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Not in the balance

india Updated: Sep 01, 2011 10:38 IST
Anil Dharker

Just a few days ago, separate courts gave their verdicts in two important cases. In Mumbai, the Bombay high court confirmed the death sentence on 26/11 terrorist Ajmal Kasab while a day later in Ahmedabad, a special court held 31 people guilty of burning a coach of the Sabarmati Express at Godhra railway station in 2002.

There are subtexts in both these judgements. In the Kasab trial, the high court upheld the acquittal of two Indians accused of being part of the Lashkar-e-Tayyeba (LeT). In the Godhra court, the sessions judge acquitted 63 people — more than double the number convicted, for lack of evidence. These sub-texts tell their own story, a story that does not speak well of many of our institutions.

Take the Kasab case first. The only surviving member of the Pakistani terrorist team that attacked Mumbai in 2008, he has been lodged in a high security cell with no expense spared on looking after him. In spite of his indisputable guilt, the prosecution produced over 600 eyewitnesses to buttress its open-and-shut case, thus delaying it for over two years. But the message India wanted to give the world is that our laws are fair, there are no distinctions between people. The acquittal of the two Indians accused of abetting the conspiracy, further reinforces that claim.

If only the Godhra verdict did so too! On the face of it, the judgement seems to contradict itself. As we now know, 31 people were convicted for criminal conspiracy, while 63 were acquitted. Significantly of the 63, there were two people, Maulvi Hussain Umarji and the then president of the municipality, Billal Hussain Kalota, who were accused to be the main conspirators. If your main conspirators are innocent, how can you have a conspiracy?

As it happens, the whole Godhra story is shrouded in confusion, with three theories emerging from the scenario. The first theory is that the fire started from inside the coach. This is not entirely implausible, because the coach was grossly over-crowded and on a long journey many people travel with stoves and beddings which make for a lethal combination. The second is that the conflagration began after a spontaneous fight erupted between the Hindu kar sevaks on the train and Muslim vendors on the platform, a culmination of days of tension between the two. In this confrontation, stones and burning rags were thrown and the latter started the fire in the compartment. The third theory is that the burning of the compartment was a result of a pre-planned conspiracy.

The court has upheld the last theory even while freeing Umarji and Kalota. This is the theory that suits the Modi-led BJP government, as the crowing reaction of a party spokesman to the verdict showed. It suits the party because it acts as some sort of justification for the days of state-abetted carnage that followed in Gujarat which killed 1,800 people. This is also the theory supported by the Nanavati commission appointed by the Gujarat government in 2002.

A second commission headed by another former Supreme court judge (UC Banerjee), which was appointed in 2004 by Lalu Prasad as railway minister when the UPA government came to power in Delhi, contradicted this saying that the fire in the coach started accidentally from inside. It based its findings on forensic evidence and accounts of railway officials and eyewitnesses who deposed before it. This particular theory has been supported by a number of journalists who were in Gujarat at that point. One of them was a resident editor of a national daily and till today he reiterates that railway officials present at the Godhra station on that day told him that there was absolutely no possibility of a conspiracy.

Who does one believe? Does the truth bend with your political affiliations? Shouldn’t judicial findings be based on facts which are not coloured by prejudices? Whatever the answers to these questions, one fact is incontrovertible: 55 of the 63 people acquitted were denied bail for the duration of the trial, which was an agonisingly long nine years. In short, 55 innocent people lost nine years of their lives, years which no compensation can return. Careers, reputations and families have been shattered. Who is responsible for this? The police who insisted on denying bail? The prosecutors who fought for this denial? The judiciary which acceded to these requests?

As it happens the Godhra court’s verdict relies heavily on the confessions of the accused included those later retracted. Shouldn’t the court have looked into the value of confessions obtained in jail? You can’t ignore what happened in Malegaon. There young Muslim men were made to confess to a crime they did not commit. Nine of them have spent more than four years in jail and the only reason they are now free is because Swami Asimananda had a change of heart and confessed that it was a group of RSS pracharaks who were behind the attacks.

You might well ask, why does our system go so far out of its way to be fair to a known foreign terrorist like Kasab, while terrorising its own citizens with a perverted justice? It’s a question loaded with irony for us, but full of tragedy for those falsely implicated in crimes they did not commit.

Anil Dharker is a Mumbai-based author and columnist

The views expressed by the author are personal