SACW | 15 Nov 2004

[sacw]

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)


--------------

[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


______


[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 democracyŠPakistan!
    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 
privilegesŠ.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'Š 
'Post-election of 2001 saw the attacks on 
minoritiesŠof 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, "Šit is not the concern of my 
ministry." The home department was more 
diplomatic. Š"he did not have details about the 
issueŠcontact the police." Inspector General of 
Police said,"Špolice has no optionŠas several 
thousands (demonstrators) were there."
    On January 8 of this year, the government 
banned all publications of the Ahmadiyas saying, 
"Šthey 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



______



[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

______


[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 
rozgar at gmail.com 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).



______


[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.

______


[6]

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.

______


[7]

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 
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