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India: ’A Mockery of Justice’ - K.S Subramanian’s review of Manoj Mitta: ’The Fiction of Fact-Finding’

22 April 2014

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Book Review published in Biblio, March-April 2014

‘A Mockery of Justice’

Manoj Mitta: ‘The Fiction of Fact-Finding: Modi & Godhra’, Harper Collins Publishers, 2014, pp.259, Price Rs. 599

by KS Subramanian

In this remarkable and courageous book, Manoj Mitta (senior editor with the Times of India who writes on legal, human rights and public policy issues) mounts a devastating critique of the final report of the Supreme Court-appointed Special Investigation Team (SIT) headed by RK Raghavan, the reports of the amicus curiae Raju Ramachandran, the Chief Minister and aspiring prime minister Narendra Modi, the Gujarat judiciary and by implication the state and central governments too for failing to deliver justice to the over 2000 victims of organised violence in the Gujarat pogrom, 2002, which caused extensive destruction of property as well. The author goes into the voluminous new material produced by the SIT on the violence based on the complaint by Zakia Jafri, widow of Ehsan Jafri, who alleged, among other things, that Chief Minister Narendra Modi and 62 top police and administrative officials of the state were behind the conspiracy to commit massive collective violence against Muslims in the Gulberg Society area of Ahmedabad, resulting in the massacre of 69 persons including her husband. Mitta also evaluates the reports of the Supreme Court’s amicus curiae Raju Ramachandran. The work is a masterpiece of investigative journalism, which should lead to further legal and judicial effort to get at the truth and deliver justice to the victims.

The author identifies the violations of law perpetrated by the SIT in the name of investigating the crimes which took place in Gujarat, 2002; evaluates the reports of the amicus curiae; and notices the failings of the Supreme Court of India in discharging its basic Constitutional responsibilities to the people. The SIT’s final report to the trial court in February 2012 missed critical pieces of evidence, which slipped through the cracks in the investigation; failed to connect the dots, viewed issues in isolation and downplayed their significance; freed the main accused Narendra Modi and his associates from criminal culpability; failed to meaningfully address the suggestions put forward by the amicus curiae; and neglected other verifiable, irrefutable evidence. The author concludes that there was sufficient evidence in the material to file a charge sheet. Instead the SIT submitted a not-guilty closure report.

The Supreme Court had forwarded Zakia Jafri’s complaint to the SIT on April 27 2009. Though section 154 of the CrPC provides scope for the registration of First Information Report (FIR) on discovery of a ‘cognisable offence’ , the SIT failed to register a case but embarked on an elaborate and deceptive ‘preliminary enquiry’ lasting 12 months and recorded 163 statements of witnesses. Inexplicably, even after a prolonged preliminary enquiry, the SIT obtained permission of the Supreme Court to conduct ‘further investigation’. After a further long drawn out period of enquiry, including an earlier farcical ‘interrogation’ of the prime accused in the Jafri-related complaint, the SIT filed an absurd closure report on February 8 2012 exonerating everyone involved in the case for want of ‘prosecutable evidence’.

In what follows, we examine briefly the author’s analysis of the infructuous and apparently politically motivated investigation of the case by the SIT; his take on the observations and suggestions of the amicus curiae; and his argument that the Supreme Court itself was partly to blame for the impunity made possible by the SIT’s unsatisfactory interrogation of Narendra Modi and the selection of an unsuitable candidate for the position of SIT chief (chapters 5 and 7).

The gripping chapter 3 on ‘Gujarat model of justice’ explains that the partisan role of the Gujarat police in the Best Bakery and the Bilkis Bano cases impelled setting up of the SIT by the Supreme Court to look into and take appropriate legal action on the allegations in Zakia Jafri’s complaint on state complicity in communal violence across 14 of the 25 districts in the state. The complaint was an acid test to the SIT’s independence and integrity. The SIT was provided a mix of three serving police officers from Gujarat and two retired ones from outside the state, which included the Chairman.

The SIT revealed its incompetence in the investigation of the Godhra train arson that occurred on February 27 2002. It uncritically recycled the Gujarat police version in the case. The Chief Minister of the state had alleged a foreign inspired terror plot within hours of the occurrence of the incident presumably hoping to derive political capital for the ruling party. All the Muslims arrested before the eruption of the post-Godhra violence were found to have been framed. The forensic inspection of the place of occurrence was conducted in a cavalier fashion after being subjected to lengthy delay. Not a single Hindu passenger in the train was willing to support the police claim that Muslim mobs had entered coach S6 of the Sabarmati Express by cutting the connecting vestibule or pouring copious amounts of petrol to cause a fire. The SIT did not take up the illegal delivery of the dead bodies of the victims of arson by a lowly official to the activist of a communal body in an incendiary situation. The gap between rhetoric and the reality of administrative response was all too obvious.

The Gujarat Chief Minister’s interrogation by the SIT is examined in chapter 5. Several inconsistencies, contradictions and ambiguities were noted in the statements made by Narendra Modi during the perfunctory interrogation conducted by an SIT official, which reduced it to a travesty. Intriguingly, the chairman of the SIT absented himself from the critical interrogation process with questions and answers in a written format, not pinning down the witness on basic contradictions in his testimony. The process lasted 9 hours involving 71 questions but lacked depth. Why was SIT Chairman absent? Why were CrPC procedures involving the answering of questions truthfully and fully, not followed in this case?

The SIT was set up on April 27, 2009 but the Chief Minister appeared before it only in March 2010 indicating a lack of seriousness on the part of the SIT. A major contradiction was that Narendra Modi claimed he was busy in law and order meetings on February 28 2002 even as the massacres at Gulberg Society and Naroda Patia were going on right under his nose, as it were. He found time to visit the venue of the violence which killed 69 people at the Gulberg Society only after five days, which indicated callousness. While his press release on Godhra on February, 27 2002 had exaggerated the fire incident in the train as a ‘pre-planned, inhuman, collective violent act of terrorism’, in his testimony before the SIT, Modi indulged in prevarication. He avoided mentioning terrorism in his statement in the State Assembly. There was a delay in calling in the army, which showed lack of seriousness. There was an unexplained disconnect between what the police top brass were admittedly aware of and what Modi claimed to have learnt or not learnt from them in the course of the fateful February 28 2002. Since he had taken no action against the police in all the years before the SIT probe, he was unable to explain the wide gap between the time of the mass killings and the time he had come to know about them. The author observes that the integrity of fact finding depends on the nature of the questions put or not put. ‘When the right questions are not put there will neither be right answers nor right conclusions’ (p.121).

The amicus curiae’s reports on the progress and efficacy of the investigation revealed many deficiencies. He never really stepped out of the frame set up by the SIT and failed to notice the farcical nature of the questions put to Modi. The fresh investigations proposed by him could have led to substantiation of the allegation of a high level conspiracy behind the Godhra violence. Modi’s lackadaisical behaviour with regard to the massacres at Gulberg Society and Naroda Patia on February 28 2002 was highly suspicious and there was nothing to show that he initiated decisive action to contain violence. The SIT made no effort to question Modi on any of the issues raised by the amicus curiae. It satisfied itself with talking to one of his key aides. In the end, the amicus timidly went along with the questionable and unprofessional final report submitted by the SIT to the trial court.
The Supreme Court of India, for its part, did not have an independent mechanism to scrutinise the credentials of the person named by the Ministry of Home Affairs (MHA) to head the SIT. The unsuitability of RK Raghavan for the post of Chairman involving a huge responsibility is established by the author in chapter 7 titled ‘When the Investigator Himself is indicted’. Raghavan had earlier come under a cloud for security lapses during former Prime Minister Rajiv Gandhi’s visit to Sriperumbudur in Tamilnadu. He evaded departmental action by using his political connections, which he also used again to rehabilitate himself and get posted as Director, CBI. His dubious political sympathies with the then ruling party escaped scrutiny by the Supreme Court as also his conflict of interest in taking up the SIT job while being reportedly posted with the Tatas who have powerful business interests in Gujarat. The Supreme Court of India was taken for a ride and the investigative process suffered colossal damage bringing discredit to the highest institutions of the state including the Supreme Court of India. The SIT under Raghavan, notes the author, ‘exploited every loophole in the law to downplay inconvenient evidence’ (p.73) in order to let criminals off the hook. Raghavan had no hesitation in doing so as he himself had earlier been let off the hook once. This was a mockery of the justice mandated by the Constitution of India.

(The writer was a Member of the Concerned Citizens’ Tribunal on Gujarat 2002 led by Justice VR Krishna Iyer. He is the author recently of the volume “Security, Governance and Democratic Rights: Essays on the Northeast”, Niyogi, 2014)

P.S.

The above article from Biblio is reproduced here for educational and non commercial use