Modi Vindicated

IN THE CLUTCH OF CASES THAT GO BACK TO THE violent events of 2002 in Gujarat, Zakia Ahsan Jafri vs State of Gujarat and others will go down in India’s legal and political history for many reasons. For one, the case, decided on June 24, is an example of the extraordinary leeway given to a petitioner by the highest court of the land, something that any ordinary citizen can only dream of. The court itself noted this in its own, restrained, judicial language. For another, the case represented an abuse of process to put in dock a chief minister who was—for two decades—pilloried as being responsible for the worst riots that hit Gujarat.

In the end, there was no evidence—at all—to substantiate any of the claims made by Jafri and her lawyer-cum-backer, Teesta Setalvad. Setalvad, an activist, is now herself in the dock after the Supreme Court highlighted her dubious role in the case and its proceedings. She was arrested by Ahmedabad Police from Mumbai on June 25.

The story began a day after the Godhra train burning on February 28, 2002 when 69 people were killed at Gulbarg Society in Ahmedabad during a riot. Among those killed was Ehsan Jafri, a former Congress member of Parliament (MP). His wife, Zakia Jafri, petitioned the Supreme Court in March 2008 with a complaint. This complaint had been submitted to the director general of police (DGP) of Gujarat (along with other senior officers of the state) two years earlier in June 2006. After that, Zakia Jafri approached the Gujarat High Court to convert her complaint into an FIR. The high court dismissed her petition in November 2007.

Finally, she approached the apex court which agreed to form a Special Investigation Team (SIT) to “look into” various allegations made in the complaint, including allegations of a high-level conspiracy to instigate riots. The order to create the SIT was given by the court in April 2009.

The timeline of the events is worth noting. The original complaint was filed in 2006. The court ordered an SIT in 2009 and the SIT completed its work and handed the report to the magistrate dealing with the Gulbarg Society case in 2012. In all, four years passed between the riots and the filing of the complaint. And another six years for the final SIT report’s submission.

Normally, matters should have ended there. But the case dragged on one way or the other for another decade after the report was filed. The report found nothing incriminating against the then chief minister, Narendra Modi, one of the main accused in Zakia Jafri’s complaint.

The SIT, led by former IPS officer RK Raghavan, was practically given carte blanche on matters of investigation, appointment of additional public prosecutors, and even on formulating procedures for the protection of witnesses who submitted evidence to it. The SIT examined 145 witnesses in connection with the complaint and questioned 275 individuals based on the directions of the Supreme Court.

The entire process was extraordinary to say the least. The court appointed amicus curiae to help it. There were three in all: Prashant Bhushan to begin with, then Rohinton F Nariman and, finally, Raju Ramachandran. The court in the June 24 judgment noted that amicus was allowed to “analyse” the SIT report and “have his own independent assessment of the statements of the witnesses recorded by the SIT and submit his comments thereon.” He was also allowed to “interact” with any of the witnesses who had been investigated by the SIT—including police officers—as he “deemed fit”. In effect, he was “investigating the investigators”. During this period, the amicus also met Setalvad.

The extraordinary features of this process did not end there. The court observed that if the SIT felt that there was no sufficient evidence or reasonable ground for proceeding against any person named in the complaint, the court was to issue a notice to the complainant and make available to her copies of the witness statements and other materials. That is, before the SIT could file a closure report, the court had to issue a notice to the complainant.

After nearly two decades of the riots, examination of hundreds of witnesses, and an unusually elaborate legal-cum-judicial process, the court found no evidence against Narendra Modi. One allegation that has turned into a legend at the hands of activists, NGOs and some journalists is that the Gujarat government and Modi in particular did not call in the Army on time. The court refuted this theory.

“The material collected during investigation revealed that the then chief minister, on the basis of inputs and sensing serious problems across the state, had telephonically interacted with the then Home Minister of the Government of India at 1:00PM (on 27th February, 2002) for deployment of Army and a formal written request was sent to the Union Ministry at 2:30PM on 28.02.2002…” The court noted the delay due to unavoidable conditions and then went on to say: “These measures taken by the State government, in fact, are indicative of the prompt steps taken to avoid any further untoward situation and destroys the theory of larger conspiracy by the State at the highest level or state supported violence.”

One allegation that has turned into a legend at the hands of activists, NGOs and some journalists is that the Gujarat government and Modi in particular did not call in the Army on time. The court refuted this theory based on the evidence and records provided by the investigation and judicial process

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None of this satisfied the complainant—Zakia Jafri—and her lawyer Teesta Setalvad. Their approach in the end became one of a fishing expedition. They claimed that the SIT had not properly investigated the charges in their complaint. The court noted their tactics—fresh allegations that could not be linked to an alleged larger conspiracy—and noted as much. “The attempt of the complainant was obviously to make wild and preposterous allegations and keep the pot boiling in the name of taking action against new offenders referred to in the protest petition while not pursuing allegations that had been thoroughly investigated by the SIT and found devoid of substance.” The “protest petition” was filed by Jafri before the magistrate dealing with the Gulbarg Society case after she was given the final report of the SIT. He rejected the petition in 2013.

The judgment is a catalogue of allegations and their rebuttal at the hands of the court based on the SIT’s investigation. Chief among these was the allegation of the chief minister not taking any steps to control the riots on time, the presence of ministers in the police control room and their instructing police officers on the ground, and the state not declaring the bandh called by some organisations after the Godhra incident as illegal.

So much so, that the court was forced to use strong language to describe the approach of Jafri and Setalvad. The court noted: “It is submitted that Ms Teesta Setalvad, for reasons best known to her and out of vengeance, was interested in continuing with her tirade and persecution on the basis of unsubstantiated allegations in the complaint in the name of quest for justice with real purpose to keep the pot boiling and sensationalise and politicize the crime.” The court’s indictment is severe in this respect and it said: “As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

Teesta Setalvad’s current travails are largely due to her dubious role in this and associated cases. The court records the manner in which she “tutored” Zakia Jafri, something that she admitted during her cross-examination. Then there was the case of 19 witnesses in the Gulbarg Society case who said their statements were prepared by Setalvad and advocate MM Tirmizi. The court said the witnesses had merely signed the prepared statements.

The most vital—and revealing—aspects of the proceedings are to be found in the Annexure of the judgment that deals with the comments of the amicus curiae on the SIT report. This is an extensive discussion of the material around the alleged conspiracy hatched to foment riots. The entire evidence to that end was based on the statement of a jailed former IPS officer, Sanjiv Bhatt, about a meeting on February 27, 2002 at the chief minister’s residence. Bhatt claimed to have been present at that meeting, something that was denied by other high-ranking officers present. That meeting was a review of the law and order situation in the state, while Bhatt alleged that the chief minister made controversial remarks that lay at the root of the violence seen in the days ahead. The SIT found no evidence to that effect even as the amicus curiae blandly said: “there is no reason for him to make a wrong statement.” Ultimately, and as expected, the court relied on the material record and not the amicus curiae’s subjective analysis of Bhatt’s statement.

The judgment is a catalogue of allegations and their rebuttal at the hands of the court based on the SIT’s investigation. These are damning observations by the court. It is one thing to fight for justice but something entirely different to abuse the judicial process for a political goal

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A DAY AFTER THE Supreme Court delivered its verdict, Union Home Minister Amit Shah was asked about the chain of events in 2002 in an interview. One specific question was whether the police and the administrative machinery were rendered ineffective due to the prevailing political climate in the state. Shah answered: “Political parties opposed to the BJP, some ideologically motivated journalists and some NGOs, got together—a triad—[and] propagated this view. The ecosystem supporting this view was so strong that slowly lies began to be considered as the truth.”

Shah also said that he had closely observed Modi in all these years when he had to face the brunt of wild allegations as well as judicial proceedings against him. That Modi did all this quietly without claiming that he was a victim makes the truth in the apex court’s judgment shine like gold.

While the Supreme Court went out of its way to give every opportunity to the victims of violence, the process was nearly subverted by a combination of NGOs and journalists who created an environment where they blamed Modi irrespective of the evidence at hand. That this nearly succeeded attests to the power of the ‘ecosystem’ in India. Virtually every ‘credible’ name who provided ‘evidence’ in the case proved to be untruthful, including Bhatt and RB Sreekumar, another former IPS officer from Gujarat who, too, has been arrested by Ahmedabad Police.

The court itself noted the conflicts of interest that were at play: “It is pointed out that the appellant Zakia Ahsan Jafri, in her evidence recorded on 22.10.2010, accepted that Mr R B Sreekumar was at the relevant time, working with an NGO and Ms Teesta Setalvad was associated with that organisation. Interestingly, she was none else, but the convenor of the Private Citizen’s Commission headed by former Supreme Court Judges and was in a position to influence appellant—Zakia Ahsan Jafri.”

These are damning observations by the court. It is one thing to fight for justice but something entirely different to abuse the judicial process for a political goal.

By now it is fashionable to claim that India is experiencing “democratic backsliding”. It is not surprising that the same ‘ecosystem’ claims that this is the case. Their motivations are not hard to discern. It is a paradox of sorts that a leader who remains hugely popular, one who has won back-to-back elections in the largest democratic exercises anywhere, is castigated for weakening democracy in the world’s largest democracy. The fact that none of these claims has substance is eerily similar to the abuse of the judicial process for two decades to nail him. None of that came to pass as there was no evidence. But the calumny continues, this time in a different arena. It is hard not to observe that, in the end, it is all about abuse of dominant positions in the public sphere.

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Siddharth Singh

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