Elusive justice

SANJIV BHATT ARRIVING at the office of the Shah-Nanavati Commission on May 16 for interrogation in connection with the riots. - PTI

The amicus curiae's analysis of the SIT report in the Gulberg case lays the basis for prosecuting Narendra Modi and his senior officials for the 2002 pogrom.

INTEGRAL to the planned mass-scale anti-Muslim violence in Gujarat in February-March 2002 was the gigantic conspiracy to cover up the role of senior functionaries of the government, top policemen and officials in instigating and condoning the violence and in ensuring that no proper investigation would be conducted into various episodes of butchery, rape, criminal assault and arson.

The intention behind the well-coordinated effort was to secure impunity for the perpetrators of a shameful orgy of targeted violence against a religious minority and the worst state-sponsored pogrom in independent India's history. One of the most nauseating instances of this was the Gulberg Society episode in Ahmedabad, in which former Member of Parliament Ehsan Jafri's limbs were severed and he and 68 others were barbarically burnt alive. This incident was investigated by more than 10 citizens' inquiry committees, composed of public intellectuals, scholars and former civil servants, all of which independently reached the same conclusion.

Jafri's widow, Zakia, pursued the case and in 2006 petitioned the State police to register a first information report (FIR) against Modi and 61 others, something only the police can do under the Indian criminal justice system. When the police turned her away, she moved the Gujarat High Court, but it rejected her plea in November 2007. In April 2009, the Supreme Court directed the Special Investigation Team (SIT) it had created to take up the Gulberg case.

The SIT concluded that there was no evidence against Modi to substantiate the finding of several citizens' inquiries that he convened a special meeting of senior officials at his official residence on February 27, 2002, after the Godhra train fire episode earlier that day. At the meeting, Modi allegedly instructed police officials to allow Hindus to vent their anger against Muslims, thus enabling a tsunami of violence to break out. It was widely reported in the media at the time that two Gujarat Ministers, Ashok Bhatt and I.K. Jadeja, unconnected with the Home portfolio, visited police control rooms (PCRs) to monitor the violence and influence the police.

This April, an Indian Police Service officer, Sanjiv Bhatt, filed an affidavit in the Supreme Court in support of these findings. He swore that he was present at the February 27 meeting in his capacity as a senior officer of the intelligence wing. The SIT, however, concluded that Bhatt was an unreliable and controversial witness whose testimony was not corroborated by the other officers present at the meeting. The SIT confirmed that Ashok Bhatt and Jadeja were indeed present in the PCRs but found no evidence that they had interfered with the police's work.

The SIT's conclusion was in keeping with its overall record on Gujarat. Since it was set up by the Supreme Court in 2008, the SIT has only filed one new set of charge sheets in the 10 cases it investigated. That charge sheet indicted Maya Kodnani and Jaydeep Patel in the Naroda Patiya case. It had to do so because of the overwhelming, irrefutable evidence of their involvement in the massacre through mobile phone records.

The SIT concluded that no case had been made out against Modi and that there was no prosecutable evidence against him and 61 others. But the Supreme Court took the unusual step of asking the amicus curiae (friend of the court), senior counsel Raju Ramachandran, to conduct an investigation into the case and comment on the SIT report from an independent legal perspective. Ramachandran's report was filed in July and still remains classified.

In September, the court said it would cease monitoring the case and returned it to the normal process of investigation. It did not explicitly endorse Ramachandran's report. The Gujarat government and the Bharatiya Janata Party (BJP) celebrated the Supreme Court ruling in the Zakia Jafri petition as a clean chit for Modi. But the court had by no means exonerated Modi or upheld the SIT report. It sent the case to a trial court in Gujarat and directed it to examine that report and Ramachandran's comments and give the petitioners a hearing.

The trial court can proceed against the accused even though the SIT did not recommend filing a charge sheet against them. Of course, how the court acts within Gujarat's political climate remains an open question, but it cannot simply bury the case or accept a closure report without hearing the petitioners and summoning witnesses if necessary.

Since then, stories purportedly based on portions of Ramachandran's report have appeared in the media, beginning with The Hindu (October 23). According to these, Ramachandran, relying on the same evidence that the SIT gathered, disagrees with the view that there is no case against Modi. He says there is no clinching evidence to dispute Sanjiv Bhatt's presence at the crucial February 27 meeting, which seems logical. Such an important meeting could not have taken place without the intelligence wing of the police. The intelligence chief could not be there, and Bhatt was senior enough to represent the unit.

Ramachandran reportedly says the fate of the case can be decided only after all senior Gujarat police officers, including Bhatt, have been cross-examined. Such a proper legal process alone can establish whether Modi is innocent or guilty. Ramachandran holds that Bhatt's account was made probable by the presence of Ashok Bhatt and Jadeja in the PCRs, which would have had a dampening effect on the police and probably conveyed the message that Modi wanted them to go soft on the rioters.

On the basis of this analysis, Ramachandran reportedly recommends that Modi and other concerned high functionaries be prosecuted under Indian Penal Code Sections 153A (promoting enmity between different classes or communities on grounds of religion), 153B (making assertions or imputations prejudicial to national integration), 505 (statements conducive to public mischief) and 166 (public servant disobeying a direction of the law with the intent to cause injury).

If it is true, the recommendation does not seem proportionate to Modi's alleged offences, which resulted in a prolonged reign of terror that led to 1,200 gory killings and countless rapes, and forced more than 100,000 people to flee their homes. Under Section 166, any public servant who disobeys a direction of the law on how he should conduct himself in that capacity, and knowing the act will cause injury, can be punished with one year's imprisonment. The sentences in the other sections above are three years' imprisonment and/or a fine, hardly commensurate with the crimes of instigating or condoning mass murder.

There is every reason to stiffen the charges against the culprits to include criminal conspiracy and incitement to murder. This alone can remedy India's historic failure to punish the culprits of the Gujarat carnage.

In 2002, India's entire political class failed to compel the ruling National Democratic Alliance to dismiss the Modi government for manifestly violating the fundamental right to life of citizens. Arguably, had the secular opposition insisted on its dismissal through a sustained agitation such as a fast, the NDA might have had no choice but to impose President's Rule just as Indira Gandhi had to dismiss Chimanbhai Patel in 1974 in the face of Morarji Desai's hunger strike.

Similarly, the Assembly elections were held in December 2002 despite Gujarat's communally charged atmosphere, the terrorising and disenfranchisement of an entire community, and the near-total absence of rehabilitation of the violence-affected. After rightly raising objections initially, the Election Commission unfortunately agreed to hold the elections, citing a questionable precedent. Modi cynically capitalised on Hindutva hubris and won even as the Congress adopted a soft Hindutva line, becoming the BJP's B Team.

We must not allow the horrors of Gujarat to be forgotten or papered over for the sake of normality, development or moving on. Like the Augusto Pinochet case, in which the dictator was pursued in Spain decades later for his post-1973 crimes in Chile, the time for closure has not yet come in Gujarat. It will come only when the truth behind the violence is established and its culprits are brought to justice. The small fry will probably get away because it may practically be too late to book them. But the guilt of those at the top must be proved, and they must be punished.