The Gulbarg case judge used to browbeat witnesses'

R K Shah, the special public prosecutor in the high profile Gulbarg Society massacre case, in which 69 people were killed including former Congress MP Ehsan Jafri on February 28, 2002, resigned on February 24 from the case after cross-examaning 290 witnesses (almost 90 per cent) since July 1, 2009.

He had been appointed by the Special Investigating Team mandated by the Supreme Court to look into nine cases of rioting in the aftermath of the burning down of Sabarmati Express in Godhra on February 27, 2002.

"It was bound to happen. There were some people who had opposed my appointment then," he says wryly sitting inside his office near the historic Lal Darwaza at Vasant Chowk in Ahmedabad [ Images ].

Later he found that he was fighting a lost cause when the investigating officers purposely (he took some time before he admitted it could have been done purposely) gave him case papers and important documents related to the case at the eleventh hour thereby trying "to weaken the prosecution".

The last straw came when he realised that the judge presiding over the case was not sympathetic to the victims and one investigating officer of SIT was "not cooperating much either" with the prosecution.

Interestingly, he is yet to get any word if his resignation is accepted or rejected. The 74-year-old lawyer found some time to speak with rediff.com's Prasanna D Zore about why he quit as a special public prosecutor, the problems he faced in trying to get the accused convicted and whether the Tehelka tapes released by Teesta Setalvad of Citizens for Peace on March 22 could help prove Gujarat Chief Minister Narendra Modi's [ Images ] complicity in the Gulbarg Society case.

Why did you quit as a special public prosecutor?

Generally I found the judge (B U Joshi) unsympathetic to the victims and eyewitnesses. Also, the SIT investigating officer, James Suthar (a deputy superintendent of police), was not cooperating much either.

Why would you say that the judge was unsympathetic towards the victims?

He used to browbeat the witnesses.

And why would the judge do it?

That is the matter of inference. Anybody can infer whatever one wants to.

Where do you think are the Godhra riot cases are heading given the current situation?

Now it all depends upon what the Supreme Court decides ultimately regarding the re-constitution of SIT. Because (senior advocate) Ram Jethmalani filed a petition on behalf of Kalu Bhai Maliwar (BJP MLA and an accused in the Gulbarg society case) challenging the constitution of SIT or saying that there is no utility of SIT now or SIT was constituted without hearing those (the accused) persons. So everything now depends on what view the Supreme Court takes.

Do you think it was the state government that put pressure on the judge to browbeat witnesses?

No I didn't find any such thing when I was the special public prosecutor.

Do you think this case will ever reach its logical conclusion given the frustrating way in which the system is working?

It must reach. It must reach.

What do you think could be this logical conclusion?

Either conviction or acquittal of the accused (laughs).

But you were trying for the conviction of the accused?

Yeah. But then that is the function of the prosecutor to get conviction of the accused, fairly, of course.

Do you think conviction of the accused will ever be possible given the situation prevailing in Gujarat?

See it is difficult to say… but for how long, for how long. These cases can be transferred to other states. If that were to happen where would the system be? It requires little introspection.

On whose part?

On the part of the people administering the system including the judiciary, legislature, everybody. Something should be done to rebuild confidence in our institutions.

Whose confidence?

The minorities (in Gujarat) because they are the ones who are asking for transfer of cases outside the state.

During your prosecution did you come across or even now is there any direct evidence that has come before the court that could nail the Gujarat chief minister?

No direct evidence yet. At least I did not come across any such evidence when I was the special public prosecutor.

Sir, do you think it is the media that is trying Narendra Modi? Whoever wants attention goes after the Gujarat CM?

I don't think it is wholly media hype. There might be some truth in what the media is saying but then it is sometimes blown out of proportion.

Do you think the audio-visuals released by Teesta Setalvad and Tehelka can act as incriminating evidence against Narendra Modi?

By itself, no. Because they are statements made by other people. We would not know if they could stand legal scrutiny. However, these tapes and the transcripts have relevance but it is arguable relevance. After all, these tapes are the result of a sting operation and one has to look at it with a pinch of salt.

What is so suspicious or unlawful about such sting operations?

People don't understand sting operations. People won't take it at face value.

But what does the law say about such sting operations and evidence coming out of such operations in a court of law?

I have not read the judgment in the (advocate) R K Anand case (where he was accused after a sting operation) where it says the Supreme Court has said that it is legal. But how much value could be attributed to such evidence is a different thing. There are well set principles of appreciation of the nature of evidence in a court of law.

How long do you think the victims of the post-Godhra riots in Gujarat will have to wait to get justice?

As of now the trials are on in various cases. Unfortunately there is a stay on Gulbarg trial now but other trials are still on.

Tell us about the problems you faced as a special public prosecutor in fulfilling your duties?

The values are deteriorating. There is no honesty, integrity, nobody wants to speak the truth and therefore witnesses turn hostile. Many poor witnesses when paid money to turn hostile. Something has to be done to improve the lack of character shown by a lot of Indians.

How do you say witnesses turn hostile? Sometimes the witnesses don't speak according to the statement they have given to the police. Or we presume that the police have recorded their statements correctly. Maybe the police have not recorded what the witness told them and the witness is saying the truth in the court.

Therefore, it is the entire system the investigation, the prosecution and the defence have to shoulder the responsibility of developing a strong moral character.

What problems did you face as a special public prosecutor in the Gulbarg case?

All the papers pertaining to the case were not given to me by various investigating agencies handling the matter. At the eleventh hour they would give the paper to me and I would not have enough time to study the papers, to talk to witnesses on that aspect of the case.

Do you think it was done purposely to weaken the case of the victims?

That I can't say (laughs).

What else could explain you being given case papers at the eleventh hour?

They should have given the papers to me in advance so that I could have studied them and prepared by prosecution.

But it didn't happen? Was it done purposefully to scuttle the case?

Yes. It was done to weaken the prosecution's case.

What could have helped you prove all the allegations levelled against the accused by the victims of the Gulbarg case?

Honest recording of statements was necessary.

By who?

By the various investigating agencies including SIT officers, including the Gujarat police. Witnesses have made allegations against the Gujarat police and SIT officers

And they all failed in honestly recording the statements of the witnesses?

Yes, I would like to think so.

Sir, what kind of a SIT chairman do you have who's not present at the SIT office in Gandhinagar when the entire media was agog with the news of Narendra Modi likely to appear before the SIT on March 21?

Why should you think that a chairman of an investigating body should be always present in Gandhinagar? The other officers of the team are here to take care of that.

Agreed. But it was a big day when for the first time in the history of this country the chief minister of a state was to be present in front of the Supreme Court-appointed SIT to answer criminal charges levelled against him.

He should have been here. It would have been better if he were here.

Will we ever get justice?

Jannat Bibi Kalluben, Naroda Patiya resident:

"Will we ever get justice in the Naroda Patiya massacre case?

Now that this case has been dragging on for eight years what we want is only justice. But will we ever get justice?

125 people were killed in the Naroda Patiya massacre. When Modi says that I am with you, with the people of Naroda Patiya, I will give help get justice for you. It's about time. Why is he going back on his words now.

We are only asking for justice, nothing else."

Narendra Modi shouldn't show such cowardice

Sairaben Sandhi, resident of Gulbarg Society, Room no 6

"Four people from my family were killed in the Gulbarg Society massacre. From the last 8 years we have been running everywhere for getting justice and when we are close to getting justice why is Narendra Modi backtracking from going before SIT. On other occasions he attends 100 meetings going around in helicopters then why can't he attend the SIT meeting even for an hour.

Who's is he scared of? He should not show such cowardice. In his speeches he always says that he is with the people of Gujarat and protecting their lives is my responsibility then why is he going back on his words.

When he has got an opportunity to come clean in the matter then he should come forward to prove his innocence. We want an answer from him as to why only we (Muslims) were targeted.

When Ehsan Jafri called Narendra Modi to help save us and send police protection we heard Modi saying this to Jafri sahab: You are still alive?

We want justice and we would like to request Modiji to help and cooperate with us and help us get justice."

'Is Narendra Modi sahab a coward?'

It's more than eight years now but the victims who survived the Gulbarg Society and Naroda Patiya massacre are still awaiting justice. They believe that the state government of Gujarat, and the man who heads it, have a moral responsibility towards providing justice to those who were killed in the riots that followed the burning of Sabarmati Express on February 27 in which 58 kar sevaks were killed.

In a meet-the-press organised by a non-government organisation Prashant and Citizens for Justice and Peace in Ahmedabad on March 22 those who survived the massacres made a fervent plea to Chief Minister Narendra Modi to come before the Special Investigating Team (appointed by the Supreme Court to answer) and answer the criminal charges leveled against him by the victims.

While reports suggest that Narendra Modi is likely to appear before SIT on March 27 there was controversy over his appearance before SIT on March 21 which turned out to be a no-show.

Here are three voices of victims who survived the Gulbarg Society and Naroda Patiya massacre pleading to and accusing the Gujarat chief minister of various criminal charges to appear before SIT.

Ijaz Pathan, resident of Gulbarg Society: Why is Modi sahab scared to appear before the SIT

I was in Gulbarg Society, bungalow number 18. When the rioters set fire to the building in February 2002 the police did not support us. Former Congress MP Ehsan Jafri called all the top police officers in the state and as last resort had also called Narendra Modiji. The only thing he got from Modiji were abuses and bad words.

I was standing next to Jafri sahab. When I asked him what happened he said 'I called on the chief minister of Gujarat to help save us and he has only abuses for me. Don't expect anybody to come and save us. And after that he became very disappointed and went into the kitchen.

After that the rioters took him out and slaughtered him.

Now that the SIT has issued summons to Narendra Modiji when he himself proclaims in his speeches, in front of the media that terrorists had plans to assassinate him then why is Modi sahab scared to appear before the SIT. Has he turned kaayar (coward)?

Now that the truth (about Narendra Modi's complicity in the post Godhra riots) is about to be revealed why is he getting scared? We urge him to come before and cooperate with SIT. If he is not involved then he must go before SIT.

Narendra Modi denied entry to the United States

Narendra Modi denied entry to the United States

Narendra Modi, Chief Minister of Gujarat applied for a diplomatic visa to USA visit USA in February 2005, for attending a private meeting convened by the Indian-American Hotel Owners Association on March 20, 2005 first in Florida and later at the Madison Square Garden in New York. It was not an official visit, but a private one at the instance of the Hindutva constituency in US.

They belong to the Hindu Diaspora, mostly Gujaratis who have been vociferously praising the role of Modi during the riots in Gujarat in February March-April 2002. The Hindu Diaspora in US has been generously financing the Sangh Parivar organizations including the RSS. BJP, VHP and others.
The proposed visit of Modi to USA provoked strong protests from an organization known as Coalition against Genocide, a coalition of over 35 organizations in US that have come together to promote pluralism, secularism and tolerance against sectarian politics in India. It also spiritedly campaigned for ban on Modi's entry in U S. In the US Congress a move for such a ban was made by two Congressmen, one a leader of the Black Caucus in the house and the other a Republican. A massive public protest was going to be staged in the US by these persons, if Modi was permitted to visit US.

The Bush Administration declined to grant a diplomatic visa to Modi in exercise of its powers under section 214(b) of the Immigration and Nationality Act that conferred discretionary powers. The Administration took a further drastic step by revoking Modi's existing Tourist/Business visa in exercise of powers under section 212(a)(2)(a) of the said Act which makes �government official who was responsible for, or directly carried out at any time, particularly severe violations of religious freedom, ineligible for a US visa�.

Modi applied for a diplomatic visa, instead of using his existing tourist/business visa, apparently to claim diplomatic immunity against any possible criminal prosecution of him by any individual or organization in a US criminal Court, for genocide of members of the Muslim minority in Gujarat in 2002 and serious violations of human rights, by provoking such a genocide and/or for failure to prevent such a genocide, to take adequate steps to prevent such genocide and to prosecutor and punish the culprits. Such a prosecution was filed against Pinochet, a Chilean dictator who had carried out large scales genocide of his opponents, in a criminal Court in UK when he paid a private visit to London.

Denial of a visa to any citizen of any country, is prima facie a violation of a Human Right, as freedom to travel anywhere is one such Human Right. But there can be exceptions to this general rule. Modi's case is one such exception.

There was ample material on record, to take a prima facie view that Modi was responsible for instigating and/or failing to prevent genocide of members of the Muslim minority in the whole of Gujarat during the post Godhra riots, on the assumption that Muslims of Godhra were responsible for putting on fire one coach of the Sabarmati Express at the Godhra Railway Station resulting in the death of 56 persons in that coach, who were Hindu Kar Sevaks. The adverse report of the National Human Rights Commission NHRC of India against Modi and his government in this behalf was one such prima facie material relied upon by US Government. The NHRC took an extraordinary step of itself moving the Supreme Court in this behalf.
A large number of journalists investigated into the horrendous riots in Gujarat and published the same in the Press.

The electronic media also telecast pictures of the genocide, which were watched by the entire world. A number of Human Rights Organizations such as Citizens for Justice and Peace (CJP) made searching inquiries in the riots in which they recorded inhuman acts of killing innocent and helpless Muslims including women and children, by torching their houses and/or places of business and burning them alive by mobs of brainwashed people. The mobs were led by goons belonging to Bajrang Dal VHP RSS and BJP. Some of the mobs were led by BJP politicians. Even those who fled for life were pursued by the murderous mobs, killed and their bodies buried with the assistance of the Police as in the Bilkis case. The Police were instructed by Modi's government to protect the Hindus and ignore attacks on Muslims. It has come to light that on Modi's instructions the Police Officers did not discharge their duties to protect the citizens to whatever religion they might belong. In the afternoon of 27th February 2002 Modi visited Godhra and caused all the 56 bodies burnt in the coach of the Sabarmati Express to be removed to a hospital in Ahmedabad, even without following the legal procedure of carrying out Inquest Panchanamas.

That very evening the BJP, VHP and Bajrang Dal called for Gujarat Bandh. A hell was let loose and the indoctrinated people went on a spree of brutally killing innocent Muslims throughout Gujarat.

An independent unofficial inquiry commission headed by Justice Krishna Iyer, former Judge of the Supreme Court of India and comprising of Justice P.B. Sawant, former Judge of Supreme Court, Justice H. Suresh, former Judge of Bombay High Court, K.G. Kannabiran Senior Advocate and President of PUCL Ms Aruna Roy, a social activist and others of impeccable independence inquired into the several incidents of genocide and arson during the Gujarat riots and submitted a report indicting Chief Minister Modi and the BJP VHP and Bajrang Dal and the Gujarat Police who looked aside when the brutal crimes were being committed. The investigation by the Police was deliberately partial. They closed about 2000 criminal cases against Hindus.

In the Best Bakery case of Vadodara in which 14 persons were killed, 19 persons were prosecuted by the Police, but all the accused were acquitted by the trial court as well as the Gujarat High Court. As the matter was taken to the Supreme Court, a Bench of Doraiswamy and Arijit Pasayat JJ gave an unprecedented judgment of setting aside the acquittal of all the accused and directed a retrial of all the accused by a Court in Maharashtra. In the course of the judgment the Supreme Court observed inter alia "The modern �Neros' were looking elsewhere when Best Bakery and innocent children and women were burning and were probably deliberating how the perpetrators of the crime can be saved or protected". The Neros referred to were obviously the Chief Minister Modi and his administration including the police.
In other appeals trial of the killers, including police officers and medical doctors who abetted accused in the Bilkis case, the SC directed transfer of the trial to a court in Maharashtra. In another appeal the Supreme Court directed reopening of nearly 2000 criminal cases closed by the Gujarat Police.

What further material is necessary for justifying the act of the Bush Administration in banning the entry of Modi in USA by denying any Visa to him? None claims the record of the Bush Administration or the previous US administrations in protecting Human Rights were commendable. However objectively and indirectly it serves the purpose of punishing persons like Narendra Modi. Modi was also to visit England at the invitation of Hindu Diaspora in UK. Modi himself cancelled his said visit on a plea that our Prime Minister telephoned him to cancel his visit to London as according to intelligence there was a danger to his life. Neither the Government of India nor of UK prevented Modi from visiting England.

The Human Rights Organizations in UK were going to stage public protests against Modi. Therefore Modi succumbed to the threat and had no courage to visit the UK.

It is highly welcome that the international community showed its disapproval of Modi's acts. But in India no Government could touch Modi so far. As the BJP led NDA was in power at the Center during the riots, the then Prime Minister Vajpayee initially made a noise and was inclined to compel Modi to step down as CM of Gujarat. But Vajpayee is a master of double speak. At a conclave of the BJP in Goa, Vajpayee succumbed to his colleagues and went to the length of resorting to Newton's Theory of action and equal reaction pleaded by Modi. He asked rhetorically �Who lit the fire first� thus justifying the gruesome incidents in Gujarat.

The response in India to the denial of visa and entry of Modi in USA by the Bush Administration, were conflicting in the media and the public. The most vociferous in condemning the Bush Administration were the BJP and the Sangh Parivar, though the relationship between the BJP led NDA and the Bush Administration were very cordial.

Modi and the Sangh Parivar donned the apparel of martyrdom and tried to make political capital out it. But the show of martyrdom could not last long and was giving diminishing returns. The spokesman of the Parivar shouted that India was a sovereign nation, that Modi was an elected Chief Minister of Gujarat and asserted when there was a conflict between human rights and national pride, we will always choose national pride, overlooking that Human Rights were universal values to be observed by the entire humanity, whereas 'national pride' is an ephemeral shibboleth and a political rhetoric.
It is surprising that our Prime Minister and Government of India shared the same views of the Sangh Parivar.

The PM appealed to the Bush Administration to grant visa to Modi, on the plea that Modi was holding a constitutional status of an elected Chief Minister of a State. The reason is, on the issue of 'national pride' the Congress the Sangh Parivar and other Indian nationalists hold identical views. Our Prime Minister took a highly legalistic view in stating that Modi was not convicted by any Court of law and till then the must be presumed to be innocent. He ignored that in public life persons holding high public officers, like Caesar�s wife, ought to be above all suspicion. There are several instances of persons holding high public offices, including Ministers & Judges have stepped down when their integrity was questioned by a large section of the public or adverse comments were made by the Judiciary on their conduct.