Can A Kashmir CJM Defy SC? The Curious Case Of Criminal Defamation Against Madhu Kishwar

First posted at https://swarajyamag.com on 2nd September, 2017  https://swarajyamag.com/politics/can-a-kashmir-cjm-defy-sc-the-curious-case-of-criminal-defamation-against-madhu-kishwar

A pro-separatist editor, Shujaat Bukhari, targets Madhu Kishwar for four tweets, and the lower judiciary in Kashmir turns activist.

On 26 August, the Chief Judicial Magistrate (CJM) of Srinagar, Aijaz Ahmad Khan, issued a non-bailable arrest warrant against Manushi editor Madhu Kishwar, currently national professor at the Indian Council of Social Science Research. This was meant to be punishment for Kishwar’s non-appearance in the Srinagar CJM’s court on that day in a defamation suit filed against her by Shujaat Bukhari, owner-editor of Rising Kashmir, in December 2016.

The arrest warrant is contrary to a Supreme Court order of 24 August, whereby the highest court had exempted Kishwar and her lawyer from physical appearance in the Srinagar court. This action by the court follows three other questionable orders issued from the start of the case in December 2016.

Since the CJM’s orders against Kishwar went against well-defined guidelines laid down by the Supreme Court regarding the personal appearance of the accused in defamation cases, Kishwar had approached the Supreme Court for relief, and got this order dated 24 August 2017:

“Having regard to the facts and circumstances of the case, we direct that the petitioner may be permitted to participate in the proceedings by video conferencing from a Delhi court. If video conferencing facility is not available in the district court in question then the proceedings may take place at any appropriate nearest place or court as per the direction of the Chief Justice of the High Court.”

This order was handed over to the CJM, Srinagar, at the hearing held on 26 August by a Srinagar-based lawyer who represented Kishwar on that day. And yet the CJM, Khan, passed the following order in Urdu in brazen violation of the Supreme Court order:

“Complainant with his advocate was present. Accused was absent. Mulzimkoba-ijra warrant giraftari. Bila-wajah zamanat talab.”

But first, some background. The cause of this defamation case is dubious. Bukhari, the owner-editor of a separatist-leaning Kashmiri paper, had filed a criminal defamation suit against Kishwar for four tweets in which the latter had commented on the pro-Pakistan slant of Kashmiri newspapers, including Rising Kashmir. Here are the tweets that gave rise to the criminal defamation case.

Judge Jyotsna Yagnik’s Legal Acrobatics In The Maya Kodnani Case - Part 2

The determination of criminal liability requires precise evaluation of testimonies and careful analysis of each piece of evidence. To conclude the guilt of an accused, there must be concrete evidence “beyond reasonable doubt”.  But one can hardly accuse Judge Yagnik of sticking to this maxim.

In the first part of this analysis of the 2002 case against Maya Kodnani (read here), I had questioned the one-sided approach of Judge Jyotsna Yagnik in handling her case, which ended in a conviction and a 28-year jail sentence. In this part, I am providing a few salient instances of how Yagnik, during the course of trial, drew adverse inferences against Kodnani that did not convince one of her neutrality.

Jyotsna Yagnik visiting Naroda Patia before giving her judgement in 2002 riot case

One such case is that of Siddiqbhai Allabax Mansuri (prosecution witness-236), who testified before the court that Kodnani came in a Maruti car. This witness says that Kodnani arrived at the scene of crime at 8.30 am or 9 am. As per his testimony, the mob started reciting slogans of 'Jai Shri Ram' after seeing Kodnani. He further says that he saw Kodnani speaking to the mob, and instructed her PA to take out weapons from the jeep and distribute them among the mob (Pages 644-45).

Yagnik herself acknowledges that in the statement of the SIT (the Special Investigation Team appointed by the Supreme Court of India to reinvestigate the 2002 crimes), there was no mention of slogans of ‘Jai Shri Ram’ being chanted. But the same has been stated by the witness in his deposition before the court. In order to legitimise this testimony, which was critical for implicating Kodnani, Yagnik justified this contradiction in the testimony of the witness, claiming that the witness might not have mentioned this to the SIT, but that the slogans were likely to have been shouted since that was “the mental state or spirit of the day” (Para 7.13, Page 648).

Case Against Maya Kodnani, Convicted In 2002 Riots, Has Gaping Holes -- Part I

Dr Maya Kodnani was sentenced to 28 years in prison by a special trial judge for “masterminding” the riots in Naroda Patiya and Naroda Gam areas in Ahmedabad, Gujarat, in 2002. It is highly likely that Kodnani, and others, may have been framed for political reasons, while those who were guilty got away. Here’s why.

On 31 August 2012, Jyotsna Yagnik, the special trial judge, pronounced a 28-year prison sentence against Dr Maya Kodnani for “masterminding” one of the bloodiest episodes of communal violence in Ahmedabad on 28 February 2002. This judgement led to widespread jubilation in the mainstream media, orchestrated by the “secular brigade” allied to the Congress and the left parties. Kodnani was serving as a minister for women and child development in Narendra Modi’s government from 2007. So a jail term for one of Modi’s ministers gave a big boost to the United Progressive Alliance (UPA) government, making them believe that this would pave the way for getting at Modi himself, who was then chief minister of Gujarat.

As in the case of Lt Col Shrikant Purohit’s incarceration, none in the media examined the case with care. Purohit was released on bail in the Malegaon blasts case even though the evidence that he was aiding “saffron terrorism” was thin. The mainstream media simply reproduced the UPA-orchestrated narrative without questioning the evidence in Purohit’s case.

However, after discovering some evidence of mala fide intent in Purohit’s case, I decided to personally examine Kodnani’s case as well. The motivation for it came from reading the judgment of Judge Yagnik, who did not accept large parts of the evidence proffered in favour of Kodnani. For this purpose, I went and met Kodnani’s family in Ahmedabad about two years ago, and examined the evidence marshalled against her as well as the evidence Kodnani had put forward in her defence.

Now that my 2014 exposé regarding Purohit’s case has been vindicated and even parts of the mainstream media have accepted that the UPA government was less than fair with him by jailing and torturing a serving army officer, I hope readers will follow the details of Kodnani’s case with an open mind and judge the case on merit.