STILL UNDER FIRE
Although the road ahead is a long one, the Supreme Court ruling in the
Zakiya Jaffri and CJP case is certainly no victory for Narendra Modi
On June 8, 2006 when Zakiya Ahsan Jaffri, as-sisted
by Mumbai-based Citizens for Justice and Peace (CJP), filed a mammoth
119-page complaint supported by 2,000 pages of documentary evidence,
little did she know – or really expect – that the Supreme Court of India
would actually conduct an investigation under its watch through a
Special Investigation Team (SIT) and thereafter ensure through a
detailed order that her complaint would be treated as an FIR and a
charge sheet also be filed. In the event that the SIT files a closure
report, the petitioners’ right to a protest petition has been allowed.
The course of the Supreme Court-monitored
investigations over a one-year period revealed serious lacunae in the
functioning of the SIT, including the SIT chairman’s attempt at
exonerating Narendra Modi. The chairman’s efforts were checked by the
report of his own investigating officer (IO), AK Malhotra, and the
independent assessment provided by the amicus curiae in the matter, Raju
Ramachandran. After Ramachandran submitted his 10-page preliminary note
in January 2011, the Supreme Court had, in March 2011, directed the SIT
to reassess its own findings submitted 10 months earlier.
If nothing else, the verdict of the Supreme Court
delivered on September 12, 2011 is a huge victory for the rule of law
and for those of us who believe in due process and transparency and
accountability in governance.
While not wasting valuable column space on the banal
attempts by Modi and his party to give himself, and themselves, a clean
chit, it is worth looking carefully at paragraphs 8 and 9 of the order
(uploaded on the CJP website, www.cjponline.org) which clearly state
that under Section 173(2) of the Code of Criminal Procedure (CrPC), the
complaint – now to be treated as a de facto FIR – will, along with all
relevant investigation papers, first be placed before a regular
magistrate’s court and then, if so deemed, be committed to the court
already hearing the Gulberg Society case. The task will be to file a
substantive, expanded charge sheet against Modi and 61 others. What is
more, according to the law, and a specific direction of the Supreme
Court in this order, the complainants will be given a chance at every
stage – in case the SIT baulks again, which is not unlikely, or the
judge decides to exclude one or more individuals from among those named
as accused – to be heard and carry their appeal right up to the Supreme
Court.
The process will no doubt be arduous. And in the
current climate where communalism and mass crimes do not commandeer
national outrage as, say money matters in the 2G spectrum scam
do, it will take every bit of effort to ensure that the battle, bravely
fought, reaches an effective conclusion. For any one of the 20-odd
magistrates before whom the SIT report/charge sheet could be placed, it
will be a definitive test of independence and integrity.
Will a magistrate sitting in Ahmedabad be able to
withstand the pressure, vitriol and vindictiveness of Modi’s
administration? Difficult though it may be to keep the faith, at such a
time we would do well to remember Judge SP Tamang, the Ahmedabad
metropolitan magistrate inquiring into the Ishrat Jahan case, who, on
September 7, 2009, submitted an exemplary report against all odds. The
report indicted a number of police officers, including the then
Ahmedabad police commissioner, for the murder in 2004 of the Mumbra-based
teenager and three others that Modi and the central government had
cynically made out to be hardened terrorists.
Contrary to popular belief, the Supreme Court verdict
in the Zakiya Jaffri-CJP case exceeds the petitioners’ demands. While
the now historic petition No. SLP 1088/2008 sought the registration of
an FIR against Modi and 61 others, the Supreme Court order in fact goes
several steps further, taking the criminal matter to the committal stage
where cognisance will be taken, and prosecution begun, of the complaint.
Not surprisingly, the facts are at variance with the
pernicious propaganda spread by the Rashtriya Swayamsevak Sangh (RSS)
and the Bharatiya Janata Party (BJP) in this regard. Their views were
unfortunately echoed on many of India’s television channels, raising
questions about the media’s competence as well as its allegiances. Many
in the broadcast media cheerfully announced a ‘clean chit’ for Modi
early in the morning of September 12 and then tempered their telecasts
as initial interviews with Tanvir Jaffri (son of Zakiya and the late
Ahsan Jaffri) and Teesta Setalvad, and print interviews with amicus
curiae Raju Ramachandran over the next few days, stated to the contrary.
Far from being an exoneration of Modi and company, the recent judgement
demonstrates that the apex court finds merit in the complaint and has
now directed a lower court to take it forward as procedures allow.
The petitioners have never pleaded that the Supreme
Court should directly indict Modi. They have never said and do not
believe that anyone should be convicted without due process of law,
hanged as they are so easily in RSS-desired Taliban-style kangaroo
courts. They would also like to state for the record that they do not
believe in the death penalty for anyone, not even a gun-wielding
terrorist or a Narendra Modi who calculatedly employed all the resources
at his command to paralyse his administration while murder stalked the
streets. Apart from conspiracy to commit murder, other serious charges
in the complaint include the deliberate efforts to doctor investigations
through faulty registration of FIRs, the appointment of incompetent and
ideologically biased public prosecutors, the destruction of evidence and
terrorising witnesses into turning hostile.
All this and more is the subject matter of the
criminal complaint filed in 2006. The only one of its kind in India, it
is the first criminal complaint related to communal violence that goes
beyond indicting individuals responsible for acts of violence to trace
the outbreak of violence further, drawing links between the chief
minister, his cabinet colleagues, leaders of empathetic political
right-wing outfits and officials of the Indian Administrative Service (IAS)
and the Indian Police Service (IPS) who bowed to the murderous designs
of their political boss.
We must not allow ourselves to forget what Gujarat
2002 was about. Over 300 well-orchestrated incidents of violence spread
across 19 of Gujarat’s 25 districts, the calculated murder of 2,500
innocents in reprisal killings, several instances of daylight rape, the
destruction of Muslim-owned property worth Rs 4,000 crore and the
destruction of 270 dargahs and masjids. Almost or just as bad as the
violence itself is the deliberate subversion of justice, the destruction
of evidence and the intimidation and influencing of witnesses.
The conclusion of the case so doggedly fought by
Zakiya Ahsan Jaffri and Citizens for Justice and Peace will be a litmus
test for the Indian system, to establish whether it has the courage to
punish those responsible for some of its bleakest hours.
A unique trajectory
After the Gujarat police refused to entertain their
complaint in June 2006, the petitioners moved the Gujarat high court for
registration of an FIR against 62 persons and transfer of the
investigation to the Central Bureau of Investigation (CBI). The high
court dismissed their petition in November 2007. However, the
petitioners efforts were subsequently rewarded when the Supreme Court
took cognisance of the case on March 3, 2008. A little over a year
later, on April 27, 2009, the Supreme Court handed over the
investigation not to the CBI but to the Special Investigation Team
headed by former CBI chief RK Raghavan, which had been appointed by the
apex court 13 months earlier to reinvestigate nine major Gujarat carnage
cases.
In May 2009, Communalism Combat had, in its
cover story ‘The Accused’, detailed critical elements of this complaint
which was substantively different from that of the Gulberg Society case,
one of the nine major carnage cases being reinvestigated by the SIT. Yet
both the SIT and the state of Gujarat kept confusing the two cases. The
primary distinction between the carnage cases and this complaint is the
list of accused and the offences.
The accused in the complaint of June 8, 2006 (now
treated as an FIR by the Supreme Court) are: the chief minister,
Narendra Modi, 11 state cabinet ministers, three MLAs, three members of
the ruling party in the state, three office-bearers and three members of
extremist right-wing organisations and 38 high-ranking police officers
and bureaucrats, beginning with the director general of police, Gujarat.
The progress of this case has been marked by high
drama and behind-the-scenes subterfuge. However, it received scant
attention until January 20, 2011 when the newly appointed amicus curiae,
Raju Ramachandran, submitted a preliminary note to the Supreme Court
which resulted in the court issuing directions to the SIT to reassess
its findings. Until then, the media seemed uninterested in the
proceedings, choosing to overlook the additional substantive evidence
that the petitioners had regularly filed in support of their original
complaint. The January 2011 order was the first sign that the SIT’s
pathetic attempts to exonerate Modi and others from prosecution, in
spite of the investigations carried out by its own IO, AK Malhotra,
would not be accepted by the court.
Within days of the amicus curiae’s report being
submitted to the Supreme Court and the court’s directions in the matter,
Rahul Sharma, a serving IPS officer whose upright testimonies had
allowed crucial evidence to enter the public domain, was served with a
show-cause notice by a vindictive Narendra Modi-led Gujarat government.
The notice was served on February 4, 2011. Sharma was later
charge-sheeted on August 13, 2011 for speaking to the Supreme
Court-appointed SIT and the state-appointed Nanavati-Shah Commission
(now the Nanavati-Mehta Commission). It was Rahul Sharma’s deposition
before the Nanavati-Shah Commission in 2004, when he made available a CD
containing vital cellphone call records, that enabled CJP to analyse
this data and place it before the commission and the courts.
Each hearing of this and related cases in the Supreme
Court was punctuated by dubious attempts by the state of Gujarat and
even the SIT to mislead the court and malign the petitioners –
especially after October 2009 when CJP questioned the quality of the
investigations being conducted by the SIT in the nine carnage cases. CJP
secretary Teesta Setalvad was a specific target.
Vindictive action
CJP condemns the arrest of Sanjiv Bhatt
Citizens for Justice and Peace strongly
condemns the vindictive action of the Gujarat government in
arresting Sanjiv Bhatt, senior IPS officer, in an action that is
nothing short of an attempt to intimidate an important witness in
the Zakiya Ahsan Jaffri and CJP criminal complaint against chief
minister Narendra Modi and 61 others. This action of the Gujarat
police, under the direct instructions of the state’s home minister
– Narendra Modi, amounts to tampering with evidence and direct
intimidation of a key witness. It is also a cheap attempt to slur
his character and standing.
Key issues need to be raised here. One, that
through his affidavit before the hon’ble Supreme Court dated April
2011 he had testified to criminal and unconstitutional
instructions being issued by Modi at a late-night meeting on
February 27, 2002, the day of the Godhra incident. In his
statements before the Supreme Court-appointed Special
Investigation Team, he also gave documentary data about Modi’s
abdication of responsibility on February 28, 2002, the day attacks
on Gulberg Society and Naroda Patiya in Ahmedabad were in full
swing. Finally, last but not least, in an affidavit filed before
the Gujarat high court recently, Bhatt had even mentioned that
both Modi and Amit Shah, former minister of state for home, had
tried to intimidate and pressurise him into not giving facts and
evidence in the possession of the State Intelligence Bureau,
related to the assassination of former minister of state for
revenue, Haren Pandya. The CBI investigation into the Pandya
assassination has recently been severely criticised by the Gujarat
high court.
Most critically, Bhatt had challenged this FIR
for which he was arrested, through writ petition 135/2011 in the
Supreme Court. (This criminal complaint is allegedly a fabricated
FIR filed in June 2011 by KD Panth, his former driver, alleging
that Bhatt had pressurised him into filing an affidavit to support
the officer’s claim that he was present at the meeting held at the
chief minister’s residence on February 27, 2002). The Supreme
Court had issued notice to the Gujarat government on July 29,
2011. This hasty and vindictive, even desperate, action of the
Gujarat police, while the matter is under consideration by the
Supreme Court, raises serious issues of contempt of the highest
court, due process and, most importantly, intimidating a witness
critical to a trial to ensure public justice. With our matter now
awaiting charge-sheeting before a Gujarat magistrate’s court, the
arrest of Bhatt is also a clear attempt by the state of Gujarat to
warn us all collectively and individually of repercussions if we
struggle for justice. It is a pathetic subversion of the
Constitution and the rule of law.
(Press release issued by Citizens for Justice and Peace on
October 1, 2011.)
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In a report to the apex court during hearings held in
September-October 2010, the SIT mentioned a routine call made by
Setalvad to the public prosecutor in the Gulberg Society case, RC
Kodekar, who claimed that she had tried to threaten him. In January
2011, during the hearing of the matter pertaining to the carnage cases,
the amicus curiae in that matter, Harish Salve, pointed out
correspondence between CJP and the Geneva-based United Nations Office of
the High Commissioner for Human Rights on the threats received by senior
advocate SM Vohra, counsel for the victims in the Gulberg case.
Unfortunate observations by the bench on this matter attracted media
publicity which worked to the advantage of a state responsible for mass
crimes and determined to target those who stood up against it.
During this period a national daily was also used, on
or about the date of every hearing, to project complete victory for the
Modi government. On December 3, 2010, the date of the Supreme Court
hearing in the Gujarat 2002 matters, as in January 2011, blatant efforts
were made by an accused and cornered Gujarat government to manipulate
sections of the media (‘SIT clears Narendra Modi of wilfully allowing
post-Godhra riots’, The Times of India, December 3, 2010).
And yet, through 2010, when the SIT investigations
were underway, it was reports in The Times of India and The
Hindu that drew attention to the 15 phone calls made between the
chief minister’s office/secretariat and the Ahmedabad police
commissioner, PC Pande, between 11 a.m. and 4 p.m. on February 28, 2002,
significant because they were made around the same time that the
massacres at Naroda Patiya and Gulberg Society were taking place even as
the police did nothing. CJP submitted detailed analyses of important
phone call records to the Nanavati-Shah Commission in May 2010 (reported
in Communalism Combat’s cover story, ‘Dial M for Massacre’, in
June 2010) and to the Supreme Court in July 2011.
But finally, it was the exhaustive coverage by
Tehelka magazine, which scooped the SIT report and contrasted this
with evidence that CJP had gathered and submitted to the court, in two
important stories (‘Here’s the smoking gun’, February 12, 2011,
and ‘I was there. Narendra Modi said let the people vent their anger’,
February 19, 2011), that impacted on the entire discourse. Television
channels were now forced to look at the issues that Jaffri and CJP had
raised over the past five years.
A subsequent report by Tehelka, ‘Whose
Amicus is Harish Salve?’, in its March 12, 2011 issue exposed
that the conduct of senior lawyer Harish Salve as amicus curiae in the
Gujarat carnage cases gave rise to a conflict of interest. The story
revealed that even while he was amicus curiae in the crucial mass murder
cases before the Supreme Court, Salve continued to lobby the Gujarat
government for projects for his wealthy corporate client, Eros Energy (Kishore
Lulla). Incidentally, RK Raghavan, chairperson of the Supreme
Court-appointed SIT, happens to be a corporate security adviser at a
Tata company.
In April 2011 events took another dramatic turn as
the much publicised affidavit of deputy inspector-general of police
Sanjiv Bhatt, filed before the Supreme Court, drew widespread attention
to the illegal instructions issued at a secret meeting held by Modi on
February 27, 2002 – almost nine years after details of this meeting were
first revealed in Crime Against Humanity, the report of the
Concerned Citizens Tribunal – Gujarat 2002. In the affidavit,
submitted directly to the Supreme Court registry and amicus curiae Raju
Ramachandran, Bhatt detailed among other things how his testimony before
the SIT in November 2009 and early 2010 had been leaked to the state
government and led to intimidation from his superiors. This provided
further confirmation of the petitioners’ suspicions about the conduct
and integrity of the SIT.
In March 2011 the SIT had recorded a subsequent,
formal statement from Bhatt under Section 161 of the CrPC. With this,
Bhatt also submitted voluminous documents from the State Intelligence
Bureau (SIB), including material that would prove that Modi was
personally aware of the impending attack on Gulberg Society on the
morning of February 28, 2002 when he deliberately did not intervene but
instead allowed the mobs to attack former parliamentarian Ahsan Jaffri
and others. After first informing OP Singh, Modi’s personal assistant
(PA), Bhatt is stated to have personally informed the chief minister of
the worsening situation at Gulberg Society.
Sanjiv Bhatt was suspended from service on August 8,
2011 and then charge-sheeted on September 18 even as Narendra Modi was
fasting for ‘sadbhavna’, or communal harmony! On Friday,
September 30, he was arrested on apparently trumped-up charges.
Doubts have been raised about the authenticity of Bhatt’s disclosures
ever since his dramatic and relatively late appearance in public view.
In response to this, we would like to point out that Sanjiv Bhatt was in
fact cited as a witness by the petitioners in their original complaint
precisely because his name figured extensively in the SIB records
available to them .
Bearing testimony
Extracts from the complaint
List of witnesses:
1. KC Kapoor, in 2006, principal secretary,
home; 2. Manoj D. Antani, in 2002, superintendent of police (SP),
Bharuch; 3. AS Gehlot, in 2002, SP, Mehsana; 4. Vivek Srivastava,
in 2002, SP, Kutch; 5. Himanshu Bhatt, in 2002, SP, Banaskantha;
6. Piyush Patel, in 2002, deputy commissioner of police (DCP),
Vadodara; 7. Maniram, in 2002, additional director general of
police (ADGP), law and order; 8. Vinod Mall, in 2002, SP,
Surendranagar; 9. Sanjiv Bhatt, in 2002, SP, security, State
Intelligence Bureau; 10. Jayanti Ravi, in 2002, collector,
Panchmahal; 11. Neerja Gotru, in 2003, special investigating
officer assigned to reopen investigations in some riot-related
cases; 12. Rahul Sharma, in 2002, SP, Bhavnagar; 13. RB Sreekumar,
in 2002, ADGP, intelligence.
In their complaint, the petitioners have also
pointed out that Modi held several secret, undocumented meetings
during that period at which many witnesses were present, who
should also be examined and interrogated for information.
The superintendents of police in the districts
of Mehsana, Banaskantha, Sabarkantha, Patan, Gandhinagar,
Ahmedabad rural, Anand, Kheda, Vadodara rural, Godhra and Dahod,
where mass killings were reported during the riots, all need to be
specifically interrogated for their roles as also their failure to
document illegal and unconstitutional instructions from the chief
minister and other representatives of the state government.
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