon the 'goodwill' of the majority Hindus. Muslims face an economic boycott and are deprived of their sources of livelihood. If they are grocers, their shops have either been destroyed or people are discouraged to buy from them. If they are plying cabs they are prevented from taking fares from regular stands. Muslims masons and carpenters are not finding work. Licenses for Muslim owners of meat shops are not being renewed. Those with 20 years of service in factories, shops and educational institutions have been summarily discharged. Indeed, those who survived the pogrom are alive but for how long under these conditions is the question.

    Muslim community as a whole face severe persecution but there are specific ways in which women are targeted for continued violence, abuse and humiliation. The memories of rape, sexual abuse and violence remain fresh in their minds as they watch perpetrators roaming freely with impunity in the neighborhoods openly taunting and threatening women with similar violence. Women's mobility is severely restricted and those who did not don veil as their Muslim identity are now taking to it for the sense of relative security and obscurity it affords. Young girls are married off to unsuitable alliances for fear of being sexually violated in future pogroms and education of the girl child is severely affected. The police complicit in the pogrom continue to intimidate Muslims in their regular 'combing' operations picking up Muslim males and harassing women in their absence. The language used by the law enforcers in such operations is replete with sexual innuendos directed at Muslim women.

    In the post 9/11 global politics, existing biases against Muslim populations everywhere but particularly where they are in minority has got legitimacy and sanction. Language demonizing Muslims is 'believable.' The Gujarat pogrom itself draws its strength from what seems to be an international mood to go after 'Muslims' in the name of 'war on terror.' The slogans used in the elections in the state of Gujarat in December 2002 harped on security issues security to people from the 'terrorist Muslims.' The network of Hindu right groups in India has always considered non-Hindu minorities as 'foreigners'. After 9/11, they project Indian Muslims as terrorist, saboteurs, spies working for the 'enemy Pakistan' and anti-social elements that Indian society need to be purged of. This has helped the Hindu right gain popular support and manufacture consent to their anti-Muslim bias and genocidal intent.

    Muslims in Gujarat have no expectations of justice with the BJP (the political formation of the Hindu right network) government in power in the state. The lack of confidence stems from the acquittals of alleged perpetrators in most serious cases of violations, the Commissioner of the Enquiry Commission exonerating Chief Minister Narendra Modi of any involvement in the pogrom even before completing the hearings and the general anti-Muslim biases and attitudes of police, prosecutors and judges in the state. The Supreme Court of India ordered a re-trial of the Best Bakery case which inspires confidence that the judiciary of the highest order in the country would step in and uphold the constitutional guarantees of right to life, freedoms and protection of minorities. The problem with the order however is the faith the Supreme Court shows in the Gujarat state institution's ability and willingness to investigate and prosecute crimes in which they are themselves so heavily implicated. Twenty months into the pogrom, a number of public interest litigations filed at the Supreme Court of India by concerned citizens requesting that investigations of major cases of violations be moved to the relatively neutral Central Bureau of Investigations (CBI) are yet to be heard. Nor did the Supreme Court add that in its recent order that investigations for the re-trial of the Best Bakery case be done by the CBI. Such show of confidence by the Supreme Court would only result in sham trials with the most vulnerable of the alleged accused made the 'fall guy.'

    With lack of avenues of justice nationally, the question of applicability of international law to the Gujarat situation arises. The problem however with even beginning to think of the practicalities of applying international law is India' image in the international community. India, to many, is still Gandhi's India with commitment to policies of non-alignment, democracy, non-violence and respect for rule of law. That over the last decade or so, India has been politically taken over by Hindu right network is not widely known. There is also tremendous difficulty in the international community to imagine contemporary India as fascist, nationalist and genocidal. The Hindu right government in power has essentially used the clout, respect and credibility gained as a result of India's post-independence policies of non-alignment to successfully disguise its fascist and nationalist agenda.

    Those responsible for the Gujarat pogrom must be held accountable. If national systems fail the victims and survivors, international mechanisms must be invoked. For when crimes as serious as genocide is in the making, no matter where, it ought to be the concern of humanity as a whole.