Before Teesta Setalvad Filed Her Case, NHRC and Supreme Court Had Already 'Tarnished' Modi's Image

New Delhi: In June this year, the Gujarat state government, while opposing the bail application filed by rights activist Teesta Setalvad, called her "the tool” of a certain politician and said that her riots-related litigations were aimed at tarnishing the image of Narendra Modi and unsettling the established government.

Setalvad was arrested by the Gujarat police in June 2022 on the charge of 'fabricating evidence' related to the Gujarat riots of 2002 with the aim of implicating Modi in the anti-Muslim violence that took the lives of more than 1,000 people when he was chief minister. The provocation was the PIL she had filed along with riot survivor Zakia Jafri which accused the then CM and his administration of being complicit in the violence and subsequent cover-up. The Supreme Court last year dismissed the PIL and suggested Setalvad be prosecuted for 'abuse of process'.

She was released on interim bail after spending two months in jail but her plea for regular bail was turned down by the Gujarat high court on July 1, 2023.

Objecting to her bail plea at the high court, public prosecutor Mitesh Amin submitted that “the petitioner with her two tools – police officer R.B. Sreekumar and Sanjiv Bhatt – together hatched the conspiracy to propagate the larger conspiracy aspect. She was also a tool in the hands of a politician of a political party.”

These claims are not the first of their kind. In the past two decades, systematic attempts have been made to present the 2002 Gujarat violence appear as something that was intentionally hyped in the public perception by a few people, including rights activists like Setalvad.

The difference now is that this narrative, which was earlier part of the Bharatiya Janata Party's efforts to make light of the 2002 riots,  is now being presented as fact in the courts as well.

Against this backdrop, it becomes important to recall that Setalvad is not alone in “tarnishing” Modi’s image. Independent institutions like the National Human Rights Commission (NHRC) and the Election Commission of India (ECI) have also made strong observations in the past on the Gujarat violence and the role of the government he ran as chief minister.

Also Read: Condemned by Innuendo: Some Questions on the SC Order That Led to Teesta Setalvad's Arrest

National Human Rights Commission

After taking immediate cognisance of the riots in Gujarat, the NHRC in 2002 not only asked the government of Gujarat to submit a report, but also visited the state. 

The NHRC at the time was headed by former Chief Justice of India J.S. Verma. Justice K. Ramaswamy, Justice Sujata Manohar and Virendra Dayal are signatories to its proceedings' report.

In its proceedings, the commission had observed that:

“In the [light] of the history of communal violence in Gujarat, recalled in the report of the state government itself, the question must arise whether the principle of ‘res ipsa loquitur’ (‘the affair speaking for itself’) should not apply in this case in assessing the degree of state responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat.”

After posing this question, the commission gave the state government time to respond and refute the common perception that it had failed in fulfilling its responsibility.

The commission also noted the discrimination in terms of the compensation awarded to the families of those who were killed in the violence, which it said led to “most adverse comment both within the country and abroad”.

While compensation to the next-of-kin who were killed in the riots was Rs 1 lakh, the amount offered to the next-of-kin who were killed in the Godhra train incident was Rs 2 lakh. The commission also notes that the Gujarat government subsequently offered Rs 1 lakh compensation to next-of-kin in all instances to “establish parity”, although after supposedly receiving a letter from kar sevaks advocating this approach.

In its proceedings on May 31, 2002, after receiving an unsatisfactory response from the state government, the NHRC stated that it has reached the definite conclusion that the principle of res ipsa loquitur applies in this case and that there was a “comprehensive failure of the state to protect the constitutional rights of the people of Gujarat, starting with the tragedy in Godhra on February 27, 2002 and continuing with the violence that ensued in the weeks that followed.”

The coach of the Sabarmati Express train which was torched. Credit: PTI/Files.

Election Commission of India

After the riots, the ECI visited the state to gauge if elections could be conducted or not. In its report, it stated that there were contradictions within what the state government had reported in the report on law and order, and what the state government was actually doing.

On one hand, the state government reported that only 12 districts were affected, whereas the scheme of distribution of free rations has been extended to 20 districts. Regarding the state government’s omission, the ECI stated as follows:

“The State Government [has] on the commission’s queries subsequently been avoiding giving a clear picture of the number and identity of persons complained against, similar details of persons included in the FIRs, similar details of persons who have been arrested, similar details of persons named in the FIRs who have been enlarged on bail, [and] similar details of persons enlarged on bail as against whom appeals have been filed for cancellation of their bail bonds.”

Commission of inquiry

The state government appointed the Nanavati-Mehta Commission to look into the Godhra train burning incident and its scope was later expanded to look into the riots, which resulted in over 1,000 deaths. 

The Nanavati-Mehta Commission also examined the effectiveness of administrative actions taken to prevent these incidents, whether the Godhra incident was premeditated and if the authorities had prior knowledge to prevent it.

However, in 2004, the Commission broadened its investigation to include the role and participation of the then chief minister Modi, his ministers, police officers, and other individuals and organisations.

It is important to note that the state government did this of its own volition.

Also Read: Gujarat Riots Spontaneous Says Nanavati Panel, But Electoral Data Shows Method in Madness

Supreme Court of India

While hearing a petition demanding the retrial of the accused in the Best Bakery Case (which involved the killing of 14 people during the riots), the then-Chief Justice of India Justice V.N. Khare had remarked that he has no faith left in the prosecution and the Gujarat government. 

A few months after this remark was made, the Supreme Court directed a retrial to be held under the jurisdiction of the Bombay High Court.

The top court directed the retrial while “keeping in view the peculiar circumstances of the case, and the ample evidence on record glaringly demonstrating subversion of [the] justice delivery system with no congeal and conducive atmosphere still prevailing …”

In the same judgment, the court remarked that the investigation into the case was not fair and impartial:

“The modern-day 'Neros' were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected.

Law and justice become flies in the hands of these "wanton boys". When fences start to swallow the crops, no scope will be left for [the] survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments.”

This was not the only case where the trial was moved out of Gujarat. The Gujarat high court also directed the trial in the Bilkis Bano case – whose convicts are now out on remission – to be moved out of Gujarat to Maharashtra.

Other than these three institutions, committees like the Parliamentary Committee on Empowerment of Women also stated that it was the bounden duty of every state machinery to take pre-emptive steps to prevent the spread of violence. The committee regretted to note that “that the failure to anticipate the potential dangers of the situation by the Intelligence services was responsible for the violence, death and destruction of the magnitude that was witnessed in Gujarat.”

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