A ruined life Zakia Jafri, widow of Ehsan Jafri with Teesta Setalvad
book extract
Don’t Ask, Don’t Tell
Nine hours, two sessions, 71 questions; yet, as a new book examines, all SIT’s done is put Modi’s defence on record, not challenge contradictions
COMMENTS PRINT
Interview
The co-author of When a Tree Shook Delhi: The 1984 Carnage and its Aftermath on his upcoming book The Fiction of Fact-finding: Modi and Godhra.
Sundeep Dougal
The Fiction Of Fact-Finding: Modi & Godhra
THE FICTION OF FACT-FINDING: MODI & GODHRA
BY
MANOJ MITTA

HARPERCOLLINS | PAGES: 259 | RS. 599

When Narendra Modi visited the office of the SIT (Special Investigation Team) in Gandhinagar on March 27, 2010, it was exactly 11 months after the Supreme Court had directed it to “look into” a criminal complaint. Modi’s visit in response to an SIT summons was a milestone in accountability—at least in potential. It was the first time any chief minister was being questioned by an investigating agency for his alleged complicity in communal violence. The summons were on the complaint by Zakia Jafri, the widow of former Congress MP Ehsan Jafri, who had been killed in the first of the post-Godhra massacres in 2002.

Jafri’s complaint, which had been referred to it by the Supreme Court on April 27, 2009, tested the SIT’s independence and integrity more than any of the nine cases that had been originally assigned to it a year earlier. Jafri’s complaint called upon it to probe allegations against 63 influential persons, including Modi himself. The complaint named Modi as Accused No. 1 for the alleged conspiracy behind the carnage that had taken place in 14 of Gujarat’s 25 districts. A Supreme Court bench, headed by Justice Arijit Pasayat, authorised the SIT not only to “look into” Jafri’s complaint but also to “take steps as required in law”. The legal steps that needed to be taken immediately were self-evident. The SIT was required to examine whether the information contained in Jafri’s complaint amounted to, as Section 154 CrPC put it, “the commission of a cognizable offence”. If so, the SIT would be obliged, under the same provision, to register a first information report (FIR), which is a statutory prelude to an actual investigation.


The Gulberg Case

  • Gulberg Society, a middle-class Muslim colony located in Chamanpura, a Hindu-dominated locality in eastern Ahmedabad, is attacked on February 28, 2002, a day after coaches of the Sabarmati Express are set afire near the Godhra railway station.
  • Ehsan Jafri, 73, a former Congress MP who lived in the Society, made numerous SOS calls to police officers and various Congress leaders. Police claimed the mob went out of
    control when Jafri opened fire. He was one of the 69 people killed. Most houses in the
    neighbourhood were burnt.
  • In 2006, Jafri’s widow Zakia sought to register another FIR against Narendra Modi and 62 other top police and administrative officials alleging they had aided, abetted and conspired for the riots.
  • In 2008, the Supreme Court appointed a four-member Special Investigation Team (SIT) headed by former CBI director R.K. Raghavan to conduct investigation in these cases.
  • In September 2011, the SC refused to pass an order on Modi’s role in the Gulberg Society case and directed concerned magistrate of Ahmedabad to decide the case; SIT submits its report in February 2012.
  • In Dec 2013, court rejects Zakia’s petition against SIT’s closure report giving Modi a clean chit in the 2002 riot cases.

The SIT did conduct a probe into Jafri’s complaint but it was done without fulfilling the precondition of registering an FIR. The elaborate probe, stretching over 12 months and recording the statements of 163 witnesses, took place under the guise of a “preliminary enquiry”. Then, even after the conclusion of the so-called preliminary enquiry, the SIT was disinclined to register any FIR on Jafri’s complaint. In its May 12, 2010 “enquiry report”, the SIT asked the Supreme Court if it could instead conduct “further investigation” in the existing case of Gulberg Society, where Jafri was a witness. The SIT’s proposal flew in the face of Jafri’s complaint, which had sought a broad-based probe into the conduct of the Modi government, encompassing all the carnage cases, rather than a narrowly-focused further investigation in any particular case. Besides, the period covered by Jafri’s complaint was an extended one as it referred to, for instance, the Supreme Court’s indictment of the Modi regime in 2004 in the Best Bakery and Bilkis Bano cases.


A farce concluded Modi addresses the media after his SIT appearance

Despite the mismatch between the restricted scope of the Gulberg Society case and the wide ambit of Jafri’s complaint, a Supreme Court bench, headed by Justice D.K. Jain, gave the go-ahead to the SIT’s proposal. This could be because the permission for further investigation sought by the SIT was only into allegations against a junior minister, Gordhan Zadafia, and two police officers, M.K. Tandon and P.B. Gondia. Later on, though, the Supreme Court extended the purview of the further investigation to the alleged complicity of Modi himself. This long-drawn-out but unusual exercise culminated on February 8, 2012 in a “final report” to a magisterial court in Ahmedabad exonerating Modi and the rest of the accused persons of any of the criminal culpability alleged by Jafri’s complaint.

 
 
It could have been a milestone in accountability: a CM being investigated for his complicity in communal riots.
 
 
Such a conclusion was predestined, if not predetermined, for a variety of reasons. Not least of those reasons was the manner in which the SIT’s closure report relied implicitly on Modi’s testimony. This was despite the fact that Modi’s statement had been perfunctorily recorded outside the framework of the CrPC. The only time he appeared before the SIT was when Jafri’s complaint was still in the phase of preliminary enq­uiry. His statement could therefore not be recorded under Section 161 CrPC, the provision normally invoked to question any person “supposed to be acquainted with the facts and circumstances of the case”. Had he been summoned during the “further investigation” too, Modi would have been leg­ally obliged to speak the truth under Section 161 CrPC. The provision stipulates that the person questioned “shall be bound to answer truly all questions”, subject to the universally recognised right against self-incrimination. That Modi was not put under such a legal obligation “to answer truly all questions” was a curious omission. The SIT ref­rained from summoning Modi even as it recorded fresh statements under Section 161 of several other persons named as accused in Jafri’s complaint. This led to the anomaly of the SIT’s final report to the magistrate relying on the testimony given by Modi during the preliminary enquiry, which was outside the scheme of the CrPC.

The Gulberg Society query with Modi’s answer and signature
When Modi’s testimony was recorded, the questioning was done by SIT member A.K. Malhotra, a retired CBI officer. What began on March 27, 2010 went on for as long as nine hours over two sessions, with the second spilling over into the wee hours of the following day. The length of the interrogation was, however, out of proportion to its intensity. Although as many as 71 questions were addressed to him, the transcript, bearing Modi’s signature on every page, shows that Malhotra studiously refrained from challenging any of his replies, however controversial. At no point did Malhotra make the slightest effort to pin Modi down on any gaps and contradictions in his testimony. Although the questions, culled from Jafri’s complaint, were extensive, the SIT refrained from asking a single follow-up question. It seemed as if Malhotra’s brief was more to place Modi’s defence on record rather than to ferret out any inconsistency or admission of wrongdoing. Malhotra’s approach of sticking to his question script, irrespective of the answers elicited by it, helped Modi get off the hook on more than one issue. Both parties made the most of the absence of the Section 161 obligation: with Modi, it was not to “answer truly” and with the SIT, it was not to put “all questions”.

Take the reluctance displayed by the SIT in March 2010 to corner Modi on the terror conspiracy allegation made by him within hours of the Godhra incident. The SIT’s reluctance was obvious because a year earlier the Gujarat High Court had upheld a statutory review committee’s recommendation that terror charges could not apply to the Godhra case. Among the reasons pointed out by the review committee headed by a retired high court judge were that the miscreants involved in the Godhra arson had not used any firearms or explosives, that they had attacked coach S-6 from only one side and that they had allowed passengers of the overcrowded coach to escape from the other side. These reasons were found convincing enough for the high court to declare in February 2009 that “the incident in question is shocking but every shocking incident cannot be covered by a definition of a statute which defines terror”.

 
 
By asking if it could further investigate the Gulberg case, the SIT restricted the broader scope of Zakia Jafri’s complaint.
 
 
The high court ruling exposed Modi’s attempt to magnify the Godhra arson as a terror attack. This in turn was integral to probing Jafri’s charge that Modi was himself involved in the conspiracy behind the post-Godhra violence. Without bringing up the word ‘terror’, Malhotra did ask Modi about the basis of his allegation. But he was allowed to get away with the claim that he had never made any such allegation. In fact, Malhotra helped Modi get away with the denial by putting the question in a misplaced context. While interrogating him in a chronological sequence, Malhotra asked Modi about his Godhra allegation in the course of questions about his statement in the Gujarat assembly early in the afternoon on February 27. This was misplaced as the allegation had actually come later in the day from Godhra. Here’s how the charade played out during the recording of Modi’s testimony:

Malhotra: Did you declare the Godhra incident as pre-planned and that Pakistani/ISI hands were behind the Godhra incident? If so, on what basis?

Modi: I did not utter any such words in the assembly. Of course, the media had put some questions to me about it, but I had told [them] that nothing could be said until the investigation was completed.

In other words, Modi admitted that on the conspiracy question, his initial reaction on the fateful day was that he would rather not comment till the police had unravelled the crime. It was a tacit acknowledgement that, as head of the state government, he could ill-afford the luxury of baseless speculation lest it provoke a law and order crisis. A logical follow-up to that could have been: how could he then abandon all caution the same evening and make the terror allegation without waiting for the police investigation to be completed? The SIT never put any such question to Modi; not even after he had made no bones about the dramatic change in his attitude to pre-judging the case during his visit to Godhra the same day. The closest Malhotra came to doing so while dealing with the Godhra visit was when he asked Modi a general question about his media interaction in that town.

Malhotra: Did you meet mediapersons at Godhra?

Modi: While I was at Collectorate, Godhra, a lot of mediapersons had assembled there. I briefed them about the incident and informed them that the culprits would not be spared and that a compensation of Rs 2 lakh per victim would be paid. I also appealed to [the] public through them for maintenance of peace. I also informed the media that on the basis of facts narrated to me by the persons present on the spot as well as injured persons, the incident appeared to be a serious and preplanned conspiracy. (emphasis added)

It was thus left to Modi to reconstruct on his own the allegation he had made in Godhra. The SIT did not challenge his attempt to make out that he had talked merely of conspiracy and not of terror. Modi could have been confronted with, if nothing else, the official press release issued on the evening of February 27. On the strength of his “spot assessment of the situation”, it quoted Modi as saying that the Godhra incident was a “preplanned inhuman collective violent act of terrorism”. The torrent of adjectives showed that he had described Godhra quite definitively as a terrorist conspiracy.

Such certitude was, however, missing eight years later when he was being questioned by the SIT. Modi claimed that all he had instead said on the day of the arson was that it was an ordinary criminal conspiracy (“serious and preplanned”), that too in a qualified manner (“appeared to be”). The sanitised account he presented to the SIT was apparently intended to convey that on the evening of February 27, 2002, he had shown due restraint in the face of extreme provocation.


’84 riots At least Rajiv could say he was mourning his mum

In the vastly changed circumstances of 2010, Modi was wary of recalling his terror rhetoric. It was a different world in 2002 when he had reacted so stridently to the train arson. He was then tapping into the heightened fear of jehadi terror around the world in the wake of the attacks on the WTC twin towers in New York and Parliament House in New Delhi. Both those major terror incidents had taken place just a few months prior to the Godhra incident. In fact, Godhra happened when George Bush’s war on terror was raging on Pakistan’s western border as a result of 9/11, and tens of thousands of Indian troops had been deployed on its eastern border as a result of the Parliament attack. Modi’s attempt to pass off Godhra as another terror strike in such a charged environment still took a leap in logic. This is because the Godhra arson did not have any of the obvious features of terror such as RDX explosives, AK-47 rifles, or hijacked aircraft. Besides, none of the police documents generated that day in Godhra, including the FIR and the case diary, contained the slightest hint of terrorism.

 
 
Had Modi been probed under Sec 161 CrPC, he would have been bound to answer truly. But he was called for a preliminary inquiry.
 
 
The SIT’s failure to pin him down on the terror issue pales in comparison to its disregard of Modi’s prevarication on the post-Godhra massacres. Though his responsibility to control the attacks on Muslims was more direct, the SIT’s questions turned out to be as evasive as his replies. One glaring issue was Modi’s delayed response to the prolonged siege at Ahmedabad’s Gulberg Society, the site of the first post-Godhra massacre. Unlike his terror allegation, this problem of delayed response though was not peculiar to Modi. It is a thread that runs through most of the flare-ups of communal violence in India, whether in remote villages or right inside big cities. The delay could stretch to hours, as it did in Ahmedabad in 2002, or more than a day, as it did in Delhi in 1984. The delay in responding proportionately is typically the gap in governance that creates room for mass crimes. The Supreme Court’s intervention on Jafri’s complaint provided the first-ever opportunity for an investigating agency to get to the bottom of this recurring factor in communal violence. The SIT, however, frittered away this unprecedented opportunity. The SIT was wary of questioning him on his failure to respond to the violence at Gulberg Society, although he had been in its vicinity for over two hours on February 28. In his testimony, Modi made out that he had no clue to any of the violence at Gulberg Society, including Ehsan Jafri’s murder, till he was told about it five hours later by the police. This is how the testimony was actually recorded:

Malhotra: Did you receive any information about an attack by a mob on Gulberg Society? If so, when and through whom? What action did you take in the matter?

Modi: To the best of my knowledge, I was informed in the law and order review meeting held in the night about the attack on Gulberg Society in Meghaninagar area and Naroda Patiya.

What was listed as Question No. 31 in Modi’s testimony actually had three parts to it. The first was whether Modi had received any information about the mob attack on Gulberg Society. Modi’s answer was yes. The second part was when and through whom had he received the information. Predictably, Modi indicated that he had been informed about the massacre by the police. The surprise, however, lay in the time he claimed to have been “informed” about the massacre. Modi said that it was at the law and order meeting “held in the night”. In a different context, while enumerating all the measures Modi had taken on February 28, the SIT’s 2012 report disclosed on page 256 that this law and order meeting had taken place in Gandhinagar at 8.30 pm. So, linking the two discrete pieces of information recorded by the SIT, my book for the first time establishes the precise time at which Modi claims to have been informed about the Gulberg Society massacre. It was 8.30 pm, a claim that strains credulity given the magnitude of the massacre which, according to the SIT’s own findings, was exe­cuted right in Ahmedabad by 3.45 pm. By then, Gulberg Society had been, as the SIT report put it on page 494, “set ablaze and lot of lives including that of Late Ehsan Jafri had been lost”.

 
 
Modi said he had no clue about the violence at Gulberg Society till 8.30 pm when by 3.45 pm many lives had already been lost...
 
 
Modi’s claim to have learnt about the massacre only at the 8.30 pm meeting threw up a glaring and unexplained time lag. But the SIT neither contested his claim during the interrogation nor discussed the implications of his claim in its report. It tacitly accepted Modi’s claim that he had no real-time information on the prolonged Gulberg Society siege and massacre, stretching over eight hours. And even after Joint Commissioner M.K. Tandon was said to have intervened in the Gulberg Society massacre around 4 pm, Modi remained out of the loop for nearly five hours, till the news was apparently broken to him at the 8.30 pm meeting. As a corollary, insofar as the SIT was concerned, the third part of its Question No. 31, asking what action Modi had taken in the matter, was rendered inconsequential. Since he somehow remained in the dark during all those crucial hours when he could have made a difference, there was no question of holding Modi to account for the Gulberg Society massacre, or so went the SIT’s line of reasoning.

In reality, Modi’s claim to have been ignorant about the Gulberg Society massacre seems inconsistent with his own larger claim to have been tracking the post-Godhra violence as it unfolded. This contradiction was apparen­tly lost on the SIT. It accepted Modi’s plea of ignorance even as it meticulously listed out a series of meetings Modi had held in the days following the Godhra incident, all focused on the task of controlling violence against Muslims.


Police Lines (Clockwise from above) SIT chief R.K. Raghavan, then director-general of police K. Chakravarthi and then Ahmedabad police commissioner P.C. Pande.

In the sequence of events reconstructed by the SIT, one such meeting was held by Modi in Gandhinagar at 1 pm on February 28, when things were coming to a boil in Gulberg Society. Joint Commissioner Tandon had already made a brief visit to Gulberg Society around 11.30 am, when he ordered the “striking force” accompanying him to burst teargas shells to disperse “a mob of around 1,000 Hindu rioters”. Further, at 12.20 pm, the police control room received a message from the Meghaninagar police station asking for reinforcements as the mob, which had regrouped at Gulberg Society and grown to 10,000-strong, was indulging in stone-pelting and arson.

How could none of these details about the escalating crisis in Gulberg Society have been brought to Modi’s notice in the law and order review meeting he had at 1 pm? Modi’s claim to have been unaware of the Naroda Patiya violence as well, at the end of that meeting, is even more puzzling. This is because by then, at 12.30 pm, the police had, for the first time in the context of the post-Godhra massacres, imposed a curfew in the jurisdiction of the Naroda police station. Even if it proved to be ineffective, the very imposition of the curfew signified that the administration had taken cognizance of the gravity of the situation.

 
 
...he had held a law and order meet at 1 pm, then at 4 pm, followed by a press conference, and an appeal for peace on DD at 6 pm.
 
 
Modi’s general claim of ignorance sounds all the more dubious as some of his engagements on February 28 were at a venue barely three kilometres from Gulberg Society: the Circuit House Annexe in Ahmedabad’s Shahibaug. He held a law and order review meeting at this venue at 4 pm, by when the massacre had been carried out at Gulberg Society and Tandon had just returned to the spot. While Modi’s meeting was going on just a few kilometres away, Tandon finally ordered firing, leading to casualties among the rioters at Gulberg Society. Tandon was also engaged in the process of evacuating some 150 survivors, including women and children, from this Muslim pocket. Further, he directed Inspector K.G. Erda to “complete the inquest promptly and send the dead bodies to hospital for post-mortem examination”.

Yet, for the next few hours, Modi was not given the slightest hint of the first big massacre in the wake of Godhra—or so went the official narrative, accepted without demur by the SIT. This, despite the SIT’s own acknowledegment of a flurry of messages within the police establishment during the Gulberg Society violence. At 2.05 pm, Tandon asked for more reinforcements from the control room stating explicitly that, from the information received by him, Jafri and his neighbours had been “surrounded by the mob”. This was followed by another urgent message at 2.14 pm, this one by the officer on the spot, Erda, saying that the mob was “about to set fire to the entire society”. At 2.45 pm, Erda told the control room that the mob had surrounded not just the Muslims but also the police.

Besides such a chilling countdown to the massacre, the SIT report referred to a message from the highest police officer of the state, K. Chakravarthi, indicating that he was very much privy to the first major instance of post-Godhra violence playing out in Gulberg Society. The SIT also reported that it was on the instructions of the Ahmedabad police commissioner, P.C. Pande, sent at 3.16 pm, that another senior officer, P.B. Gondia, had reached Gulberg Society at 4.05 pm, shortly after Tandon’s arrival.


Lone flame A survivor lights a candle on the sixth anniversary

Thus, there was an unexplained disconnect between what the police brass were admittedly aware of and what Modi claimed to have learnt or not learnt from them in the course of that fateful day. Shortly after his law and order review meeting in the Circuit House Annexe, Modi held a press conference at the same venue from 4.30 pm to 5.45 pm, when he announced his decision to call the army. Though it was prompted by the deteriorating situation in Ahmedabad, the decision to call the army had nothing to do with Gulberg Society, the biggest massacre till then, as he was apparently yet to hear about it. Before leaving the Circuit House Annexe, Modi gave Doordarshan around 6 pm a recording of a customary “appeal for peace”. It was on returning to his Gandhinagar home that Modi held the 8.30 pm meeting where he claimed to have finally heard about the mass crimes in Gulberg Society.

 
 
If, as he claims, he was kept out of the loop till 8.30 pm, Modi himself rather than the SIT should have held police brass to account.
 
 
How could the earlier meetings, focused as they were on the escalating violence, have missed out on Gulberg Society? The best argument that could perhaps be advan­ced in Modi’s favour was that even journalists at his 4.30 pm press conference seemed to have been oblivious to Gulberg Society. For nobody at the press conference had pointedly asked him about the first big massacre, which had just taken place a little distance away. This does suggest that, as violence was breaking out across the state, journalists were as yet unaware of the enormity of the violence at Gulberg Society, including the brutality with which a former MP had been murdered there. But it is implausible to assume such ignorance on the part of someone wearing the hats of the chief minister and home minister of Gujarat. Besides being briefed at the meetings held by him through the day, Modi would have been regularly receiving ‘sit-reps’ (situation reports) from the state police control room and the state intelligence bureau on the law and order crisis. If there was any truth to his claim to have been out of the loop till 8.30 pm, then the police brass should have been held to account by Modi himself, let alone the SIT. After all, the issue was not just their lap­ses in dealing with the violence; he should have been even more affronted by their failure to alert him, during the meetings and in their ‘sit-reps’, about what was till then the worst instance of violence. At stake were not just the lives of innocent Muslims but his own self-styled image as a decisive and impartial administrator.

Since he had taken no action against the police in all the years before the SIT probe, it should have been all the more a reason for the SIT to question Modi on the wide gap in his narrative between the time of the mass killings and the time he had come to know about them. Such a gap was harder to accept in his case than that of, say, Prime Minister Rajiv Gandhi, for the corresponding situation in the 1984 carnage. While Modi was admittedly immersed in the challenge of combating the post-Godhra violence, Rajiv Gandhi had the fig leaf that he was himself in mourning during the massacres of Sikhs and that he was most of the time standing next to the body of his assassinated mother Indira Gandhi lying in state in Teen Murti Bhavan. For that matter, even Prime Minister P.V. Narasimha Rao had the excuse that the Constitution did not permit him in 1992 to take any pre-emptive action to save the Babri Masjid from being demolished by kar sevaks allegedly in collusion with the BJP government in Uttar Pradesh.

The unexplained incongruities in Modi’s account would have lent credence to Zakia Jafri’s allegation that he was complicit in the massacres of Muslims. So, playing it safe, the SIT refrained from confronting Modi with any of the obvious follow-up questions. This charade bore a lesson in fact-finding. The integrity of fact-finding hinged on a deceptively simple factor: the nature of the questions that have been put or not put. Despite the monitoring by the Supreme Court, the SIT got away with dodgy manoeuvres during the interrogation. This ensured that Modi never had to account for key issues such as the basis of his terror allegation on Godhra and his claim to have been unaware of the Gulberg Society massacre even as he was apparently grappling with the post-Godhra violence. It took so little to cover up the truth behind the 2002 carnage.

 
 
Modi should have been summoned afresh in 2011. Instead the SIT settled for one of his aides, OSD Sanjay Bhavsar.
 
 
This fiction of fact-finding is a far cry from a stirring example of governance set early in the history of India’s experiment with secularism. When Mahatma Gandhi was assassinated within six months of Indepen­dence, any irresponsible remark at that sensitive moment from those in authority could have revived the communal bloodbath seen at the time of the subcontinent’s partition. When independent India’s first governor-general, Lord Mountbatten, arrived at Birla House within minutes of the assassination on January 30, 1948, he heard someone in the crowd shouting that it was a Muslim who had murdered Gandhi. Mountbatten sho­wed the presence of mind to scotch the rumour even before he learnt the identity of the killer. “You fool, everyone knows it was a Hindu,” he shot back, in a bid to gain time for the administration to control the situation. All India Radio (AIR) deferred the announcement of Gandhi’s death by over half an hour till the police confirmed that the assassin was indeed a Hindu. The decision to convey both details together helped avert attacks on Muslims. This was how the national broadcaster broke the news at 6 pm: “Mahatma Gandhi was assassinated in New Delhi at twenty minutes past five this afternoon. His assassin was a Hindu.” Barring stray attacks on Maharashtrian Brahmins, the country remained peaceful.


Clockwise from top Raju Ramachandran, amicus curiae in the Jafri plea; Justice D.K. Jain, who gave SIT go-ahead for further probe in Gulberg Society and Justice Arijit Pasayat, who authorised SIT to look into the Zakia complaint

By not holding Modi to the kind of standards of governance that had been set way back in 1948, the SIT belied the faith that had been reposed in it by the Supreme Court. But then, the Supreme Court too is to blame for the resultant impunity. Given the reputation for independence built by the Supreme Court over the years, how did its monitoring of the probe in this critical case turn out to be such a letdown?

A key element of the monitoring was the mechanism of the amicus curiae, a senior lawyer appointed by the Supreme Court to provide independent advice to it. While the amicus curiae for nine cases originally entrusted to the SIT was senior advocate Harish Salve, the one for Jafri’s complaint was senior advocate Raju Ramachandran. From what has been disclosed of the monitoring, the voluminous reports, testimonies and documents presented by the SIT on Jafri’s complaint were scrutinised not so much by the three judges on the bench as by Ramachandran. Much as he played this critical role with due independence, Ramachandran, it would appear, could have done with greater thoroughness. For someone who had been a law officer for the Vajpayee government, Ramachandran displayed remarkable independence as amicus curiae, in standing up to the SIT’s resolve to exonerate Modi of all charges. At the same time, his scrutiny seemed to have been hampered by the fact that he never really stepped out of the frame set by the SIT. Rama­chandran’s literal interpretation of his brief might have enhanced the credibility of his reports but, in the process, he seemed to have overlooked some material evidence.

 
 
Modi had called Godhra a terror act on Feb 27 evening. By asking him if he’d said it at noon in the assembly, he could deny it.
 
 
Take his failure to notice the farcical nature of the SIT’s questions to Modi. Neither of his reports, which were the bedrock of the Supreme Court monitoring, made any comment on those questions. Whatever had been held back or played down by the SIT, in effect, escaped the Supreme Court monitoring, irrespective of its relevance to the subject of the probe. As a consequence of this rather blinkered approach, Ramachandran missed the import of Modi putting the imprimatur of his office on the vhp’s terror allegation. In his interim report in January 2011, Ramachandran said that Modi’s alleged interference with policing warranted “further investigation” under the CrPC, going beyond the preliminary enquiry done by the SIT. This followed the further investigation that the SIT had already conducted with the Supreme Court’s permission against minister Gordhan Zadafia and police officers M.K. Tandon and P.B. Gondia. The further investigation against these three had happened before Ramachandran’s appointment in November 2010 and had led to the conclusion that the evidence was insufficient to prosecute any of them. Whatever the odds stacked against it, the fresh line of investigation proposed by Ramachandran opened up the possibility of the SIT probe substantiating the allegation of a high-level political conspiracy behind the post-Godhra violence. This was especially because of his forthright observation that the further investigation should “examine the role of Shri Modi immediately after the Godhra incident to find out if there is any culpability to the extent that a message was conveyed that the state machinery would not step in to prevent the communal riots”. Moreover, one of the reasons cited by Ramachandran’s interim report for the proposed probe into the meeting was the evidence of Modi’s own lackadaisical response the following day to the violence against Muslims. “There is nothing to show that the CM intervened on 28.02.2002 when the riots were taking place. The movement of Shri Modi and the instructions given by him on 28.02.2002 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 CM nor his personal officials have stated what he did on 28.02.2002. Neither the top police nor bureaucrats have spoken about any decisive action by the CM.”


Sabarmati’s burning A terror attack it certainly wasn’t

Thus, the recommendation for further investigation into Modi’s February 27 meeting was reinforced by the incisive observation that he had not taken “any decisive action” the next day to control the post-Godhra violence. Subsequent to Ramachandran’s note, the Supreme Court directed the SIT on March 15, 2011 to give its response, adding that it could “if necessary carry out further investigation in light of the observations made in the said note”. The SIT did carry out further investigation, this time against Modi. There was a conspicuous departure though from the earlier round of further investigation. The two officers subjected to it, Tandon and Gondia, were interrogated afresh. But when it came to the further investigation against Modi, the SIT made no effort to question him on any of the issues raised by Ramachandran. In fact, Ramachandran’s observations should have impelled the SIT to issue fresh summons to Modi in 2011, making up for its omissions in the interrogation conducted the previous year. In reality, the SIT balked at calling Modi afresh even as it recorded the statements of as many as 48 witnesses in connection with the allegations against him. For questions that Modi alone could have answered, the SIT settled for one of his aides, officer on special duty Sanjay Bhavsar. Had Rama­chandran not overlooked the oddities in Modi’s testimony, he could have built the case on grounds that were more substantial and irrefutable. Had he made an issue of the inflammatory terror allegation aired by Modi within hours of the arson, the SIT would have found itself on the defensive, having toed the Gujarat police line in the Godhra case. That he missed this point was clearly an opportunity loss for fact-finding. Making matters worse was Rama­chandran’s silence in his final report on a critical issue he had himself raised in his interim report: the absence of “any decisive action” by Modi on February 28, 2002 when Ahmedabad had been ravaged by violence against Muslims. This was the closest Ramachandran had come to questioning Modi’s controversial suggestion that even as he was engaged in saving Muslims, he was oblivious the whole day to the two big massacres of Ahmedabad. All that the SIT came up with in defence of Modi was a list of the meetings he had held and the decisions he had taken, although they had apparently made little difference on the ground. In fact, on the basis of details provided by Bhavsar, the SIT added that it had taken over five days for Modi to visit Gulberg Society and other riot-hit areas in Ahmedabad because he had been “awfully busy”. Though none of this could have been passed off as “decisive action” by him on the first day of the post-Godhra violence, Ramachandran gave in to the SIT’s explanation. He said: “As far as the SIT’s conclusion with regard to the steps taken by Shri Modi to control the riots in Ahmedabad is concerned, the same may be accepted, in the absence of any evidence to the contrary.” Rama­chandran’s failure to notice the “evidence to the contrary” in Modi’s interrogation was a major reason why the Supreme Court’s monitoring of the investigation proved to be illusory. This was despite the fact that unlike its choice of SIT members, the Supreme Court’s selection of Ramachandran as amicus curiae was beyond reproach.

 
 
Bhavsar said it took Modi five days to visit Gulberg Society and other riot-hit areas in the city as he had been ‘awfully busy’.
 
 
The BJP thought it fit to declare Modi as its prime ministerial candidate in September 2013, days after Jafri’s counsel had ended their arguments against the SIT’s closure report before magistrate B.J. Ganatra. The chance taken by the BJP was vindicated by Ganatra’s dismissal of Jafri’s protest petition, through a 440-page order delivered on December 26, 2013. Based as it was on the facts framed by the SIT, the order upholding Modi’s exoneration said nothing about the questions that had remained unasked by the SIT and unanswered by the Gujarat government. So it missed out on the unexplained incong­ruity of Modi’s claim that he was unaware of the Gulberg Society massacre for almost five hours. Rejecting Jafri’s conspiracy allegation against Modi, the magistrate’s order said that he “showed alacrity in requisitioning the army and took necessary steps to control the situation”. Thus, Modi’s decision to call in the army at the 4 pm meeting he had held minutes after the Gulberg Society massacre was passed off as an instance of his “alacrity”. In order to arrive at the conclusion that Modi had displayed “alacrity”, the fact-finding process studiously ignored his claim to have been unaware of the Gulberg Society massacre till his 8.30 meeting. The moral of the story is clear. When the right questions are not put, there will be neither the right evidence nor the right conclusions.

COMMENTS PRINT
Interview
The co-author of When a Tree Shook Delhi: The 1984 Carnage and its Aftermath on his upcoming book The Fiction of Fact-finding: Modi and Godhra.
Sundeep Dougal
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