Amicus Curiae Raju Ramachandran had
recommended prosecuting Narendra Modi on several grounds. Ashish Khetan scoops
his report.
In the past week
the media has been reporting that the SIT has filed a closure report that gives
a “clean chit” to Gujarat Chief Minister Narendra Modi on the grounds that
there is no prosecutable evidence against him.
However, Tehelka has
now scooped amicus curiae Raju Ramachandran’s explosive confidential report
that had told the Supreme Court that Modi should be chargesheeted and
prosecuted for serious criminal offences like 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.
Ramachandran recommended criminal prosecution against Modi under different
cognizable and non-cognizable offences with some of them carrying a maximum
imprisonment for three years.
Importantly,
Ramachandran, a senior Supreme Court lawyer who was appointed as Amicus Curiae
by the three judge bench of the Supreme Court in November 2010, had made these
recommendations based on the SIT’s own probe reports. It
appears the only gap is in the conclusions that SIT Chairman RK Raghavan and
the amicus curiae came to, based on what the SIT had found.
Raghavan had
claimed in his concluding remarks that there was no “prosecutable evidence” to
chargesheet Modi and direct him to stand trial. However, after carefully
studying statements of witnesses and accused recorded by the SIT and other
documentary evidence collected by the probe agency and also his own
interactions with several key witnesses, Ramachandran came to a different
conclusion and, in a hard-hitting report, told the Supreme Court and the SIT
that Modi needed to be chargesheeted on several counts and to draw any other
inference or legal action like dropping the charges altogether as proposed by the
SIT was illogical and legally untenable. Ramachandran had placed his report
before the court in May 2011 after over eight months of perusing several SIT
reports which recommended that the case against Modi should be closed as there
was no prosecutable evidence against him.
Over the last
week, media reports have been speculating about Ramachandran’s recommendation,
with some publications going to the extent of claiming that Ramachandran and
SIT Chairman RK Raghvan had completely concurred on all the conclusions drawn
by the SIT and had together recommended the closure of the case against Modi.
Now that Tehelka has
got first hand access of Ramachandran’s report, it finds far from dropping the
case, the amicus curiae had in fact recommended criminal prosecution against
the Gujarat Chief Minister for his role in the 2002 Gujarat riots under
sections 153A, 153B, 166 and 505 of Indian Penal Code. Conviction under these
sections carry a jail term of between one to three years.
Ramachandran’s
recommendations if followed would have had an unprecedented impact on the
Indian criminal justice system which often sees the powerful being let off
either because of sloppy investigation or dilatory legal proceedings. The
amicus’s report demolished the core argument put forth by the SIT for not
pressing charges against Modi, which is lack of prosecutable evidence. He first
defined the relevant sections applicable to Modi, laid down their legal scope
and then cited several Supreme Court case laws before emphatically concluding
that Modi should be sent to trial.
Though there were
also many points on which he concurred with SIT Chairman Raghavan the main
point of concurrence was that, on the basis of material gathered by the SIT so
far, there was not enough ground to charge Modi of conspiracy. However, he held
that dropping all other criminal charges against Modi was legally untenable.
His report demonstrates that the impediment in the course of justice for the
riots of Gujarat 2002 is neither lack of evidence nor lack of law. If anything,
the problem lies with a disturbinglyselective application of law.
These are the
sections under which Ramachandran recommended Modi should be chargesheeted and
tried:
Section 505 IPC
lays down the punishment for making statements which promote enmity, hatred or
ill-will between classes and prescribes punishment which may extend to
imprisonment of three years.
Section 166 IPC
prescribes a maximum imprisonment of one year for those public servants who
knowingly disobey any direction of law, as to the way in which he is to conduct
himself s such public servant, intending to cause injury to any person. SIT
itself has chronicled several instances where Modi’s conduct was divisive and
prejudiced against the minorities and thus against his constitutional duty of
protecting the life and property of every citizen of the state. SIT Chairman RK
Raghavan had noted on page 13 of his report dated 13 May 2010 give to the SC
that Modi’s statement “accusing some elements in Godhra and the neighbourhood
as possessing a criminal tendency was sweeping and offensive coming as it did
from a chief minister, that too at a critical time when Hindu-Muslim tempers
were running high.
Section 153A IPC
lays down maximum imprisonment of 3 years for promoting enmity between different
groups on grounds of religion, race, etc and doing acts prejudicial to
maintenance of harmony. The SIT report had stated on page 69 that, “In spite of
the fact that ghastly and violent attacks had taken place on Muslims at Gulberg
Society and elsewhere, the reaction of the government was not the type that
would have been expected by anyone. The chief minister had tried to water down
the seriousness of the situation at Gulberg Society, Naroda Patiya and other
places by saying that every action has an equal and opposite reaction.”
Similarly, Section
153B lays down a maximum imprisonment of three years for making imputations or
assertions prejudicial to national integration.
He also underlined
the fact that his conclusions were based on the material collected by the SIT
and placed before him. Since he was merely an amicus he had no powers or
authority to carry out any independent investigation into the charges against
Modi and his officials. The maximum he could have done was to carefully study
the material put together by SIT and draw just, reasonable and legally sound
conclusions. The fact that a mere reasonable interpretation of the SIT’s own
probe has thrown up evidence of Modi’s culpability shows that 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 the Raju 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
(CJP) and Zakia Jafri, widow of slain Congress leader, Ehsan Jafri, who along
with dozens of other Muslims was 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 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.
According to SIT
probe officer AK Malhotra, a retired CBI man, the meeting lasted for about half
an hour. Sanjeev Bhatt, an IPS officer of 1988 batch, who was posted as DCP
(Intelligence) at the time, told the SIT that he too was called to be present
in 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 Modi had spoken at the
meeting. But 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 SIT’s conclusions and said that it was
unreasonable on the part of the probe agency to disbelieve Bhatt. He said that
contrary to SIT’s stance, facts were seemingly loaded in Bhatt’s favour.
Ramachandran has said that Bhatt’s presence in the meeting gets probablised by
various crucial facts, mainly:
a) Even before the
27th meeting, Bhatt was considered to be close to Modi. Bhatt told the SIT that
he had had first interaction with Modi way back in 1997 when Modi was a senior
BJP functionary stationed in Delhi. “In 1997 Shanker Singh Vaghela had become
the CM and he was seeking election from Radhanpur constituency in Banaskantha.
Vaghela had formed a new party named Rashtriya Janta Party and a faction of the
BJP MLAs had defected and joined him. At that time the entire BJP machinery was
working overtime to somehow defeat Vaghela. I has served as SP, Banaskantha in
1995 and had a good understanding of the constituency. In 1997 when Vaghela was
contesting I was posted in State Intelligence Bureau. Modi rung me up and
sought some information. Then in 2001 when Modi became the CM a meeting of all
police officers (DCP and above) was called to meet the CM. When I got up to
introduce myself Modi immediately recognized 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 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 has told the SIT. Ramachandran told the court that
Bhatt’s proximity with Modi further probablises his presence in the crucial
‘law and order’ meeting of 27th February. 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 CM himself.
b) On 27 February
the chief of State Intelligence Bureau GC Raigar was on leave. It was only
natural that after Raigar, the senior most officer from Intelligence Bureau,
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, Ramachandran has noted.
c) There is no
evidence to contradict Bhatt’s presence in the meeting chaired by Modi. In
other words there is no evidence to show that he was not present in the meeting
and instead present somewhere else.
d) And the last
but the most crucial fact that of Modi’s unsolicited rebuttal of Bhatt’s
presence made by him during his examination by the SIT lends further weight to
Bhatt’s assertions. On 25 March 2002 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 carnage. Malhotra then asked him
about who was present in the meeting. In his reply, Modi named the seven
officers, apart from himself. However, without further prompting from the
inquiry officer, he went on to assert, “Sanjeev Bhatt, the then DC (Int.) 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. Also this was the stage when
the inquiry was still on and Modi was not supposed to be aware of the witnesses
who had been examined in this matter (Bhatt had already been examined before
came to record his statement before the SIT). Clearly, somebody had alerted
Modi about Bhatt’s statement and he had come prepared to contradict and
discredit Bhatt’s version even when the question posed to him by the SIT
officer had no reference of Bhatt. Ramachandran has underscored the slip made
by Modi and concluded that Modi’s anxiety and puzzling keenness to discredit
Bhatt further lends credibility to Bhatt’s testimony.
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 eye 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 pre-trial 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 were thus unreliable. In a highly conflicting report, the SIT has
used the same unreliable witnesses to disbelieve Bhatt’s testimony. The primary
reason 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. If you add to this the fact that Modi without being asked
about Bhatt asserted that Bhatt was not present further probablised the
presence of Bhatt in the meeting.
4. Amicus has
noted in his report that he was aware of the fact 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 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 enquiry by
the SIT, he had not disclosed the full details of the meeting on the ground
that since it was merely an enquiry and not an investigation under Criminal
Procedure Code, he as an intelligence officer would not be able to reveal the
details of the meeting.
5. Amicus has also
noted that he is further conscious of the loose but unsubstantiated allegations
that Bhatt was now having some kind of a truck with certain Congress leaders.
However, these allegations have no bearing on Bhatt’s credibility as a witness because:
a) they are unsubstantiated and b) even if found to be true they are related to
post-event circumstances.
6.
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. 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 difference between the SIT and Ramachandran was with regard to two
senior police officers who had fled from the Gulberg Society and had thus
allowed the rioters to carry out carnage with impunity. 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 which were otherwise free of any
kind of trouble to justify their absence from Gulberg Society, and still the
agency wanted to only recommend departmental action. The only logical action
that could be taken against these officers is sending them for a criminal
trial, Ramachandran has concluded.
The SIT found in
its probe that Tandon, who was the joint commissioner of police of Sector 2,
Ahmedabad, deliberately didn’t respond to distress calls from Gulberg Society
and 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 the presence of himself and his police force in those
areas rather than Gulberg and Naroda. The SIT also found that Tandon was in telephonic
contact with Jaideep Patel and Mayaben Kodnani — the architect of massacres at
Naroda Gaon and Naroda Patiya.
PB Gondia, deputy
to Tandon, 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.” The SIT also found that, like
Tandon, Gondia was in regular telephonic contact with Kodnani and Jaideep
Patel.
But despite
Ramachandran’s recommendation of launching criminal prosecution against Tandon
and Gondia, the SIT told the court that it was not keen on pressing the charges
against the two. To buttress their claim, the probe team got a favourable legal
opinion from a Mumbai based lawyer.
The custodial
interrogation of these two officers could have led to a deeper insight into
what was the real motive behind their deliberate dereliction of duty. Were they
acting out of their own volition or was it the consequence of the alleged tacit
signal sent by Modi in the meeting of 27th? Is it possible that two senior
officers would enter into a conspiracy at their level without any intervention
from the top? Is it possible that these two senior officers would not have kept
the political leadership in the loop about the explosive situation at Gulberg
and Naroda? These questions could only have been answered if the two were
investigated and sent for criminal trial.
Ramachandran also
wrote in his report that many points like those mentioned above need to be
further investigated. He said that once the SIT submits its report along with
the amicus’ report before the magistrate, the later could take cognizance of
the suggestions made by amicus and order further investigation.
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 at the trial stage that the accused gets the benefit of doubt, if any.
However, the SIT seems to have given Modi the benefit of doubt at the
investigation stage itself, given that, as Ramachandran has pointed out, if
there is ‘some’ evidence of criminal culpability, the accused should be sent to
trial. In Modi’s case Ramachandran has noted that there is enough evidence to
warrant prosecution. It is only after all the relevant evidence is adduced in a
court of law, 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 SIT was
constituted by the Supreme Court after a prolonged legal battle, spanning over
6 years, between the victims and civil society on one hand and the Gujarat
state machinery on the other hand. The odds were staked against the victims
from day one. It was a Herculean task for any agency to dig up evidence of an
alleged criminal act which had occurred six years ago and was allegedly
orchestrated by a chief minister who had been in power all along. The SIT
itself has underlined the fact that all the senior bureaucrats who were privy
to the events of Feb-march 2002 were given lucrative post-retirement
assignments and were thus obliged to Modi. Still the SIT could find enough
evidence of malfeasance to conclude that the State had acted in a communally
partisan and prejudiced manner while appointing public prosecutors in riot
cases, transferring and posting police officers on key positions and while
conducting criminal investigation into major riot cases. There is enough
evidence of negligence of constitutional duty to protect citizens and
derailment of criminal justice system. The moot point before the SIT was
whether enough material could be put together to show that there was a
deliberate malice and criminal intent behind the negligence of duty, first to
protect innocent lives and then miscarriage of justice.
“The judicial
instrument has a public accountability. The cherished principles or golden
thread of proof beyond reasonable doubt which runs through the web of our law
should not be stretched morbidly to embrace every hunch, hesitancy and degree
of doubt. The excessive solitude reflected in the attitude that a thousand
guilty men may go but one innocent shall not suffer is a false dilemma. Only
reasonable doubts belonged to the accused. Otherwise any practical system of
justice will then break down and lose credibility with the community,” were
Supreme Court’s words in the case of State of Rajasthan v.Yusuf. The story of
Gujarat 2002 is not just about holding Modi responsible for his alleged
criminal acts. There is something far more fundamental which is at stake here.
It is the very idea of India founded on the principles of justice and equity.
Those responsible for the 2002 carnage need to be brought to book, not merely
for retributive justice, but for restoring the eroded embankments of our
constitutional democracy.
Ashish Khetan is
Editor, Investigations with Tehelka.
Source: Tehelka dot com
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