The Politics of Justice in Gujarat

Why India’s politicised judiciary struggles to deal with communal violence.

On 8 January of this year Zakia Jafri once more petitioned India’s Supreme Court, almost ten years after a marauding mob killed her husband during frenzied Hindu-Muslim violence that engulfed Gujarat in 2002. Given her evident frailty one would not credit her with the stamina for engaging in a long and drawn-out fight with powerful politicians. With the support of human rights organisations, Zakia filed a suit in 2006 against 63 individuals – including Gujarat’s Chief Minister, Narendra Modi – for complicity in the brutal killing of her husband and 32 others living in her apartment block. These people were the victims of one of the worst outbreaks of Hindu-Muslim violence since India’s independence. After a deadly fire in on a train – allegedly caused by a group of Muslims – large mobs took to the streets throughout Gujarat, killing an estimated two thousand people and destroying the homes and livelihoods of thousands more.

While this episode of violence may have come to an end, the struggle of a small group of victims and human rights activists to bring the perpetrators to justice continues. Their struggle illustrates how the ongoing politicisation of India’s judiciary is threatening India’s secular fabric – yet their limited successes also suggest that India’s judiciary is finding new ways to resist political meddling.

Zakia Jafri and her supporters knew that they were complicating matters by including the name of Narendra Modi in their lawsuit. The Chief Minister’s staunch anti-Muslim rhetoric had helped him to win the elections held shortly afterwards. Since then evidence has been emerging about the alleged involvement of state officials and BJP politicians in the organisation and perpetration of the violence. There are strong indications that politicians instructed the police to allow Hindu mobs to vent their anger. Gujarat cabinet ministers were seen leading violent mobs and, according to phone records, police officials were in constant contact with BJP politicians while telling besieged Muslim residents ‘we have no orders to save you.’

The violence cemented BJP support in Gujarat. Buoyed by a growing economy and the image of an effective ruler, Modi was increasingly touted as India’s future prime minister. Yet the violence continued to tarnish his image outside Gujarat: court cases could not only put his supporters in jail but also diminish his political stature. The BJP and affiliated organisations realised early on that it was in their interest to prevent the fruition of court cases against Hindu perpetrators of violence. They left few stones unturned to prevent convictions. Police officials refused to register riot cases, witnesses were intimidated and bribed, judges were bought off and human rights activists faced repeated harassment. The few courageous police officers who protested against the manipulation of riot cases were threatened and demoted. As a result, the few riot cases that have reached the courts have been acquitted. Human Rights Watch concluded in a 2003 report that ‘the machinery of justice in Gujarat is stacked against Muslims.’

This political meddling was made possible by the exceptional control that politicians in Gujarat exert over the bureaucracy. The separation of executive, legislative and judicial powers has been thoroughly undermined by the capacity of politicians to make or break bureaucratic careers. As I describe in my book Riot Politicsthe control that politicians exert over the bureaucracy is making India’s society sensitive to the political manipulation of religious (and caste) divisions. Civil servants – from police constables to clerks to judges to the director general of police – feel a need to cooperate with influential politicians, knowing that they risk ‘punishment postings’ by refusing to cooperate. As a result, Gujarat’s judiciary has become incapable of upholding the rule of law in the face of political pressure.

Yet in July 2003, political meddling in riot cases become too obvious. In what became the famous ‘Best Bakery Case,’ all those accused of torching 14 people to death were acquitted after no less than 37 witnesses recanted their statements. National and international organisations were outraged, and in an unprecedented move, India’s supreme court stepped in and ordered a retrial outside Gujarat. Expressing no confidence in the ‘modern-day Neros’ ruling Gujarat, the apex court ordered the reopening of 2100 of a total of 4600 riot-related cases. This was a bold move for India’s Supreme Court and a clear signal to Gujarat’s courts that political meddling had gone too far. These developments emboldened Zakia Jafri to take up the case of her husband’s death, which had been languishing in the local courts. After both the police and the Gujarat High court dismissed her plea, she went to the Supreme Court in 2009.

Again the Supreme Court made an exceptional move. In another expression of distrust of the Gujarati judiciary, the apex court instituted a Special Investigative Team (SIT) to probe the riot cases. The proceedings of this team became a nationwide media event when chief minister Modi was finally questioned about his role during the violence. However, at this moment the Supreme Court’s SIT seemed to have had a change of heart, and may have buckled under political pressure. Not only did the SIT refuse to investigate important evidence, it decided to keep its final report confidential and, most importantly, it advised the Supreme Court in September 2011 to send Jafri’s case back to a Gujarati court. Given the Supreme Court’s initial distrust of Gujarat’s judiciary, this was more than a little contradictory.

Chief minister Modi heaved a sigh of relief: claiming that he had been given a ‘clean sheet’ by the Supreme Court, he embarked on a three day fast for ‘peace and unity’ in Gujarat in an attempt to leave the 2002 violence behind him. Zakia Jafri was left almost empty-handed as she was forced to return to the same courts that dismissed her case in 2007. Yet there are indications that her travails did convince Gujarat’s political elite to reduce their efforts to manipulate the outcome of court cases. In November last year, a Gujarati court finally passed a guilty verdict in a riot case, a conviction that stands as a monument for Zakia Jafri and numerous other activists who have fruitlessly been seeking justice for the last ten years.

But apart from being simply a heroic struggle, Zakia Jafri’s story also illustrates the emergence of an important fight within India’s judiciary: the fight to resist the ongoing politicisation of the courts. Gujarat’s judiciary has become thoroughly pragmatic over the decades, as those working in the police force or the courts have realised that their jobs depend on indulging the wishes of politicians. The Supreme Court’s interventions served to draw a line as to how far this kind of pragmatism can go. But in the absence of real measures to limit political meddling in the courts – such as limiting the capacity of politicians to instigate transfers of bureaucrats – these interventions will only have symbolic value. As long as politicians control the fate of individual civil servants, Zakia Jafri will face a difficult and long struggle to find a Gujarati court willing to do her justice.

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