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II. Background 

Large-scale communal violence in Gujarat began on February 27, 2002, when a train carrying Hindu activists was attacked in the town of Godhra. Local Muslim residents were blamed for the attack and nearly a hundred have been arrested.³⁸  While the reasons for the onset of the violence are disputed-- a government inquiry has been instituted to investigate the incident--   a widely reported explanation is that an altercation broke out between some Hindu activists and a Muslim vendor at the Godhra station.³⁹  It is unclear how it happened, but one carriage of the train caught fire and fifty-nine people were killed in the blaze. 

In the days following the Godhra fire, the full fury of the state government and Hindu nationalism was turned on Muslims in Gujarat.  Muslims were branded as terrorists by government officials and the local media creating the environment for armed gangs to seek vengeance in a five-day killing and looting spree. The government has charged many of the Muslims accused in the attack on the train under the Prevention of Terrorism Act (POTA), but filed ordinary criminal charges against those accused in the violence against Muslims.  POTA limits the procedural rights of those arrested and makes them subject to substantially longer prison terms if convicted.  (Accepting that the law is being misused, the new Congress-led coalition in New Delhi decided to repeal it.) Muslim homes, businesses, and places of worship were destroyed. Scores of women and girls were gang-raped and sexually mutilated; many were then burned to death. In the weeks that followed, spasms of retaliatory violence continued. 

An April 2002 Human Rights Watch report, We Have No Orders to Save You:  State Participation and Complicity in Communal Violence in Gujarat, set out allegations that violence against Muslims was planned well in advance of Godhra and with extensive state and police participation and complicity.⁴⁰  Groups involved in the anti-Muslim violence included the Vishwa Hindu Parishad (World Hindu Council, or VHP), the Bajrang Dal (the militant youth wing of the VHP),⁴¹ and the Rashtriya Swayamsevak Sangh (National Volunteer Corps, or RSS).⁴²  These groups are all part of the sangh parivar, or “family” of Hindu nationalist groups.  The BJP is the political wing of the sangh parivar. A follow-up report by Human Rights Watch, Compounding Injustice: The Government’s Failure to Redress Massacres in Gujarat, published in July 2003, concluded that the ringleaders of the riots were still at large.

State police have reportedly continued to face pressure from Gujarat officials to avoid making arrests or to reduce the severity of the charges filed.  In many instances, the police refused in their initial police reports to name perpetrators identified by victims.  For instance, even after Bilkis Yakub Rasool had identified her rapists and named the men who killed members of her family, including her three-year-old daughter, those names were not recorded in the “first information report.”⁴³  The Supreme Court is presently hearing a petition from the National Human Rights Commission seeking the transfer of several cases to courts outside Gujarat because of the politically charged atmosphere in the state.⁴⁴ 

Although, the Gujarat government, responding to international outrage, initially boasted of thousands of arrests following the attacks, most of those arrested were acquitted, released on bail with no further action taken, or simply let go. Special Representative P.J.G Nampoothiri reported to NHRC on May 28, 2002, that of the 16,245 persons (most of them Hindu) arrested for substantive offences during the riots, all but 2,100 had been bailed out by May 10, 2002.⁴⁵ Even when cases reached trial in local Gujarat courts, Muslim victims faced biased prosecutors and judges, harassment, and intimidation.

The Best Bakery case became perhaps the most significant example of the failure of justice.⁴⁶  Despite a wealth of evidence and the deaths of fourteen people in horrendous circumstances, a Gujarat state court acquitted twenty-one people accused of the killings after witnesses withdrew statements they had given to the police identifying the attackers.  The case gained newfound significance when one of the witnesses, Zahira Sheikh, publicly disclosed that she was forced to change her testimony as a result of threats against her during the trial. Zahira stepped forward due to the support and protection of a small but dedicated community of lawyers and activists. Their work, and Zahira’s example, inspired several other witnesses to come forward and offer testimonies in other riot cases.  This led to a strong national response to the serious shortcomings of accountability in Gujarat.  India’s National Human Rights Commission has strongly condemned the Gujarat government for its failure to deliver justice.⁴⁷

The most important response came from the Indian Supreme Court in the Best Bakery case.  Noting that at trial the prosecution acted more like the defense, the Court referred to members of the state administration as  “modern day Neros,”⁴⁸ saying that they  “were looking elsewhere when Best Bakery and innocent women and children were burning, and were probably deliberating how the perpetrators of the crime can be saved and protected.”⁴⁹  In a landmark ruling, the Supreme Court overturned the acquittals in the Best Bakery case and ordered the case transferred to a more neutral venue in neighboring Maharashtra state.  The Supreme Court rebuked both the Gujarat High Court and the local justice system, stating that the “Judicial criminal administration system must be kept clean and beyond the reach of whimsical political wills or agendas.”⁵⁰ The Supreme Court also directed the state governments of Gujarat and Maharashtra to give adequate protection to witnesses and victims, ordered the appointment of a new public prosecutor, and ordered fresh police investigations into the case. On August 17, 2004, while ordering a reassessment of all closed riot cases and asking the Gujarat state government for details of acquittals and appeals, the judges declared, “What had happened in the state was unprecedented and abnormal.”⁵¹