What the Amicus really told the Supreme Court: Prosecute Modi!
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 600-page report. It appears the only gap is in the conclusions that SIT Chairman RK Raghavan and the amicus curae 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 statement, 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 purusing 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 disturbingly selective 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 complaint filed by 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 and not .
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 probabalised 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 butrress 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 thumb rule test of criminal liability which is that at the investigation stage, the probe agency's goal must be to look for some credible evidence of criminal culpability and the chips are weighed against the accused. It is only at the trial stage that the accused gets the benefit of doubt. 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, spawning 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 loose credibility with the community," were Supreme Court's words (State of Rajasthan v.Yusuf ).
There were as many as 32 allegations of omissions and commissions against Modi with regard to his alleged role in the 2002 carnage that the SIT was asked to probe by the Supreme Court by its order dated 27 April 2009.
After a year long inquiry the SIT, in a shocking conclusion, had told the Supreme Court in its reported dated 12 May 2010 that there was no need for further action against Modi and other officials listed in the complaint. "As many as 32 allegations were probed into during this preliminary inquiry. These related to several acts of omission and commission by the state government and its functionaries, including the chief minister. A few of these alone were in fact substantiated…the substantiated allegations did not throw up material that would justify further action under the law, read Raghvan's report"
Ramachandran whose job as an amicus was to assist the court in ensuring a fair and honest investigation had first flagged the SIT's inferences in January 2011. He had raised several objections to the findings of the SIT and suggested further investigation on various points. Following Ramachandran's objections Justice Aftab Alam (one of the three judges who were seized of the matter) told Raghvan that there was a mismatch between the findings and conclusions drawn by the SIT. Before Ramachandran's intervention, the nature of the SIT probe was merely that of a preliminary inquiry which was without any powers to carry out search or raids, effect arrests, interrogate the accused in police custody or compel the government and individuals to produce crucial records. On being prodded by the court and Ramachandran the SIT went back to Gujarat and recorded statements of key witnesses under section 161 of Criminal Procedure Code in the ongoing case of Gulberg Society massacre. The SIT again came back before the court on 24 April 2011 and reiterated that they didn't find enough material to initiate criminal proceedings against Modi. Ramachandran again differed with the SIT and was this time asked by the Supreme Court by its order dated 5th May 2011 to travel to Gujarat and personally interact with both witnesses and victims and submit an independent assessment of the situation. Ramachandran travelled to Gujarat and met several key witnesses like Sanjiv Bhatt.
It was in his final report submitted on 26 July 2011 that Ramachandran firmly recommended Modi's criminal prosecution for offences under sections 153A, 153B, 166 and 505 of Indian Penal Code.
Ashish Khetan is Editor, Investigations with Tehelka.