By MANOJ MITTA / article-14.com
There was no “larger criminal conspiracy at the highest level” and no “involvement of the named offenders and their meetings of minds”, the Supreme Court held on 25 June 2022.
In doing so, a three-member bench dismissed an appeal filed by Zakia Jafri, wife of murdered former Congress member of Parliament (MP) Ehsan Jafri, alleging a conspiracy by then chief minister and now Prime Minister Narendra Modi and 63 others in the Gujarat riots of 2002, which led to the killings of over 1,000 people, mostly Muslims, after 59 Hindus were roasted alive in a train in the town of Godhra.
Jafri died after a burning tyre was hurled around his neck, his hands dismembered and he was burned, according to this account written by his son. The mob that killed him and the others descended on the Gulberg Society, an Ahmedabad Muslim housing colony, right after a visit by a senior city police officer, M K Tandon, on 28 February 2002.
“We don’t countenance the submission of the appellant regarding infraction of rule of law regarding investigation and the approach of the Magistrate and the high court in dealing with the final report [of a Special Investigation Team or SIT monitored by the Supreme Court],” said Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar.
The Supreme Court said that officials of the SIT had “come out with flying colours”. The certainty of the justices on the SIT’s work, however, did not engage with a less certain but key issue: When exactly did Modi as chief minister and home minister learn about the violence at Gulberg Society, the first post-Godhra massacre?
The SIT put this question to Modi on 27 March 2010, under a Supreme Court mandate to probe Zakia Jafri’s complaint about the larger conspiracy behind the Gujarat carnage.
Modi told the SIT he had learnt about the Gulberg massacre only at a meeting that took place that evening at 8.30 pm, which implied that for five hours after it happened, he was unaware that 69 people had been murdered at the end of a six-hour siege.
Former legal affairs editor of the Indian Express and the Times of India, Manoj Mitta, in his 2014 book, The Fiction of Fact-Finding: Modi and Godhra (Harper Collins), brought out that in keeping with the pattern of his interrogation, SIT official A.K. Malhotra made no attempt to challenge Modi’s claim about being unaware of the Gulberg Society massacre.
“It seemed as if Malhotra’s brief was more to place Modi’s defense on record rather than to ferret out any inconsistency or wrongdoing,” Mitta—who also wrote a 2007 expose, When A Tree Shook Delhi: The 1984 Carnage And Its Aftermath—wrote in his book on the Gujarat riots.
Modi was allowed, in effect, to distance himself from the failure of the police to prevent the massacre, despite the evidence recorded by the SIT of their deployment and related communications during the siege of Gulberg Society.
Tandon, then Ahmedabad’s joint commissioner of police, had visited Gulberg Society around 11.30 am, ordering the ‘striking force” accompanying him to fire tear gas shells to disperse “a mob of around 1,000 Hindu rioters”.
The SIT acknowledged that Gulberg Society had been set ablaze and lives had been lost there by 3.45 pm. It also recorded that Modi had, meanwhile, held a series of meetings with police and home department officials, tracking the violence as it unfolded.
Yet, the SIT left unchallenged Modi’s claim that he did not know of the Gulberg massacre. It made no attempt to ask if Modi implied that the officials briefing him in those meetings had conspired to withhold information from him about the massacre there, and if so, why he had not taken any action against them.
The SIT got away with such omissions despite this observation from the Supreme Court’s amicus curiae, Raju Ramachandran, in his interim report in January 2011: “There is nothing to show that the CM intervened on 28.02.2002 when the riots were taking place.”
The mystery about Modi’s handling of the Gulberg Society massacre remained unresolved all these years and will remain so, given the Supreme Court’s unqualified praise for the SIT and exoneration of Modi and his officials.
An excerpt from Mitta’s book:
The legal steps that needed to be taken immediately were self-evident. The SIT was required to examine whether the information contained in Jafri’s complaint amounted to, as Section 154 CrPC put it, ‘the commission of a cognizable offence’. If so, the SIT would be obliged, under the same provision, to register a first information report (FIR), which is a statutory prelude to an actual investigation.
The SIT did conduct a probe into Jafri’s complaint but it was done without fulfilling the precondition of registering an FIR. The elaborate probe, stretching over twelve months and recording the statements of 163 witnesses, took place under the guise of a ‘preliminary enquiry’. Then, even after the conclusion of the so-called preliminary enquiry, the SIT was disinclined to register any FIR on Jafri’s complaint. In its 12 May 2010 ‘enquiry report’, the SIT asked the Supreme Court if it could instead conduct ‘further investigation’ in the existing case of Gulberg Society, where Jafri was a witness. The SIT’s proposal flew in the face of Jafri’s complaint, which had sought a broad-based probe into the conduct of the Modi government, encompassing all the carnage cases, rather than a narrowly-focused further investigation in any particular case. Besides, the period covered by Jafri’s complaint was an extended one as it referred to, for instance, the Supreme Court’s indictment of the Modi regime in 2004 in the Best Bakery and Bilkis Bano cases.
Despite the mismatch between the restricted scope of the Gulberg Society case and the wide ambit of Jafri’s complaint, a Supreme Court bench, headed by Justice D.K. Jain, gave the go-ahead to the SIT’s proposal. This could be because the permission for further investigation sought by the SIT was only into allegations against a junior minister, Gordhan Zadafia, and two police officers, M.K. Tandon and P.B. Gondia. Later on, though, as discussed later in this chapter, the Supreme Court extended the purview of the further investigation to the alleged complicity of Modi himself. This long-drawn-out but unusual exercise culminated on 8 February 2012 in a ‘final report’ to a magisterial court in Ahmedabad exonerating Modi and the rest of the accused persons of any of the criminal culpability alleged by Jafri’s complaint.
Such a conclusion was predestined, if not predetermined, for a variety of reasons. Not least of those reasons was the manner in which the SIT’s closure report relied implicitly on Modi’s testimony. This was despite the fact that Modi’s statement had been perfunctorily recorded outside the framework of CrPC. The only time he appeared before the SIT was when Jafri’s complaint was still in the phase of preliminary enquiry. His statement could therefore not be recorded under Section 161 CrPC, the provision normally invoked to question any person ‘supposed to be acquainted with the facts and circumstances of the case’. Had he been summoned during the ‘further investigation’ too, Modi would have been legally obliged to speak the truth under Section 161 CrPC. The provision stipulates that the person questioned ‘shall be bound to answer truly all questions’, subject to the universally recognized right against self-incrimination. That Modi was not put under such a legal obligation ‘to answer truly all questions’ was a curious omission. The SIT refrained from summoning Modi even as it recorded fresh statements under Section 161 of several other persons named as accused in Jafri’s complaint. This led to the anomaly of the SIT’s final report to the magistrate relying on the testimony given by Modi during the preliminary enquiry, which was outside the scheme of the CrPC.
When Modi’s testimony was recorded, the questioning was done by SIT member A.K. Malhotra, a retired CBI officer. What began on 27 March 2010 went on for as long as nine hours over two sessions, with the second spilling over into the wee hours of the following day. The length of the interrogation was, however, out of proportion to its intensity. Although as many as seventy-one questions were addressed to him, the transcript, bearing Modi’s signature on every page, shows that Malhotra studiously refrained from challenging any of his replies, however controversial. At no point did Malhotra make the slightest effort to pin Modi down on any gaps and contradictions in his testimony. Although the questions, culled from Jafri’s complaint, were extensive, the SIT refrained from asking a single follow-up question. It seemed as if Malhotra’s brief was more to place Modi’s defence on record rather than to ferret out any inconsistency or admission of wrongdoing. Malhotra’s approach of sticking to his question script, irrespective of the answers elicited by it, helped Modi get off the hook on more than one issue. Both parties made the most of the absence of the Section 161 obligation: with Modi, it was not to ‘answer truly’ and with the SIT, it was not to put ‘all questions’.
Take the reluctance displayed by the SIT in March 2010 to corner Modi on the terror conspiracy allegation made by him within hours of the Godhra incident. The SIT’s reluctance was obvious because a year earlier the Gujarat high court had upheld a statutory review committee’s recommendation that terror charges could not apply to the Godhra case. Among the reasons pointed out by the review committee headed by a retired high court judge were that the miscreants involved in the Godhra arson had not used any firearms or explosives, that they had attacked coach S-6 from only one side and that they had allowed passengers of the overcrowded coach to escape from the other side. These reasons were found convincing enough for the high court to declare in February 2009 that ‘the incident in question is shocking but every shocking incident cannot be covered by a definition of a statute which defines terror’.
The high court ruling exposed Modi’s attempt to magnify the Godhra arson as a terror attack. This in turn was integral to probing Jafri’s charge that Modi was himself involved in the conspiracy behind the post-Godhra violence. Without bringing up the word ‘terror’, Malhotra did ask Modi about the basis of his allegation. But he was allowed to get away with the claim that he had never made any such allegation. In fact, Malhotra helped Modi get away with the denial by putting the question in a misplaced context. While interrogating him in a chronological sequence, Malhotra asked Modi about his Godhra allegation in the course of questions about his statement in the Gujarat assembly early in the afternoon on 27 February. This was misplaced as the allegation had actually come later in the day from Godhra. Here’s how the charade played out during the recording of Modi’s testimony.
Malhotra: ‘Did you declare the Godhra incident as pre-planned and that Pakistani/ISI hands were behind the Godhra incident? If so, on what basis?’
Modi: ‘I did not utter any such words in the assembly. Of course, the media had put some questions to me about it, but I had told [them] that nothing could be said until the investigation was completed.’
In other words, Modi admitted that on the conspiracy question, his initial reaction on the fateful day was that he would rather not comment till the police had unravelled the crime. It was a tacit acknowledgement that, as head of the state government, he could ill-afford the luxury of baseless speculation lest it provoke a law and order crisis. A logical follow-up to that could have been: How could he then abandon all caution the same evening and make the terror allegation without waiting for the police investigation to be completed? The SIT never put any such question to Modi; not even after he had made no bones about the dramatic change in his attitude to pre-judging the case during his visit to Godhra the same day. The closest Malhotra came to doing so while dealing with the Godhra visit was when he asked Modi a general question about his media interaction in that town.
Malhotra: ‘Did you meet media persons at Godhra?’
Modi: ‘While I was at Collectorate, Godhra, a lot of media persons had assembled there. I briefed them about the incident and informed them that the culprits would not be spared and that a compensation of Rs 2 lakhs per victim would be paid. I also appealed to [the] public through them for maintenance of peace. I also informed the media that on the basis of facts narrated to me by the persons present on the spot as well as injured persons, the incident appeared to be a serious and preplanned conspiracy.’ (emphasis added)
It was thus left to Modi to reconstruct on his own the allegation he had made in Godhra. The SIT did not challenge his attempt to make out that he had talked merely of conspiracy and not of terror. Modi could have been confronted with, if nothing else, the official press release issued on the evening of 27 February. On the strength of his ‘spot assessment of the situation’, it quoted Modi as saying that the Godhra incident was a ‘preplanned inhuman collective violent act of terrorism’. The torrent of adjectives showed that he had described Godhra quite definitively as a terrorist conspiracy.
Such certitude was, however, missing eight years later when he was being questioned by the SIT. Modi claimed that all he had instead said on the day of the arson was that it was an ordinary criminal conspiracy (‘serious and preplanned’), that too in a qualified manner (‘appeared to be’). The sanitized account he presented to the SIT was apparently intended to convey that on the evening of 27 February 2002, he had shown due restraint in the face of extreme provocation.
In the vastly changed circumstances of 2010, Modi was wary of recalling his terror rhetoric. It was a different world in 2002 when he had reacted so stridently to the train arson. He was then tapping into the heightened fear of jehadi terror around the world in the wake of the attacks on WTC twin towers in New York and Parliament House in New Delhi. Both those major terror incidents had taken place just a few months prior to the Godhra incident. In fact, Godhra happened when George Bush’s war on terror was raging on Pakistan’s western border as a result of 9/11, and tens of thousands of Indian troops had been deployed on its eastern border as a result of the Parliament attack. Modi’s attempt to pass off Godhra as another terror strike in such a charged environment still took a leap in logic. This is because the Godhra arson did not have any of the obvious features of terror such as RDX explosives, AK 47 rifles, or hijacked aircraft. Besides, none of the police documents generated that day in Godhra, including the FIR and the case diary, contained the slightest hint of terrorism.
The SIT’s failure to pin him down on the terror issue pales in comparison to its disregard of Modi’s prevarication on the post-Godhra massacres. Though his responsibility to control the attacks on Muslims was more direct, the SIT’s questions turned out to be as evasive as his replies. One glaring issue was Modi’s delayed response to the prolonged siege at Ahmedabad’s Gulberg Society, the site of the first post-Godhra massacre. Unlike his terror allegation, this problem of delayed response though was not peculiar to Modi. It is a thread that runs through most of the flare-ups of communal violence in India, whether in remote villages or right inside big cities.
The delay could stretch to hours, as it did in Ahmedabad in 2002, or more than a day, as it did in Delhi in 1984. The delay in responding proportionately is typically the gap in governance that creates room for mass crimes. The Supreme Court’s intervention on Jafri’s complaint provided the first-ever opportunity for an investigating agency to get to the bottom of this recurring factor in communal violence. The SIT, however, frittered away this unprecedented opportunity. The SIT was wary of questioning him on his failure to respond to the violence at Gulberg Society, although he had been in its vicinity for over two hours on 28 February. In his testimony, Modi made out that he had no clue to any of the violence at Gulberg Society, including Ehsan Jafri’s murder, till he was told about it about five hours later by the police. This is how the testimony was actually recorded:
Malhotra: Did you receive any information about an attack by a mob on Gulberg Society? If so, when and through whom? What action did you take in the matter?
Modi: To the best of my knowledge, I was informed in the law and order review meeting held in the night about the attack on Gulberg Society in Meghaninagar area and Naroda Patiya.
What was listed as question No. 31 in Modi’s testimony actually had three parts to it. The first was whether Modi had received any information about the mob attack on Gulberg Society. Modi’s answer was yes. The second part was when and through whom had he received the information. Predictably, Modi indicated that he had been informed about the massacre by the police. The surprise, however, lay in the time he claimed to have been ‘informed’ about the massacre. Modi said that it was at the law and order meeting ‘held in the night’. In a different context, while enumerating all the measures Modi had taken on 28 February, the SIT’s 2012 report disclosed on page 256 that this law and order meeting had taken place in Gandhinagar at 8.30 pm. So, linking the two discrete pieces of information recorded by the SIT, this book for the first time establishes the precise time at which Modi claims to have been informed about the Gulberg Society massacre. It was 8.30 pm, a claim that strains credulity given the magnitude of the massacre which, according to the SIT’s own findings, was executed right in Ahmedabad by 3.45 pm. By then, Gulberg Society had been, as the SIT report put it on page 494, ‘set ablaze and lot of lives including that of Late Ehsan Jafri had been lost’.
Modi’s claim to have learnt about the massacre only at the 8.30 pm meeting threw up a glaring and unexplained time lag. But the SIT neither contested his claim during the interrogation nor discussed the implications of his claim in its report. It tacitly accepted Modi’s claim that he had no real time information on the prolonged Gulberg Society siege and massacre, stretching over eight hours.
And even after Joint Commissioner M.K. Tandon was said to have intervened in the Gulberg Society massacre around 4 pm, Modi remained out of the loop for nearly five hours, till the news was apparently broken to him at the 8.30 pm meeting. As a corollary, insofar as the SIT was concerned, the third part of its question No. 31, asking what action Modi had taken in the matter, was rendered inconsequential. Since he somehow remained in the dark during all those crucial hours when he could have made a difference, there was no question of holding Modi to account for the Gulberg Society massacre, or so went the SIT’s line of reasoning.
In reality, Modi’s claim to have been ignorant about the Gulberg Society massacre seems inconsistent with his own larger claim to have been tracking the post-Godhra violence as it unfolded. This contradiction was apparently lost on the SIT. It accepted Modi’s plea of ignorance even as it meticulously listed out a series of meetings Modi had held in the days following the Godhra incident, all focused on the task of controlling violence against Muslims.
In the sequence of events reconstructed by the SIT, one such meeting was held by Modi in Gandhinagar at 1 pm on 28 February, when things were coming to a boil in Gulberg Society. Joint Commissioner Tandon had already made a brief visit to Gulberg Society around 11.30 am, when he ordered the ‘striking force’ accompanying him to burst tear gas shells to disperse ‘a mob of around 1,000 Hindu rioters’. Further, at 12.20 pm, the police control room received a message from the Meghaninagar police station asking for reinforcements as the mob, which had regrouped at Gulberg Society and grown to 10,000-strong, was indulging in stone-pelting and arson.
How could none of these details about the escalating crisis in Gulberg Society have been brought to Modi’s notice in the law and order review meeting he had at 1 pm? Modi’s claim to have been unaware of the Naroda Patiya violence as well, at the end of that meeting, is even more puzzling. This is because by then, at 12.30 pm, the police had, for the first time in the context of the post-Godhra massacres, imposed a curfew in the jurisdiction of the Naroda police station. Even if it proved to be ineffective, the very imposition of the curfew signified that the administration had taken cognizance of the gravity of the situation.
Modi’s general claim of ignorance sounds all the more dubious as some of his engagements on 28 February were at a venue barely three kilometers from Gulberg Society: the Circuit House Annexe in Ahmedabad’s Shahibaug. He held a law and order review meeting at this venue at 4 pm, by when the massacre had been carried out at Gulberg Society and Tandon had just returned to the spot. While Modi’s meeting was going on just a few kilometers away, Tandon finally ordered firing, leading to casualties among the rioters at Gulberg Society. Tandon was also engaged in the process of evacuating some 150 survivors, including women and children, from this Muslim pocket. Further, he directed Inspector K.G. Erda to ‘complete the inquest promptly and send the dead bodies to hospital for post-mortem examination’.
Yet, for the next few hours, Modi was not given the slightest hint of the first big massacre in the wake of Godhra—or so went the official narrative, accepted without demur by the SIT. This, despite the SIT’s own acknowledegment of a flurry of messages within the police establishment during the Gulberg Society violence. At 2.05 pm, Tandon asked for more reinforcements from the control room stating explicitly that, from the information received by him, Jafri and his neighbours had been ‘surrounded by the mob’. This was followed by another urgent message at 2.14 pm, this one by the officer on the spot, Erda, saying that the mob was ‘about to set fire to the entire society’. At 2.45 pm, Erda told the control room that the mob had surrounded not just the Muslims but also the police.
Besides such a chilling countdown to the massacre, the SIT report referred to a message from the highest police officer of the state, K. Chakravarthi, indicating that he was very much privy to the first major instance of post-Godhra violence playing out in Gulberg Society. The SIT also reported that it was on the instructions of the Ahmedabad police commissioner, P.C. Pande, sent at 3.16 pm, that another senior officer, P.B. Gondia, had reached Gulberg Society at 4.05 pm, shortly after Tandon’s arrival.
Thus, there was an unexplained disconnect between what the police brass were admittedly aware of and what Modi claimed to have learnt or not learnt from them in the course of that fateful day. Shortly after his law and order review meeting in the Circuit House Annexe, Modi held a press conference at the same venue from 4.30 pm to 5.45 pm, when he announced his decision to call the Army. Though it was prompted by the deteriorating situation in Ahmedabad, the decision to call the Army had nothing to do with Gulberg Society, the biggest massacre till then, as he was apparently yet to hear about it. Before leaving the Circuit House Annexe, Modi gave Doordarshan around 6 pm a recording of a customary ‘appeal for peace’. It was on returning to his Gandhinagar home that Modi held the 8.30 pm meeting where he claimed to have finally heard about the mass crimes in Gulberg Society.
How could the earlier meetings, focused as they were on the escalating violence, have missed out on Gulberg Society? The best argument that could perhaps be advanced in Modi’s favour was that even journalists at his 4.30 pm press conference seemed to have been oblivious to Gulberg Society. For nobody at the press conference had pointedly asked him about the first big massacre, which had just taken place a little distance away. This does suggest that as violence was breaking out across the state, journalists were as yet unaware of the enormity of the violence at Gulberg Society, including the brutality with which a former MP had been murdered there. But it is implausible to assume such ignorance on the part of someone wearing the hats of the chief minister and home minister of Gujarat. Besides being briefed at the meetings held by him through the day, Modi would have been regularly receiving ‘sitreps’ (situation reports) from the state police control room and the state intelligence bureau on the law and order crisis. If there was any truth to his claim to have been out of the loop till 8.30 pm, then the police brass should have been held to account by Modi himself, let alone the SIT. After all, the issue was not just their lapses in dealing with the violence; he should have been even more affronted by their failure to alert him, during the meetings and in their ‘sitreps’, about what was till then the worst instance of violence. At stake were not just the lives of innocent Muslims but his own self-styled image as a decisive and impartial administrator.
Since he had taken no action against the police in all the years before the SIT probe, it should have been all the more a reason for the SIT to question Modi on the wide gap in his narrative between the time of the mass killings and the time he had come to know about them. Such a gap was harder to accept in his case than that of, say, Prime Minister Rajiv Gandhi, for the corresponding situation in the 1984 carnage. While Modi was admittedly immersed in the challenge of combating the post-Godhra violence, Rajiv Gandhi had the fig leaf that he was himself in mourning during the massacres of Sikhs and that he was most of the time standing next to the body of his assassinated mother Indira Gandhi lying in state in Teen Murti Bhavan. For that matter, even Prime Minister P.V. Narasimha Rao had the excuse that the Constitution did not permit him in 1992 to take any pre-emptive action to save the Babri Masjid from being demolished by kar sevaks allegedly in collusion with the BJP government in Uttar Pradesh.
The unexplained incongruities in Modi’s account would have lent credence to Zakia Jafri’s allegation that he was complicit in the massacres of Muslims. So, playing it safe, the SIT refrained from confronting Modi with any of the obvious follow-up questions. This charade bore a lesson in fact-finding. The integrity of fact-finding hinged on a deceptively simple factor: the nature of the questions that have been put or not put. Despite the monitoring by the Supreme Court, the SIT got away with dodgy manoeuvres during the interrogation. This ensured that Modi never had to account for key issues such as the basis of his terror allegation on Godhra and his claim to have been unaware of the Gulberg Society massacre even as he was apparently grappling with the post-Godhra violence. It took so little to cover up the truth behind the 2002 carnage.
This fiction of fact-finding is a far cry from a stirring example of governance set early in the history of India’s experiment with secularism. When Mahatma Gandhi was assassinated within six months of Independence, any irresponsible remark at that sensitive moment from those in authority could have revived the communal bloodbath seen at the time of the subcontinent’s partition. When independent India’s first governor-general, Lord Mountbatten, arrived at Birla House within minutes of the assassination on 30 January 1948, he heard someone in the crowd shouting that it was a Muslim who had murdered Gandhi. Mountbatten showed the presence of mind to scotch the rumour even before he learnt the identity of the killer. ‘You fool, everyone knows it was a Hindu,’ he shot back, in a bid to gain time for the administration to control the situation. All India Radio (AIR) deferred the announcement of Gandhi’s death by over half an hour till the police confirmed that the assassin was indeed a Hindu. The decision to convey both details together helped avert attacks on Muslims. This was how the national broadcaster broke the news at 6 pm: ‘Mahatma Gandhi was assassinated in New Delhi at twenty minutes past five this afternoon. His assassin was a Hindu.’ Barring stray attacks on Maharashtrian Brahmins, the country remained peaceful.
By not holding Modi to the kind of standards of governance that had been set way back in 1948, the SIT belied the faith that had been reposed in it by the Supreme Court. But then, the Supreme Court too is to blame for the resultant impunity. There were at least two reasons for this. One was its folly, however unwitting, in selecting unsuitable members for the SIT and in not being vigilant enough to see that that they carried out their responsibility with impartiality and integrity.
Chapter 3 discussed the circumstances in which two of the three SIT members from the Gujarat police had been removed. More importantly, Chapter 7 of this book uncovers a controversy about R.K. Raghavan which should have kept him from being considered for the post of SIT chairman. He was himself a beneficiary of equally serious questions not being put to him about certain security lapses, which had done inestimable damage to India in a different context. The other reason for which the Supreme Court could be blamed for Modi’s impunity was the failure of its much-touted safeguard of monitoring the SIT probe. Having been ordered by Justice Arijit Pasayat’s bench just before his retirement in April 2009, the SIT probe into Jafri’s complaint took place on the watch of its successor bench headed by Justice D.K. Jain. The monitoring done by Jain’s bench proved to be ineffective, when it came to the crunch. As discussed in Chapter 3, a member supervising the Gulberg Society case was allowed to continue in the SIT even after its own prosecutor had blown the whistle on its attempts to conceal state complicity. Similarly, in Jafri’s case, the Supreme Court overlooked deficiencies as glaring as the ones in the questioning of Modi. Given the reputation for independence built by the Supreme Court over the years, how did its monitoring of the probe in this critical case turn out to be such a letdown?
A key element of the monitoring was the mechanism of the amicus curiae, a senior lawyer appointed by the Supreme Court to provide independent advice to it. While the amicus curiae for nine cases originally entrusted to the SIT was senior advocate Harish Salve, the one for Jafri’s complaint was senior advocate Raju Ramachandran. From what has been disclosed of the monitoring, the voluminous reports, testimonies and documents presented by the SIT on Jafri’s complaint were scrutinized not so much by the three judges on the bench as by Ramachandran. Much as he played this critical role with due independence, Ramachandran, it would appear, could have done with greater thoroughness. For someone who had been a law officer for the Vajpayee government, Ramachandran displayed remarkable independence as amicus curiae, in standing up to the SIT’s resolve to exonerate Modi of all charges. At the same time, his scrutiny seemed to have been hampered by the fact that he never really stepped out of the frame set by the SIT. Ramachandran’s literal interpretation of his brief might have enhanced the credibility of his reports but, in the process, he seemed to have overlooked some material evidence.
Take his failure to notice the farcical nature of the SIT’s questions to Modi. Neither of his reports, which were the bedrock of the Supreme Court monitoring, made any comment on those questions. Whatever had been held back or played down by the SIT, in effect, escaped the Supreme Court monitoring, irrespective of its relevance to the subject of the probe. As a consequence of this rather blinkered approach, Ramachandran missed the import of Modi putting the imprimatur of his office on the VHP’s terror allegation. For the events of 27 February, the amicus curiae reacted only to an allegation framed—and rejected—by the SIT. The allegation, made by Jafri, was that on returning from Godhra, Modi had told police officers at a closed-door meeting in his Gandhinagar residence to let Hindus give vent to their anger during the VHP-organized bandh the next day. Unlike his publicly-made terror allegation in Godhra, this one—accusing Modi of prejudicing police officers the same night—was contested. Among the officers who admitted to have participated in the meeting, the only one who corroborated Jafri’s allegation was Sanjiv Bhatt, whose very presence there was, however, disputed by others, including Modi. In its May 2010 report to the Supreme Court, the SIT held that there was ‘no reliable material’ available to prove the allegation against Modi.
Since appraisal of evidence depended more on credibility than arithmetic, Ramachandran disagreed with the SIT’s exoneration of Modi on the allegation of secret instruction to the police. In his interim report in January 2011, Ramachandran said that Modi’s alleged interference with policing warranted ‘further investigation’ under the CrPC, going beyond the preliminary enquiry done by the SIT. This followed the further investigation that the SIT had already conducted with the Supreme Court’s permission against minister Gordhan Zadafia and police officers M.K. Tandon and P.B. Gondia. The further investigation against these three had happened before Ramachandran’s appointment in November 2010 and had led to the conclusion that the evidence was insufficient to prosecute any of them. Whatever the odds stacked against it, the fresh line of investigation proposed by Ramachandran opened up the possibility of the SIT probe substantiating the allegation of a high-level political conspiracy behind the post-Godhra violence. This was especially because of his forthright observation that the further investigation should ‘examine the role of Shri Modi immediately after the Godhra incident to find out if there is any culpability to the extent that a message was conveyed that the state machinery would not step in to prevent the communal riots’. Moreover, one of the reasons cited by Ramachandran’s interim report for the proposed probe into the meeting was the evidence of Modi’s own lackadaisical response the following day to the violence against Muslims. ‘There is nothing to show that the CM intervened on 28.02.2002 when the riots were taking place. The movement of Shri Modi and the instructions given by him on 28.02.2002 would have been decisive to prove that he had taken all steps for the protection of the minorities, but this evidence is not there. Neither the CM nor his personal officials have stated what he did on 28.02.2002. Neither the top police nor bureaucrats have spoken about any decisive action by the CM.’
Thus, the recommendation for further investigation into Modi’s 27 February meeting was reinforced by the incisive observation that he had not taken ‘any decisive action’ the next day to control the post-Godhra violence. Subsequent to Ramachandran’s note, the Supreme Court directed the SIT on 15 March 2011 to give its response, adding that it could ‘if necessary carry out further investigation in light of the observations made in the said note’. The SIT did carry out further investigation, this time against Modi. There was a conspicuous departure though from the earlier round of further investigation. The two officers subjected to it, Tandon and Gondia, were interrogated afresh. But when it came to the further investigation against Modi, the SIT made no effort to question him on any of the issues raised by Ramachandran. In fact, Ramachandran’s observations should have impelled the SIT to issue fresh summons to Modi in 2011, making up for its omissions in the interrogation conducted the previous year. In reality, the SIT balked at calling Modi afresh even as it recorded the statements of as many as forty-eight witnesses in connection with the allegations against him. For questions that Modi alone could have answered, the SIT settled for one of his aides, officer on special duty Sanjay Bhavsar. It was on the testimonies of Bhavsar and other witnesses relating to Modi that the SIT gave its further investigation report on 24 April 2011.
Unsurprisingly, the SIT reiterated that Modi could not be faulted for anything he had done or not done during the carnage. As on the previous occasion, the Supreme Court directed Ramachandran to pore over the material presented by the SIT. In fact, it went further than the last time as it asked him not just to comment on SIT findings but also to verify them. Through its order on 5 May 2011, the Supreme Court asked the amicus curiae to ‘examine the report, analyse and have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon’. Significantly, it gave him the discretion ‘to interact with any of the witnesses who have been examined by the SIT, including the police officers, as he may deem fit’. Even more significantly, the Supreme Court added that if Ramachandran ‘forms an opinion that on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report’. Since the trigger for this further investigation was his observations against Modi, the implication of the Supreme Court order was clear: that Ramachandran was mandated to specify if any criminal case was made out against Modi.
In the event, after visiting Ahmedabad and meeting witnesses there and in Delhi, Ramachandran concluded that a case was made out against Modi, invoking provisions of hate speech. In his final report submitted on 25 July 2011, he rejected the pains taken by the SIT to rule out Bhatt’s presence at Modi’s meeting on the eve of the post-Godhra violence. Instead, Ramachandran held that there was ‘sufficient ground for proceeding’ against the chief minister. There was a sound basis to his view that Bhatt’s presence at the meeting and the veracity of his allegation against Modi ‘can only be decided by a court of law’ and that it would ‘not be correct to disbelieve the version of Shri Bhatt, at this prima facie stage’. As he argued, ‘If Shri Bhatt stands the test of cross-examination, then regardless of the fact that other witnesses have not supported his statement, a court of law may return a finding that Shri Bhatt indeed was present at the meeting on 27.02.2002, and that Shri Modi did make a statement as is being alleged by Shri Bhatt.’ Despite the reservations about the nine-year delay in coming out with his version and his involvement in a ‘strategizing’ effort, Ramachandran pointed to the absence of any ‘indisputable material’ establishing that Bhatt could not have been present at the controversial meeting. Proceeding on the assumption that Modi’s role was ‘limited to allegedly making this statement’ in the meeting at his house with the officers, Ramachandran said that the offences that could be made out against him ‘at this prima facie stage’ related to various provisions of hate speech in the Indian Penal Code. The pointed reference to the evidence ‘at this prima facie stage’ left open the possibility of higher charges being framed in the course of the trial.
However tenable his attempt to base the whole case on the thin sliver of Bhatt’s testimony, it need not have come to this at all. Had Ramachandran not overlooked the oddities in Modi’s testimony, he could have built the case on grounds that were more substantial and irrefutable. Had he made an issue of the inflammatory terror allegation aired by Modi within hours of the arson, the SIT would have found itself on the defensive, having toed the Gujarat police line in the Godhra case. That he missed this point was clearly an opportunity loss for fact-finding. Making matters worse was Ramachandran’s silence in his final report on a critical issue he had himself raised in his interim report: the absence of ‘any decisive action’ by Modi on 28 February 2002 when Ahmedabad had been ravaged by violence against Muslims. This was the closest Ramachandran had come to questioning Modi’s controversial suggestion that even as he was engaged in saving Muslims he was oblivious the whole day to the two big massacres of Ahmedabad.
All that the SIT came up with in defence of Modi was a list of the meetings he had held and the decisions he had taken, although they had apparently made little difference on the ground.
In fact, on the basis of details provided by Bhavsar, the SIT added that it had taken over five days for Modi to visit Gulberg Society and other riot-hit areas in Ahmedabad because he had been ‘awfully busy’. Though none of this could have been passed off as ‘decisive action’ by him on the first day of the post-Godhra violence, Ramachandran gave in to the SIT’s explanation. He said: ‘As far as the SIT’s conclusion with regard to the steps taken by Shri Modi to control the riots in Ahmedabad is concerned, the same may be accepted, in the absence of any evidence to the contrary.’ Ramachandran’s failure to notice the ‘evidence to the contrary’ in Modi’s interrogation was a major reason why the Supreme Court’s monitoring of the investigation proved to be illusory. This was despite the fact that unlike its choice of SIT members, the Supreme Court’s selection of Ramachandran as amicus curiae was beyond reproach.
In an unintended consequence, his proposal of Modi being tried purely on Bhatt’s testimony seemed to have prompted the Supreme Court to end the monitoring rather abruptly, on 12 September 2011. The end was so abrupt that the Supreme Court, despite authorizing him earlier to mention ‘if any offence is made out against any person’, gave no indication in its order that Ramachandran had actually named Modi. Without any explanation, it also departed from the precedent set in the same case of directly handing over the amicus curiae’s report to the SIT. The bench, headed by Justice Jain, instead said that as far as his second and final report was concerned, ‘it will be open to the SIT to obtain (a copy) from the amicus curiae’. This meant that the SIT had the option of not seeing Ramachandran’s final report at all. As a corollary, there was no question of the bench telling the SIT to take his final report into account. This was a far cry from its reaction to the interim report when it had told the SIT to make a reappraisal ‘in light of the observations’ made by Ramachandran. In effect, his interim report, which proposed a further inquiry against Modi, had been accorded a higher status than his final report, which said that Modi be tried for hate speech.
Such procedural inconsistencies are uncharacteristic of the Supreme Court and are indicative of a stress suffered by the system. It would appear that the judges were unsure whether they could, on the basis of Ramachandran’s final report, push the SIT any further on the Modi issue. The monitoring of the investigation was itself an act of judicial activism, warranted by the exceptional nature of the case. Generally, the object of the monitoring is to ensure that the investigating agency is not prevented from proceeding against influential persons. When it came to Jafri’s complaint against Modi, the judges, however, let go of the matter once they received Ramachandran’s final report. They were probably wary of directing the SIT to take into account Ramachandran’s proposed charges against Modi, lest their judicial activism turned into judicial overreach. The investigator is anyway supposed to take the final call on whether any charge can be filed or not. The Indian law is fundamentally different in this regard from its counterparts in the UK and US, where the prosecutor rather than the investigator takes this vital decision. If the complainant is aggrieved with the investigating agency’s bid to close the case, the remedy provided by the Indian law is to let her challenge it before the magistrate who has jurisdiction over the case.
Accordingly, in its judgment of 12 September 2011, the Supreme Court directed the SIT to submit its own final report to the Ahmedabad magistrate who has jurisdiction over the Gulberg Society case. In a safeguard to the complainant, it added that if the SIT’s final report turned out to be a closure report rather than a charge-sheet, then the magistrate would have to issue a notice to Jafri and give her all the material before taking a decision. In the event, Jafri’s complaint was a rare instance where the Supreme Court’s monitoring of the investigation did not result in any charge-sheet at all. The experiment was, however, not entirely in vain. Jafri’s protest petition against the closure report drew extensively from the wealth of material that has been generated and made public on account of the Supreme Court’s monitoring of the investigation.
Whatever its legal infirmities, the SIT’s closure report on Jafri’s complaint has had far-reaching political implications. It served as a green signal for Modi’s transition to the national stage. For all his bravado, Modi has shown signs of being aware of the narrow escape he has had in terms of fact-finding. Consider the worry he betrayed in an interview to DNA on 8 February 2009 when the bench headed by Justice Arijit Pasayat was on the verge of referring Jafri’s complaint to the SIT. Factoring in the possibility of his chinks being exposed, Modi said, ‘If I have intentionally made a mistake, I should not be spared and must be punished . . . But if it is unintentional, then, as I have said so many times, I am also human and I can also make mistakes. But I will never do anything with mala fide intent.’ This contrasted with the chutzpah Modi displayed after the SIT had pulled off the cover-up despite the Supreme Court’s monitoring. Two months after the SIT’s final report had been made public, Modi gave his first interview in July 2012 and, in another first, it was to an Urdu newspaper, Nai Duniya. ‘If any government is responsible for the riots, it should be hanged in a public square. It should be hanged so that for the next hundred years, no ruler should attempt this. And if I am responsible, I should be hanged.’ It was a tacit declaration of his triumph over India’s fact-finding capacity.
The BJP thought it fit to declare Modi as its prime ministerial candidate in September 2013, days after Jafri’s counsel had ended their arguments against the SIT’s closure report before magistrate B.J. Ganatra. The chance taken by the BJP was vindicated by Ganatra’s dismissal of Jafri’s protest petition, through a 440-page order delivered on 26 December 2013. Based as it was on the facts framed by the SIT, the order upholding Modi’s exoneration said nothing about the questions that had remained unasked by the SIT and unanswered by the Gujarat government. So it missed out on the unexplained incongruity of Modi’s claim that he was unaware of the Gulberg Society massacre for almost five hours. Rejecting Jafri’s conspiracy allegation against Modi, the magistrate’s order said that he ‘showed alacrity in requisitioning the Army and took necessary steps to control the situation’. Thus, Modi’s decision to call in the Army at the 4 pm meeting he had held minutes after the Gulberg Society massacre was passed off as an instance of his ‘alacrity’. In order to arrive at the conclusion that Modi had displayed ‘alacrity’, the fact-finding process studiously ignored his claim to have been unaware of the Gulberg Society massacre till his 8.30 meeting. The moral of the story is clear. When the right questions are not put, there will be neither the right evidence nor the right conclusions.
This article first appeared on article-14.com