The SIT's interest in questioning Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the command responsibility doctrine.
The Special Investigation Team's decision to summon Narendra Modi marks the first time any judicial or quasi-judicial body has seen fit to ask the Gujarat Chief Minister what exactly he was doing when murderous mobs took charge of his state in 2002.
From February 27 — when the Sabarmati Express was attacked by a mob at Godhra — to mid-March, by which time the worst of the targeted violence was over, more than 1,500 Muslims lost their lives across Gujarat. The Justice Nanavati Commission is probing the matter and criminal cases stemming from the violence are at various stages of completion. Despite these, there has, as yet, been no proper accounting for the mass killing and destruction of property. Disturbed by the lack of investigative and prosecutorial enthusiasm within Gujarat, as evidenced by speedy acquittals of the accused, the Supreme Court transferred two cases outside the State. It set up the SIT to help with the probe into a number of high profile incidents. It also put the State government on notice for its failure to punish the guilty, describing Mr. Modi and his colleagues as “modern day Neros” who chose to look the other way while Gujarat burned.
Any society built on the foundations of law would not require the widow of a victim to petition the highest court of the land in order to investigate the reasons behind the state's failure to protect the life of its citizens during those fateful days. The fact that the apex court's intervention was necessary is itself an indictment of the Chief Minister, under whose watch such large-scale death and destruction took place, and under whose leadership, eight years on, justice continues to be elusive.
The petition filed by Zakia Jaffrey and the Citizens for Justice and Peace asks questions that any honest investigator probing the violence would want to ask. At stake is not so much the individual guilt or innocence of Mr. Modi but the need to unearth and dismantle a system of rule which could allow so many innocent people to be massacred.
The petition, pursuant to which the SIT now wants to question Mr. Modi, began life in 2006 as a criminal complaint filed with the Director-General of Police in Ahmedabad by Ms Jaffrey and the CJP. They wanted a First Information Report to be registered against 62 individuals, including Mr. Modi, his ministers and senior police officials and bureaucrats for their role in the 2002 violence. With the police refusing to file an FIR — a requirement under Indian law — the petitioners approached the Gujarat High Court and then the Supreme Court, which last year asked the SIT to look into the matter.
The questions posed in the petition fall into two categories. One focuses on the administration's sins of omission, the other on its alleged acts of commission. Why were the bodies of the victims of Godhra train carnage, all but one of whom were Hindu, brought to Ahmedabad, for example, and why were they paraded in the street? Prima facie, that decision, which was cleared at the highest level, seems to have been designed to inflame communal passions. The petition asks whether senior police officials told the Chief Minister or higher officers in writing about the likely repercussions of parading the bodies. Why was no preventive action taken when a bandh call had already been given by VHP? Why was the Army not called out immediately and why was there a delay in its deployment when it finally reached Ahmedabad? By themselves, none of these questions implies the commission of a crime. But the answers they elicit would obviously provide clues for further investigation.
The petitioners also asked for an investigation into reports that the Chief Minister had held a meeting in Gandhinagar on February 27 evening with senior officers to review the situation arising out of the Godhra incident. A former police officer, R.B. Sreekumar, has alleged in an affidavit that instructions were given to the police at that meeting to allow “Hindus” to “vent their anger” against the state's Muslims. The petitioners also charged collusion between the Modi government and the Vishwa Hindu Parishad -- whose leadership and cadre spearheaded much of the violence against the Muslims – and called for the telephone records of the Chief Minister and senior ministers and officials to be examined.
Some pointed questions
Besides asking the SIT to probe the existence of a conspiracy to unleash communal violence in Gujarat, the petitioners also sought answers to some pointed questions. Why, for example, was there was no response to the desperate calls for help made by Ehsan Jaffrey, the former Congress Member of Parliament and husband of Ms. Jaffrey, who was murdered at the Gulberg housing society in Ahmedabad by a mob along with 68 others on February 28, 2002?
Fearing attacks, many Muslims from the Chamanpura locality of the city had sought refuge in Ehsan Jaffrey's compound believing the police would adequately protect the former MP. As the mob outside grew more menacing, Jaffrey made phone calls to senior politicians and police officers asking for help. But to no avail. In the end, the mob broke in and slaughtered dozens of women, children and men, singling out the elderly Jaffrey for particularly brutal treatment.
One of those who went missing in the violence at the housing society that day was a 10-year-old Parsi boy named Azhar, later to become the subject of Parzania, a feature film on the riots. Last November, his mother, Rupa Mody, testified before a trial court in Ahmedabad that Jaffrey told her he had spoken to Narendra Modi too on the telephone about the threatening mobs outside his compound but the Chief Minister had refused to help.
The Indian Penal Code has powerful provisions dealing with conspiracy and the Prevention of Terrorism Act (which was in force at the time) also has sections which apply well to those responsible for the carnage. But at the heart of the ‘riot system' lies the vicarious responsibility of the political leadership. Both in Gujarat and in Delhi in 1984, when more than 3,000 Sikhs were massacred, the leadership knew mass crimes were happening under its jurisdiction. It could have stopped those crimes promptly but chose not to. Some leaders may even have directly facilitated the commission of those crimes by instructing the police not to act.
As an investigative arm of the Supreme Court, the SIT must be allowed to establish the broad facts about what Mr. Modi did or did not do during the violence. If its investigators find a smoking gun linking him directly or indirectly to the violence or the wider conspiracy to commit violence, one could expect an FIR to be lodged. In the absence of such evidence, the SIT may nevertheless establish the chief minister's vicarious responsibility. If the SIT concludes, for example, that the Chief Minister failed to take timely action to stop the violence and failed to discipline or punish police officers who refused to protect the life and property of those under attack – offences which arguably figure only as dereliction of duty in the IPC and which attract relatively light punishment -- the apex court would have the opportunity to pass judgment by bringing Indian legal practice in line with customary international norms.
Eight years after the Gujarat killings, it is surely time to ask how the Indian legal system could be strengthened so that future day Neros can be held strictly liable for their fiddling in the face of mass crimes. The proposed Communal Violence bill provides one such opportunity formally to embed the doctrine of command responsibility — holding superiors guilty, under certain circumstances, for the acts of those under their command. It also provides an opportunity to strip away the impunity provided to police officers and senior officials, whose acts of omission and commission allow terrible offences to be committed against vulnerable sections of the population. Unfortunately, the draft bill currently lacks such provisions, which means that had it been statute in 2002, it would not have deterred the perpetrators of the anti-Muslim violence in Gujarat. This is the basic test all justice-loving Indians must demand of the proposed new law.