The Supreme Court of India delivered an important verdict on September 12, 2011 in the Gulberg Society massacre case of Gujarat riots. While assessing merits/ demerits of the judgment one must bear in mind that courts do not, and should not, sway under the whims but act according to the legal propriety. By this order the Apex Court has referred the case to the Magistrate of Ahmedabad which is designate Trial Court for the crimes committed in that locality. In the course of trial both parties will have opportunity to be heard, examined and cross-examined. Evidence on record in the form of reports of SIT and Amicus Curiae will be given due weight and then a suitable order shall be passed on whether or not enough evidence is there to prosecute the accused persons. Prima facie there is strong case against Chief Minister Narendra Modi and his administrative machinery; yet the court will have to see how strong the evidences available against them are.
As senior Supreme Court Advocate Mr. Raju Ramachandran, who acted as Amicus Curiae in this case observed, “Supreme Court’s order is an impeccable one. It upholds the rule of law. It protects the rights of both the complainant and the potential accused.”
We find no ground for delight of the accused or cause of desperation for the complainants. A reading of the order makes clear that procedural rectitude of the SC is neither a “clean chit” to Modi nor a setback to the petitioners Mrs. Zakia Jafri and her well-wishers, who would have liked the case to be heard and determined by the Supreme Court. The order has only set the ball rolling and real trial of Modi has only begun and not ended. We hope the trial court will act in accordance with law and that the ends of justice will be met. In our legal system only trial courts take cognisance of the criminal cases in the first place. High Courts and the Supreme Court are appeal courts. A party aggrieved by an order of a trial court has right to move the appeal court for remedy.
HISTORY OF THE CRIME
In the wee hours of February 27, 2002, coach S-6 of Sabarmati Express caught fire while the train was pulling out of Godhra Railway Station for Ahmedabad in Gujarat. This resulted in killing of 59 passengers, most of them Hindutva fanatics returning from Ayodhya where a Mosque of Mughal King Babar’s era, known as Babri Masjid was razed to ground some 10 years ago on December 6, 1992 by a mob frenzied by Sangh Parivar. Muslims were blamed for the fire in the train and bodies of the victims were handed over illegally to VHP, a frontal organisation of Sangh Parivar. VHP, supported by BJP, gave a bandh call and dead bodies were taken out in procession in the city to instigate the passions of masses against the minority community. Immediately crowds of people armed with swords, batons, rods, pipes and kerosene started arson, looting of the properties, raping women and killing Muslims on mass scale. Police, allegedly under the instructions of higher-ups, did not move to maintain law and order and save innocent people. Sanjiv Bhatt, a 1988-batch IPS officer who was posted as DCP at the state intelligence bureau (SIB) during the riots, in an affidavit, alleged that Modi had instructed officers during a meeting on February 27, 2002 to allow Hindus ‘to vent out their anger’ during the clashes and he wanted Muslims to be ‘taught a lesson’.
In unprecedented communal violence, the government counted 1044 Muslims killed. Unofficial reports put the death toll around 2000. Dreadful cases were reported when rioters slit open wombs of pregnant women with swords. In one case unborn foetus was tossed on spear before setting the mother on fire. As many as 523 places of worship, including 298 Dargah of Mazars of Sufis, 205 mosques and 3 churches, were desecrated and damaged. Muslim-owned businesses suffered the bulk of the damage. About 61,000 Muslims were forced to flee their homes. Many of them are still living in camps in pathetic conditions. The Modi government did not distribute relief sent for victims by the Centre. Relief material of NGOs meant for victims was forcibly diverted to non-Muslim localities.
ATTACK ON GULBERG SOCIETY
In the morning of February 28, 2002, a frenzied mob started gathering outside the Gulberg Society, a cluster of 29 bungalows and 10 apartment buildings housing upper middle class families, mostly belonging to the Muslim community, in Ahmedabad’s Hindu-dominated Chamanpura area, and began shouting Hindu right-wing slogans. Scared residents took refuge in the multi-storey house of former Congress MP Ehsan Jafri, who kept on frantically calling the police and political leaders for next 5 hours, including Gujarat chief minister Narendra Modi for help. In a conspicuous move the few police persons stationed there were also withdrawn by noon. Soon the mob, armed with swords, sticks, rods, pipes, etc. breached the boundary wall and started killing people, looting valuables and torching houses by exploding kitchen gas cylinders. In the next six hours, 69 people, including Ehsan Jafri who was dragged out of his house, hacked and burnt alive, were dead. Around 90 more people were seriously injured.
Helpless Zakia Jafri saw from her window the gruesome killing of her husband in late 70s, her pregnant daughter-in-law’s womb being slit with a sword and then killed and others being hacked in her own compound. Shocked and devastated ZakiaJafri waited next four years for justice but there was no movement in the right direction.
ZAKIA’S QUEST FOR JUSTICE
ZakiaJafri’s quest for justice started on June 8, 2006, when she filed a 119-page complaint with the Director General of Police, seeking action against those who allegedly conspired to commit mass murder, destruction of evidence, intimidation and subversion of the criminal justice system. She pleaded to register FIRs against Narendra Modi and 62 others including several ministers on the ground that they conspired to massacre of Muslims in which policemen and bureaucrats were ordered not to respond to pleas for help from the victims. Gujarat Police did not respond to the request.
On February 28, 2007, the widow filed a petition before the Gujarat High Court with two specific prayers. She pleaded for registration of an FIR against 63 accused persons named in her complaint and secondly to entrust investigation to CBI. Ironically, two judges of the Gujarat High Court declined to hear the petition. Ultimately,the case was posted in the court of Justice MR Shah, who dismissed the petition on November 3, 2007 after hearing arguments for a week. The court held that petitioner should have moved the court of JM Ahmedabad. Obviously, in the surcharged atmosphere and conditions created in the State, it was hard to imagine that the JM will muster courage to risk his life and act against administration’s line.
Ultimately the aggrieved widow moved the Apex Court with an SLPNo. 1088 of 2008. The Court had already ordered on March 26, 2008 the Narendra Modi government to reinvestigate 10 cases of 2002 riots, including the Gulberg Society incident. The Supreme Court, on April 27, 2009, appointed a five-member Special Investigation Team (SIT), headed by former CBI director R.K.Raghavan to probe riot cases. The Court directed the SIT to look into Zakia’s complaint alleging conspiracy of mass murder and collusion of the state machinery with the rioters. The Supreme Court keenly monitored the progress of investigation till it was completed. The objective of this exercise as underlined by the Apex Court in September 12, 2011 order was:
“In cases monitored by this court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law.”
During investigations, in March 2010, SIT summoned Narendra Modi to clarify his actions and inactions. Earlier, R.B. Sreekumar, who was additional DG Intelligence at the time, deposed before a commission that ministers and police were “deliberately inactive during the riots”.
Eyewitnesses appearing before the SIT in December 2009, namely Imtiyaz Pathan, Saeed Khan Pathan, Roopa Mody, Saira Sandhi and Rafiq Pathan named Joint Commissioner of Police M.K.Tandon and Police Inspector N.D.Parmar posted in Megh Aninagar police station along with Manish Patel alias Splendor, Mahendra Pukhraj, Jagroopsinh Rajput, Inio Harijan, Babu Marwadi and Rajesh Jinger, a constable residing in the same area, as accused.
In March 2010, the Gulberg Society case trial was stayed by the Supreme Court after the special public prosecutor R.K. Shah resigned accusing the trial judge and SIT of being “soft on the accused”.
Activist Teesta Setalvad, in an affidavit filed before the Supreme court in April 2010, showed the phone record analysis which claimed that “Ahmedabad police commissioner P.C.Pande had spoken to Joint Commissioner of Police M.K. Tandon six times during the period when the latter was present at Gulberg Society and the mob was growing restive. Though Tandon was accompanied by striking force equipped to disperse a riotous mob, he left Gulberg Society without taking any corrective action and his departure led to the massacre”.
In October 2007, a prominent TV news channel showed footage of a sting operation carried out by Tehelka wherein 14 VHP or Bajrang Dal activists, including Madan Chawal, a Gulberg Society massacre accused, and a BJP MLA from Godhra, Haresh Bhatt who was vice-president of Bajrang Dal at that time, were shown talking about the killings and the way the state machinery collaborated with them.
SIT REPORTS
SIT submitted two progress reports in SC.However the court felt the inferences of SIT chief did not corroborate the findings on record. The court sought the comments of amicus curiae on these reports. On July 28, 2011, a three-judge Bench perused the report of the amicus curiae. The learned advocate is understood to have disagreed with certain conclusions reached in the SIT report and gave some specific observations and suggestions.
SC ORDER OF SEPTEMBER 12
On Monday, September 12 the special bench led by Justice D K Jain — it included Justice P Sathasivam and Justice Aftab Alam — described Zakia as one of the “hapless victims of the abominable and woeful events” which took place in the State of Gujarat in 2002 and after.
The bench observed, “We are of the opinion that in the instant case we have reached a stage where the process of monitoring of the case must come to an end. It would neither be desirable nor advisable to retain further this case.”
The bench recalled that on April 27, 2009, it entrusted the SIT to “look into” Zakia’s allegations, and as the SIT has already completed its probe, there is “no course available in law” except “order the final report to be forwarded to the lower court concerned.”
The Court further clarified, “Zakia’s case now goes to the magistrate and if he decides to close the case for lack of substantial evidence, she can file an appeal or seek a rare judicial review.” In such a case, the court has also directed the trial court to call the complainant for arguing her side.
INFERENCE
As Amicus Curiae Mr.Ramchandaran told Tehelka after 12/9 verdict: “My report contains an independent assessment of the material on record; which was given after an interaction with relevant witnesses. The SIT Reports and my report would be before the trial court. I have no doubt that it is premature to talk of either clean chits or indictments. That stage can come before the trial court when the law is set in motion.”
He clarified that there were two basic prayers of Zakia Jafri in her SLP. She wanted the court to order a separate FIR in regard of larger conspiracy. Secondly, she wanted the case probed by CBI. He said her “first prayer is no longer relevant since the entire material, after a statutory investigation, has been directed to be placed before the appropriate court, along with the final report of the investigating agency. The law has thus been set in motion. As far as the prayer for a CBI enquiry is concerned, the court has not found any need for it, since the investigation has been done by an SIT appointed by it (under the watchful eye of the SC). I see neither victory nor defeat for anyone in this.”
POLITICAL OVERTURE OF BJP
For certain reasons BJP is presently in a serious political mess. Since there are speculations in the party that mid-term polls of Lok Sabha may be held any time in the wake of recent dive down of UPA popularity graph, Mr. L.K. Advani has aspired to come again to be on the centre stage of NDA politics by reckoning his old tactic of rath yatra. His sudden announcement has created serious rumbling within the younger ranks. The question– who will be Prime Ministerial candidate of NDA –is being parried by the leaders. Modi, also an aspirant, is being projected as a contender for the top job. 84 years old Advani is being countered by showering praises on Modi. Sangh lobbyists in collusion of Zionist strategists have managed Modi’s praise in a report of US Congressional Research Service, an independent research wing of the US. The report also speculated Modi as next PM of India.
Making claims of “clean chit” to Modi, and his three-day fast for “for peace, unity and harmony in the state” is a gimmick to project Modi through the media and counter Advani’s advances. Punjab Chief Minister Prakash Singh Badal, AIADMK supremo J Jayalalitha’s support for Modi’s fast is significant development in NDA politics to sideline Advani, a Sindhi migrant, and to promote Modi, a favourite of RSS. Nobody needs to sway from “clean chit” slogans. Wait and watch the proceedings in the Magistrate Court. Since the Supreme Court is well acquainted of the case, it will be difficult for a subordinate court to deviate from the path of natural justice.
[The writer is Gen. Sec. of Forum for Civil rights. Email: syyedagha@hotmail.com]