The Supreme Court's amicus curiae in the Zakia Jafri case concluded that Gujarat Chief Minister Narendra Modi can be proceeded against for various offences during the 2002 riots, including promoting enmity among different groups.
On Monday, the Special Investigation Team appointed by the Supreme Court to probe the complaint that there had been official complicity in the violence which claimed the lives of more than 1,000 people, mostly Muslims, released all documents connected with the case to Ms. Jafri and her co-petitioner, Citizens for Justice and Peace. The papers — presented to the apex court at various stages and subsequently handed over to the trial court when it filed a closure report — ran into 20,000 pages, the CJP said, and included the SIT's reports as well as the two reports of the amicus, Raju Ramachandran, filed in January and July 2011 in response to specific directions by the apex court.
Though sources had earlier briefed The Hindu on the broad contents of the amicus' report, its text has only now been made public.
In his report, Mr. Ramachandran strongly disagreed with a key conclusion of the R.K. Raghavan-led SIT: that IPS officer Sanjiv Bhatt was not present at a late-night meeting of top Gujarat cops held at the Chief Minister's residence in the wake of the February 27, 2002 Godhra carnage.
It has been Mr. Bhatt's claim — made in an affidavit before the apex court and in statements to the SIT and the amicus — that he was present at the meeting where Mr. Modi allegedly said Hindus must be allowed to carry out retaliatory violence against Muslims.
Mr. Ramachandran said there was no clinching material available in the pre-trial stage to disbelieve Mr. Bhatt, whose claim could be tested only in court. “Hence, it cannot be said, at this stage, that Shri Bhatt should be disbelieved and no further proceedings should be taken against Shri Modi.”
Significantly, the amicus was of the view that in itself Mr. Modi's alleged statement was an offence under the law and he could be prosecuted under various Sections of the IPC: “In my opinion, the offences which can be made out against Shri Modi, at this prima facie stage, are offences, inter alia, under Sections 153 A (1) (a) & (b) (statements promoting enmity between communities), 153B(1) (c) (imputations and assertions prejudicial to national interest), 166 (public servant disobeying a direction of the law with intent to cause injury) and 505 (2) (statements conducing to public mischief) of the IPC.
In its reports, the SIT had dismissed Mr. Bhatt as an unreliable witness on several grounds: He had been silent for nine years; he had “an axe to grind” against the State; his language on what Mr. Modi said was not exact; he had tried to tutor witnesses; and his claims about attending a meeting called by Mr. Modi for 10. 30 a.m. on February 28, 2002 had been belied by his call records which showed he was in Ahmedabad at that time (Mr. Bhatt told The Hindu, two meetings took place on February 28, 2002, one in the forenoon and the other in the afternoon).
The SIT also said Mr. Bhatt's presence at the February 27 meeting had not been corroborated by other participants.
In his final report, the amicus, however, said: “The stage for believing or disbelieving a witness arises after trial i.e. once the entire evidence is placed before the court for its consideration. It would not be correct to conclude, at this stage, that Shri Bhatt should be completely disbelieved unless there is clinching material available to the contrary…”
Further, “the question whether Shri Bhatt was present at the meeting ... and whether Mr. Modi had indeed made such a statement, can only be decided by a court of law ...”
In Mr. Ramachandran's view, two specific allegations in Ms. Jafri's omnibus complaint, were very serious: Mr. Modi's instructions to police officials at the February 27, 2002 meeting. And, secondly, the positioning of two cabinet ministers at the State and Ahmedabad city police control rooms during the anti-Muslim violence.
The amicus contested the grounds laid out by the SIT for disregarding Mr. Bhatt's testimony. He said though he was conscious that Mr. Bhatt had not behaved like “a detached police officer” and had actively strategised with others, he was of the opinion that this background did not detract from Mr. Bhatt's testimony: “In my opinion, despite the aforesaid background, it does not appear very likely that a serving police officer would make such a serious allegation against Mr. Modi, the Chief Minister of the State, without some basis. There is no documentary material of any nature whatsoever which can establish that Shri Bhatt was not present in the meeting on 27.02.2002.”
Mr. Ramachandran pointed out that the SIT had chosen to believe the words of senior officers despite acknowledging in its preliminary report that they could not be relied upon. According to the SIT, some of the officers had long retired and claimed loss of memory as they did not want to get into controversy. Some others had received good post-retirement benefits and felt obliged to the “present Chief Minister and therefore their testimony lacks credibility.”
Mr. Ramachandran, then, went on to state why, in his opinion, Mr. Bhatt could have attended the crucial meeting. Two senior Intelligence officers of the time, IB chief G.C. Raiger and Deputy Commissioner (Political and Communal) P.C. Upadhyay were both on leave on February 27, 2002. Mr. Raiger had said that Mr. Bhatt had accompanied him in the past to meetings called by Mr. Modi, though he would stand outside with files: “Thus it is quite possible that Shri Bhatt was directed to attend the meeting on 27.02.2002 at the residence of the Chief Minister. The phone call records do not contradict the statement given by Shri Bhatt to the SIT. Considering the important and emergent nature of the meeting, the relative “juniority” of Shri Bhatt need not have come in the way of his attending the meeting … the context (was) of an emergency meeting called at short notice in response to an escalating situation …”
In its preliminary report, the SIT had remarked negatively on the placement of two ministers I.K. Jadeja and Ashok Bhatt, in the control rooms, saying “there is every likelihood that this (their presence) had at least his (Mr. Modi's) tacit approval. However, the investigation team held subsequently that the presence of Mr. Bhatt (who has since passed away) could not be established. The SIT also came to the conclusion that the minister/ministers did not interfere in any manner with the functioning of the police.
The amicus disputed the SIT's changed version on Minister Ashok Bhatt's presence and pointed out that the SIT's first report was based on Mr. Bhatt's own statement that he had visited the control room on February 28, 2002.
He also argued that the ministers' very presence at the control rooms could have influenced senior police officials, and this aspect needed examination during the trial: “However, there is the possibility that the very presence of these 2 Ministers had a dampening effect on the senior police officials, i.e. the DGP and the Commissioner of Police, Ahmedabad, if indeed, Shri Modi had made a statement (as alleged) the previous night. This is again one of the circumstances which can be taken into account and examined during the course of the trial.”
Mr. Ramachandran said though there was “absence of material” to indicate that the two ministers had acted on Mr. Modi's alleged anti-Muslim instructions of February 27, 2002, “the very presence of political personalities unconnected with the Home Portfolio at the Police Control Rooms is circumstantial evidence of the Chief Minister directing, requesting or allowing them to be present. As already noted, the Chairman, SIT himself found that their positioning in the Police Control Rooms had, at least, the Chief Minister's ‘tacit approval'.”
The amicus, however, agreed with the SIT on a few of its findings. He accepted the SIT's conclusion that Haren Pandya could not have been present at the February 27 meeting. He also accepted the SIT's conclusion, “with regard to the steps taken by Chief Minister Shri Modi to control the riots in Ahmedabad.”