Fiction and fact

In his article in these columns (Friendly Advice, May 16), senior Supreme Court advocate and former additional solicitor-general of India, K.N. Bhat, makes a hollow attempt to issue his own “clean chit” to Gujarat chief minister Narendra Modi. The three legs on which his arguments rest are all shaky. Let’s check them out, one by one.
His first premise is that Zakia Jafri’s complaint of June 2006 — accusing Mr Modi and 62 others of criminal conspiracy for mass murder during the 2002 carnage — relied merely on “the belated statement of a police officer, Sanjeev Bhatt”. It defies common sense how Ms Jafri’s complaint could have had anything to do with a disclosure by the police officer well over three years later!
Here’s the second: “In hindsight, one can conclude that the court had no doubt that the SIT report would be unpalatable to Modi-baiters, hence the order of May 5 (2011) asking the amicus curiae to review SIT reports,” opines Mr Bhat. Really? The Supreme Court’s order of May 2011 was loud and clear, in no need of an interpreter. “Your (SIT) findings do not match your inferences,” SIT chief R.K. Raghavan was told. The SIT had claimed that though certain offences were established as true, there was not enough evidence to prosecute Mr Modi. Unconvinced, the apex court empowered the amicus curiae, Raju Ramchandran, to make an “independent assessment” of the evidence collected by the SIT and identify the offenders, if any.
Third and last, Mr Bhat writes that even the amicus concluded that the murder allegation against Mr Modi did not hold: Mr Ramchandran “only” recommended the prosecution of the Gujarat chief minister under Sections 153A, 153B, 166, 505 of the Indian Penal Code (promoting enmity, hatred and ill-will against a section of citizens, endangering national integration, acting contrary to law with intent to cause injury). Each one of them stipulates a punishment of up to three years. For the former additional solicitor general of India, the chief political executive of a state issuing criminal direction to top civil servants and police officers in an already explosive situation doesn’t seem to be a big deal.
Let’s keep the mass murder charge aside — for the moment. Were Mr Bhat to read SIT’s preliminary report, eyes open, he might see things differently. The preliminary report says Mr Modi’s “action-reaction” theory amounts to “his implied justification of the killings of innocent members of the minority community.” It has also found Mr Modi’s attempted rationalisation of his hate Muslims speech during his 2002 Gaurav Yatra “unconvincing”.
Mr Bhat might also notice SIT’s finding that the then joint police commissioner, Ahmedabad, M.K. Tandon and the then deputy police commissioner, Ahmedabad, P.K. Gondia, were both “guilty of deliberate dereliction of duty” as a result of which over 200 Muslims were killed in Gulberg Society, Naroda Gaam and Naroda Patia. The amicus has strongly recommended their prosecution under Section 304A of IPC (culpable homicide not amounting to murder; maximum punishment is 10 years).
Lying before a judicial magistrate in Ahmedabad presently is a closure report filed by the SIT asking for closing the case against Mr Modi and 62 other accused. But the magistrate also knows that, relying on SIT’s own findings, an apex court-appointed amicus has opined there is prima facie evidence for Mr Modi’s prosecution. And that it is not for SIT but for the court to determine, at the end of the trial, whether the evidence stands. Meanwhile, supported by Citizens for Justice and Peace, Ms Jafri is preparing her protest petition to be filed before the magistrate.
To Mr Bhat’s three pieces of friendly advice, may I add three of my own.
One, Ms Jafri’s criminal conspiracy complaint does not solely rely on the meeting convened by Mr Modi on February 27, 2002, following the Godhra tragedy where he is alleged to have issued his “let Hindus give vent to their anger” directive. In all, there are 30 interrelated and closely interlocked allegations — parading dead bodies of Godhra victims to inflame passions, Cabinet ministers manning police control rooms, botching police investigations, appointing VHP men as public prosecutors, promoting police officers like Mr Tandon and Mr Gondia, penalising upright police officers, ignoring intelligence warnings, destruction of carnage-related records etc — which together add up to the criminal conspiracy charge.
So there’s no closure for Mr Modi until the protest petition has been given a fair hearing by the magistrate and, if need be, appeals are first heard by the Gujarat high court and finally by the Supreme Court.
Two, the SIT has immortalised itself with its own observation: “Even if Modi said let Hindus kill Muslims, mere statement of alleged words in the four walls of a room do not constitute an offence”. The SIT’s valiant efforts to exonerate the chief minister at all costs notwithstanding, the judiciary might have a slightly different view on this.
Three, what if facing trial for a possible 10-year sentence, Mr Tandon or Mr Gondia, or both, wilt, and implicate others? Then the amicus curiae’s report will be more than just “friendly advice”.

The writer is co-editor of Communalism Combat and
general secretary, Muslims for Secular Democracy

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