South Asia Citizens Wire | 15 November, 2004 via: www.sacw.net
[Interruption Notice: Please note, there will be no SACW posts for the 16-17 Nov. 2004]
[1] Pakistan: Jirga injustice (Beena Sarwar)
[2] Bangladesh: The expediency of political appeasement (Omar Husain)
[3] Kashmir - India - Pakistan: 4 URLs to recent articles
[4] India: Appeal: "Right To Work" Banners
[5] India: Politics of Piety - Let the law take its course in the Kanchi case (editorial, The Times of India)
[6] India: Witness for the prosecution (Rajeev Dhavan)
[7] India: Justice is the real victim (John Dayal)
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[1]
The News International November 14, 2004
JIRGA INJUSTICE
Beena Sarwar
From an informal, community-based body that was meant to settle small claims, the 'jirga', or council of tribal elders, has in Pakistan been allowed to emerge as a powerful force protecting the interests of the powerful. This all-male body is often called upon to adjudicate on matters pertaining to women - whose views are never sought. Who can forget the Meerwala jirga in 2002, that pronounced the 'judgement' of gang rape on a woman whose 14-year-old brother was accused of having molested the woman of an 'upper class' family - as a cover-up to the fact that the boy had been sodomised by men of that family. Or six-year-old Asma in Sukkur, in 2000, married to a 60-year-old man in lieu of an unpaid debt by her family. According to newspaper reports, the marriage was consummated and the little girl screamed for hours after the rape.
Jirgas have become synonymous with the heinous practice of swara (gifting young girls or women) to settle debts, in violation of Pakistan's constitution, religious injunctions, and court rulings like that of the Peshawar High Court which in November 2000 declared swara unlawful.
These bodies continue to settle disputes arising from murder or runaway marriages; young girls are sacrificed at the altar of family or community 'honour' and packed off to alien households, where they live as virtual slaves. Runaways are either killed, or made to work off their bondage. Rarely does the government or the administration step in to prevent such illegal and unlawful exchanges.
In late June 2001, a jirga in Thatta district, ruled that two young girls from the murderers' family would be given to the victim's family: the 11-year-old daughter of one accused was married to the 46-year-old father of the murdered man, and the six-year-old daughter of the other accused was married to the murder victim's 8-year-old brother. Jirgas often rule that a woman marrying of her own choice must be 'returned' to her family, as if she were property. Worse, she may be declared a 'kari' and thus liable to be killed as an adulteress along with her 'karo' husband.
In August 2003, a jirga in Mardan district decided to hand over seven-year-old Gul Rukh, to the family of Fehmida, who had run away with Gul Rukh's brother. (Fehmida's family then violated the jirga's ruling that the girl be given away after attaining maturity and kidnapped her; she was later recovered by the police, but on maturity, the pressure will be on to 'honour the jirga's verdict).
Jirgas are taking upon themselves other matters too. An Orakzai jirga in 2002 decreed that all NGOs working in the agency were illegal, and imposed a million rupee fine for violations; NGOs funded by Western and non-Muslim governments, it stated, were working against the religious and cultural norms of the area, and that it would not be responsible if women from such organisations were kidnapped or came to harm.
Such pronouncements are a far cry from deciding matters like whose cattle have been stolen or held after straying into another property. A recent report by the Human Rights Commission of Pakistan (HRCP) on jirgas, traces their history, citing several published sources according to which a British officer, Lt Sandeman introduced this system of resolving disputes among the Baloch tribes, although it already existed in the Peshawar area.
On April 24, 2004, the Sindh High Court imposed a ban on holding jirgas in the province, but government functionaries, ranging from chief ministers to union council nazims, continue to participate in these meetings, according to the list compiled from newspaper reports by the HRCP.
The icing on the cake is the Sindh government's incredible step of secretly drafting a back-dated ordinance, the 'Sindh Amicable Settlement of Disputes Ordinance, 2004' to be effective from April 25, 2004 - obviously to nullify the SHC ruling.
The Ordinance, which has yet to be formalised, was brought to public attention by human rights organisations. At a meeting in Karachi recently, it was discussed and found to be full of lacunae and contradictions. Participants, including Justice (retd) Nasir Aslam Zahid, HRCP Director I A Rehman, and former law minister Iqbal Haider, categorically denounced it as a parallel judicial system which would only further institutionalise violence and discrimination against the poor and women, as it has historically done. Jirgas are justified as being necessary given the common man's lack of access to the formal judicial system, which is expensive and long drawn out. But the jirga system can be no less so. Besides reinforcing swara, Jirgas have imposed huge fines on the guilty - Rs 80,00,000 in one case, liable to be paid over six months by a poor family - while a Jatoi-Maher dispute that started in 1990, has claimed 200 lives despite the sitting of as many as eight jirgas.
The proposed Ordinance provides enormous powers to the 'naikmard' or jirga chief appointed by the parties, including suo moto powers in cases of disputes that are "likely to cause bloodshed, murder or breach of peace" (Clause 4). Worse, it provides no system of appeal or self-defence or legal representation: "Notwithstanding anything contained in the law, no legal practitioner shall be permitted to appear on behalf of any party to a dispute before the naikmard" (Clause 5).
The Ordinance, if pushed through, would only confirm that the State is abdicating its responsibility towards its citizens and further denying justice to an already disempowered people.
The writer is a staff member
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[2]
New Age November 13, 2004 | Editorial
THE EXPEDIENCY OF POLITICAL APPEASEMENT
Historically, the policy of political appeasement has been proven to be disastrous in the long run. Let us not fall back on a quick-fix solution where a permanent and a visionary remedy is required, writes Omar Husain
Sometimes one wonders how could Neville Chamberlain, the British prime minister, not foresee or anticipate the ulterior motive of Adolf Hitler when the latter began to rearm Germany breaking the Treaty of Versailles signed after WWI. And then, in order to avoid war with Germany, Chamberlain in 1937 gave part of the territory of Czechoslovakia to Germany in a treaty called the Munich Agreement. Hitler, a year later, annexed the whole of Czechoslovakia thus breaking the Munich Agreement as well. The World War II is just to begin.
After the end of WWII, the Western allies in Yalta Conference gave away the entire Eastern Europe to Russia with disastrous result.
In many ways, the Mughal Dynasty paved the way for its own disappearance from the Indian sub-continent when Emperor Jahangir decided to let the British come to the sub-continent as traders.
The United States of America, in recent past also made errors of judgment in trying to please wrong governments in different parts of the world with sometimes disastrous consequences. The latest example of this historic policy of appeasement, a political faux pas, if you will, can be cited of the US government's back scratching of a Islamic nation which has very little semblance of democracy�Pakistan!
The policy of appeasement as it has come to be known after Neville Chamberlain's concession to Adolf Hitler, did not work historically; and if one believes that history do teach us a lesson or two, it is better we heed to than neglect the lessons.
How much of this policy of appeasement is subtly at work in the context of our present coalition government? The Bangladesh National Party, desperate after their election debacle in 1996, somewhat felt that without joining hands with a few sympathetic political parties and forge an alliance, it probably would not win the elections of 2001. BNP ousted the then government of Awami League and came back to power with a thumping majority in the election of 2001. The three other parties which campaigned together, the Jamat-e-Islam, Islami Oikya Jote, and Bangladesh Jatiya Party (Manjur) have become strange bed-fellows with the BNP. This is not new as politics is known to have made strange bedfellows in the past
Forming coalition governments to rule a country is not a new phenomenon although it is often formed in desperation to thwart the opposition party to take over. Such has been the case in the elections of 2001 in our country. One should not have any anxiety over such coalitions but what should worry us is when we find that different ideologies of the other members of the coalition may make it difficult for a country which has espoused the modern concept of democracy to function. There are reasons to be concerned when we hear the publicly professed political manifesto of Jamat-e-Islam Party which is the second most important member of the coalition party. "Jamat-e-Islam is committed to establish a modern welfare state on the Islamic principles where people's four basic needs will be ensured and all communities will enjoy equal privileges�.Bangladesh will be declared an Islamic Republic on the basis of sovereignty of Almighty Allah, and the Quran and the Sunna will be the only source of laws in the Republic." Mr. Nizami declared this before the election of 2001. The contradictions dormant in the statement need to be discussed. We laud the ensurement of the four basic needs of the people, and that 'all communities will enjoy equal privileges'. What we find not clicking with 'all communities' which we believe include, Hindus, Christians, Buddhists and other ethnic minorities, the animists adibashis, and the principles of Quran and Sunnah to be the 'only source of laws'. How can the Islamic laws be applied to these communities who are not Muslims?
The metamorphosis of Jamat since the end of the Liberation War of 1971 defies any explanation. It has been known to actively participate with the Pakistani occupation army and worked against the pro-liberation forces of Bangladesh. But for a propitious gesture of the Zia government in 'pardoning' the members of the Jamat thus bringing them back to the fold, they would perhaps have met the same fate as 'collaborators' and 'traitors' met in Europe after Second World War! We have no problem with that since Quran teaches us that it is better to forgive the enemy than seek revenge.
Jamat emerged in prominence and a force to reckon with after the election of 2001 although its rising influence can be traced back to 1980s. It may safely claim to be the third largest party in Bangladesh, and political observers even christened it as the 'king makers'. Its position after the election of 2001 emboldened its stance with the main party of the coalition; i.e. BNP.
One has to go back to the incident of December/January of 2000-2001of fatwa issued by one rural cleric on a woman. The furore over this incident had compelled the High Court of the country to step in and rule that issuing fatwa was illegal. Jamat was one among many who condemned the verdict and took out public rally to register its protest. Mufti Amin, one of the protesters even went so far as to threaten to 'launch a Taliban style revolution.' This protest by pro and anti fatwa groups rolled over to February 2, 2001 where Mufti Amin and Mufti Azizul Huq were prominent in leading the rallies against the High Court verdict.
An article by Jeremy Seabrook appeared in Indian Monitor (The Statesman, 3/10/04) where he gives his personal opinion about politics and Bangladesh. We do not subscribe to his views but some statistics he cited are not negligible. According to him, the election of '2001 tipped the balance towards an Islamic State'� 'Post-election of 2001 saw the attacks on minorities�of killing, raping and looting.' He characterizes the period as 'a period of rising intolerance, violence, disorder including attacks on the Ahmadiyas. He also mentions the meteoric appearance of Bangla Bhai and his vigilante justice where the law enforcement pretended not to know of such; the murder of Awami League MP Ahsanulla Master, the arrest of Proshika officers on charges of sedition etc. He does not forget to mention the bomb incidents which still remain unsolved.
According to the article, between 1970 and 1990, 64,000 madrassas were built in Bangladesh. (End of Seabrook opinions)
During this period of unrest, that is, just after the BNP and its four-party alliance took over the reins of the government, the government seemed to have lost its direction. Observers both here and abroad had concluded the government's hand in this chaos and mayhem, and BNP+ could not prove its innocence. The media appeared to have taken a 'guilty' view without getting to the bottom of this. Opposition, both at home and abroad, took full advantage of this situation and influenced the Western press who jumped into the foray and immediately labelled Bangladesh as an emerging fanatic Islamic state which has an al-Quaida cell and other militant Islamic terrorist groups.
Without losing the momentum of the situation but rather advancing it further, the repression of the Ahmadiyas began. It is alleged that Islami Oikya Jote, the student front of Jamat spearheaded the onslaught (August of 2004). The assault repulsed all Bangladeshis who believe in the Constitution and respect what is guaranteed in it. Religious office ministry bluntly shrugged off saying, "�it is not the concern of my ministry." The home department was more diplomatic. �"he did not have details about the issue�contact the police." Inspector General of Police said,"�police has no option�as several thousands (demonstrators) were there."
On January 8 of this year, the government banned all publications of the Ahmadiyas saying, "�they are objectionable material which hurt or might hurt the sentiments of majority Muslim population of Bangladesh." The question many asked, "Who will be next? The Christians, the Buddhists, Hindus? The concern is very germane and genuine. Will the Jamat and its other like-minded compatriots demand ban of publications and readings of the Bible, the Vedas, and the Tripitaks?
The violent intolerance did not end there. Now, the combined Islamic
Parties are demanding that the government ban the Ahmadiyas and declare the community as non-Muslims. A deadline has been designated! Khilafat Party of Bangladesh openly announced that if the government fails to respond favourably to their demand of the banning of Ahmadiyas and designate them as non-Muslims, "We will make it an issue in the next general election." Jamat supports this stand taken by the Khilafat Bangladesh Party. As of today, 8 Ahmadiyas have been killed by fanatic mob since 1971.
Most citizens of Bangladesh are religious, a lot of them are pious, and a very few are fanatics. The coalition government of BNP is in a very precarious position with its alliance partners, and it itself is to blame for such a political predicament. It appears BNP wants to keep its political allies happy so as not to rock the boat or even sink it. But at what cost? It has already bent over backwards at the cost of a questionable interpretation of the Constitution by banning Ahmadiya publications. The international press is not very happy about the odour of fanaticism lingering in the air, and particularly the substantiated persecution of the Ahmadiyas. Only recently, EU diplomats stationed here in the city personally went to a place of worship of the Ahmadiyas and expressed their concern, and advised the government to provide full protection to the community. Ahmadiyas are a very low-profile non-confrontational community and have no record of religious fanaticism or excess. And above all, they are loyal citizens of Bangladesh and enjoy or should enjoy all the rights and privileges guaranteed by the Constitution.
We, as common but concerned observers of the situations, and believers in democracy can only ask the government to be 'fair but firm' in its dealings with all the people of Bangladesh. It would be injudicious for the government to try to appease one section of the people at the cost of another.
The writer is associate editor, New Age
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[3]
Newsline - November 2004 KASHMIR: THE LONG ROAD TO PEACE By Zahid Hussain http://www.newsline.com.pk/NewsNov2004/cover1nov2004.htm
Dawn - 13 November 2004 PEACE AND THE BOTTOM LINE By Irfan Husain http://www.dawn.com/weekly/mazdak/mazdak.htm
Frontline - Nov. 06 - 19, 2004 INDIA AND PAKISTAN: THE MUSHARRAF FORMULA By B. Muralidhar Reddy http://www.flonnet.com/fl2123/stories/20041119004002500.htm
Deccan Herald, Sunday, November 14, 2004
WHAT'S THE IRISH MODEL GOT TO DO WITH KASHMIR?
What is the Irish model? Can it work for Kashmir? It may be only one of the options, says a former chairman of the Hurriyat.
By Zahoor Malik
http://www.deccanherald.com/deccanherald/nov142004/sl3.asp
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[4]
APPEAL: "RIGHT TO WORK" BANNERS
A convention on "employment guarantee" was held in Delhi on 19 October 2004. There were more than 200 participants, representing a wide range of organizations committed to the right to work. At this convention, it was unanimously decided that demonstrations for the right to work, including a full-fledged Employment Guarantee Act, would take place across the country on 10 December 2004 (Human Rights Day).
Among other activities that were proposed, one is to collect signatures (demanding an Employment Guarantee Act) on large banners all over India. Immediately after 10 December, these banners will be brought to Delhi for a creative display of "people's voices from around the country".
Many organizations are involved in this effort, and the details are left to their imagination. However, for maximum effect the following "guidelines" have been proposed:
(1) The best material for a "banner" is an old light-coloured sari - this will ensure that the banners are of roughly similar size and that the signatures are visible.
(2) The main demand is the immediate adoption of a full-fledged Employment Guarantee Act. This can be conveyed on the banner with a simple slogan such as "Employment Guarantee Now", "Har Haath Ko Kaam Do, Kaam Ka Pura Daam Do", "Rozgar Guarantee Kanoon Lagu Karo", etc.
(3) The more signatures, the better. Signatures from MLAs, MPs, political leaders, eminent citizens, etc. would also help.
(4) Ideally, the name of the district should appear somewhere on the banner. An effort is being made to collect at least one banner from every district in the country.
Please consider joining this effort and planning a signature campaign in your own area. In fact, there is no need to wait for 10 December - the collection of signatures can start any day.
Arrangements for gathering the banners in Delhi after 10 December are in the process of being made. Meanwhile the following have already agreed to act as "collection centres" in Delhi: Bharat Gyan Vigyan Samiti (tel 2656 9773), Delhi Forum (tel 2668 0883/914), Sahmat (tel 2371 1276, 2334 4918), and the secretariat of the Right to Food Campaign (tel 9811087811). Organisations are also welcome to keep their banners and bring them in person to the display event in Delhi. The date for this event will be announced as soon as possible - consultations on this are in progress. But in any case please make sure that your banner(s) can reach Delhi by 21 December.
Further details, contacts, etc. will be circulated as soon as possible. Meanwhile, for further info please send a line to [EMAIL PROTECTED] or call one of the following persons in Delhi: Vivek S. (3091 7116), Rajan Prasad (2371 1276), Subhash Bhatnagar (9810810365), Suneet Chopra (2307 3666), J. Somanathan (2656 9773), Sehba Farooqi (2331 9541).
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[5]
The Times of India November 15, 2004 Editorial
POLITICS OF PIETY LET THE LAW TAKE ITS COURSE IN THE KANCHI CASE
As disquieting the arrest of the Shankaracharya of the Kanchi Kamakoti Peetam, Sri Jayendra Saraswati, is, it is disturbing to see political outfits like the sangh parivar jump the gun and politicise the issue. The VHP has called for a bandh in Tamil Nadu and its working president Ashok Singhal has described the arrest as "a grave attack on Hindu community as the destruction of Somnath temple centuries ago". The Shankaracharya, better known for his attempts to play mediator in the Ayodhya dispute, was arrested by a team of Tamil Nadu police in Mahbubnagar in Andhra Pradesh on Diwali eve. He has since been produced in a court in Kancheepuram and remanded to judicial custody for 15 days. Meanwhile, the Madras high court has adjourned his bail application until Wednesday. The seer has been accused by the police as prime suspect in the murder of a former accountant of the Kanchi peeth. The deceased who had accused the Shankaracharya of money laundering and later moved court to prevent him from travelling abroad on the premise that Hindu rites did not allow so, was stabbed to death by miscreants in September this year. The police claim that two of the 14 persons arrested in the case pointed to Saraswati's 'direct involvement' in the case. The public prosecutor told the court that there was clinching evidence that favoured the arrest of the seer.
The merits of the case are beyond the purview of this editorial; that is best left to the courts. But, as we have argued in these columns, politicians should stop mixing religion and politics. The political class should refrain from confusing the individual with the institution. To paint the arrest as an "attack on the Hindu community" does little justice to the community and goes against the spirit of the law. The arrest of the seer needs to be delinked from the institution he represents. No doubt, he needs to be allowed every recourse to law and rights guaranteed by the Constitution as a citizen of India, but no more. The likes of the sangh parivar could take the cue from Tamil Nadu where the main opposition party, the DMK, has stood by the decision of the state police. This country has paid enough in blood and tears for communalising law and order issues. Let the law take its course. And the agencies responsible for it be allowed a free hand to ensure that justice is delivered in letter and spirit.
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The Hindu Nov 15, 2004
WITNESS FOR THE PROSECUTION By Rajeev Dhavan
There is something very sinister behind Zahira Sheikh changing a stance she has publicly held consistently for over two years.
ZAHIRA SHEIKH is a witness for the prosecution in the Best Bakery case. She has lived through the trauma of seeing her family and friends being roasted alive by criminals. She spoke out when others were silent. During the trial in the Vadodara fast track court in 2003, she retracted her statement. Then with extraordinary courage, she confessed she was coerced into the retraction and publicly campaigned all the way to the Supreme Court to secure a retrial of the case. At the second retrial, she now proposes to retract her statement again.
If we set out the facts, they will speak for themselves. The gruesome tragedy at the Best Bakery occurred on the late evening of March 1, 2002. Zahira was one of the main eyewitnesses. On March 2, 2002, she gave press statements identifying some local persons as responsible for the killings. She repeatedly affirmed her story. On March 21, 2002, she testified to the Peoples Union of Civil Liberties (PUCL)-Shanti Abhiyan team identifying those she believed to be the culprits. A few days later, on March 27, arrests were made after the National Human Rights Commission (NHRC) asked that the case be turned over to the Central Bureau of Investigation, which the Narendra Modi Government refused to do. In May 2002, Zahira again identified the culprits to the Concerned Citizens Tribunal. In June 2002, she publicly exhorted that one of the persons she had identified had not been charge-sheeted. She stood by her statements until the trial began in May 2003.
All of a sudden, her testimony changed. At first, her brother and sister retracted their stance. On May 17, 2003, in a dramatic turnaround, she changed her testimony in a packed court, where persons she later accused of coercing her were present. On June 27, 2003, Judge H.H. Mahida delivered an otherwise faulty judgment acquitting all the 21 accused. If the facts are to speak for themselves, Ms. Sheikh changed her stance because of panic, fear and intimidation and inducement by those who wanted an acquittal in a case in which social and political stakes were high.
The explanation as to what happened was provided by Zahira herself. On July 11, 2003, she made a public statement saying she was threatened and intimidated. On July 18, she appeared before the NHRC to confirm that she had been coerced. After the NHRC petition to the Supreme Court, Ms. Sheikh herself filed a Special Leave Petition (Criminal) No. 3770 of 2003 against the acquittal. At no point did she resist the support of the NHRC or the Citizens for Justice and Peace or Teesta Setalvad. The Supreme Court asked the Gujarat High Court to re-examine the issue, including hearing Zahira's revision.
In the High Court , she did not have to testify. But her explanation to the NHRC and Supreme Court were placed before the High Court without any protest from her. By December 26, 2003, the Gujarat High Court refused to order a re-trial causing the Supreme Court to examine the issue - no less at the instance of Ms. Sheikh.
In fact, the Supreme Court case is reported as Zahira Sheikh versus State of Gujarat (2004) 4 SCC 158. Eventually on April 12, 2004, the Supreme Court exposed the judgments of the lower courts to order a re-trial of the case in Maharashtra. All along, Zahira stood by her statement with clarity, tenacity and courage. The Supreme Court specifically absolved Ms. Setalvad of any accusation of intimidation against which she offered no protest.
The trial began on September 22, 2004 in Mumbai. On October 4, Ratilal Varia recorded evidence on the outlay of the bakery. The next day, Kallu Miyan supported the prosecution even though he had gone back on his statement in Vadodara. Other witnesses completed the scenario. On October 26, Toufel Sheikh, an eyewitness, identified seven witnesses but could not recall their names. On October 28, he gave the names of four witnesses. On November 1, 2004, Raees Khan, who worked in the bakery, identified three of the accused identified by Toufel and two others. Two days later, Shajjad Khan, whom the Vadodara court had found mentally unstable, identified 12 accused and named four of them.
Then, on November 4, when Zahira was due to testify, she disappeared to emerge in Vadodara. She publicly retracted her earlier statement including, impliedly, those to the NHRC and the Supreme Court. She pointedly accused Ms. Setalvad and the Citizens for Justice and Peace and other NGOs of coercive intimidation.
The sequence of events allows the facts to speak for themselves. Ms. Sheikh had consistently indicted the accused - starting with her statement to the police in March 2002. All this was before she met Ms. Setalvad. Clearly, she began to falter only when she had to testify. In such a high profile case, why did she lose her nerve? She was a young girl caught up in a huge controversy. In the flow of events, clearly someone with a vested interest to subvert the trial pressured Zahira when she was to testify.
Interfering with a witness is both contempt of court and a crime. It is unlikely that such interference could have come from Ms. Setalvad or her friends. It must have come only from those who had a stake in forcing another acquittal. The Supreme Court (which Ms. Setalvad has moved for a probe into Ms. Sheikh's turnaround) will, no doubt, consider all this.
But this question of pressuring a witness and subverting justice should not disturb the course of the trial. Nor should Ms. Sheikh becoming a hostile witness interfere with its flow. Witnesses such as Toufel Sheikh, Raees Khan and Shajjad Khan have already identified some of the accused in Mumbai where the trial is on. Yet others have to testify. The trial will, and should, go on with enough evidence for the Court to assemble the truth and arrive at a verdict by December 31 2004 - the deadline fixed by the Supreme Court for the completion of the trial.
In recent times, there have been many important cases where witnesses have turned hostile and gone back on the statement they have made to the police. In its 178th Report, the Law Commission suggested that in serious cases, admissible statements should be recorded before the magistrate, not the police. The Criminal Law (Amendment) Bill, 2003, tried to introduce such a provision. Such a proposal is not without complications and has to be subjected to the constitutional embargo against self-incrimination.
Eventually, all evidence has to be tested in a trial afresh in the interests of criminal justice. If witnesses can be intimidated at a trial, they can also be pressured before a magistrate. If magistrates cannot try serious cases, which are sent to session courts, to assign magistrates the role of assessing clinching preliminary statements seems risky. Once an extra premium is attached to the statement before a magistrate, such a process will become a trial within a trial without affording the accused a chance to test the evidence at that time. In fact, the Malimath Committee (2003) wants to go further and make the magistrate responsible for the investigation. Desperate efforts to quicken the justice system should not result in half-baked proposals to short change the due process.
More recently, in August 2004, the Law Commission issued a consultative paper on witness identity and protection programmes. Many of the suggestions about anonymous names and in camera trials are unexceptional. But witnesses cannot be kept in protective custody for long periods like common criminals. Protection must be given where it is sought or is necessary. But all witnesses cannot lose their future identity except in rare cases. They cannot be subjected to greater suffering than the criminals they indict. But all these solutions should not be mixed up with the Best Bakery case but considered after sober reflection.
There is something very sinister behind Zahira changing a stance she has publicly held consistently for over two years in every relevant public forum. Powerful forces interested in an acquittal in the Best Bakery case have strategically picked on a young girl, precisely at the time she was to give evidence, in order to sabotage the case. But the Best Bakery case must go on. Ms. Sheikh has still to testify. She may still stand by what she had said publicly or face the hostility of being a hostile witness. The other witnesses must remain undeterred to hold on to the courage of their conviction, which alone will bring justice to the Best Bakery case. Corrupt people have tried to corrupt the justice system, which will catch up with them eventually.
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Newindpress November 14, 2004
JUSTICE IS THE REAL VICTIM John Dayal
[November 12 2004 18:45 IST]
Perhaps this was the closest we came in independent India to genetic modification by the Supreme Court in the criminal justice system, and predictably a price is being extracted, in many scarred reputations, in the retaliation by powerful entities fighting back all efforts to make them answerable to civilised society, and to Civil Society. Two years and eight months after Gujarat erupted in flames of hate, the guilty in the news are no longer Chief Minister Narendra Modi, who rules merrily as if nothing ever did happen. Nor does guilt seem to roost with the police which a hundred witnesses, among them a late minister and several officers had admitted to have been ordered to look the other way till a politically desired ratio of Muslim dead to Hindu victims had been established.
Above all, the focus has shifted from a morally corrupt and putrid judicial hierarchy in the state of Gujarat, from the junior magistracy to its High Court, which shamelessly fought on the side of the murderer and the rapist, and hounded the humane and the helpful from among the brave few of the State, and the outsiders who came in as volunteers of NGOs from Mumbai and New Delhi.
One of these was Teesta Setalvad, grand daughter of a former Attorney General of India, but better known for her monitoring and publishing the tapes of wireless messages that police officers of Mumbai sent to each other in the 1992-93 communal riots of Mumbai, the tapes clearly exposing the vicious anti-Muslim bias of the system. Teesta, and her monthly magazine Communalism Combat, which she co-edits with husband Javed Anand, have since then been carrying on an unceasing campaign against communalism, and against state patronage to one or the other side.
Many of us have been involved in the post-Godhra Gujarat, working in peace-making and medical relief, rehabilitation and advocacy. Teesta and some other NGOs have taken on the more onerous task of challenging lapses in the criminal justice system which had erroneously presumed that the ideology of its political masters was immortal. Part of the NGOs� exercise was the collation of accounts of the myriad cases of mass murders and arson, the tracing of witnesses and giving courage to surviving victims. Zaheera Sheikh of Baroda, so much in the news in the notorious Best Bakery Case, is just one of these victims, iconic though she may seem now. Zaheera had seen the mob gathering in the evening of March 1, 2002 in Baroda. As she told the media, it was a dance of death that continued all night. Four children and four women were burnt alive. Five survivors of the 15 were killed by the waiting mobs, two more chased and killed long after day break. Zaheera found the police hostile, abusive. For the rest of the year as she waited for justice, the magistracy, even the Gujarat High Court seemed against the victims, finding no case against the accused. The High Court felt �Teesta Setalvad and her colleague Mihir Desai of the Citizens for Justice and Peace were motivated by petty benefits and misusing persons such as Zaheera.�
A disgusted and angry Supreme Court expunged those remarks when Teesta and her group eventually moved the highest court in the land, praying that which just about everybody mired so deep in the mess, justice could only be had outside Gujarat, perhaps in Mumbai. Zaheera found the safety of Mumbai and the receptivity of a new court warm enough to denounce the Baroda police for duress. Till now, when for reasons that may well remain a mystery for ever, she suddenly appeared in Vadodara and filed an affidavit before the Collector seeking police protection and alleging that she was being forced by Teesta to falsely identify innocent persons as accused in the re-trial being conducted in a Mumbai court.
Teesta has moved the Supreme Court once again, asking it for a comprehensive probe into the entire episode. The Supreme Court has so far not let know its mind on the issue. Elsewhere, the judicial system is running far behind the clock. Very few have been indicted in the mass murders of the Sikhs in the violence between October 31 and November 2, 1984 in Delhi and Kanpur following the assassination of Indira Gandhi. One does not know how many have been brought to justice in the 1992-93 Mumbai riots, or for that matter to the dozens of well known communal riots that have scorched India in the last 30 years or so. Many witnesses are now dead, as indeed many of the perpetrators too. Police personnel, guilty of conspiracy, at worst, as in Meerut, Mumbai and New Delhi, or indifferent, as in Moradabad, Aligarh and Bhiwandi, have retired, though the system remains culpable and on trial.
It brings no credit to the Republic, not when Europe has set up a Court of Criminal Justice, when the US has comprehensive anti-hate laws and did in fact trace, arrest try and jail the killer of the Sikh who was murdered in a hate crime in the wake of 9/11. (The fact that the entire US criminal justice and police system apologised to the minorities for that one crime of hate restored confidence in the public as nothing else could.)
Did the government or police of Gujarat buy up Zaheera, or merely coerced her once again? Did Zaheera turn greedy, presuming that Teesta and her NGOs were using her to make money, and she deserved her cut? Transparency is a desirable thing for everyone including NGOs, and many existing laws including the Foreign Contribution Regulations Act (FCRA) ensure that for the most NGOs remain on the straight and narrow. But there is something obscene in the alacrity with which the Chief Minister of Gujarat and his cohorts in the Sangh Parivar have jumped on this argument, implicating NGOs.
Much can be written about the vulnerability of witnesses, all witnesses, in India. It is almost routine for witnesses to turn hostile in court out of fear of thugs that rule us, in politics and from outside. Witnesses are shot dead in open court in North India. And often enough the State seems to enjoy the publicity when it can force a rape victim to marry the rapist as a just and reasonable solution. But here it goes beyond the issue of witness safety, or perjury. What is now on trial in Gujarat and the Supreme Court of India, is the role of Civil Society as a last ditch interventionist in restoring sanity in a system that goes berserk seemingly at will and on random pretext of caste, gender or religious bigotry. A State that has already withdrawn form much of the social sector and sometimes gives the appearance of also withdrawing from the law and order and criminal justice sector. It is no joke that most Delhi residential areas fortify themselves behind military cortina wire and hire private security guards rather than leave this vital task to the police.
In this fragile system, some semblance of equilibrium and popular trust has been created by the healthy relationship between Civil Society groups and a receptive and nurturing Supreme Court. The PIL and the Writ in Supreme Court by NGOs has calmed palpitating hearts, and restored confidence in the Rule of Law.
We cannot but suspect a conspiracy of powerful forces that have forced Zaheera, victim if ever there was, to renege on her own testimonies and to betray the Supreme Court more than she injures the work of Teesta in many other similar cases of Gujarat 2002.
Justice will be victim if the conspiracy goes unchallenged and undefeated.
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Buzz on the perils of fundamentalist politics, on matters of peace and democratisation in South Asia. SACW is an independent & non-profit citizens wire service run since 1998 by South Asia Citizens Web: www.sacw.net/
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