Summarily dismissed

THE TOP sheet of the document is innocent enough. It reads as follows: AFFIDAVIT-IN-REPLY ON BEHALF OF THE STATE OF GUJARAT WITH REGARD TO THE INTERVENTION APPLICATION MADE BY SHRI HARSH MANDER ON 12.12.2003. Harsh Mander's intervention application related to Writ Petition No. (CRI.) 109 of 2003, in the matter of National Human Rights Commission (the petitioner) versus the State of Gujarat and Others (the respondents).

The context for the case was the handling of the post-Godhra riots by the Gujarat Government. Responding to the intervention application, J.R. Rajput, Deputy Secretary, Government of Gujarat, Home Department (Special), begins by contradicting the numbers of riot cases registered mentioned in Mander's application.

There were 4256 cases registered, says Rajput, instead of 3912 mentioned in Annexure — A1 of the application. The Gujarat Government's affidavit, then, proceeds to correct several such details: Number of charge-sheeted cases 2130 as against 1492, police stations affected 295 as against 277.

No one could fault the affidavit till this juncture. After all, the State Government was offering higher figures than mentioned in the intervention application, and, so it must be assumed that all was well with the rule of law in Gujarat.

'Lack of evidence'

A closer reading of the document, however, reveals that out of a total of 4256 cases, summary investigation and summary reports were prepared in as many as 2108 cases. These cases were dismissed for lack of "independent and sufficient" evidence.

Staggering figures

Summary dismissal of half of the cases registered is surely a staggering figure. In Ahmedabad alone, out of 961 cases registered, summary reports were filed in 427 cases, while 534 cases were charge-sheeted. The table supplied in the affidavit reveals a similar trend in most districts in the State. The affidavit denies charges that victims of the riots were intimidated or bribed in order to facilitate such a high level of acquittals, stating that there was no attempt "planned, systematic or otherwise" to deny justice to the victims of the post-Godhra communal frenzy.

The document states that "conviction or acquittal depends on the nature of evidence furnished by the prosecution and defence witnesses, and a low conviction rate per se cannot lead to an inference of faulty investigation and/or weak prosecution."It is this last aspect — faulty investigation and weak prosecution — that has prompted the Supreme Court to order a review and possible reopening of nearly 2000 cases that were dismissed after summary investigation.

Despite disclaimers about lack of evidence, there is little that explains the quantum of acquittals. At this juncture, the affidavit lapses into providing a theory to explain what human rights organisations, social activists, and now the Supreme Court, have all along considered a serious travesty in the enforcement of the rule of law in Gujarat between February-April 2002.

It begins by stating that since the riots were on such a large scale, the victims were not able to identify the perpetrators of various crimes, and for that very reason, the police were unable to apprehend the criminals. This is followed by the central argument furnished by Narendra Modi, the BJP and the Sangh Parivar to explain the post-Godhra riots: "[T]hat investigation into various offences in question failed to reveal an element of conspiracy and the communal backlash was marked by spontaneity in response to the gruesome incident of Sabarmati Express at Godhra." In other words, the much favoured action-reaction theory of the Sangh Parivar.

The justification

The other interesting aspect of the affidavit is the justification it offers in the case of acquittal of BJP, VHP and Bajrang Dal leaders. In Ahmedabad, Mayaben Kodnani, BJP MLA, and Jaydeep Patel, a VHP leader, were acquitted because there was "independent evidence of irrefutable nature" that established the presence of the two at "some other place at the relevant time."

Who furnished such unimpeachable evidence? The Deputy Collector, Ahmedabad and the Mamlatdar of Dashkroi Taluka.In Himmatnagar town, Narendrasinh Solanki, a Bajrang Dal activist was not arrested despite complaints because the "investigating officer did not come across independent and sufficient evidence to justify their arrest." In the same town, a case against Jethabhai Prabhudas Patel, a BJP leader, was dropped on similar grounds. — J.S.