Tuesday, April 08, 2014

Modi's Clean Chit Fantasy

It is a popular perception among Modi supporters that Modi has been given "clean chits" by the Supreme Court with regards to the action or, inaction in the 2002 Gujarat riots.

I will share four links from separate sources to clarify the point here that many want to wish away thus. clearing the moral decks for a Modi PM-ship.

1 - Summary of the clean chits (LSE)

The Chit Myth: On three occasions – one each in 2011, 2012 and 2013 – the Supreme Court of India has supposedly absolved Narendra Modi, the Chief Minister of Gujarat and the BJP’s prime ministerial candidate in the upcoming elections, of culpability in Gujarat’s communal riots of 2002. But a case against Modi has never been registered in the Supreme Court. So how has the court given him a ‘clean chit’ without being asked to adjudicate the matter? And on what basis does Modi claim a clear conscience with regard to the 2002 violence in Gujarat?

The SIT: The Supreme Court in 2008 appointed a Special Investigation Team (SIT) to look into nine riot cases, removing them from courts in Gujarat. A year later, the Supreme Court asked the SIT to investigate a criminal complaint against Modi, filed by Zakia Jafri in 2006. Modi’s three so-called ‘clean chits’ from the Supreme Court relate to this case.

Enter Amicus Curiae: When the SIT filed its interim report, the Supreme Court took the unusual step of asking an eminent advocate, Raju Ramchandran, who was already appointed as an Amicus Curiae (friend of the court), to assist in this critical case and visit Gujarat, independently assess the evidence generated and meet with witnesses directly.

First Strike: On 12 September 2011, after reviewing Ramchandran’s final report of July 2011, the Supreme Court ordered the SIT to further investigate in the light of the Amicus Curiae’s contrary findings and thereafter file a final report in front of a Magistrate. The fact that the Supreme Court was not going to monitor investigations any more led Modi to claim his first clean chit even though the SIT’s final report had yet to be filed at this stage. So there was clearly no question of a clean chit from anyone at this stage.

Second Strike and a Life: The conclusions drawn by the SIT in its final closure report filed on 8 February 2012 were not only different from those drawn by Ramachandran, but also from its own interim reports. In its watered down final report, the SIT concluded that there was not enough prosecutable evidence to bring charges against Modi. This led Modi and his supporters to make a new claim of having received a ‘clean chit’ by the SIT, a Supreme Court-appointed investigative body. True, but Ramachandran, who is also a court-appointed investigator, disagreed with the SIT’s conclusion.

2 - Proceed Against Modi - Amicus Curiae (The Hindu)

The Conclusion: The Supreme Court's amicus curiae in the Zakia Jafri case concluded that Gujarat Chief Minister Narendra Modi can be proceeded against for various offences during the 2002 riots, including promoting enmity among different groups.

The Sanjeev Bhatt Dichotomy: In his report, Mr. Ramachandran strongly disagreed with a key conclusion of the R.K. Raghavan-led SIT: that IPS officer Sanjiv Bhatt was not present at a late-night meeting of top Gujarat cops held at the Chief Minister's residence in the wake of the February 27, 2002 Godhra carnage.

It has been Mr. Bhatt's claim — made in an affidavit before the apex court and in statements to the SIT and the amicus — that he was present at the meeting where Mr. Modi allegedly said Hindus must be allowed to carry out retaliatory violence against Muslims.

Mr. Ramachandran said there was no clinching material available in the pre-trial stage to disbelieve Mr. Bhatt, whose claim could be tested only in court. “Hence, it cannot be said, at this stage, that Shri Bhatt should be disbelieved and no further proceedings should be taken against Shri Modi.”

In his final report, the amicus, however, said: “The stage for believing or disbelieving a witness arises after trial i.e. once the entire evidence is placed before the court for its consideration. It would not be correct to conclude, at this stage, that Shri Bhatt should be completely disbelieved unless there is clinching material available to the contrary…”

Further, “the question whether Shri Bhatt was present at the meeting ... and whether Mr. Modi had indeed made such a statement, can only be decided by a court of law ...” 

3 - Amicus Curiae in Detail (Tehelka)

The Legal Case: Amicus Curiae 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.

The Gulberg Massacre: 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.

4 - How the SIT Worked (Outlook)

Book extracts from "The Fiction of Fact-Finding: Modi & Godhra" by Manoj Mitta

The Summons: When Narendra Modi visited the office of the SIT (Special Investigation Team) in Gandhinagar on March 27, 2010, it was exactly 11 months after the Supreme Court had directed it to “look into” a criminal complaint. Modi’s visit in response to an SIT summons was a milestone in accountability—at least in potential. It was the first time any chief minister was being questioned by an investigating agency for his alleged complicity in communal violence. The summons were on the complaint by Zakia Jafri, the widow of former Congress MP Ehsan Jafri, who had been killed in the first of the post-Godhra massacres in 2002.

The SIT's Conclusion: This long-drawn-out but unusual exercise culminated on February 8, 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.

The CrPC Non-Question: 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 the 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 recognised 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.

The Interrogation: The length of the interrogation was, however, out of proportion to its intensity. Although as many as 71 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.

The Gulberg Society Redux: 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 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 February 28, 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, my 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.

Strong Governance: In the sequence of events reconstructed by the SIT, one such meeting was held by Modi in Gandhinagar at 1 pm on February 28, 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 teargas 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.

The Moral: 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.

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