The case was adjourned because the Gujarat government said it needed time to come up with a response. "We need time to go through the voluminous records of the case," the state prosecutor argued. Jafri's lawyers said the government could be issued a notice and could then be given time to reply, but the court said it would hear the matter again on April 11.
Zakia Jafri is no stranger to waiting. On 28 February 2002, her husband Ehsan Jafri, a Congress politician and former Parliamentarian, was dragged out of his home in Gulberg Society in Ahmedabad on February 28, 2002, to be hacked and burned to death. Sixty nine people died in Gulberg Society that day.
The 2002 riots in Gujarat have the distinction of being the only instance of communal violence for which some amount of justice can be said to have been dealt. One hundred and seventeen perpetrators have been convicted, including a serving minister in the Gujarat government. Because of the Supreme Court, some of the most heinous cases during the riots have been reopened for investigation. Yet that hasn't brought justice for all victims of the 2002 violence. Like Jafri, many believe the pogrom in 2002, of which Gulberg Society was only one incident, would not have happened without chief minister Narendra Modi's tacit approval. If Jafri's legal efforts succeed, the powerful chief minister and the Bharatiya Janata party's candidate for the position of India's prime minister could be brought to trial on up to 15 charges .
So far, the Gujarat government and the BJP have used the SIT report to claim that the chief minister has been given a "clean chit" by the country's criminal justice system. “Nothing will come of the case,” said Harshad Patel, a BJP spokesperson in Ahmedabad told Scroll.in. “The clean chit has come, now the courts will also decide on that.”
Zakia Jafri does not speak to the media these days, but the source of her courage and patience is well-known. The source works from an office in Mumbai's Juhu area. To reach the office, one has to walk past guards of the Central Reserve Paramilitary Force. It is a small but furiously organised office. At the heart of this space is activist and former journalist Teesta Setalvad, who is among the founder-trustees of the two organisations that run from here, Sabrang Trust and the Citizens for Justice and Peace.
Citizens for Justice and Peace was set up on 1 April 2002, in the immediate aftermath of the Gujarat riots, to promote communal harmony. It is among the few organisations that provides legal aid to the survivors of the 2002 riots and has been instrumental in obtaining the 117 convictions that have come so far. Its sister organisation, Sabrang Trust, was established after the 1992-'93 communal violence in the city then known as Bombay.
Right now, Setalvad is battling heavy fire from Ahmedabad. In January, the Ahmedabad police registered a First Information Report against Setalvad and her husband Javed Anand for allegedly cheating residents of Gulberg Society of money collected in 2008 by Sabrang Trust and Citizens in for Justice and Peace. The money was collected to convert Gulberg Society into "a museum of resistance". The call for donations explained the idea: "For nearly six years now, more than a hundred thousand survivors of independent India’s state-sponsored carnage in the western Indian state of Gujarat have been denied dignified acknowledgement of, or reparation for, the magnitude of indignity and violence they suffered. With the BJP’s recent electoral victory in the state, the pain and humiliation of the victim survivors has been further exacerbated. A quiet yet dignified and firm resistance to this state callousness and impunity lies at the heart of this idea of resistance."
This FIR was registered in response to a nine-month-old complaint by some former residents of Gulberg Society. The complainants had said they were not being given the money collected in their name, even as they lived in penury. Anand and Setalvad had responded to the complaint in May 2013, clarifying their accounts and the nature of donations raised and for what they had been utilised. The Ahmedabad Police's Crime Branch did nothing about the complaint for nine months, but suddenly registered an FIR days after Setalvad and Zakia Jafri announced their decision to challenge the lower court's order in the Gujarat High Court, asking that charges be framed against chief minister Modi.
The idea of a memorial to victims of communal violence is seven years old now. “We conceived the idea in 2007 when the Supreme Court cases were not moving," Setalvad told Scroll.in. "There was a lot of despair on the part of the survivors. The idea was that we would think of a memorial for all victims of communal violence. So from Kashmiri Pandits to Gujarat 2002, etc, and it was an ambitious project.”
The FIR claims that donations were asked for and received by both trusts, but Setalvad claims it was only Sabrang. The CJP, Setalvad explains, works mainly to give legal aid to riot victims, whereas Sabrang is the general trust to work on communal harmony.
At the time the memorial was proposed, there were no takers for the flats in Gulberg Society, which is in a Hindu-dominated area in the main city of Ahmedabad. The Sabrang Trust proposed to raise money through donations to purchase the properties from residents at market rates. Residents in turn promised not to sell their property until Sabrang was able to raise enough funds. However, due to rising land prices across Ahmedabad, Sabrang realised they would not be able to raise enough money through only donations. They gave up the idea altogether in 2012.
“By 2012 it was clear that land prices had gone up by four times, so we would have needed an amount which was now impossible through donations,” said Setalvad. “Our organisation incurs an expense of Rs 5 lakhs a month, out of which just Rs 3.5-4 lakh is on legal fees. So we directed the 4.5 lakhs collected for the Gulberg museum to legal aid, with written permission of the donors.” She said she was willing to produce those permission letters in court, but declined to reveal the names of the donors to Scroll.in.
Sabrang then informed Gulberg Society about the decision, which Society accepted. At the end of 2012, the Society passed a resolution stating that owners could sell their property to people of any religion or race, as was the case since it was built in 1963. This resolution was rendered void a little over half a year later, when the Gujarat government dredged up an old law that prevents citizens of a community from selling their property to people outside the community.
The Gujarat Prohibition of Transfer of Immovable Property and Provision for Protection of Tenants from Premises in Disturbed Areas Act of 1986 was meant to protect people fleeing their homes from communal violence from making a hasty decision of disposing of their property and later regretting it. Around 40 per cent of Ahmedabad is covered by this act. In August 2013, eight months after the Gulberg Society resolution to sell their property to whomever residents pleased, and four months after Zakia Jafri filed her first case against the SIT's closure report, the Gujarat government suddenly extended the application of the law to, among other places, the Gulberg Society and Naroda Patiya.
“Gulberg and Naroda Patiya are two pockets in completely Hindu-dominated areas, which means they are obviously not going to be able to sell to their own community,” said Setalvad. Muslims don't want to live in the Hindu areas for the fear of risking their lives in a possible future pogrom. Setalvad calls the law illegal and says that it violates the right to own and sell property. “You’re tying their hands and by doing so, you’re getting them to fall at your feet," she said. "Their case is still pending in the court. This law and its use in Gujarat ought to have been a matter of independent investigation by the media in this country.”
She added, “I am alleging openly that this is being done to try and push the survivors of Gulberg Society to a wall, in the hope that maybe one or two of them in desperation might bend to the will of the state and turn hostile even in their own criminal trial.” No one has yet been convicted for the Gulberg Society massacre.
As to the museum, there were no papers, and no transaction between Citizens for Justice and Peace, Sabrang Trust or the residents of Gulberg Society, which Setalvad says, indicates quite clearly that there can be no possible case of cheating. “What is cheating?” Setalvad asked. “You can say it is cheating if I have taken money from you or property from you. Neither has happened. There is no ingredient here to amount to that.”
In fact, the original complaint about the cheating was not filed by representatives of the Society, but had been typed by a few members on the society letterhead without authorisation. The authorised representatives of the society released an affidavit (.pdf) on March 13, 2013, to categorically deny that they had any conflict with Setalvad or her NGOs.
“We state that the NGO has already authorised the society to sell the property last year and therefore there cannot be any grievance against the NGO as the society has not parted with any part of the land,” said an open letter by Sabrang. “Moreover, the donors don’t feel cheated and therefore the signatories, who have not parted with a single pie, have no locus to file any such complaint against the NGO.”
One of the main charges in the FIR is that the two organisations collected funds from foreign donors for the memorial, but had not given the money to the intended recipients. It alleges that the foreign donations Sabrang Trust received between April 10, 2007 and February 20, 2014, amounting to Rs 2.62 crores, were intended for the memorial. It also said that Citizens for Justice and Peace received foreign donations of Rs 1.31 crores.
In a 41-page public affidavit, Setalvad and Anand show excerpts from their accounts to prove that the total amount raised for the museum did not exceed Rs 4.5 lakhs, only Rs 50,000 of which came from foreign donors. The Sabrang Trust received only Rs. 1.33 crore in foreign funds during this period, the bulk of which went towards legal aid. Citizens for Justice and Peace received Rs. 1.15 crores. The Ahmedabad crime branch, they say, manipulated their bank statements to arrive at the figures of Rs 2.62 crores and Rs 1.31 crores.
They two have also filed a case in the Bombay High Court seeking to quash the FIR and sought interim relief from the Supreme Court. Setalvad alleges that this FIR is a conspiracy of the BJP government in Gujarat. “The desire of the Gujarat government is to somehow paralyse this organisation financially by getting all these malafide allegations made,” said Setalvad. “A large part of our donations is to legal aid.”
Harsh Patel of the Gujarat BJP denied this. “The government has nothing to do with this case," he said. "If she has cheated the residents of Gulberg, then we will find out in the court. The truth will come out.”
Taking on Narendra Modi
None of this has yet convinced Teesta Setalvad withdraw her support for Zakia Jafri and her campaign to bring Narendra Modi to trial.
The noise around the Gulberg museum case makes better copy than the tedious process of repeated appeals in courts, but the timeline of the controversy created around the memorial intertwines closely with that of Zakia Jafri’s petition against the SIT report. On February 8, 2006, Jafri filed a 119-page chargesheet alleging that Gujarat's state machinery was involved in the riots. It took two years and a Supreme Court order for the complaint to be recognised. The court ordered certain cases to be reopened and investigated by an Special Investigative Team comprising five officers, some of whom were replaced over the years.
The SIT filed a closure report in 2012, but failed to share its findings with the complainants. The Supreme Court had to step in again and ordered them to file the report with a local court, which the SIT did only in February 2013. The closure report, which the defenders of Narendra Modi interpret as a clean chit for the chief minister, merely says that despite the evidence gathered by the SIT, which is documented in its voluminous report, there is not enough to merit a case against him.
But Raju Ramachandran, an amicus curiae appointed by the Supreme Court to monitor the process, disagreed, saying that the evidence against Modi was too significant to be judged at a pre-trial stage. In a parallel track, the first complaint about the Gulberg Society memorial was filed in March 2013, a month before Jafri and Setalvad filed their protest petition in April, and in August that year, the Gujarat government extended the Disturbed Areas Act to Gulberg Society.
“Narendra Modi is very upset with [Teesta Setalvad] because she is going after him,” said Kingshuk Nag, author of a biography on the Gujarat chief minister. “She is a hardcore Gujarati, and though she grew up in Bombay, she is from a highly regarded family. A lot of other people have not been as active as she has. She has been proactive in doing relief and rehabilitation work with victims, women and following up with Modi. Therefore he is taking advantage of the fact that she is in charge of these large organisations.”
While the merits of the Gulberg Museum case will be decided in court, this is not the first time that Setalvad and Citizens for Justice and Peace have been targeted by the Gujarat government. In the years after 2002, as it became clear that Citizens for Justice and Peace was going to continue to support riot survivors in their fight for legal justice, the Gujarat police filed FIR after FIR against Setalvad. All of them were found to be spurious and were quashed by the courts.
The Gujarat government has had very little to do with any of the convictions in the 2002 pogrom cases. Of the cases pursued by the Gujarat government, only five per cent resulted in conviction. Of the cases pursued by the SIT or moved to courts in the neighbouring Maharashtra state, the conviction rate has been 39 per cent.
Some criticise Setalvad for focusing so heavily on the figure of the chief minister that it has taken away focus from convicting perpetrators. “It is a fair argument that Setalvad is obsessed with a political battle against Modi,” said Ashok Malik a senior journalist and BJP observer. “It is valid to say that he was the chief minister and he failed to control the riots. But to confuse a valid political case against him, with a legal case is a weak point.”
Setalvad dismisses this criticism. “If it was the case that there was no material against Modi, then I think the Supreme Court of this country would not have ordered an investigation by the SIT. The fact that the SIT report could not find conclusive evidence, but the amicus curiae appointed by the court read the evidence differently, is obviously something the critics are not aware of. I don’t think the other perpetrators will get lost in the battle. The charges are not just on Narendra Modi but on 59 others as well.”
RB Sreekumar, who was Gujarat's chief of intelligence in the months directly after the riots and who submitted a 200-page affidavit listing the circumstantial evidence against Modi, also disagrees with the idea that targeting Modi is unnecessary. “Narendra Modi's plan is to keep the complicity level as low as possible, so that it doesn't reach him,” he said.
That is why Setalvad thinks it is important to have Narendra Modi and the Gujarat government face trial. “We believe they are perpetrators themselves, which is why we decided to assist Zakia Jafri," she said. "It’s still up for grabs; it’s not been decided legally.”
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