July 1, 2003

VI.  The Godhra Investigation

More than one hundred Muslims have been charged under the much-criticized Prevention of Terrorism Act (POTA) for their alleged involvement in the Godhra massacre.  No Hindus have been charged under POTA in connection with the post-Godhra violence against Muslims, which the state continues to dismiss as spontaneous and unorganized.  The application of POTA exclusively against Muslims suggests that it is not behavior that determines whether an individual is labeled a "terrorist," but his or her religion:  Islam is falsely equated with terrorism.  The government of Gujarat has also allocated considerably greater resources to the investigation of the attack in Godhra than to cases involving Muslim victims.  Forensic evidence suggesting that the train was set on fire from the inside, and not by the Muslim mob outside, has not found its way into the investigation.  Given the numerous problems associated with the case, many fear that innocent people will be punished while the guilty go free.  As the prosecution shifts from one theory to the next, the relatives of many of the Hindus killed are denied redress and face economic destitution. 

The Godhra Massacre [127]

As noted at the outset of this report, the ongoing violence in Gujarat was triggered by the torching of two train cars carrying Hindu activists on February 27, 2002.  The attack followed an altercation between Hindu activists and Muslim vendors at the train station in Godhra that morning, around 8:00 a.m.  A Muslim mob soon gathered and surrounded the train compartment which was then set on fire.  There are significantly divergent accounts about the events leading to the dispute that resulted in the Godhra killings.  It has been widely reported that a scuffle began between Muslim vendors and Hindu activists shortly after the train arrived at the station.  The activists, who had been chanting Hindu nationalist slogans, were said to have refused to pay a vendor until he said "Jai Shri Ram" or "Praise Lord Ram."[128]  As the train then tried to pull out of the station, the emergency brake was pulled, a Muslim mob gathered outside the train, which was then set on fire.[129]  Fifty-eight passengers were killed, including fifteen children and twenty-five women.[130] 

The Godhra railway station is situated in an overwhelmingly Muslim section of the city.  For three weeks preceding the killings, trains carrying Vishwa Hindu Parishad activists had been stopping daily in Godhra.[131]  The activists were coming to and from Ayodhya, where the VHP sought to begin construction of a Hindu temple on the disputed site of the mosque destroyed by Hindu activists there.  VHP leaders had set March 15, 2002 as a deadline to bring thousands of stone pillars to the site in order to begin construction of the temple. 

Initially Gujarat Chief Minister Narendra Modi claimed that the killings were an "organized terrorist attack."[132]  Federal government sources speculated that they were "pre-meditated," or the work of Pakistan's Inter-Services Intelligence (ISI).[133]  However, senior police officials in Gujarat later concluded that the killings were "not preplanned" but rather the result of "a sudden, provocative incident."[134]  In addition, a report from the Railway Protection Force (RPF) concluded that the killings resulted from a spontaneous altercation between VHP activists and merchants on the railway that escalated out of control, rather than a planned conspiracy.[135]

There was some forewarning of violence from within the police itself.  Additional Director General of Police G. C. Raigar provided intelligence ahead of the Godhra incident that VHP volunteers were moving in and out of Gujarat and could instigate communal violence.  He was removed from his post after presenting evidence to news media that law and order in the state could be compromised by VHP volunteers coming to and from Ayodhya.  He had also questioned the government's ability to provide security to the Hindu activists or take other measures, despite repeated warnings.[136]

In July 2002, results of an official investigation by the Ahmedabad-based Forensic Science Laboratory stated that the fire could not have been set by the mob from the outside as had been alleged; the fire, it claimed, was set from inside the train.[137] Close on the heels of the forensics report, activists in Gujarat released the results of a detailed survey of the families of those killed in Godhra.  The survey revealed that most of those reported killed, and in whose name revenge was unleashed, were not kar sevaks (Hindu activists) but ticketless travelers or free riders-a norm on Indian trains.[138]  Following media inquiries that the reservation list for that day be made available to the public, the Gujarat government released the names of thirty-nine of the fifty-eight who died.  The other nineteen have yet to be identified.  It remains unclear how many of those killed were kar sevaks.[139]

The findings of these reports have yet to find their way into the Godhra investigations, which are fraught with procedural irregularities that directly violate both Indian and international law.[140]

The Prevention of Terrorism Act

In March 2002, the state government charged those arrested in relation to the attack on the Godhra train under the controversial and draconian Prevention of Terrorism Ordinance (POTO, now the Prevention of Terrorism Act, POTA), but filed ordinary criminal charges against those accused of attacks on Muslims.  Bowing to criticism from political leaders and civil society across the country, the chief minister dropped the POTO charges but stated that the terms of POTO might be applied at a later date.[141]  Eleven months later, on February 19, 2003, POTA was invoked ex post facto[142] against 123 people accused in the Godhra massacre.  The state contended that new facts had emerged in the investigations that satisfied POTA requirements.[143]

On February 6, 2003, police arrested Maulana Hasan Umarji, a Muslim cleric whom officials say masterminded the attack.  The prosecution's theory on Godhra has changed track numerous times.  Umarji is the third such "mastermind" to be identified.  The first theory involved a conspiracy linked to Pakistan's ISI, the second to the underworld and drug smugglers, and the third linked to Umarji.  Officials claim that during his interrogation, he confessed to receiving financial assistance from Pakistan, Saudi Arabia, and Dubai.[144]  The People's Union for Democratic Rights, an Indian human rights NGO, has charged that the arrest is politically motivated.  Umarji had publicly campaigned against the BJP during the December 2002 elections, and was heavily involved in organizing relief assistance after the violence.[145]  He was arrested based on the alleged confession of one of the other arrestees,[146] yet in the eleven months preceding Umarji's arrest, not one of the seventy-odd people arrested had identified Umarji as a participant.[147]  Following Umarji's arrest on February 6, Muslim-owned shops in the town of Godhra closed down in protest.  Some Hindus in Godhra also closed their shops fearing violence.[148] 

While many of those arrested for post-Godhra attacks on Muslims are out on bail, Additional Director General of Police A.K. Bhargav admitted that POTA had been invoked against the Godhra arrestees in part to forestall the possibility of their obtaining bail.[149]  On April 17, 2003 a special POTA court rejected the bail applications of fifty-six Godhra arrestees.[150]  By sharp contrast, as of the beginning of March 2003, all but three of the sixty-eight accused in the Naroda Patia case were out on bail.  In keeping with Indian criminal procedure[151] the police had attached the properties of fifty-one of the fugitives in the Godhra case, but had failed to do the same for fugitives in the Naroda Patia case.[152]  Critics in the state, including human rights lawyers, add that POTA-whose evidentiary requirements are lower than those of ordinary criminal legislation-is being invoked primarily against those against whom there is little evidence.[153] 

Police continue to dismiss the post-Godhra violence as spontaneous and unorganized; a chilling echo of Chief Minister Modi's now famous justification for the anti-Muslim pogrom that "Every action has an equal and opposite reaction."[154]  When questioned about the government's decision not to apply POTA in the Naroda Patia and Gulbarg Society cases, the police responded that there was no evidence of a conspiracy in those cases.[155]  This despite the fact that evidence clearly exists, and has been collected in meticulous detail by human rights groups throughout the state in the form of thousands of affidavits and reports.  The evidence is simply not being entered into the police record.  Responding to charges made by Human Rights Watch that POTA had been selectively applied against Muslims, while ordinary criminal charges were filed against Hindus, a government official told the Associated Press that investigating agencies "had found no Hindus involved in anti-state activities that threatened that country's sovereignty."[156]

In addition to the Godhra massacre, other cases involving sangh parivar victims, such as the attack on VHP Gujarat state General Secretary Jaideep Patel (see footnote 46), and the assassination of former Gujarat home minister and VHP functionary Haren Pandya are being pursued much more aggressively than those involving Muslim victims.

On the morning on March 26, 2003, former Gujarat Home Minister Haren Pandya was assassinated.  He was shot at close range with five bullets.[157]  Three eyewitnesses who testified before the Citizens' Tribunal testified that they saw Pandya on February 28, 2002 opposite the V.S. Hospital in Ahmedabad setting fire to a store called Apna Bazaar Medical and shouting, "Let us burn these Muslims."  Pandya, who was leading the mob in the area, also reportedly had prevented the fire brigade from putting out the fire.  An FIR had been lodged against him.[158]  In August 2002 Pandya resigned from the ministry in Gujarat.  A source close to Chief Minister Modi told rediff.com, an online news service, that Pandya was asked to either resign or apologize for appearing before the Citizens' Tribunal and implicating Modi in the violence in the state.  He was believed to have told the tribunal that Modi met with top police officials on February 27 and gave oral directives not to interfere with the Hindu retaliation (see Chapter III). Pandya had denied that he appeared before the tribunal.[159]

In the aftermath of Pandya's assassination Gujarati police reportedly arrested and detained young Muslim men without producing them in court within twenty-four hours of arrest as mandated by law.[160]  On April 19, 2003, the government of Gujarat booked ten more people under POTA for their alleged involvement in Pandya's assassination.  They were also accused of the March 11, 2003 attack on VHP leader Jagdish Tiwari, and for the serial blasts in three Ahmedabad Municipal Transport Service buses on May 29, 2002.[161]

In addition to its selective application of POTA, the government of Gujarat has allocated greater resources to the investigation of the attack in Godhra than to cases involving Muslim victims.  Public prosecutors in the Godhra case, for example, are paid at the rate of Rs. 7,000 (U.S.$149) per hearing while those prosecuting the remainder of cases are paid Rs. 400 (U.S.$9) a day, irrespective of the number of cases they hear.[162]  According to an Ahmedabad-based lawyer, a bias is also apparent in the selection of public prosecutors and the rigor of investigations.  He told Human Rights Watch:

The government pays Rs. 7,000 per hearing to special public prosecutors working on Godhra.  In Ahmedabad the public prosecutors will get Rs. 400 a day.  Victims and complainants will not have faith in public prosecutors appointed by the state.  There is also no criteria in appointing public prosecutors, like looking for ones who have handled minority cases in the past for example….  The Godhra case is much further ahead and all accused are Muslims.  The prosecutors' theory is that Godhra was planned.  They told the same to the Commission of Inquiry, but they have not proven it so far.[163]

The special public prosecutor for the Godhra case reportedly has over twenty-five years of legal experience in criminal cases.  In contrast, prosecutors appointed to hear the post-Godhra cases lack the necessary experience to handle cases of this magnitude.[164]  The Gujarat government has also set up a special POTA court, headed by district sessions judge Sonia Gokanim to try the Godhra case.  The court will cease to function once the trial is over.[165]  Law Minister Ashok Bhatt, meanwhile, ruled out any special courts to try cases related to the post-Godhra violence against Muslims.[166]  As a result cases may drag on indefinitely.[167]

Uses of "Terrorism"

The application of POTA against Muslims accused in Godhra furthers existing discriminatory views that equate Islam with terrorism.[168]  Following the Godhra massacre, the state and central government moved quickly to qualify the attack as a "pre-meditated," "terrorist" attack against Hindus.  The recent revival of the Ram temple campaign, and heightened fears of terrorism since September 11 were also exploited by local Hindu nationalist groups and the local press that printed reports of a "deadly conspiracy" against Hindus by Muslims in the state.  On February 28, one local language paper headline read: "Avenge blood for blood."  Muslim survivors of the attacks repeatedly told Human Rights Watch that they were told to "go back to Pakistan."[169]

 

A resident of Naroda Patia who lost nine family members in the violence told Human Rights Watch: "They keep going on about Muslim terrorists, but who are the terrorists?  Those who torture Muslims so much should be punished a bit.  In a family of nine, I am the only survivor.  Whom should I live for now?"[170] Fliers in circulation in Gujarat for years before the attacks cautioned Hindus to "beware of inhuman deeds of Muslims....  Muslims are destroying Hindu Community by slaughter houses, slaughtering cows and making Hindu girls elope.  Crime, drugs, terrorism are Muslim's empire."[171]  Similar fliers depicting Muslims as terrorists and sexual deviants are now in circulation in Rajasthan where the BJP is contesting elections later this year (see Chapter XI). 

The labeling of Muslims as terrorists has also seeped into civil society.  Teesta Setalvad, prominent Indian journalist, activist, and editor of the journal Communalism Combat explained:

The absolute horrifying fact of the violence was the paralysis and complicity of civil society in Gujarat, barring the few very brave and noble exceptions.  This huge mass consensus that the discourse of the right wing has got, is really mirrored to a large extent in Gujarat, particularly in Ahmedabad city.  So there is discourse about terrorist being used as an alternative to Muslim, where Kashmir is invoked to decide what should happen to Gujarati Muslims, as a payback.  After the genocide the chief minister of Gujarat says, "why should I run relief camps, are they baby-making factories?"  So this whole demonization of the Muslim community with no basis and rationality, no basis in fact, can really be observed in civil society in Gujarat.  Civil society let this carnage take place, let the genocide take place, and even justified it in the name of Godhra.[172]

Members of the VHP and Bajrang Dal have also targeted Hindus for helping refugees, most notably Hindu doctors.  Concerted attempts to communalize the medical and legal community in Gujarat may have obstructed the delivery of much-needed medical and legal aid following the violence.[173]  Journalists too have come under attack for their unflinching reporting of the events in the country's English media.  On June 11, 2002 Chief Minister Modi issued a blatant threat against such journalists stating that, "Those journalists who cover Gujarat… may meet the fate of Daniel Pearl…  Cover communal riots at your own risk, look at Daniel Pearl."[174]  Human rights defenders and peace activists have also come under attack, harassment, or intimidation.  Threats are made publicly and privately.  In December 2002 VHP General Secretary Praveen Togadia declared, "All Hindutva opponents will get the death sentence and we will leave it to the people to carry this out."[175]

Godhra's victims

While the government continues to fumble the Godhra investigations, the relatives of the Hindus killed in the attack are battling poverty and expressing their frustrations with the rhetoric of the VHP.  Eighty-year-old Girishchandra Rawal, whose son and wife were killed in the Godhra attack, told reporters:

The VHP has cheated us in the name of Lord Ram….  What do I gain from supporting the Ram temple movement in Ayodhya?  Even if the temple is built there my future remains insecure…  I have already lost my wife in the Godhra carnage and the son who was the sole breadwinner of my family to the ensuing violence.  The state government announced an ex-gratia (compensation) of Rs. 200,000 [U.S.$4,255] for the kin and later it reduced it to Rs. 100,000 [U.S.$2,128].  My son has left behind his wife and daughter, how long can I feed them on this meagre amount?

Rawal claimed that he had not received the additional Rs. 50,000 (U.S.$1,064) promised by the VHP to the victims' next of kin.[176]  He described Hindutva as "nothing more than a political plank," adding that if you "take the dirty politicking out you have a society that believes in peaceful co-existence."[177] Rukesh Shah, a nineteen-year-old VHP worker who was in the train when it caught fire told reporters, "I lost my grocery shop in the violence.  Did the VHP do anything to compensate me? Now I have to work as a daily wage labourer to support my mother and sisters."[178]

[127] Reproduced in part from Human Rights Watch, "We Have No Orders to Save You," Chapter III.

[128] Celia Dugger, "After Deadly Firestorm, India Officials Ask Why," New York Times, March 6, 2002; Rajiv Chandrasekaran, "Provocation Preceded Indian Train Fire: Official Faults Hindu Actions, Muslim Reactions for Incident That Led to Carnage" Washington Post, March 6, 2002; "Train attack not pre-meditated," Times of India, March 8, 2002; Siddharth Darshan Kumar, "Muslim attackers set fire to train carrying Hindu nationalists, killing at least 57," Associated Press, February 28, 2002.

[129] Dugger, "After Deadly Firestorm"; Chandrasekaran, "Provocation Preceded Indian Train Fire."

[130] "Death toll in Indian train inferno rises to 58," Reuters, February 28, 2002. 

[131] Priyanka Kakodkar, "'Just like Hindustan-Pakistan,'" Outlook, March 18, 2002.

[132] Ashok Sharma, "Indian violence spreads in wake of train fire that killed at least 58," Associated Press, February 28, 2002. Reacting to government assertions that the Godhra incident was an act of terrorism, a resident of Chartoda Kabristan relief camp told Human Rights Watch: "They keep talking about terrorism and Pakistan.  But isn't what has happened to us worse than terrorism?" Human Rights Watch interview (name withheld), Ahmedabad, March 23, 2002. 

[133]"Needle of Suspicion Points Towards ISI in Godhra Incident," Press Trust of India, March 1, 2002; "Conspiracy Theories Abound Over India's Religious Riots," Dow Jones International News, March 6, 2002. 

[134] Chandrasekaran, "Provocation Helped Set India Train Fire," Washington Post; Kingshuk Nag, "Godhra Attack Not Planned," Times of India, March 28, 2002.

[135] The Railway Protection Force is a central government police force for Indian railways.  RPF officers were present during the Godhra massacre; S. Satayanarayanan, "Godhra Carnage Not Preplanned: RPF Report Dispels Conspiracy Theory," Tribune, April 9, 2002. 

[136] Sheela Bhatt, "Intelligence chief who had warned Gujarat government transferred," rediff.com, April 8, 2002 [online], http://www.rediff.com/news/2002/apr/08bhatt.htm (retrieved April 17, 2002).

[137] "Doubts over Gujarat train attack," BBC News, July 3, 2002 [online] http://news.bbc.co.uk/2/hi/south_asia/2087709.stm (retrieved June 5, 2003); Human Rights Watch, World Report 2003: Events of 2002 (New York: Human Rights Watch, 2003), p. 237.

[138] J Sri Raman, "Hum Hindustani: A year after Godhra," March 3, 2003 [online], http://www.gujaratplus.com/news/print.php?id=7891 (retrieved May 21, 2003).

[139] Concerned Citizens Tribunal, Crime Against Humanity, vol. II, p. 97.

[140] In May 2002, for example, serum was reportedly injected into five of the accused before they were questioned.  Relatives of the accused have also been illegally detained.  Many have spent months in jail without being produced in court. Setalvad, "Gujarat-One year later." Late at night on April 29, 2003, forty-six-year-old Fakruddin Yusuf died in judicial custody.  He had been booked under POTA for the Godhra attack (see below). Yusuf had been suffering from low blood pressure and lung and heart ailments.  Yusuf's lawyer, A.A. Hassan, has alleged that his client died as a result of police negligence, adding that he was not given proper medical treatment. "Godhra accused dies in custody," Times of India, May 2, 2003; "Main accused of Gujarat's train carnage dies in custody in India," Agence France-Presse, April 30, 2003; "Godhra accused had lung, heart problems," Times of India, May 3, 2003.

[141] Human Rights Watch, "We Have No Orders to Save You," p. 5.

[142] The law was retroactively applied to crimes that took place before POTA was passed. 

[143] "POTA invoked in Godhra carnage," Times of India, February 20, 2003. The long debated anti-terrorism legislation, the Prevention of Terrorism Act (POTA), was pushed through parliament on March 26, 2002. Its close resemblance to the much misused and now lapsed Terrorists and Disruptive Activities (Prevention) Act (TADA) of 1985 (amended 1987) foreshadowed a return to the widespread and systematic curtailment of civil liberties. POTA created an overly broad definition of terrorism, while expanding the state's investigative and procedural powers. Moreover, under POTA, suspects can be detained for up to three months without charge, and up to three months more with the permission of a special judge. Since its passage, POTA has been implemented against political opponents in various parts of the country. Human Rights Watch, World Report 2003, p. 241.

[144] Stavan Desai, "In Gujarat, only Godhra case is fit enough for POTA," Indian Express, April 3, 2003; "Suspects in Gujarat train attack funded from abroad: officials," Agence France-Presse, February 19, 2003. 

[145] "'Muslim community traumatised in Godhra'," The Hindu, April 29, 2003.

[146] "Main Godhra conspirator arrested," Hindustan Times, February 7, 2003. 

[147] Setalvad, "Gujarat-One year later."

[148] "Protests over Gujarat arrest," BBC News, February 6, 2003 [online], http://news.bbc.co.uk/2/hi/south_asia/2734001.stm (retrieved June 5, 2003). The Alliance for Defence of Democracy, a collective of NGOs and activists, announced that it will secure the services of prominent Supreme Court lawyers to represent those arrested as a result of the "misuse of POTA."  The lawyers will also fight for fair compensation for all the victims, and against what they term the "illegal arrests" of peace activists and eyewitnesses.  "Top lawyers to defend Godhra case accused," Times of India, March 13, 2003.

[149] Under POTA the accused cannot obtain bail unless the court records a finding that there is no prima facie case against them.  "In Gujarat, only Godhra case is fit enough for POTA," Indian Express, April 3, 2003. 

[150] "POTA court rejects bail applications of 56 accused," Press Trust of India, April 17, 2003. 

[151] See India's Code of Criminal Procedure, 1973, sections 82, 83.

[152] "89 killed in massacre, police let the probe die," Indian Express, March 1, 2003. 

[153] "In Gujarat, only Godhra case is fit enough for POTA," Indian Express, April 3, 2003.  See footnote 143 for more on POTA.

[154]Scott Baldauf, "Indian government struggles to maintain order; Continuing riots test Hindu-led coalition's credibility," Christian Science Monitor, March 4, 2002.

[155] "Same terror, different laws in Gujarat," Indian Express, February 22, 2003. 

[156] Ashok Sharma, "International rights groups demand federal probe into killing of Muslims in India's Gujarat state," Associated Press, March 8, 2003. 

[157] Vikram Vakil, "Former Gujarat home minister Haren Pandya shot dead," rediff.com, March 26, 2003. 

[158] Concerned Citizens Tribunal, Crime Against Humanity, vol. I, p. 44.

[159] Sheela Bhatt, "Haren Pandya resigns from Gujarat ministry," rediff.com, August 6, 2002. 

[160] Rathin Das, "Pandya killing: Muslims get midnight knocks," Hindustan Times, April 21, 2003. 

[161] "Gujarat books 10 under POTA," Indian Express, April 19, 2003. 

[162] Amit Mukherjee, "Godhra prosecutor to be paid RS 7000 per hearing," Times of India, June 22, 2002.   

[163] Human Rights Watch interview with lawyer (name withheld), Ahmedabad, January 2, 2003.

[164] Amit Mukherjee, "Godhra prosecutor to be paid RS 7000 per hearing," Times of India, June 22, 2002.   

[165] "Godhra-POTA," Press Trust of India, March 8, 2003.

[166] Sourav Mukherjee and Amit Mukherjee, "Trial begins in just 1 of 961 riot cases," Times of India, February 24, 2003. 

[167] Cases dating back to 1985 or 1990 are still pending in Gujarat criminal courts. Concerned Citizens' Tribunal, Crime Against Humanity, vol. I, p. 209.

[168] See Chapter XI for more on the theme of terrorism in the BJP election campaign in Gujarat.

[169] Human Rights Watch, "We Have No Orders to Save You," pp. 4 –5.

[170] Human Rights Watch interview with Khalid Noor Mohammed Sheikh, Ahmedabad, January 5, 2003.

[171] Human Rights Watch, "We Have No Orders to Save You," p. 43. 

[172] Human Rights Watch interview with Teesta Setalvad, Mumbai, December 21, 2003. 

[173] Concerned Citizens Tribunal, Crime Against Humanity, vol. I, p. 210.

[174] Concerned Citizens Tribunal, Crime Against Humanity, vol. II, p. 31; "Cover communal riots at your own risk, look at Daniel Pearl - Gujarat govt.," Indian Express, June 11, 2002.   For more on attacks on the media in Gujarat see Human Rights Watch, "We Have No Orders to Save You," p. 34.

[175] Neena Vyas, "Hindutva storm will not be - limited to Gujarat - Togadia," The Hindu, December 18, 2002. 

[176] Sukrat Desai, "Godhra victims' kin say VHP has cheated them," Indo-Asia News Service, February 26, 2003. 

[177] Sourav Mukherjee, Radha Sharma, "Ghost of Godhra still haunts them," Times News Network, February 27, 2002. 

[178] Ibid.