Exclusive Interview with Teesta Setalvad after Bombay HC granted her ABA – Rukmini Seni
Their work in the area of Legal advocacy is both exemplary and unprecedented. Teesta Setalvad and Javed Anand, with the help of other members of their trusts – Citizens for Justice and Peace and Sabrang Trust fought more than 200 cases for Gujrat victims (including both Godhra and post Godhra cases). Their legal advocacy enabled conviction of 117 people. However, what is most worth mentioning is that Teesta has never sought a death sentence in any of the Gujarat cases on principle.
Teesta has had to cross many hurdles before reaching where she and CJP actually stand today. Many cases have been filed against her by the Gujarat Government and now an FIR has been filed by the CBI. Some of them were called "Spurious cases" by none less than the Supreme Court of the country. In others, the Supreme Court gave her anticipatory bail and categorically asked the Gujarat Government why they needed her in custody. On the 24th of July the Bombay High Court extended her interim relief for two weeks and asked the CBI the same question: why did they need her in custody.
Teesta Setalvad, after the extension of her interim bail from Bombay High Court, is busy preparing for the Zakia Jafri case. Hillele team reached her house at Nirant on Sunday to get her side of the story .
Q1. Congratulations Ms Setalvad on getting the Anticipatory bail from Bombay High Court! Are you ready for the Zakia Jafri case now?
Yes, almost. The final rounds of Charts and Evidence Culling from the already voluminous record are just being prepared by us to make arguments easier. There may be a couple of days' delay but we are ready.
Q2. Take us through the Zakia Jafri case. What has happened so far in that case?
The Zakia Jafri criminal revision petition in the HC should not be confused with the Gulberg case which deals with the 69 people killed there along with Ehsaan saab. This petition attempts to look at criminal or administrative culpability for all the incidents during the Gujarat riots of 2002. So in that sense it is a very historic legal endeavour. It began with the criminal complaint Zakia Jafri filed with our assistance on June 8, 2006. When an FIR was not registered, we went to the High Court seeking directions for an FIR to be registered. The HC rejected our petition and we went to the Supreme Court.
On April 27, 2009, the SC handed over the investigation of this case to the same SIT that had been appointed in the other cases in which we were involved, with the condition and caveat that non-Gujarat officers should look into it. That investigation took place in 2009. I recorded my statement in July 2009. The only documentary evidence we had then were the affidavits of IPS officer Rahul Sharma (who studied cellphone call records of BJP and VHP members as well as police officers during the 2002 riots) and of many other police officers filed before the Nanavati-Shah Commission. We also had annexures to IPS officer RB Sreekumar's affidavits, more important than the affidavit itself because he actually made public the State Intelligence reports. In criminal law terms, these are not the opinions of a person but actual documentary evidence.
By May 2010, SIT members AK Malhotra and RK Raghavan had submitted their reports to the SC but these were kept under wraps.
As the case progressed, Prashant Bhushan was replaced as amicus in October 2010. The new amicus, Raju Ramachandran, looked at the evidence that the SIT had put before the SC (we didn't have a copy) and concluded that there was material evidence to prosecute. The SIT had listed out things that were problematic according to them about that period but said it did not necessarily merit criminal prosecution.
The SC, after hearing these contrarian views, told the SIT to look at Ramachandran report, along with their conclusions, and come to final conclusions. It told Zakia that if she was aggrieved by the final report, she had the right to file a protest petition, with the rider that she had the right to access full investigation papers.
On February 8, 2012, the SIT filed a closure in the magistrate's court stating that despite Ramachandran's report, it was a closure. The very next morning, we filed an application seeking all documents. For one year, the SIT refused to give us the documents. We fought in the magistrate's court for months. In a fresh petition in November 2012, we approached the SC and said this was contempt of its order. After the SC's order on February 7, 2013, we finally got 23,000 pages of evidence in 64 box files.
As our team processed the documents to prepare the protest petition within the three months we had, that's when we found all this documentary evidence. The SIT report does not deny that post mortems (of the kar sevaks killed in Godhra) happened in public, that photographs of 59 burnt corpses went viral on the internet, that a meeting was held at the Collector's office where Jaideep Patel, a VHP man, was allowed to be present (a VHP man at an official meeting), that a decision was taken to take the bodies to Ahmedabad. Now this is not testimonial evidence. This was a bad or culpable administrative decision. Once an incident happens, the bodies are the property of the administration. How could a political leader say take them to Ahmedabad in a motor cavalcade, handed over to Jaideep Patel, not to officials? It is all part of Malhotra's report.
Meanwhile Sanjeev Bhatt had filed an affidavit in SC too stating that he was at that meeting.
Three thousand men gathering (at Sola Civil Hospital) is not my saying it, it is in the Police Control Room records. That the hospital was attacked, that the mob was trying to get hold of the bodies, that funeral processions were allowed even in that atmosphere, that Acharya Giriraj Kishore came there and addressed the mob, how does this chain add up?
That is the kind of evidence we have. We had the genesis in the petition, but it's all coming into place now with the documents collected from the PCR records, the SIB records, statements by police officers. And that is what makes up the Zakia Jafri petition now.
When we first filed the complaint in 2006, Zakia Jafri was a woman who had witnessed things, was traumatised; she had spent the night after the Gulberg massacre at the police station and I remember she kept saying policemen were on leave when Ahmedabad was burning. It was a thing in her head that this was deliberate, this was conscious. But that's not enough to file a criminal case.
I would say that if Godhra had happened anywhere in our country, there would be three or four reprisal attacks undoubtedly. But what was the role that the administration should have played? Was there a clear cut appeal for calm, for peace, for no revenge, for no baying for blood? That's all we are asking and we have built up a case around that.
I believe that it is these arguments coming back out into the public domain that this regime really does not want.
Q3. What is going to happen in the High Court in the Zakia Jafri case? Please explain.
Our team will argue to convince the High Court of several aspects. Firstly we shall challenge the Order of Magistrate Ganatra rejecting the Zakia Jafri Protest Petition. This Order was passed despite detailed and voluminous evidence being placed and argued before him through 2013. He rejected it on 26.12.2013, eight days before a fabricated FIR was filed against five of us including the son of Ahsan and Zakia Jafri. That was an attempt to somehow prevent us filing the appeal. Yet, despite threatened with arrest, we filed this revision on 15.3.2014. Two senior police officers who were behind the FIR are also seriously implicated in the Zakia case. One of them has been recently shifted by the powers that be to a senior position in CBI.
Q4. What is your exact role as a co-petitioner in Zakia Jafri case?
Zakia appa as I mentioned above was a widow who had strongly sensed police inaction the day her husband and 68 others were butchered in cold blood, in a massacre that lasted eight hours in broad daylight (February 28, 2002). She articulated this to me and several others repeatedly. CJP was (and still is) standing with the Survivors of the Gulberg society carnage. As things unravelled, and the affidavits of brave policemen like RB Sreekumar and Rahul Sharma (then serving officers) got filed before the Nanavati Shah Commission, more and more documentary evidence substantiating the findings of statutory bodies came into the public domain. We accessed these documents, began analysing them and then put together first the complaint (8,6.2006) to the police. When the Gujarat police did not register an FIR we approached the High Court for directions to lodge an FIR against the then CM Modi and 61 others. CJP was co-petitioner, I as its Secretary was and am the chief functionary.
In any system but particularly the Indian one, it is not easy for Survivor Witnesses to, on their own, access and navigate the criminal justice system. CJP has played the historic role of substantive legal aid for Survivors, ensuring that the integrity of their eye-witness testimonies bear the test of legal scrutiny.
Q5. You had said PMO and CBI shouldn't try obstructing Public justice. What had you meant by that?
The timing of the re-doubled attacks against my team, my family and us makes this obvious. When the crude efforts of the Gujarat state to somehow or the other get us into custody failed (Feb 2015), it was the same Guj Government Home Department that instigated a fresh round of harassment and persecution by instigating the MHA (FCRA department)—now under a politically friendly dispensation – to lodge a series of inspections first into the 2 Trusts and now Sabrang Communications. We believe that the utterly vindictive action of the CBI in raiding/searcing our offices and home (when we had offered to fully cooperate) comes from direct orders from the PMO. It is an abuse of due process. It is a bid to intimidate. What, I wonder, are they afraid of? If on the one hand they are clear about the fact that they have got a "clean chit" for their role in 2002, why are they somehow browbeating us to prevent real evidence being led, again, in the Zakia Jafri revision application, in the public domain?? Are they insecure?
Q5. MHA had directed CBI recently to investigate the foreign funds that you have received for your two trusts? You have maintained from the beginning that you have taken funds and in fact the information is on Sabrang website also then where is the discrepancy according to CBI?
By beginning this multiplicity of investigations, they wish to tie us in knots. We have not been browbeaten so far. We have broken no laws as far as the CJP and Sabrang Trusts are concerned. Now they have started investigations into Sabrang Communications and Publishing Private Ltd, which had enterd into a consultancy. How many Trusts who receive foreign funds –incuding the Rashtriya Swayamsevak Sangh which functions against the fundamental values of the Indian Constitution – have been so vindictively investigated?
Q6. Then CBI searched your house? You applied for ABA. Why? Did you think they can arrest you?
The search was also a violation of the CRPC as you only search and raid when you believe there to be non-cooperation. Here we had pro-actively written to the Five offices of the CBI, including the Economic Offences Wing in Mumbai, offering cooperation. But the bay-hounds who make up the sangh parivar (constituency of this Regime) would not be happy with a genuine, legal inquiry. The more they see intimidation and humiliation, the happier those crazed will be!!!!
Q7 When you took up the legal advocacy work in 2002 did you have any idea that you will be so successful in it? and also so persecuted?
We only knew after 2002, that we should work and test the criminal justice system and see if justice could ever be delivered. Superficial television coverage has rendered the proverbial public memory very short but young person need to re-visit 2002 to understand, the extent of Statutory Approbation that the government in power received first from the National Human Rights Commission (NHRC) under former Chief Justice JS Verma in 2002, the Central Election Commission under James Lyndoh in 2002, the Supreme Court of India in 2004!
These circumstances made it a fit case to take to the law Courts and that is what CJP did. We soldiered on, charting a new course with integrity. The Supreme Court, exercising its writ of continuing mandamus continues to monitor major trials and has offered witness protections to 570 witness survivors and myself. All of these circumstance s coalesced in an enabling atmosphere for public justice and 120 powerful perpetrators have been convicted. It is a huge vindication. But little did we know when we began that this is where we would be!
Apart from the obvious successes, the fact that we have contributed to lasting human rights jurisprudence is gratifying. We argued against the death penalty and for life imprisonment. Thanks to the collective experience, an amendment to the CRPC (Section 24-8-2) has meant that Victim Witnesses now have a right to their own advocates to assist the prosecution during a trial. This means that Victimology has been introduced to the system.
Q8. You have denied that you are close to Congress but will you deny that you are ideologically closer to Congress and the Communist parties?
Not just the Communists and the Congress but also to the Socialists and the BSP.
The fact that the ruling dispensation is an extension of a majoritarian worldview that militates against the egalitarian values of the Indian Constitution and is an open exponent of a Religion-based Nationalism is what makes me antithetical to it. You can see this inherently anti-Constitutional worldview, that goes against all the gains of the Indian National movement, manifest in what is happening in education and culture today. Communal Violence is also up by 25 per cent and we being promised (the horrifying prospect) of India becoming a Hindu rashtra by 2020!
Q9. If I may ask how many FIRs have been filed against you? and by who?
Seven. Six by the Gujarat police and one by the CBI under the present regime. I have had to approach the Courts for ABA seven times. Except in the last two cases I have got ABA, though the harassment by the Gujarat police Crime Branch Ahmedabad continues.
Q10. Where do you think the secular forces/parties/citizens in general have failed that in spite of you having been proven innocent repeatedly by Supreme Court, in cases like that of Zahira Sheikh and the Mass grave case, the propaganda that you are guilty of perjury continues.
More than secular parties, the blame I think should be put on a completely one-sided media. Large sections of the media, especially electronic, changed after 2007, and in fact played an aggressively facilitatory role to enable the victory of the present regime. Part of this unprofessional package has been to repeatedly carry one-sided news against us, not even trying to be balanced. In fact, the political class has been more honest than the media.
Three Special Sessions Courts (Best Bakery Retrial Court, 2006, Sardarpura Court, 2011, Naroda Patiya Court, 2012) have explicitly exonerated these baseless charges and comented favourably on CJP's legal aid work. The High Court (Bombay, Best Bakery Appeal, 2012) too has not accepted these false allegations. The Registrar General BM Gupta Inquiry Report, 2005, completely exonerated us. Yet the media does not refer to these documents and laps up what ruling party leaders and MPs say. Is this a free and independent media at work?
Q11. If I may ask when you took up the media advocacy work against communalism in 92 and legal advocacy against communalism in 2002 what exactly were you fighting for? And what are you fighting for today?
To develop a broad based understanding of (and through this understanding build a resistance to) the politics of hatred and division – communalism. Basic to this belief was the understanding that majority and minority communalism are two sides of the same coin. It is the play of both kinds of communalism that resulted in the Tragedy of Partition.
Propaganda – replacing myths and half baked stereotypes with facts and reason – in Marathi we call it BuddhiBrahm Karna (to obfuscate the intelligence) is at the core of any supremacist ideology. So our aim has been, through professional, exploratory journalism, facts that explode the myths.
Today the situation is as or even more acute. What all of us are fighting for is the survival of Bharat (India) as Babasaheb Ambedkar, Gandhi and Nehru envisioned it. It is a crucial moment in time.
Q12. Are you hopeful about Zakia Jafri case?
To fight the battle with honesty and integrity has been our aim. How can we predict its outcome? Difficulties have been many. Our system has been tested. But the pathbreaking landmarks that CJP has so far achieved have been thanks to the independence of our Judiciary. It is a crucial pillar of our democracy.
Time will tell.