As of 2008, nine cases arising out of the 2002 Gujarat riots were being monitored by the Supreme Court of India — all involving serious crimes of murder, arson and the like. In the court’s opinion, investigation by the state police would not win the confidence of the riot victims. Therefore, a Special Investigation Team (SIT), consisting of handpicked police officers and headed by former CBI director R.K. Raghavan, was constituted by the court on March 3, 2008.
While a criminal case regarding the Gulberg Society massacre was pending at the sessions court of Ahmedabad against a few officers and citizens, Zakia Jafri, the widow of Congress leader Ehsan Jafri who was killed in the massacre, with the support of some NGOs, filed a criminal complaint in the Gujarat high court on June 8, 2006, regarding the very incident alleging that new material had surfaced that showed the involvement of many bigwigs, including chief minister Narendra Modi, in the offence of committing or abetting mass murders, among others. The new material was the belated statement of a police officer, Sanjeev Bhatt, that he was present at a meeting in the chief minister’s house when Mr Modi advised the police to wink at the rioters.
The high court declined to issue a writ to the police to inquire into this complaint. But the Supreme Court, on April 27, 2009, directed the SIT to “look into” this issue as well.
By November 2010, the SIT submitted several reports naming some of the guilty — the Gujarat chief minister’s name was not amongst them, and, as the report that is now in the public domain shows, the SIT had good reasons to conclude that the allegations against Mr Modi could not be supported.
A few months after this, Raju Ramachandran, a senior advocate of repute, was asked to fill the vacancy caused by the resignation of the existing amicus curiae. Amicus curiae means “a friend of the court” (cynics term it “pet of the court”) whose role is to give unbiased advice to the court. Mr Ramachandran was directed on May 5, 2011, to “…examine the (SIT) report; analyse (it) and have his own independent assessment of the statement of witnesses recorded by the SIT and submit comments thereon.” The amicus curiae was given the power to interact with witnesses, including police officers. The court further ordained that if he “forms an opinion that any offence is made out against any person, he shall mention the same in his report”.
In hindsight, one can conclude that the court had by then seen several reports of the SIT and had no doubt that the final version would be unpalatable to Modi-baiters — hence, the apparent extraordinary order of May 5, authorising the amicus curiae to review the SIT reports and to virtually overrule them, if need be. The court was, perhaps, aware that just like a hypochondriac will not be satisfied by the right diagnosis of one doctor, the NGOs behind the complaints would be difficult to please and several doctors had to be found to say the same thing.
The amicus curiae submitted his report on July 25, 2011. After perusing the report — of which people were ignorant till May 10, 2012, when it was released along with the SIT report — the Supreme Court on September 12 last year passed the order washing its hands of monitoring the Gujarat cases: “We direct the Chairman, SIT, to forward a final report… to the court which had taken cognisance of Crime Report No. 67 of 2002… Before submission of its report, it will be open to the SIT to obtain from the amicus curiae copies of his reports submitted to this court. ”
Thus, it was “open to the SIT” to deal with the report of the amicus, not compulsory. In compliance with the “option” given, the SIT appended the report of the amicus to its own.
In fairness to Mr Ramachandran, his report has not done what the media has been attributing to him. The report clearly records that the statement of suspended IPS officer Sanjeev Bhatt was the only basis for alleging that on February 27, 2002, Mr Modi instructed the officers to go soft on the Hindu rioters. The report also notes that Mr Bhatt’s presence at the meeting was disbelieved by the SIT.
Mr Ramachandran says: “I am conscious of the fact that though Shri Bhatt has been contending that he would speak only when under a legal obligation to do so, his conduct after making his statement under Section 161 of the CrPC has not been that of a detached police officer who is content with giving his version. I am left with no doubt that he is actively ‘strategising’, and is in touch with those who would benefit or gain mileage from his testimony. But these factors, in my view, cannot be grounds for ignoring his statement at this stage”(emphasis added). The report further says, whether Mr Bhatt was present or not would have to be decided at the trial after cross-examination. “If Shri Bhatt stands the test of cross-examination, then regardless of the fact that the other witnesses have not supported his statement, a court of law may return a finding that Shri Bhatt indeed was present at the meeting on 27.02.2002, and that Shri Modi did make a statement as is being alleged by Shri Bhatt.”
Hence, another ipse dixit can easily be accommodated.
In the concluding part of the relevant chapter, the amicus curiae says that even if the chief minister made a statement on February 27, 2002, as alleged, he can be proceeded against under Section 153A of the IPC for promoting enmity between different groups — assertions prejudicial to national integration and so on, carrying the maximum punishment of three years — not for murder.
Mr Ramachandran, in Chapter V of his 25-page report, strongly recommended that the Supreme Court should wash its hands of the matter and that it should be up to the appropriate court to examine whether the request of the SIT for closure of the case can be accepted. He also recommended that the accused should be given a copy of the report and the magistrate should hear arguments on their behalf. He did not find any of the “holes” sought to be magnified by the media, nor did he comment on the alleged shooting by Eshan Jafri or the alleged reaction of the mob; these are matters for thrashing before the court.

The writer is a senior advocate of the Supreme Court and former additional solicitor-
general of India