What the amicus really told the supreme court ‘Prosecute Modi!’



Amicus Curiae Raju Ramachandran had recommended prosecuting Narendra Modi on several grounds. Ashish Khetan decodes the report

Illustration: Samia singh
Illustration: Samia singh

TEN YEARS after the 2002 Gujarat anti-Muslim massacre, the precepts of justice and rule of law remain hollow words for a majority of the riot victims. Over the past week, stories have been appearing in the media that the Supreme Court-constituted Special Investigation Team (SIT) has given a “clean chit” to Gujarat Chief Minister Narendra Modi for his alleged involvement in the riots. While the SIT, which has submitted its final report before the Ahmedabad Metropolitan Magistrate NS Bhatt, has kept mum, the media has gone into a tizzy theorising how the SIT’s “clean chit” has cleared the decks for Modi’s elevation to prime ministership.

On 15 February, the magistrate ordered the SIT to submit all the probe documents within a month and also ruled that once the entire record is before it, the court will take a call on slain former MP Ehsan Jafri’s widow Zakia’s plea of having a copy.

As the details of the SIT’s closure report continue to remain a secret, TEHELKA has scooped Amicus Curiae Raju Ramachandran’s confidential report, which was submitted to the Supreme Court on 25 July 2011. Ramachandran has postulated that Modi should be prosecuted for serious criminal offences such as promoting religious enmity, doing acts prejudicial to national integration and maintenance of harmony and deliberately and wantonly disobeying the law with intent to cause injury.

While Ramachandran concurred with the SIT on several other counts, on one of the most fundamental issues pertaining to riots probe, which is whether there is enough evidence to send Modi for trial, the amicus — whose job was to ensure a fair and honest investigation — has come to a diametrically opposite conclusion.

He has recommended criminal prosecution against Modi under Sections 153A, 153B, 166 and 505 of the Indian Penal Code (IPC), which call for imprisonment of 1-3 years. Importantly, the former Additional Solicitor General and senior Supreme Court lawyer has made these recommendations based on the SIT’s own findings.

If followed, Ramachandran’s recommendations would have had an unprecedented impact on the Indian criminal justice system, which often sees the powerful being let off either because of sloppy probes or dilatory legal proceedings. He first defined the relevant sections applicable to Modi, laid down their legal scope and then cited several SC case laws before emphatically concluding that Modi should be sent to trial. His report demonstrates that the impediment in the course of justice is neither lack of evidence nor lack of law. If anything, the problem lies with a disturbingly selective application of law.

These are the IPC sections under which Ramachandran recommended that Modi should be chargesheeted and tried:

• Section 505 lays down the punishment for making statements that promote enmity, hatred or ill-will between classes and prescribes punishment that may extend to imprisonment of three years.
• Section 166 prescribes a maximum imprisonment of one year for those public servants who knowingly disobey any direction of law, intending to cause injury to any person. The SIT itself has chronicled several instances where Modi’s conduct was divisive and prejudiced against the minorities and thus was in violation of his constitutional duty of protecting the life and property of every citizen of the state.
• Section 153A lays down maximum imprisonment of three years for promoting enmity between different groups on grounds of religion, race, etc. and doing acts prejudicial to the maintenance of harmony.
• Similarly, Section 153B lays down a maximum imprisonment of three years for making imputations or assertions prejudicial to national integration.

THE FACT that a mere reasonable interpretation of the SIT’s own probe has thrown up evidence of Modi’s culpability shows that the SIT’s repeated insistence of dropping the case against Modi is highly questionable and perhaps a matter of an investigation by itself.

Here, in detail, are the key recommendations of Ramachandran’s report:

1. The SIT probe against Modi and his government was ordered by the Supreme Court in 2009 while hearing a petition filed by Teesta Setalvad’s Citizens for Justice and Peace and Zakia, the widow of slain Congress leader Ehsan Jafri, who along with dozens of other Muslims were hacked and burned to death during the riots. Zakia had made 32 specific allegations against Modi and other BJP functionaries, bureaucrats and police officers. The most serious allegation was that Modi had given instructions to the then DGP, chief secretary and other senior officials to allow Hindus to freely vent their anger at the Muslims for the Sabarmati Express carnage. This instruction was allegedly given at a meeting held at the chief minister’s bungalow in Gandhinagar on 27 February 2002 after Modi’s visit to Godhra.

Sanjiv Bhatt is a crucial witness and his statement carries a lot of weight in the eyes of law, said the amicus

According to SIT probe officer AK Malhotra, a retired CBI man, the meeting lasted for about half an hour. Sanjiv Bhatt, an IPS officer of the 1988 batch, who was posted as DCP (Intelligence) at the time, told the SIT that he too was called to attend the meeting. Bhatt told the SIT that Modi asked the assembled officers to adopt a partisan stand during the impending riots. “There is a lot of anger in the people. This time, a balanced approach against Hindus and Muslims will not work. It is necessary that the anger of the people is allowed to be vented.” These, according to Bhatt, were the incendiary words that Modi had spoken at the meeting. But the SIT, in its report, had told the court that Bhatt’s presence in the meeting was not corroborated by other officials and hence subject to be discarded.

But Ramachandran, in his report, has disagreed with the SIT’s conclusions. He has said that Bhatt’s presence in the meeting gets probablised by various crucial facts, mainly:
a. On 27 February, State Intelligence Bureau chief GC Raigar was on leave. It was only natural that after Raigar, the senior-most officer from the IB, which happened to be Bhatt, would be expected to attend the meeting and brief the chief minister about the intelligence collected pertaining to the Godhra incident and the ensuing communal situation.
b. According to Ramachandran, Bhatt could have been labelled an unreliable witness only if the SIT had found that instead of being present at Modi’s residence, he was actually somewhere else. However, there is no such evidence with the SIT to show that he was not present in the meeting or that he was somewhere else. In the absence of evidence to the contrary, it beggars belief why the SIT is so obdurately resisting Bhatt’s testimony.
c. The last but most crucial fact is Modi’s unsolicited rebuttal of Bhatt’s presence made by the chief minister during his examination by the SIT. On 25 March 2010, when Modi was questioned by Malhotra, he made a curious slip. He first admitted that he had called a law and order meeting at his residence on 27 February 2002, after his return from Godhra where he had gone to inspect the Sabarmati Express carnage. Malhotra then asked him about who was present in the meeting. In his reply, Modi connamed the seven officers, apart from himself. However, without further prompting from the inquiry officer, he went on to assert, “Sanjiv Bhatt, the then DCP (Intelligence) did not attend, as this was a high-level meeting.” The inquiry officer had asked him about who was present, not about who was not. Ramachandran has underscored the slip made by Modi and concluded that Modi’s over-anxiety and puzzling keenness to discredit Bhatt further probablises his testimony.

Fighting for justice Former Congress MP Ehsan Jafri’s widow Zakia  Photo: AP
Fighting for justice: Former Congress MP Ehsan Jafri’s widow Zakia,  Photo: AP

It needs to be emphasised that Bhatt had told the SIT that he had his first interaction with Modi in 1997 when the latter was a senior BJP functionary stationed in Delhi. “In 1997, Shankersinh Vaghela had become the CM and he was seeking election from Radhanpur constituency in Banaskantha. Vaghela had formed the Rashtriya Janata Party and some BJP MLAs had defected and joined him. At that time, the entire BJP machinery was working overtime to defeat Vaghela. I had served as SP, Banaskantha, in 1995 and had a good understanding of the constituency. In 1997, when Vaghela was contesting, I was posted in the IB. Modi rang me up and sought some information. Then in 2001, when Modi became the chief minister, a meeting of all police officers (DCP and above) was called to meet the chief minister. When I got up to introduce myself, Modi immediately recognised me and we started getting along quite well. At that time, I was posted as DCP (Intelligence) in the IB. Before the riots, I must have had several one-to-one meetings with him on many issues. One issue on which he sought my inputs was his own election from Rajkot. I had also been a DCP in Rajkot and I shared crucial inputs with Modi with regard to his election from Rajkot,” Bhatt had told the SIT in his statement. The main objection of the SIT was that Bhatt was a relatively junior officer and could not have been probably present at a high-level meeting chaired by the chief minister himself. Reportedly, the SIT has not been able to rebut Bhatt’s above-mentioned claims.

2. Evidence is weighed and not counted. Bhatt is a crucial witness and his statement is a direct piece of evidence and carries a lot of weight in the eyes of law, said Ramachandran. The fact that other bureaucrats present in the meeting have not acknowledged his presence doesn’t reduce the legal value of Bhatt’s testimony. The veracity of Bhatt’s revelations could only be ascertained by conducting a criminal trial. To take any other stance at the pretrial stage would amount to pre-judging the case.

3. According to the SIT, apart from Modi, there were seven other confirmed participants in the meeting. If Bhatt is also presumed to be present, the total number of attendees would be nine. The SIT also conceded in its report that none of the seven participants were willing to tell the truth because of one vested interest or the other and thus unreliable. In a highly conflicting report, the SIT has used the same unreliable witnesses to disbelieve Bhatt’s testimony. The primary reason why the SIT has not believed Bhatt is because his presence was not confirmed by other participants (whom the SIT has otherwise called interested parties and hence unreliable). According to Ramachandran, this was a highly conflicting and illogical stand.

4. The amicus has noted in his report that he was aware that Bhatt had revealed these facts after almost seven years of the incident and that is creating anxiety to the SIT. He also noted that he was conscious of the probable limitations of Bhatt’s statement in view of this delay. But Bhatt’s explanation that he had never before been asked by any statutory body or an investigating agency about the incident and was thus under no legal obligation to reveal the truth is legally and logically tenable. Bhatt’s explanation gets further strengthened by the fact that in the first statement recorded as part of the preliminary inquiry by the SIT, he had not disclosed the full details of the meeting on the ground that since it was merely an inquiry and not an investigation under the Criminal Procedure Code, he as a former intelligence officer would not be able to reveal the details of the meeting.

5. The SIT’s assertion that there is “no” prosecutable evidence to proceed against Modi is contrary to the facts. There may not be overwhelming evidence but there is “some” evidence, said Ramachandran. The only logical step that an agency could take under these circumstances is to prosecute the accused on the basis of the evidence thrown up during the investigation.

Another important point of contention between the SIT and Ramachandran was with regard to two senior police officers who had fled from Gulberg Society and had thus allowed the rioters to carry out the carnage with impunity.

Finding loopholes Amicus Curiae Raju Ramachandran
Finding loopholes: Amicus Curiae Raju Ramachandran,  Photo: Vijay Pandey

Ramachandran has underlined the fact that the SIT itself had discovered that the two senior officers in question — PB Gondia and MK Tandon — had malevolently abandoned Meghani Nagar where Gulberg Society was situated and instead got bogus FIRs of communal violence registered in other areas that were free of any kind of trouble. It was done to justify their absence from Gulberg Society.

The SIT found in its probe that Tandon, who was the JCP, Sector 2, Ahmedabad, deliberately didn’t respond to distress calls from Gulberg Society, Naroda Gaon and Naroda Patiya, where some of the most gruesome massacres were underway. Instead, he got bogus cases registered in other parts of Ahmedabad to justify his presence and that of his police force in those areas, rather than Gulberg and Naroda. The SIT also found that Tandon and Gondia were in telephonic contact with Jaideep Patel and Mayaben Kodnani, the architects of massacres at Naroda Gaon and Naroda Patiya.

Tandon’s deputy Gondia was DCP, Zone IV, at the time. In his report, Malhotra had stated: “In my view, Gondia virtually ran away from Naroda Patiya at 1420 hours when the situation was very serious and virtually uncontrollable and also did not reach Gulberg Society despite the distress calls.”

Still, the agency has recommended only departmental action against the duo. Disagreeing with the SIT, Ramachandran has concluded that the only logical action that could be taken against these officers is sending them for a criminal trial.

WHAT IS really baffling is the SIT’s decision not to apply the strict rule of thumb of criminal prosecution, which is that at the investigation stage, the probe agency’s aim is to look for some credible evidence of criminal culpability. It is only after all the relevant evidence is adduced in a court of law and witnesses are allowed to depose and be cross-examined by defence and relevant facts judicially examined that a conclusion of guilt or innocence could be drawn.

“The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt that runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt… Otherwise any practical system of justice will then break down and lose credibility with the community,” were the Supreme Court’s words in the case of State of Rajasthan vs Yusuf.

The SIT has clearly inverted the conventional rules of criminal probes to justify the decision to not prosecute Modi.

Some Basic Questions the SIT Needs to Answer

Photo: AFP
Photo: AFP

1. Why didn’t the SIT investigate the motive behind the positioning of health and housing ministers in the police control rooms?
On 28 February 2002, as riots erupted, two Cabinet ministers — Ashok Bhatt and IK Jadeja — and their political staff were positioned in police control rooms. The police failed to respond to calls for help by victims. Ashok Bhatt’s phone records show he was in touch with VHP leader Jaideep Patel, a key conspirator of the Naroda massacre. Police officers such as Sanjiv Bhatt had objected to the ministers’ presence and their attempts to seek sensitive information like deployment of police in different regions.

Contradictory statements about these developments were given to the SIT by then DGP K Chakravarthi, then Additional Chief Secretary (Home) Ashok Narayan and deputy home minister Gordhan Zadaphia. Chief Minister Narendra Modi denied that he had anything to do with their presence in control rooms. The SIT failed to push towards harder investigation.

Photo: AFP
Photo: AFP

2. Why is the SIT so hell-bent on discrediting two most crucial witnesses against Modi — Sanjiv Bhatt and RB Sreekumar?
The SIT used specious and illogical arguments to disprove Bhatt’s (above) testimony, despite serious disagreements of the amicus curiae. More diabolically, the SIT went out of its way to disregard a mountain of evidence presented by RB Sreekumar, who was the additional DG of the State Intelligence Bureau in 2002-03. His reports chronicled intelligence inputs showing that riot victims were persecuted, police officers were dissuading victims from lodging complaints against BJP and VHP members, officers were watering down the charges against rioters, the VHP and Bajrang Dal were exhorting businesses not to employ Muslims. Inspectors in charge of police stations were ignoring their superiors and complying instead with verbal instructions from BJP leaders.

Photo: AFP
Photo: AFP

3. Why was it first reported that the wireless communications had been destroyed and then later presented before the SIT by PC Pande, the Ahmedabad top cop at the time of the riots? 
The SIT report dated 12 May 2010 said: “The Gujarat government has reportedly destroyed the police wireless communication of the period pertaining to the riots.” It further said, “No records, documentations or minutes of the crucial law and order meetings held by the government during the riots had been kept.” It is now reported that after the amicus curiae recommended a statutory investigation in January 2011, the former Ahmedabad Commissioner of Police PC Pande (below) appeared before the SIT and mysteriously produced some of the missing call records. What do these records show?



Photo: AFP
Photo: AFP

4. Why didn’t the SIT investigate the role of saffron brigade members who were appointed as public prosecutors to subvert the criminal justice system? 
SIT Chairman Raghavan told the apex court: “It has been found that a few of the appointees were in fact politically connected, either to the ruling party or organisations sympathetic to it.” The same report also said that, “It appears that the political affiliation of the advocates did weigh with the government for the appointment of public prosecutors.” TEHELKA, in its sting operation in 2007, and NGOs like Citizens for Justice and Peace had in detail chronicled how public prosecutors affiliated to the VHP and RSS were threatening or bribing riot witnesses to ensure that many of the accused were acquitted. But the SIT, in a shocking move, told the court that it was difficult to find instances of criminal mischief by these public prosecutors.

5. Why is the SIT reluctant to prosecute cops like MK Tandon and PB Gondia for their criminal negligence? 
Tandon and Gondia could unravel the larger conspiracy behind the riots. The former was the Joint Commissioner of Police, Sector 2, Ahmedabad, and the latter was DCP, Zone IV, deputy to Tandon at the time. It was on their watch that the most gruesome massacres like Naroda Patiya and Gulberg Society occurred. The SIT has found that Tandon deliberately didn’t respond to distress calls from Gulberg Society and Naroda Gaon and Naroda Patiya and instead got bogus cases registered in other parts of Ahmedabad to justify his absence from Naroda and Gulberg Society. The SIT has also noted that Tandon was in telephonic contact with Jaideep Patel and Mayaben Kodnani — the accused in massacres at Naroda Gaon and Naroda Patiya. Still, the SIT has only recommended departmental action against the two. Is there a fear that if the duo is arraigned, they might spill the beans about the involvement of the political leadership?

Photo: Shailendra Pandey
Photo: Shailendra Pandey

6. Why has the SIT failed to join the dots behind the shunting out of non-partisan cops and undue rewards granted to those officers whose dereliction engendered the massacres? 
The SIT report presented to the Supreme Court records how compliant police officers were rewarded. It also records how upright police officers were punished for preventing riots. Rahul Sharma (above), Vivek Srivastava, Himanshu Bhatt and Satish Verma were some of the officers who were shunted out to non-consequential postings. On the other hand, the officers who allowed riots to fester were rewarded with lucrative postings. Though the SIT has admitted that these transfers appear “unusual” and “fishy”, it has refused to probe further by saying that transfers and postings are the prerogatives of the state government.

Ashish Khetan is Editor, Investigations with Tehelka. 


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