Affidavit in Rejoinder

IN THE SUPREME COURT OF INDIA

EXTRA-ORDINARY ORIGINAL JURISDICTION

CRL.M.P.19816 OF 2009

IN

WRIT PETITION (CRL) NO.37-52 OF 2002

IN THE MATTER OF:

FR.CEDRIC PRAKASH AND OTHERSPETITIONERS

VERSUS

STATE OF GUJARAT AND OTHERSRESPONDENTS

AFFIDAVIT IN REJOINDER ON BEHALF OF THE PETITIONER

1. I, Teesta Setalvad, daughter of Atul Setalvad, age 48 years, residing at Nirant, Juhu Tara Road, Mumbai solemnly state as under:

2. I am the Petitioner no.5 in the present case and I am fully aware of the facts circumstances of the present case and am duly competent to swear and depose as under.

3. I say that I have gone through the affidavit in reply filed by the State of Gujarat. Unless specifically admitted by me hereunder, each and every allegation made therein is denied as false.

4. Before I deal with the contentions made in the affidavit in reply, I would like to state my understanding of the directions of this Hon’ble Court to the State of Gujarat with respect to the present affidavit. The directions issued on April 6, 2010 were permission to respond to the application filed by the Petitioners and the response of the SIT to the application. The Petitioners do not have copies of the SIT response to the application. My response therefore is based on my understanding of the responses in the context of the orders passed by this Hon’ble Court and the manner in which the State has dealt with the same in its affidavit-in-reply.

5. I humbly pray that in view of the limited scope of the reply that the State was permitted to file, all other irrelevant contentions/allegations must be expunged and taken off the record and the State should be directed to file a fresh affidavit focusing on the issues raised presently and taking out slanderous allegations made against me personally.

6. My understanding of the reasons for appointment of a SIT by this Hon’ble Court are as under:

(i)FIRs had been wrongly and incompletely recorded & names of accused officers & those politically connected had been dropped/excluded

(ii)That inquiries / investigations had not been adequately carried out especially regarding the involvement of police officers, civil servants and politically influential individuals in these offences both by way of actual involvement and by way of complicity: deliberate inaction;

(iii)That this deliberate and criminal negligence and non-performance of duties enjoined by law, on part of senior officers and authorities of the State need hardnosed independent scrutiny;

(iv)That the investigations had completely ignored and stopped short of bringing to light the large conspiracy in the unprecedented State-wide organized violence, violence, with many common features and a pattern to it, which reasonably pointed to systemic involvement of the entire apparatus of the Government of Gujarat.

(v)That evidence, documentary and otherwise, collected by official channels both before the tragedy of 2002 (reports of State Intelligence, Gujarat and Uttar Pradesh and other states) and after (affidavits of police officers before the Nanavati Shah Commission and Tehelka’s Operation Kalank) suggest that this conspiracy could extend even prior to February 27,2002 when the tragic burning of the S-6 Coach of the Sabarmati Express at Godhra took place;

(vi)There were threats to and intimidation of witnesses

(vii)Prosecutors were appointed who had earlier appeared for the accused and who were associated with organizations who were involved in the offences,

(viii)Bail Orders granted out of turn by the lower and higher courts in Gujarat ensured that that these politically influential accused moved free in areas and neighborhoods of their influence that were also the sites of the worst carnages.

7. I say and submit that the contentions of the government of Gujarat at paragraph 2 of its affidavit dated April 16, 2010 are wrong in fact and belie the history of this litigation. The respondent government of Gujarat has consistently resisted efforts at transparency and accountability and deliverance of justice and this has been taken into account by this Hon’ble Court on many occasions during the course of the proceedings of the present set of petitions as well as in concluded cases namely Zahira Habibullahs Shaikh v/s state of Gujarat reported in 2004 4 SCC 138 and much more recently in a related matter of Rubabuddin Shaikh v/s State of Gujarat reported in JT 2010 (1) SC 99.

8. I say and submit that unlike the contentions laid down in paragraphs 2, 8 and in other places in the affidavit in reply, where the state would like to suggest that they have, post the genocidal carnage of 2002, worked assiduously towards the deliverance of justice and besides, complied with the orders of this Hon’ble Court, the experience of those suffering at the hands of an unrepentant state are the diametric opposite. I say and submit that on repeated occasions the state of Gujarat has misled this Hon’ble Court on affidavit and I draw attention especially to the order of this Hon’ble Court passed on July 12, 2004 where it is stated in black and white that misleading set of bail orders were filed to give an incorrect picture to this Hon’ble Court on the facts on the ground. This had led the amicus curiae then to actually get all bail orders (of Sessions courts and the High Court) translated and thereafter submit a detailed application to this Hon’ble Court on July 12, 2004 (that was treated as an application). I say and submit the order of this Hon Court dated July 12, 2004supports the contentions made by the Petitioners. I crave leave to rely on this order to establish this point.

9. I say and submit that, contrary to the averment in paragraph 2 of theaffidavit, the government of Gujarat has always objected to the genuineand bonafide applications of the hapless victims. This is true with theongoing trials whether it be applications under section 319 of the Code ofCriminal Procedure (referred to as the Code) to enable the impleading ofnew accused, or undersection 173(8) of the Code for further investigation.

I vehemently deny theaverment in paragraph 3 of the said affidavit and state that there is noquestion of attacking Gujarat. The government of a state (Gujarat) doesnot mean the Gujarati people. The act of enablingjustice to poor cannotbe termed as an ulterior motive.

Specifically, the state has admitted the truth in paragraph 4 of their affidavit that the SIT ”was constituted in spite ofthe contention of the state government that the investigations conducted by the Gujarat police is legal, valid and thorough.” Therefore, their contention thereafter made in paragraph 2 that the state of Gujarat had “never objected to or opposed to any prayers reasonably made by any of the parties or any suggestions coming from the amicus curiae to unearth the truth”, is contradictory to their above statement, unless the state still maintains that the constitution of the SIT was unreasonable. Most surprisingly, in paragraph 3 of the affidavit of the State of Gujarat, it is stated that “… there are several rumours and false speculations floated by the present applicant and other vested interest groups regarding riots in 2002. The State of Gujarat was also not averse to getting such rumours and speculations examined by a independent body and therefore not only did not object but agreed for nine major cases identified by this Hon’ble Court being further investigated by a neutral body ….”, which tantamount to saying that the SIT was constituted by this Hon’ble Court to investigate into mere rumours and false speculations and that this Hon’ble Court undertook an unprecedented course in the pursuit of public justice on such flimsy grounds! (The counter to the logic herein is dealt with further in paragraph 14 hereafter).

10. I further say and submit that the government of Gujarat is misrepresenting facts in paragraphs 5 (ii) and (v) of its affidavit stating that our application for the re-constitution of the SIT has “come at a peculiar stage” or “is a belated attack on the SIT.” I wish to state humbly and simply that the Petitioners herein and the victims of the genocide had co-operated fully with the SIT and given them detailed information about the attacks and violence. Through the process of recording of evidence and complaints of the behaviour of Gujarat officers were brought to the attention of the SIT by witnesses immediately in writing. It was still a shock however to find that, after final investigation reports were filed by the SIT in certain cases, one discovered the manner in which SIT was conducting itself and there were serious concerns raised about the ability and willingness of the SIT to form independent judgement given the situation in the State. The victims got a feeling that the SIT was compromised in the matter and there was an urgent need to bring the same to the notice of this Hon’ble Court. Accordingly, the application came to be filed on 23.10.2009, after we had a chance with victims and eye-witnesses to peruse the charge sheets filed by the SIT in various cases. I moreover say and submit that as has been clearly laid down in the 200 page annexures to the CrMP 19816- 19819 dated 23.10.2009, I have repeated in May 2008 itself approached the SIT with detailed and reasoned applications for further investigations into each of the trials. The first such application/statement was made by me on 9.5.2008 and thereafter in Tabular Presentations (Trial Wise) as specifically directed by Chairperson Dr R.K. Raghavan dated 29.5.2008 . I say and submit that all these have been faithfully annexed to the Application and yet the fact that the government of Gujarat has ignored these vital aspects and concentrated solely on defaming witness testimonies and de-railing the correctional path of justice belies their malicious motives.

I say and submit that it is irresponsible of the government of Gujarat to make baseless allegations of the “timing of this application.” I repeat that the government itself has chosen to wake up six months after it was field on October 23, 2010. I also say and submit that as we have stated both in our application and the additional affidavit we had kept abreast of the SIT investigation and did have an inkling that things were going wrong months after the SIT was appointed. I say and submit that witness survivors did bring to our notice certain issues about the manner in which 161 statements were being recorded, the hostile and aggressive behaviour of the Investigating Officers who were all from Gujarat, the coercive methods used including attempts at videography that sometimes were forced upon witnesses and sometimes resisted by witnesses. I crave leave to attach as Annexure A Colly a translated copy of such a sample of letters from witnesses of various cases right from May 2009 onwards. I say and submit that right from the start Chairperson of the SIT was kept abreast of such developments including by us directly. I crave leave to reproduce these communications as and when it becomes necessary.

I say and submit therefore that the insinuation in the affidavit of the State that the timing of the application for the re-constitution of the SIT is belated or motivated is completely false and baseless. I further say and submit that petitioners were not given a copy of the progress reports submitted by the SIT to this Hon’ble Court. Therefore, the petitioners had no idea about the progress or work done by the SIT till charge sheets were filed by the SIT in some of the cases. When scrutiny of these charge sheets disclosed that the SIT had not done a complete investigation and had omitted to investigate the larger conspiracy and had not collected the evidence against the responsible senior police officers and influential political persons of the ruling establishment, the petitioners still believed that the SIT will thereafter do the needful under Section 173(8) of the Code, as was also directed in the order dated May 01, 2009 passed by this Hon’ble Court. I say and submit that it is pertinent to mention here that the order dated May 01, 2009 was passed solely on the basis of the progress reports submitted by the SIT to this Hon’ble Court, and to which reports the petitioners were not privy to and had no access to, and the petitioners responses could not be brought to bear on the order dated May 01, 2009 of this Hon’ble Court.

I further say and submit that our belief was violated by the experience that followed. Months passed and nothing concrete by way of completing the investigations, as material incompleteness were apparent from the charge-sheets, was done by the SIT even when the SIT was formally requested to complete the remaining investigation.

For example, witnesses had made a written application to the

competent court for ordering further investigation in the case of

Gulberg Society. The court had directed the SIT vide its order dated

September 07, 2009 to conduct further investigations under Section 173(8) of the Code on the material grounds set forth in the application meriting such further investigation.

Similarly, an application was made by Dildar Umrav Saiyed& another

on June 17, 2009 in Naroda Patiya case to the Chairman, SIT for

conducting further investigations under Section 173(8) of the Code

on the counts mentioned in that application. When months passed

and the SIT did not take any concrete steps on the said application,

another application on same grounds was filed before the competent

Court for ordering the SIT to conduct further investigations under

Section 173(8) of the Code. The SIT strangely submitted before the

court that they were conducting investigations on the said points.

I say and submit that despite pointing out the defects, lacunae and incompleteness in the charge-sheet filed by the SIT, the SIT has been dragging its feet raising serious doubts about its credibility given the responsible task assigned to it by this Hon’ble Court.

11. I say and submit that the irresponsible use of terms like “undisclosed ulterior object” “vested interests” etc against me personally and the organization that I represent is nothing short of a) intimidation of a human rights defender assisting victim survivors and eyewitnesses in the pursuit of justice especially dangerous and ominous when the intimidation comes from a powerful state backed by money and power; b) a crude attempt at slander and defamation; c) an effort to raise public sentiments and hatred towards a struggle for justice and reparation.

12. I moreover say and submit that there is nothing substantive or relevant in the affidavit that any way alters the situation and is in fact an attempt to browbeat the highest court in the land. I further say and submit that it is also curious why such an affidavit has been filed at this stage of these proceedings when our application has been filed in October 2009 and considered by this Hon’ble Court since December 2009.

13. I say and submit that the contentions made in paragraphs 3, 5, 12, 22, 33, 34, 38 and 39 are all malicious and misleading and completely unsubstantiated. I say and submit that it is irresponsible and unaccountable for a state to make loose allegations such as the ones made without substantiating them with material facts. I say and submit that untruth and slander seem to be the only method and means used by the state of Gujarat as they have repeatedly resorted to these practices and continue to resort to such tactics to this day.

14. I say and submit that the contentions made in paragraph 3 of the affidavit are irrelevant to the matters under consideration of this Hon'ble Court. I further say and submit that the fact that for the first time in the history of the country, mass crimes of such magnitude are being closely investigated and prosecuted is a victory for the rule of law and democracy in this country. I say and submit that allusions to “political ramifications” etc is a deliberate attempt of the State to obfuscate from the fact of the matter at hand which is to interrogate fairly and in a non biased manner the wealth of documentary evidence available but which has been intentionally ignored by the SIT in this case. I further say and submit that it is surprising that a state government that should be concerned about exemplary and transparent investigation has not a word to say about the serious issues of the failure of the SIT to investigate

a) Records of the Police Control Rooms of Gandhinagar and the Ahmedabad City Police Control Room

b) Station Diaries and Other Contemporaneous and relevant r

records of various concerned police stations;

c) Collection and Analysis of Phone Call Records of Powerful Politicians, Senior Administrators, Policemen and Accused

15. I further say and submit that this silence of the government of Gujarat in its affidavit before this Hon’ble Court coincides with the silence by the SIT to investigate these aspects that were first brought to inexplicable silence of SIT to the issues bought up in our application dated 23.10.2010. I say and submit that this reluctance to get to the root of the matter includes most significantly