Modi’s Waterloo?

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Jethmalani’s entry into the SIT case is a high-stake game by the masterminds of the Gujarat massacre as the noose tightens around them, says Samrat Chakrabarti

Streets of shame Ahmedabad’s battle zone during the pogrom against Muslims
Photos: Trupti Patel

ON THURSDAY, March 11, eight years after the pogrom by Hindu mobs on Muslims in Gujarat between February- March 2002, and three years after TEHELKA’S expose that revealed the Gujarat Chief Minister’s complicity in the genocide, Narendra Modi was finally summoned for questioning by the Special Investigation Team (SIT) entrusted with the probe into the atrocity.

The long, tortuous road to justice, it seemed, had turned an important corner. Then, four days later, on March 15, an application was filed before the Supreme Court (SC) seeking the recall of a crucial order passed by the SC in April 2009. The order was for the SIT to probe into the petition filed by advocate-activist Teesta Setalvad and Zakia Jafri, widow of the former Congress MP, Ehsan Jafri, who was burnt alive in broad daylight on February 28, 2002, inside Gulbarg Housing Society, Ahmedabad — based on which the SIT had summoned Modi for questioning. The application was filed by Kalubhai Maliwad, a former BJP MLA from Lunavada, Gujarat. Representing him was senior Supreme Court lawyer, Ram Jethmalani. What was lost in the brouhaha surrounding Jethmalani’s entry, was the high-stakes game being played by the BJP, as the noose tightens around those accused in the Gujarat massacre.

Inexorable For all his bluster about governance, Modi is feeling the heat of the 2002 carnage

The SC order of April 2009 was against 63 people who are the alleged masterminds behind the carnage, starting with Modi and including seven of his then Cabinet ministers, several key administrators and the state police. TEHELKA, in its six-month-long investigation released in November 2007, had conclusively exposed that the riots in Gujarat were anything but a spontaneous event — it was, rather, a planned orchestration involving just about every level of the state machinery, starting with the chief minister’s office. In all of the Gujarat riot cases on trial, it is this petition by Zakia Jafri that seeks to make accountable not only the foot soldiers, but also the true architects of the genocide — the big fish in the bloody pond.

The April 2009 order passed by the SC, directed the SIT to ‘look into’ the allegations and ascertain whether a prima facie case against any of the accused can be framed, and recommend if FIRs needed to be registered against them. Initially, the SIT had been mandated to carry out just a probe into the matter and Modi has been summoned on March 21 for the SIT to hear out his defence.

The application by Jethmalani is the latest in a line of legal challenges to the SC order, all filed by Kalubhai Maliwad — a powerful leader of his community whose say is writ in Gujarat’s Panchmahal district. He is also 13th in the list of 63 being probed. The timing of Maliwad’s application, the high-profile legal representation, and the fact that he had fought against the SC order in both the Gujarat High Court and the SC — leads one to believe that he is acting as proxy for Modi. The petition seeks to recall the SC order to investigate Modi (and others), on the grounds that it was passed without hearing the 63 people implicated. “The SC hasn’t used the term ‘investigate’. It has only said ‘look into’,” adds the senior advocate, emphatically.

Maliwad was unavailable for comment, but Jethmalani says that Modi’s summon has no bearing on the timing of this application. “The SIT has construed the SC order as a mandate to investigate. However, they cannot investigate this vague complaint, which is more like a political essay inspired by the central government,” said the controversial lawyer.

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PROTRACTED ROAD TO JUSTICE

March 26
2008

SC orders Gujarat government to set up a five-member Special Investigation Team (SIT) to probe nine riot cases

April 27
2009

SIT ordered by the SC to additionally ‘look into’ the role of Modi and 63 others in orchestrating the 2002 pogrom

June 5
2009
Gujarat HC rejects Maliwad’s petition seeking to stop SIT from questioning the 63 named in Zakia Jafri’s appeal

July 30
2009

Gujarat government apeals to SC saying that SIT is exceeding jurisdiction in examining Modi’s role in the riots

March 11
2010

Modi is issued a notice by the SIT to appear before it on March 21, to respond to allegations made against him

March 15
2010

Kalubhai Maliwad, former BJP MLA and 13th of the 63 accused, files petition in SC seeking recall of its 2009 order

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Meanwhile, the track record of the SIT itself is under a cloud, after questions were raised about its integrity and functioning. (See TEHELKA, March 20, 2010: “Shoddy, Inept… Tainted?”) Soon after the April 2009 order, the SC appointed former CBI officer AK Malhotra to head the probe. Says Teesta Setalvad, “The three Gujarat police officers within the SIT have been kept away from this particular investigation. Mr Malhotra alone is handling it. So far, we have no reason to believe that he is not doing a decent job.” She believes that the inability to influence the investigation has cornered Modi. What is currently playing out is a last-ditch effort to stop the probe altogether, by getting the apex court’s order to the SIT quashed. Of course, to do that, it needs to recall its own earlier order, which is not easy.

If the SC order stands, … it will lead to the trial of the perpetrators

The SC for now has simply said that it will hear the arguments supporting Maliwad’s application next month. Hence, until the SC decides against it, the probe will continue, and Modi’s date with the SIT on March 21 stands. Next month’s hearing is crucial — for if the SC decides in favour of Maliwad — then it’s back to square one for the victims, and the road to justice gets that much protracted. But if the order stands, and if the current investigation is honest, then a prima facie case, leading to registration of FIRs and chargesheets will eventually end with the conspirators facing trial. There is no guarantee of a conviction, but this alone will be the furthest India has come along the path less travelled, to justice.

With inputs by Saumya Tyagi

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