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Gujarat pogrom Modi is accountable – A G Noorani

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The crimes of 2002 cannot be forgotten. It is still not too late for Narendra Modi to make amends by a sincere, thorough programme of rehabilitation of the victims and by a sincere apology, however belated. Accountability brooks no exceptions. By A.G. NOORANI

 

WHEN, on February 4, 2000, Jog Haider’s Austrian Freedom Party, described by The Economist as “a party with Nazi echoes”, joined Austria’s new coalition government, 14 countries in the European Union imposed sanctions on Austria. If Narendra Damodardas Modi’s assumption of power as Prime Minister of India, on May 26, 2014, has not incurred the same measures, it is not because any one in this wide world has any illusions about his communal and blatantly autocratic tendencies. It is because India is far too great and powerful. Hence the ostentatious welcome from those who had once scoffed at him, and rightly so. He is a man with a past.

Modi demands accountability from one and all: Ministers, civil servants, and the rest. His scorn for accountability is evident in his choice of confidants like Amit Shah, charge-sheeted by the Central Bureau of Investigation (CBI) in the Sohrabuddin-Prajapati fake encounter case, and a couple of Ministers who should have no place in any Cabinet. It would be most appropriate if Amit Shah is made the Bharatiya Janata Party’s (BJP) president (The Hindu, June 26, 2014). As it happened, even as he raced unchecked towards power, there suddenly emerged his Banquo ghost—of all places in the United States. In May 2014 was published a report entitled “When Justice Becomes the Victim: The Quest for Justice After the 2002 Violence in Gujarat” with intimidating documentation—477 footnotes—of Modi’s responsibility and failure of accountability for that pogrom. It cannot be ignored, so impeccable are its credentials.

The report was authored by Stephan Sonnerberg, Clinical Supervising Attorney and Lecturer in Law with the International Human Rights and Conflict Resolution Clinic (IHRCRC). The Stanford IHRCRC is one of 10 clinics in the Mills Legal Clinic at Stanford Law School. It provides direct representation to victims, and partners with communities that have suffered or face potential abuse, or human rights advocacy organisations. Indian non-governmental organisations (NGOs) can collaborate with it. It seeks to train Stanford law students to be effective human rights advocates while simultaneously advancing the cause of human rights and global justice worldwide.

This report was drafted with the support of several student-attorneys in the IHRCRC and was prepared in partnership with various human rights lawyers, community activists and non-profit organisations. The IHRCRC’s research was conducted independently of these actors. “The views expressed in this report are those of the author alone,” he writes. He and his colleagues visited Gujarat.

The author of this report and clinic students werewitness to dozens of conversations between primary victims and survivors of the violence, as well as their family members. These interactions, which took place during meetings held by a civil society group, deepened and contextualised the analysis that informed this report. The traumatic events described by these individuals represent just a small fraction of the totality of the violence that engulfed Gujarat in early 2002.” Besides, he and his team studied the mass of documentation on the subject; court papers, press reports, reports by human rights bodies, and so on.

“The author also sought out many of the lawyers involved in litigating these cases. The author travelled to Delhi, Mumbai, and Ahmedabad. Interviews took place in each of these locations as well as the United States. Given the significant risk that victims and survivors still face when speaking about the events of 2002, all interviewees remain anonymous in this report” (Emphasis added, throughout).

According to the analysis detailed in this report, “the State of Gujarat has failed to pursue accountability vigorously for what transpired in 2002, nor has it effectively acted to alleviate the suffering of riot-affected victims in the past twelve years. The fragility of the situation in Gujarat today suggests that necessary reforms may not be implemented absent serious attention and oversight from outside of Gujarat. Such oversight would necessarily involve the Central Government of India.”

The report highlights the fact that the “communal violence followed a strikingly similar pattern across the State. Mobs of several thousand people arrived in trucks, often dressed in saffron scarves and khaki shorts (the uniform of the Rashtriya Swayamsevak Sangh (RSS), a paramilitary Hindutva volunteer corps), and attacked the Gujarati Muslim population. Muslim homes and shops were selectively identified, looted and burned. Mosques and dargahs (Muslim pilgrimage sites) were destroyed. Muslim women and girls were brutally raped—often publicly. Muslim children and adults alike were butchered and burnt alive.” Only 1.2 per cent of the complaints filed with the police resulted in convictions in the courts.

Shortly before the report appeared came Manoj Mitta’s book The Fiction of Fact Finding: A Study of the Gujarat 2002 Investigations (HarperCollins; Rs.599), a model of thorough research and rigorous analysis, ably reviewed by V. Venkatesan in Frontline. The author has painstakingly analysed the record and pinpointed the failures in accountability.

Ministerial accountability is of two kinds, as Chief Justice of the Bombay High Court Justice M.C. Chagla held in his report as Commission of Inquiry into the Life Insurance Corporation of India (LIC)-Mundhra case (1958). It is actual or personal when the Minister is personally guilty of dereliction of duty. It is constructive when he is responsible for the action of a civil servant. Modi is responsible in both respects. Ivor Jennings opined in his classic Cabinet Government that “the most elementary qualification demanded of a Minister is honesty and incorruptibility. It is, however, necessary not only that he should possess this qualification but also that he should appear to possess it (third edition, page 1060). This is not confined to financial corruption. It extends also to moral corruption, wilful dereliction of duty, falsehoods and refusal to account. A Minister under a cloud is a menace to the polity of public life.

Modi has a lot to answer for. Unimpeachable evidence proves his personal and active culpability for the progrom as well as his constructive responsibility for the actions of his Ministers and officials, especially the police. This is capped by Modi’s statements—evasive and untruthful—and meaningful silences. This aspect was noted by the amicus curiae appointed by the Supreme Court, one of the most highly respected counsel, Raju Ramachandran.

International law has reached out to such persons (see Accountability for Human Rights Atrocities in International Law by Steven R. Ratner and Jason S. Abrams and The Responsibility of States for International Crime; both published by Oxford University Press). Crimes are committed by persons, and by juridical entities, through persons who run them.

What does Indian law have to say about abetment of a crime? Section 107 of the Indian Penal Code says abetment consists of any of these three acts—instigation; conspiracy; intentional aid “by any act or illegal omission’’. Read this with Section 43 which says that “a person is said to be ‘legally bound to do’ whatever it is illegal for him to omit”. Wilful neglect of duty is illegal; more so when it amounts to connivance; worse still, when it is part of instigation.

The record on Modi’s conduct in 2002 is a most unflattering one. Two scholars, Christophe Jaffrelot and Charlotte Thomas, record with precision: “This was not a riot but a pogrom which did not remain confined to a city, but spread to many others and even to the countryside. Twenty-six towns in all were subject to curfew’’ (Christophe Jaffrelot and Laurent Gayer (ed.); Muslims in Indian Cities; Trajectories of Marginalisation; Hurst & Co., London; 2012. An excellent collection of scholarly analyses; page 57).

All were engulfed in the carnage. “Everything went according to a military-like plan. The troops were perfectly disciplined and incredibly numerous: groups of attackers often included up to 10,000 men. These squads generally arrived in the Muslim neighbourhoods by truckloads. They wore a basic uniform—the RSS khaki shorts and saffron headband—and carried daggers and pitchforks as well as bottles of water to quench their thirst en route. The lists that the ringleaders had in hand attested to the premeditated nature of the assault: these indicated Muslim homes and shops, some of which bore Hindu names, thereby proving that investigation had actually been undertaken beforehand to ascertain the owner’s identity. These lists—on computer print-outs—had partly been drawn up on the basis of voters registration lists” (page 58).

Modi carried a very heavy baggage of unsavoury firsts when he became Prime Minister of India. He was the first to earn international notoriety for a pogrom of Muslims on his watch and thus to drag the nation’s reputation to mud.

International condemnation

Professor Richard Bonney of the University of Leicester edited and published, under its auspices, an excellent compilation of material (Harvest of Hatred; Media House, Delhi). In his comprehensive introduction, this is what he wrote under the section on a “pre-planning, instigation and coordination of the Hindu mob response from 28 February 2002 onward”:

“The violence, far from being spontaneous, was planned, possibly months in advance, carried out by an extremist Hindu organisation with the support of theState government. The aim was to purge Muslims from Hindu areas…. This was the verdict of a report prepared for the U.K. High Commission in Delhi by a group led by Peter Holland, First Secretary in the mission’s Political Section. They were assigned the fact-finding task after a British national of Indian origin was burned to death and two of his family went missing. The report was leaked to the press and reported by the BBC and others on 25 April, 2002. The number of victims was stated as higher than in other reports, reaching at least 2,000. The violence, the report contended, had ‘all the hallmarks of ethnic cleansing’, while it concluded that ‘reconciliation between Hindus and Muslims is impossible while the Chief Minister remains in power’. The report added that if the Sabarmati [train] tragedy had not happened, another flashpoint would have been created to justify the pre-meditated violence as ‘reaction’.

“Expressing concern, a European Union draft statement remarked, inter alia, that ‘the carnage in Gujarat was a kind of apartheid… and has parallels with Germany of 1930s’. The E.U. draft statement concluded that ‘Godhra served as a pretext for triggering the violence that followed in the State; the post-Godhra violence was pre-planned and the pattern suggests that the attempt was [made] to purge Muslims from Hindu areas; the Chief Minister instructed senior police officers not to intervene in the rioting; the State and Central governments failed to meet the immediate humanitarian needs of the victims and the Prime Minister visited Gujarat only on April 4’, that is, more than a month after the eruption of the riots. ‘India cannot plead that the events in Gujarat are an internal matter as what has happened is a human rights issue as it was a kind of genocide and ethnic cleansing. And as a signatory of the U.N. Convention on Human Rights, it is forbidden to conduct such violence’, an E.U. source said. “The E.U. draft declaration demanded the removal of the BJP Chief Minister of Gujarat. The E.U. source, Finnish Foreign Minister Erkki Tuomiojaa, however, explained to The Indian Express on 22 April, 2002, that the European Union would not be satisfied with the removal of Modi and would urge his entire government’s dismissal since several Ministers were also indicted by riot victims. The European Union intervention was dismissed by India as interference in its internal affairs: ‘We would like to make clear that India does not appreciate interference in our internal affairs, including the utilisation of the Indian media by foreign leaders as well as by visiting dignitaries to make public statements in order to pander to their domestic lobbies,’ Foreign Ministry spokesperson Nirupama Rao told reporters. The Prime Minister was reported as being livid at ‘sermonising’ from abroad. The European Union backed down and diluted its declaration, merely registering its concern over the continuing sectarian violence in Gujarat.

“The British and European Union documents demonstrated several common themes: that the rioting was not spontaneous but pre-planned and coordinated; that Muslims were the principal targets; and that the result was akin to ‘ethnic cleansing’ or genocide.” Apparently, broadly similar conclusions were reached by the German and Dutch Missions in New Delhi. (Batuk Gathani, “E.U. diplomats call it planned violence,” The Hindu, April 2002; Saurabh Shukla, “Muslims specific target of riots, says Germany”, Hindustan Times, April 23, 2002; “E.U. draws parallel with Apartheid, Nazis,” The Indian Express, April 22, 2002; The Telegraph, May 22, 2002.)

V.K. Malhotra of the BJP criticised the foreigners’ use of the word “genocide” to characterise the pogrom. Article 2 of the Genocide Convention (1948) says: “Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a)Killing members of the group; (b) Causing serious bodily or mental harm to members of the groups; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part….” India is a party to this convention.

Gautam Datt of The Asian Age reported (May 3): “The proposed move to try Gujarat Chief Minister Narendra Modi in the Belgian courts on charges of ‘crimes against humanity’ might not hold ground in light of the recent ruling of the International Court of Justice that Belgium cannot take up charges against a foreign government Minister, who enjoys international penal immunity.

“Diplomatic sources told The Asian Age that the world court’s ruling in the case of former Foreign Minister of Congo, Yerodia Abulaye, has set a precedent of sorts which would be considered if a case is filed against Mr Modi.

“The Belgium court had issued international warrants against Yerodia for his alleged involvement in the 1998 killings of hundreds of ethnic Tutsis under its controversial law which claims universal jurisdiction in human rights cases. In its ruling on February 14, the International Court of Justice asked Belgium to withdraw the warrant, saying the Congo Minister enjoyed diplomatic immunity. … Sources said that with this precedence the filing of a case against Mr Modi may prove a futile exercise. There were reports recently that some of the Britain-based Gujaratis were planning to bring cases against Mr Narendra Modi in the British High Court, the Belgian courts and the International Court of Justice. Sources also pointed out that moving the ICJ is also ruled out as it can be done only by a state.”

In the entire history of democracy all over the world, which other Prime Minister entered office after such widespread international censure, including denial of visas, having tarnished his country’s name?

Supreme Court censure

Secondly, which other Prime Minister had incurred censure from the highest court in the land in such stinging terms? Thanks to the dedicated labours of Teesta Setalvad we have the Supreme Court’s judgment in the Best Bakery case as well. It was delivered on April 12, 2004, (Zahira Habibulah H.Sheikh vsState of Gujarat and Ors (2004) 4 SCC 158). The implications of the court’s observations are so far-reaching that the Gujarat government applied for their expunction and failed. This is what the court said:

“The role of the State government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assisting the trial court’s judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this court expressed its unhappiness over the perfunctory manner in which the appeal was presented and the challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trials should not be reduced to mock trials or shadow-boxing or fixed trials. Judicial criminal administration systems must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution.

Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large numbers of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern-day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice.”

No prizes for guessing the identity of the Nero. The application for expunction revealed an awareness that the cap fit Modi perfectly. During the hearings, the Chief Justice of India, Justice V.N. Khare, said, “I have no faith left in the Gujarat government.” After his retirement, he said in an interview to Hindustan Times(March 5, 2004): “I tried to give a new dimension to criminal jurisprudence considering the fact that there was total miscarriage of justice in the case.”

Historians have written extensively on Nero’s foibles. Shakespeare’s characterisation defies improvement: “Nero is an angler in the lake of darkness.”

Culpable inaction

Which other Prime Minister had to undergo police interrogation as Chief Minister before entering the Prime Minister’s Office? A Special Investigation Team was set up by the Supreme Court because it distrusted Modi’s police. On March 27, 2010, eight years after the pogrom, Modi had to visit its office in Gandhinagar. This was exactly 11 months after the SIT was directed by the court on April 27, 2009, to “look into” a criminal complaint by Zakia Jafri, widow of the Congress MP Ehsan Jafri who was hacked to death outside his home in Gulberg Society in Ahmedabad on February 28, 2002. His 200 phone calls went unanswered. The interrogation was conducted very gently by an SIT member, A.K. Malhotra. Manoj Mitta has devastatingly exposed the SIT’s entire work under the leadership of R.K. Raghavan, former CBI Director, whose report was torn to shreds by the court’s amicus curiae, Raju Ramachandran.

It is to Raju Ramachandran’s great credit that he revealed in measured words asmoking gun—Mod’s culpable silence when it was his duty to explain: “There is nothing to show that the Chief Minister intervened on 28 February 2002 when the riots were taking place to prevent the acts. The movement of Shri Modi and the instructions given by him on 28 February 2002 would have been decisive to prove that he had taken all steps for the protection of the minorities, but this evidence is not there. Neither the Chief Minister nor his personal officials have stated what he did on 28 February 2002. Neither the top police officials nor bureaucrats have spoken about any decisive action by the Chief Minister.”

This alone suffices to damn Narendra Modi—proof of calculated, deliberate and culpable inaction. (Communalism Combat rendered a service by publishing the full text of Ramachandran’s interim and final reports. The quote is from the interim report to the Supreme Court; April-May 2012; page 19).

Notoriety for a pogrom under his watch was compounded with an unprecedented series of hate speeches by a Chief Minister on a minority, the Muslims, and with a record of hostile discrimination against them. Nothing was done to rehabilitate the victims.

Never before were the investigative and the law enforcement agencies and the prosecutorial arm of the state so complete subverted.

To these firsts, add the decimation of the party, the BJP, and its veterans, the undermining of the Cabinet, the nexus with corporate India and its allies in the media, and you have the spectacle of a personage of unique distinction with a remarkable, unsavoury past. Reflect on the indices of his culpability and the picture becomes clearer still.

INDICES OF MODI’S GUILT

1. On February 27, 2002, 58 Hindus were burnt to death in Coach 5-6 of the Sabarmati Express at Godhra, triggering the pogrom of Muslims in Gujarat. After an extraordinary six-month investigation through sting operations, Ashish Khetan reported in a special issue of Tehelka of November 3, 2007, the truths he had unearthed about both crimes “in the words of the men who did it”. In Tehelka of March 5, 2011, he picked apart Judge P.R. Patel’s judgment on February 22, 2011, in the Godhra case. (The Godhra Verdict; Tehelka, March 5, 2011.) We are here concerned with the Chief Minister’s reaction to the Godhra outrage. He was Home Minister as well.

Narendra Modi, very properly, rushed to Godhra, but instantly delivered judgment in the form of a press release by the government, ahead of any inquiry at all. It was a “pre-planned inhuman collective violent act of terrorism”. Two days later (March 1) he delivered an offensive judgment on the Muslims of Godhra as men of criminal tendencies. It is not surprising that a Chief Minister with such an outlook failed, rather refused, to control the pogrom that followed.

2. To add to this provocation, the bodies of 54 of the 58 people killed in the coach at Godhra were brought to Ahmedabad in five trucks. Who gave that order? The Executive Magistrate of Godhra, Mahendra Nalvaya, gave a letter that evening to Jaydeep Patel, joint secretary of the Vishwa Hindu Parishad (VHP), which played a stellar role in the pogrom. It authorised the VHP to take over the custody of the dead bodies, which should have been given instead to the families of the deceased. Why was the VHP, of all the organisations, given the bodies?

Manoj Mitta marshals the facts (Chapter 6). The SIT’s final report (May 2012) coyly holds that the decision had been taken “unanimously” at a meeting held by the Chief Minister (page 127). P.C. Pande, the Commissioner of Police, and Ashok Narayan, the Home Secretary, voiced their concerns in statements recorded in August 2004 by the Nanavati Commission of Inquiry. This episode is of crucial importance, for, it nails to the counter Modi’s prevarications effectively. Manoj Mitta writes: “This was how Narayan described the fears he had about the VHP’s intentions on the eve of the post-Godhra massacres. ‘I knew that VHP members had died in the Godhra incident and that the VHP had called for a bandh the next day. The combination of these two factors raised an apprehension of law and order in my mind.’ Then why did he not take any preemptive action? ‘The decision to shift the dead bodies to Sola Civil Hospital had been taken at a high level’, Ashok Narayan said, adding, ‘I was not at the highest level in the government. This decision to bring the bodies to (Ahmedabad’s) Sola Civil Hospital was taken by the Chief Minister himself.’

“P.C. Pande, too, made no bones about the reservations he had on the same issue. ‘I have no idea why the bodies were brought that night to Ahmedabad. Nor have I tried to find out the reason. I don’t know who took the decision to bring the bodies to Ahmedabad. When I came to know that nearly 58 [sic] dead bodies were being brought to Ahmedabad or had already been brought, I feared serious repercussions because Ahmedabad was a communally sensitive city and was in fact like a tinderbox.’”

Modi could not have been oblivious to the consequences of his permission. Nearly 30 years earlier, there was a similar episode in Sri Lanka for which the Indian establishment blamed President J.R. Jayawardene. Indira Gandhi began actively to intervene in Sri Lanka’s affairs. The facts are set out in the scholars K.M. de Silva and Howard Wriggins’ biography J.R. Jayawardene of Sri Lanka (Leo Cooper, London, Volume 2; pages 559-560).

Jayawardene was no Modi. In the last week of June 1983 he said on TV: “Some fools are attacking innocent Tamils. This [has] compelled me to deploy the Army and the police all over the country to prevent untoward incidents, when these security forces should really be in the north to apprehend Tigers.”

He had planned a Round Table Conference for a settlement for the end of July. While the Tamil United Liberation Front’s (TULF) convention was in progress at Mannar, on July 23, 13 soldiers were killed by the Liberation Tigers of Tamil Eelam (LTTE) in an ambush, obviously to abort the peace process. Reprisals by the army and ethnic clashes followed. The authors record: “Bringing the bodies of the 13 soldiers killed on that occasion for burial or cremation at the principal cemetery in Colombo proved to be a serious mistake. Who recommended it we do not know, but the consequences proved to be disastrous, for it provided a crucial focal point for the outburst that followed. But the outburst may not have been so ferocious if the arrival of the bodies had not been delayed, as happened on this occasion. J.R. had preferred to see the bodies taken to the respective villages or towns for burial or cremation rather than be buried in Colombo’s principal cemetery. In any event once the decision to bring them to Colombo was taken, he urged that they be brought in by 4 p.m. It was 6:30 p.m. when they came in. That delay enabled the crowds to increase enormously in size, and since darkness had fallen there were greater opportunities for mischief-makers to gain an advantage they may not have had if the bodies had arrived at the time they were expected to and the next of kin permitted to remove them to their respective home towns or villages. These delays were a critically important factor in explaining why a containable situation assumed the proportions of an uncontrollable outburst of ethnic hostility. … For the first time since he came to power in 1977 J.R. was in very real danger of being overthrown by the upsurge of anti-Tamil feeling that swept through the Sinhalese areas of the country” (pages 559-560). Riots erupted near J.R.’s private residence. “His own house became a haven for some of his Tamil neighbours” (page 564).

Haren pandya’s revelations & mysterious murder

3. The chain of events on February 27, 2002, culminated in a meeting held by Modi about which the truth came out when, on May 13, 2002, the Minister of State for Revenue, Haren Pandya, spoke to Justices P.B. Sawant and Hosbet Suresh, two judges on the Concerned Citizen’s Tribunal–Gujarat 2002 set up by Citizens for Justice and Peace. Its report in two volumes is based on 2,094 oral and written testimonies (Crime Against Humanity, two volumes, 2002, a most useful document). The Tribunal was headed by Justice V.R. Krishna Iyer, a former judge of the Supreme Court. Outlook of June 3, 2002, carried a report on the conclave by Manu Joseph, but without disclosing the Minister’s identity. “Information with Outlook shows that a senior Minister from his own Cabinet has blown the whistle. Last week, the Minister deposed before the Concerned Citizens Tribunal headed by a former Supreme Court Judge Justice Krishna Iyer.

“The Minister told Outlook that in his deposition, he revealed that on the night of 27 February, Modi summoned DGP K. Chakravarthy, Commissioner of Police, Ahmedabad, P.C. Pande, Home Secretary, Ashok Narayan, Secretary to the Home Department, K. Nityanand (a serving police officer of IG rank on deputation) and DGB (IB) G.S. Raigar. Also present were officers from the CM’s office: P.K. Mishra, Anil Mukhim and A.K. Sharma. The Minister also toldOutlook that the meeting was held at the CM’s bungalow.

“The Minister told the Tribunal that in the two-hour meeting, Modi made it clear there would be justice for Godhra the next day, during the VHP-called bandh. He ordered that the police should not come in the way of ‘the Hindu backlash’. At one point in this briefing, according to the Minister’s statement to the Tribunal, DGP Chakravarthy vehemently protested. But he was harshly told by Modi to shut up and obey. … According to the deposition, it was a typical Modi meeting; more orders than discussion. By the end of it, the CM ensured that his top officials—especially the police—would stay out of the way of the Sangh Parivar men. The word was passed on to the mobs. (According to a top I.B. [Intelligence Bureau] official, on the morning of 28 February, VHP and Bajrang Dal activists first visited some parts of Ahmedabad and created minor trouble just to check if the police did in fact look the other way. Once Modi’s word was confirmed, the carnage began.) …

“The Minister went on to tell the Tribunal that Modi was convinced that since he started the riots, he would be able to control the violence within a day or two … The more shocking aspect of the Minister’s testimony, says a Tribunal member, was: ‘Scores could have been settled in Godhra itself. Perhaps 100 people may have died there on the whole and that may have been the end of it. But Modi brought the riots to Ahmedabad. He took the riots to rest of the State.’”

R.B. Sreekumar, ADGP, Intelligence, stated in an affidavit before the Nanavati-Shah Commission that the then Director General of Police (DGP), Gujarat, K. Chakravarty, had told him about the crucial meeting held by Chief Minister Modi on February 27, 2002. The Chief Minister had said at the meeting that “in communal riots, police takes action against Hindus and Muslims on one-to-one basis. This will not do now, allow Hindus to give vent to their anger” (paragraph 84 of R.B. Sreekumar’s fourth affidavit). Once Haren Pandya came under suspicion, he resigned on August 2, 2002. Seven months later, on March 26, 2003, he was mysteriously murdered.

Sanjeev Bhatt’s testimony

No minutes were kept of this important meeting. However, present also was none other than DIG Sanjeev Bhatt (Ashish Khetan; Tehelka, February 19, 2011; “I was there. Narendra Modi said let the people vent their anger”). When the SIT’s Malhotra questioned Modi in March 2010, he named seven officers who were present but volunteered that Bhatt was not present. The SIT poured cold water over Bhatt’s testimony. The amicus curiae Raju Ramachandran differed pointedly. “There is no reason for him to make a wrong statement.” A former BBC journalist who interviewed Bhatt at 9 p.m. filed an affidavit to confirm that Bhatt had said he needed to go to the Chief Minister’s residence. Bhatt’s chauffeur corroborated this. The reason for challenging Bhatt is simple—he testified to Modi asking the police to lay off.

4. Of a piece with this meeting was the presence of two Cabinet Ministers, I.K. Jadeja and Asho Bhatt, in the DGP’s office as well as the Ahmedabad City Control Room on February 28. The SIT merely said that there was no evidence of interference, which alone suffices to show up the SIT. Raju Ramchandran’s observations damn Modi as well as the SIT:

“The positioning of two Cabinet Ministers having nothing to do with the Home portfolio in the office of the DGP and the State Police control room respectively is another circumstance which reflects that there was a direct instruction from the Chief Minister. Though Shri Jadeja says that he had gone to the DGP’s office on instructions of Shri Gordhan Zadaphiya, MoS (Home), this is highly unbelievable. It is obvious that the Chief Minister had positioned these two Ministers in highly sensitive places, which should not have been done. In fact, these two Ministers could have taken active steps to defuse the riots but they did nothing, which speaks volumes about the decision to let the riots happen. It does not appear that these two Ministers immediately called the Chief Minister and told him about the situation at Gulberg and other places.

“The SIT merely relied upon the statements of the police officers to conclude that these two Ministers did not give any instructions to the police department, but it appears highly unlikely that two Cabinet Ministers of the Government of Gujarat would have not given some kind of directions when the Chief Minister had directed them to remain present.

“It is obvious that the two Ministers were fully aware of the developing situation in Gulberg Society, Naroda Patiya, etc. in Ahmedabad city. They were duty-bound to convey the situation to the Chief Minister and were required to do everything possible to save loss of lives. If the stand of the Chief Minister that these two Ministers were positioned so as to effectively control the law-and-order situation is correct then there would have been a far quicker action to control the riots in Gulberg Society and Naroda Patiya at least.” An SIT which accepts blatantly false pleas by the state reveals itself.

SIT exceeds its mandate

The SIT was set up by the Supreme Court on March 26, 2008, on a petition filed by Zakia Jafri, widow of Ehsan Jafri. It was mutilated at its birth. Its chief, R.K. Raghavan, inspired no confidence even then, still less now (see Mitta, chapter 7, “Investigator himself is indicted”). Among its five serving officers, three were from Gujarat. Two were dropped after their bias was revealed. Another, Noel Parmar, DSP in Gujarat Police, was the Chief Investigating Officer of the Godhra carnage, who had constructed the premeditated conspiracy theory which was under independent review by the SIT. A probe officer was inducted into the SIT to review his own investigation. When the petitioners protested, the SIT reluctantly dropped him from the probe team, inducted his aide, Ramesh Patel, instead. Ashish Khetan reported in Tehelka on March 5, 2011: “On 27 May 2002—five days after the first charge sheet—a new investigating officer was appointed: Noel Parmar, ACP, Vadodara city control room, took over from K.C. Bawa, Western Railway Deputy Superintendent of Police.

“Parmar was far from neutral: he was highly communal. These are snatches of what he told Tehelka’s hidden camera in 2007. ‘During partition, many Muslims of Godhra migrated to Pakistan…In fact, there is an area called Godhra Colony in Karachi… Every family in Godhra has a relative in Karachi…They are fundamentalists…This area, Signal Falia, was completely Hindu but gradually Muslims took over…In 1989 also there were riots…Eight Hindus were burnt alive…They all eat cow meat since it comes cheap…No family has less than ten children.’ Little wonder then that far from doing a fair job, Parmar bribed the pump attendants to change their testimonies.”

The Stanford report points out a fundamental flaw. The SIT was set up to investigate, not adjudge and pronounce verdicts, least of all libel people as it did. It sought to discredit Zakia Jafri several times, describing her allegations as “nothing but fiction created by three four persons”, and for “instigating” potential communal disturbances in the State. It even accused her of having “no respect” for the judiciary (page 111 of report).

The report says: “The SIT, as highlighted by the Ramachandran report, assumed for itself the quasi-judicial function of evaluating the credibility of the evidence crucial to Ms. Jafri’s allegations of criminal conspiracy. As described above, the Supreme Court mandated the SIT only to ‘reinvestigate’ the high-profile cases identified in its order, stating that ‘[f]or the purposes of the cases covered by these directions, the SIT shall take over the functions of the concerned Police Station investigating agencies and accordingly exercise powers and jurisdiction in consonance with the scheme and provisions of the Code of Criminal Procedure 1973.

“Under the Indian Code of Criminal Procedure, all police investigations—regardless of whether the police believe the allegations to be well founded—are handed to a Magistrate’s court. The Magistrate has the power to commission a renewed independent investigation under his or her direction, and decide whether to proceed to trial or dismiss the complaint.

“At the same time that the SIT exceeded its mandate by assessing the evidentiary value of the testimony it had gathered, it also fell short of its mandate to fully re-investigate the alleged crimes in the cases assigned to it. The Supreme Court twice reconstituted the SIT in response to serious allegations of bias among the SIT’s members. The evidence suggests that the SIT failed to conduct a proper investigation.”

On September 12, 2011, another Bench of the Supreme Court, headed by Justice D.K. Jain, abruptly ended its monitoring of the case. We are left with Raju Ramachandran’s observations on the SIT’s findings. His credentials are beyond reproach and his observations cannot be ignored. He was appointed precisely to evaluate the SIT’s report independently.

‘Awfully busy’ Modi

5. To the four indices of culpability, add four more. Modi told the SIT: “I was informed in the law and order review meeting held in the night (28 February) about the attack on Gulberg Society… and Naroda Patiya.” Modi’s claim that he was unaware of major outrages in his city for nearly five hours is an admission of incompetence or condonation; unless, of course, the claim itself is untrue.

6. “Though he had rushed to Godhra within hours of the train burning on 27 February, Modi did not visit the next day—or indeed for some days—any of the places ravaged by post-Godhra violence, although three of them were right in Ahmedabad. This was because he was, as the SIT put it, ‘awfully busy’ holding meetings and taking decisions related to the escalating crisis. Significantly, this excuse of his having been ‘awfully busy’ was offered by the SIT only in its 2012 closure report. This was a far cry from the finding in its 2010 enquiry report, which said: ‘Modi has admitted to visiting Godhra on 27 February 2002. He has further admitted to visiting Gulberg Society, Naroda Patiya and other riot-affected parts of Ahmedabad city only on 5 March 2002 and 6 March 2002… This possibly indicates his discriminatory attitude. He went to Godhra, travelling almost 300 km in a day, but failed to go to the local areas where serious incidents of riots had taken place and a large number of Muslims were killed.’ In a separate note accompanying the 2010 report, SIT chairman R.K. Raghavan added: ‘Modi did not cite any specific reasons why he did not visit the affected areas in Ahmedabad city as promptly as he did in the case of the Godhra train carnage’” (Mitta; page. 232).

7. The army authorities were alerted on a possible need for their assistance on February 27. Modi also called Union Home Minister L.K. Advani about the deteriorating law and order situation. This was followed by a fax message on February 28, 2002, to the Centre. Army columns started arriving in Ahmedabad during the intervening night of February 28-March 1. However, once the Army arrived, it needed logistical support. The Modi administration could arrange all of this only by 2:30 p.m. on the afternoon of March 1. At Godhra, this took up to the afternoon of March 2. By then, a lot of the horror had already struck. This inaction has been widely criticised.

Consider these seven indices in their totality, and an irrefutable case of wilful connivance appears—Modi’s speech at Godhra on February 27; his decision that day to send the bodies in a procession to Ahmedabad; his green signal to the police at the conspiratorial meeting in the evening on February 27; as a follow-up, the planting of two trusted Ministers in the police control room on February 28; the deliberate failure to visit the affected areas; the incredible claim to ignorance of the carnage at the Gulberg Society and Naroda Patiya; and the farce of the deployment of the army. To these add a consistent record of Modi’s hate speeches in the charged atmosphere from February 27 night up to September 9, 2002.

Hate speeches

1. On March 1, 2002, while violence had broken out all over Gujarat, Modi said in an interview to Zee News: “The process of action and reaction is on. I would say if action doesn’t happen there would be no reaction. The people in this area of Godhra have criminal tendencies. First, these people killed a woman teacher. And now they have committed this heinous crime.” This speech was reproduced in the Éditors’ Guild’s Report.

2. The Chief Election Commissioner J.M. Lyngdoh, easily one of the best we have had, was treated to derision, in gross bad taste, because he had declared on August 16, 2002, that the E.C. was not in a position to conduct a free and fair election in the State. “At a rally held within a week near Vadodara, Modi launched a personal attack on the Chief Election Commissioner. The Times of India and The Indian Express reported on August 23, 2002, that Modi referred to him by his full name—James Michael Lyngdoh—no less than six times. It was to emphasise his Christian religion and suggest that he was biased in favour of Italian-born Congress party president Sonia Gandhi. In no-holds-barred language, Modi said: ‘Someone asked me, has Lyngdoh come from Italy? I said we would need to ask Rajiv Gandhi. Some asked, is he a relation of Sonia Gandhi? I said, perhaps they meet in church’” (Mitta; page 220).

3. The infamous Becharaji speech on September 9, 2002, takes the cake. Modi said: “We have resolved to destroy and stamp out all forces of evil who are a threat to the self-respect of Gujarat…. There is allegation against us that we are Hinduwadis. Oh! Brothers, for the development of Becharaji Devi temple, our government has allotted 8 crore rupees. Is it a crime done by us? They say, this Narendrabhai has brought Narmada water to Sabarmati river and this man is so much clever that he brought the water in the month of Shravan (a holy month for Hindus). My dear brothers, we built the dam and so water is available. Let me ask a question to my Congress friends, if water is brought during Shravan month, those mothers/ladies residing on the banks of Sabarmati river can take bath in Narmada water and feel holiness and blessedness. Then what is paining them? Since, we (means BJP) are here, we brought water in Sabarmati during the month of Shravan, when you are there, you can bring it in the month of Ramdan (the holy month of Muslims)… What brother, should we run relief camps? Should I start childrenproducing centres there, (i.e., relief camps)? We want to achieve progress by pursuing the policy of family planning with determination. We are five and our 25!!!! (Ame panch, Amara panchisreferring to Muslim polygamy). On whose name such a development is pursued? Can’t Gujarat implement family planning? Whose inhibitions are coming in our way? Which religious sect is coming in the way? Why money is not reaching to the poor? If some people go on producing children, the children will do cycle puncture repair only. Here some people say no no, are we religious fundamentalists. Brothers, in this matter, how religion is involved? In Gujarat, madrasas are coming up in large numbers. The children have right to get primary education. But, madrasa-going children are deprived of primary education. What will such a child do, when he grows up? Suppose, normal education is not available and only religious education is available, will it not be a burden on Gujarat. We are scrutinising madrasas from Kutch (district) onwards. … We cannot permit merchants of murder to freely operate in Gujarat. … I will not allow those plotting to destroy Gujarat and harm the innocent, to carry out their plans. Gujarat wants happiness, Gujarat wants peace, five crore Gujaratis are united and progressing. … This daughter of Italy (Sonia Gandhi) had given us open certificate that we had insulted the land of Mahatma Gandhi and Sardar Patel. We have to demand your answer in this matter. … If you want to save Kashmir, you have to walk in the path of Sardar Patel. If you want to bring unity in Gujarat, you have to adopt the path of Sardar Patel. If you want to contain and check the merchants of murder, we have to follow the path of Sardar Patel. Our motto is to pursue the path of Sardar. … if we raise the self-respect and morale of five crore Gujaratis, the schemes of Alis, Malis and Jamalis (referring to Muslims) will not be successful to do any harm to us. These five crore Gujaratis will decide about their future. The buffoons of Delhi will not decide the future of Gujarat.”

The amicus curiae Raju Ramachandran said in his final report of July 25, 2011: “The question to be examined is whether the making of the statement by the Chief Minister in the meeting on 27.02.2002, by itself, is an offence under law. In my opinion, the offences which can be made out against Shri Modi, at thisprima facie stage, are offences inter alia under sections 153A (1) (a) & (b), 153B (1) (c), 166 and 505(2) of the IPC. However, it would be for the court of competent jurisdiction to decide whether Shri Modi has to be summoned for any or all of these offences or for any other offence(s).”

That is unlikely to happen. In December 2013 the Magistrate rejected Zakia Jafri’s protest petition against the SIT Report. She deserves all the help she can get. Civil society and the media can move actively in three respects. First, mobilise men and money to improve the lot of the Muslims ghettoised in Gujarat. Secondly, keep a close vigil on the Sohrabuddin Sheikh-Prajapati and Ishrat Jehan cases.

Lastly, prepare a “White Book on the Godhra Crime and the Gujarat Pogrom” containing all the court documents, Zakia Jafri’s massive protest petition in two volumes, with a lucid resume of the perversion of justice. The Stanford report is available online at http://humanrightsclinic.law.stanford.edu/project/the-quest-for-justice/

It should be published in India and widely circulated.

Arvind Pandya, the Modi government’s special prosecutor in the Justice Nanavati-Shah Commission, was captured on a spycam saying it was Modi’s strong leadership that had made the post-Godhra pogrom possible. Indeed. The evidence supports his claim.

The crimes of 2002 cannot be forgotten. It is still not too late for Narendra Modi to make amends by a sincere, thorough programme of rehabilitation of the victims and by a sincere apology, however belated. Accountability brooks no exceptions.

Printable version | Jul 10, 2014 6:36:44 PM | http://www.frontline.in/politics/modi-is-accountable/article6185289.ece

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