The protest petition filed by Zakia Jafri against the Supreme Court appointed Special Investigation Team report, which absolved Narendra Modi of all responsibility for the 2002 killings in Gujarat, is an important step towards justice for all the victims. This article recapitulates the long and diffi cult battle for justice through the courts and exposes the complicity of the SIT in protecting Modi from his crimes.
It is not often that the battle against aggressive communalism gets sustained and validated through courts of law. This communalism is not just visible in instances of violence but encompasses the sustained mobilisation that precedes the violence, it includes hate speech and writing, as well as the deliberate debilitation of preventive measures of law and order to prevent such violence and protect the lives and properties of citizens. In the south Asian context, majoritarian communalism, fed in an insidious manner by its minority prototype, has the proclivity to deteriorate into authoritarianism, even fascism. Events, past and present, in Sri Lanka, Pakistan or India are testimony to this. In the cases of all countries of the region, communalists of the majority find ready partners with their mirror-images among the minority.
For over four decades now, aggressive communalism has made deep inroads into the pillars of the Indian republic, executive, legislature and even the judiciary. The calculated, and bloody mobilisation of an ostensibly religious kind by India’s main opposition party from the late 1980s was purely political; it consolidated a vote bank of middle- and upper-class Hindus while demonising the “minority vote bank” as the raison d’être for its existence. This section of Indians, fortuitously a numerical minority yet substantial in numbers at 27 to 30% of the overall vote, has aggressively celebrated the bloody attacks on minorities and on its opposition. Writers and commentators have analysed this phenomenon as the republic’s descent into proto-fascism, with forces of the Hindu right (the Bharatiya Janata Party (BJP) – the parliamentary wing of the Rashtriya Swayamsevak Sangh (RSS) – and its other avatars, the Vishwa Hindu Parishad (VHP) and the Bajrang Dal (BD)) manipulating institutions of democratic governance. Our administration, our police, even our courts of justice barely withstood this systemic onslaught.
Some Success
It is in this unique context that the battle for acknowledgement, justice and accountability for the well-orchestrated state directed and executed crimes of 2002 in Gujarat, needs to be understood. For over 11 years now, a steely band of survivors, backed by groups of civil and legal rights groups and activists have extracted for the first time a degree of acknowledgement, transparency and accountability from an indifferent system. One hundred and sixteen life imprisonments pronounced to, among others, policemen, powerful politicians (one former minister) and strongmen of outfits of the VHP and BD, is a success story in its own right.
What the Zakia Jafri protest petition filed on 15 April 2013 attempts is to take this battle for accountability several steps further, and deeper. In carving out a substantial case of criminal conspiracy planned and executed by the state’s chief minister, who is also its home minister, this unique and historic legal intervention raises serious questions about the systemic build-up of communal mobilisation and inaction by state agencies and actors, the state and government’s specific response to a tragedy like Godhra on 27 February 2002 and their lack of intent to contain the impact and spread of violence.
This protest petition also brings focus on the lacunae in checking hate speech and propaganda, asks for facts about summoning assistance from the military and paramilitary forces, and does a comparative analysis of districts and police commissionerates worst affected by violence (which were 15 in number) and those where the police and civilian officials refused to bow down to political masters. It also highlights the role of whistleblowers, of survivors/activists/legal and civil rights groups, and of the media in pinning down accountability on the political leadership for these mass crimes.
Gathering the Tinder
Gujarat in early 2002 was sitting on a communal cauldron, carefully stoked since October-November of 2001. Records of the State Intelligence Bureau (SIB) that are well-documented parts of the protest petition (annexures to the affidavit of former SIB Gujarat chief, R B Sreekumar) as well as responses received from the office of the chief minister during the course of the investigation, clearly establish that sustained efforts to keep districts and cities of Gujarat on the boil were afoot (reference p 178, paras 426-42 of the protest petition). What these indicate is that the then newly sworn in chief minister, Narendra Modi who had been brought in by the party’s national leadership after a series of bye-election losses in September 2001, was at the helm of the law and order machinery as the state’s home minister but did little to act against this communal mobilisation.
SIB warnings include detailed notings of the aggressive anti-minority speeches being made by BJP leaders as also of the VHP and BD. One such comment, by one Prahlad Patel on his way to Faizabad-Ayodhya, recorded by the SIB would prove to be prescient, “Yeh andar ki baat hai, police hamaare saath hai” (The inside information is that the police is working with us). Despite this climate and the warnings, Godhra – with a poor record of communal violence – was left unguarded and unprepared. Despite platoons of the military and paramilitary being not far away (at Vadodara), they are not galvanised. When the Sabarmati Express arrived five hours late at the Godhra station on the fateful day of 27 February 2002, Gujarat was already sitting on a communal tinderbox.
It is how the Godhra tragedy has been deliberately manipulated that requires a careful and dispassionate study for all those concerned with non-partisan governance. The first information on Godhra received by the chief minister from the district magistrate, Jayanti Ravi, details the sequence of events – aggressive and provocative sloganeering by kar sevaks that caused a mob of Muslims to gather and pelt stones. The reasoning that explains partially, at least how and why a crowd gathered when the train stopped after it had left and the chain was pulled, is thereafter deliberately and consciously obliterated by the government in official statements and releases. The chief minister in the assembly around 1 pm hints at a sinister and Machiavellian conspiracy (paras 50-54 at pp 37-39 of the protest petition and paras 127-74, pp 71-92 of the protest petition).
It is other jigsaws in the puzzle that have fallen into place during the analysis of investigation papers and preparation of the protest petition that point to the chilling manoeuvres by men and women in positions of governance to abdicate their oath to the Indian Constitution and consciously allow a chain of criminal actions to spiral out of control.
Lighting the Fire
Between 9 am, when news of the tragedy at Godhra had been received, and 10.30 am, when an official meeting of home department officials was called by the chief minister, phone call records (that were deliberately ignored by the Special Investigation Team (SIT)) show that the chief minister was in close touch with Jaideep Patel (accused in the criminal complaint). Jaideep Patel, far from being a man from officialdom, was actually a strong man of the VHP, general secretary of their state unit. Despatched to Godhra soon after these telephone conversations it was the same Jaideep Patel who thereafter attended an official meeting at the Collectorate at Godhra (para 69, p 45 of the protest petition) and to whom the chief minister ordered the 54 dead bodies of Godhra victims to be handed over to. It was this VHP man who was given the responsibility of transporting these bodies to Ahmedabad in a motor cavalcade that caused violence in its wake (paras 73-81 at pp 47-50 of the protest petition) and it was Jaideep Patel who handed them over to the authorities at Sola Civil Hospital, Ahmedabad.
Jaideep Patel thereafter was also charged with being an instigator of mobs to commit violence at Naroda Gaam, the next day, 28 February 2002. This close contact between the chief minister and Jaideep Patel, both accused in Zakia Jafri’s criminal complaint dated 8 June 2006 continued right through till 28 February 2002 when the massacres at Naroda and Gulberg were being executed. At 15: 26:06 hours, Jaideep Patel called the chief minister at his official number and had a conversation lasting 141 seconds. Jaideep Patel’s was one of just three calls on this number. Incidentally, all the office and residential numbers of the chief minister for both days show a shockingly low number of calls, raising more questions than they answer. The mobile number of the chief minister has been left deliberately uninvestigated by the SIT (para 106, p 61 of the protest petition).
After these surreptitious indications of the criminal conspiracy that was to unfold, the chief minister, then health minister, Ashok Bhatt, minister of state for home, Gordhan Zadaphiya and Jaideep Patel were in touch and a controversial decision to conduct post-mortems on the bodies of the unfortunate Godhra victims, in the open at the railway yard in full public view of an aggressive crowd of VHP members baying for blood, was taken. The chief minister, who is accused number 1 in this protest petition, was present at Godhra at the railway yard while these illegal post-mortems were allowed (paras 473-77, pp 211-12 of the protest petition).
Law and procedure are exacting about whom the dead bodies are to be given; they require that the bodies remain in the safe-keeping of the police authorities (in this case the Godhra police where the case was registered) until claimed by relatives to whom they need to be handed over with due procedure. Photographs of gruesome and gory remains are strictly prohibited from being displayed or published (para 480, p 214 of the protest petition). Not only were the gory charred remains of the burnt passengers displayed but they were widely publicised in violation of Section 233, 4 (vi), Volume III of the Gujarat Police Manual.
Initiating Investigations
The narrative behind this legal journey is in itself an exploration into systemic efficacy and response. Zakia Jafri, widow of slain former parliamentarian Ahsan Jafri, first filed this criminal complaint before the director general of police, Gujarat. The man to hold this position on 8 June 2006, the date of the complaint, was none other than the many times promoted despite being indicted commissioner of police, Ahmedabad, P C Pande. When the Gujarat police failed to register a first information report (FIR), she along with the organisation Citizens for Justice and Peace approached the high court and later, when relief was denied further, the Supreme Court of India. On 27 April 2009 the Supreme Court seeing merit in the issues raised by the complaint handed it over to the already appointed SIT under former Central Bureau of Investigation (CBI) director, R K Raghavan.
The investigations by the SIT resulted in four reports, three before the Supreme Court. While the SIT, despite contradictory findings, concluded there was no evidence against any of the accused, the amicus curiae (friend of the court) senior counsel Raju Ramachandran reported to the contrary. His report dated 25 July 2011 told the Supreme Court that there was a clear case for the prosecution of Modi and three others, at the least. Based on this contrary advice, the Supreme Court on 12 September 2011 told the SIT to file its final report after considering the amicus’ contrary view and, in the event of this being no different from its conclusions before the Supreme Court, specifically entitled Zakia Jafri to a complete set of the investigation papers to file a competent protest petition. After a battle of five years, the complaint that began with a plea for registration of an FIR had now proceeded to the stage of a charge sheet being filed against the accused.
The SIT did not change its conclusions and filed yet another report stating that no criminal charges were made out. Equally questionable was its adamant refusal to comply with the Supreme Court’s order of 12 September 2011 and give all the investigation papers to Zakia Jafri. The 514-page protest petition is an elaborate testimony to the reasons behind the SIT’s refusal to comply. Its own investigation papers have provided a wealth of further evidence about the complicity of the top political and administrative offices of the state government in paralysing its own administration into inaction, deliberately refusing preventive arrests or the declaration of curfew, allowing funeral processions to be the launching pads of attacks and rioting, etc. By 2013 it is clear that the SIT has not only performed an unprofessional job in a desultory manner, it is today, through its partisan conclusions, becoming a spokesperson for the Modi administration abandoning its role as an independent investigating agency that it was bound to be, given its appointment by the Supreme Court.
Ignoring Evidence
R K Raghavan, A K Malhotra and Himanshu Shukla, the three main spokespersons for the SIT, have cynically misled the Supreme Court when they stated that the funeral processions of the railway burning victims in Godhra and at least five to eight other locations (Khedbrahma, Vadodara, Modasa, Dahod, Anand) were peaceful. The evidence from police control room (PCR) records submitted by P C Pande (accused in the complaint) to the SIT after 15 March 2011 reveal a cold-blooded mobilisation of RSS and VHP workers at the Sola Civil hospital from 4 am onwards on 28 February 2002 in aggressive anticipation of the arrival of the dead bodies.
Repeated PCR messages, that the home department under Modi and P C Pande were trying to conceal, show that both in Ahmedabad and in several locations all over Gujarat, crowds were mobilised to aggressively parade bodies with bloodthirsty sloganeering, inciting mobs to attack innocent Muslims. The then joint police commissioner, Ahmedabad, Shivanand Jha, also an accused in the complaint was jurisdictionally in charge of Sola Civil Hospital in zone 1. As the messages extracted show, repeated PCR messages desperately ask for more “bandobast”, they speak of the staff and doctors of the hospital being under threat, of a 5,000-6,000 strong mob accompanying the bodies and finally one message also says that “riots have broken out” (paras 559-60 at pp 244-47 of the protest petition).
These records also reveal what the SIT was trying hard to conceal: that the Ahmedabad police under P C Pande, the then minister of state for home, Gordhan Zadaphiya (accused in the complaint), and Narendra Modi had enough forces to escort a VHP leader known for his incendiary slogans, Giriraj Kishore, from the airport to the Sola Civil hospital to accompany the processionists, but they did not have enough forces to send to Naroda Patiya where at least 96 persons were massacred in broad daylight and 69 persons at Gulberg society the same day and around the same time as these aggressive processions were being allowed.
Sustained warnings from the SIB, even after the Godhra tragedy on 27 February 2002, show that large sections of the police were aware and knew of what should be expected all over the state now that the Godhra tragedy had happened. As early as 12.30 pm on 27 February a SIB officer, through fax number 525, communicated to the headquarters that there were reports that some dead bodies would be brought to Kalupur Hospital station in Ahmedabad city. The same message said that kar sevaks had given explosive interviews to a television channel at Godhra and had threatened to unleash violence against Muslims.
But it is the panic messages from 1.51 am onwards on 28 February 2002 from police wireless vans positioned at Sola Civil Hospital demanding immediate protection from Special Reserve Police platoons and the presence of the deputy commissioner of police (DCP) zone 1, that are a grave testimony to the planned gory scenario that was to unfold. The message at 2.44 am on 28 February 2002 informed that the motor cavalcade had reached Sola Civil Hospital. Page No 5790 of Annexure IV, file XIV reveals that at 04.00 am a mob comprising of 3,000 RSS workers had already gathered at the Sola Civil Hospital. Again, another message three hours later at 7.17 am (p 5797 of Annexure IV, File XIV of the documents) says that a mob of 500 people was holding up traffic. By 11.55 am a PCR message was sent out saying that the Hindu mob had become violent and had set a vehicle on fire and was indulging in arson on the highway.
The message at 11.55 am (page no 6162 Annexure IV File XV) says that “Sayyed Saheb, the protocol officer had informed Sola-1 that riots have started at Sola civil hospital at the high court where the dead bodies were brought”. Again, there is another message with no indication of time (page no 6172 of 28 February 2002) that states that the officers and employees of the hospital had been surrounded by a 500 strong mob and they could not come out. The message also made a demand for more security for the civil hospital at Sola.
In a cynical disregard of this hard documentary evidence, the SIT, in its first investigation report dated 12 May 2010, in the chairman’s comments dated 14 May 2010 and in its final report dated 8 February 2012 says that the funeral processions were peaceful.
On the morning of 28 February 2002, another SIB message says that a funeral procession was allowed to take place at Khedbrahma, a town in Sabarkantha district, and adds that soon after the funeral procession two Muslims on their way to Khedbrahma were stabbed and the situation had become very tense. All this and more has been ignored by the SIT completely.
Other documentary evidence of deliberate acts of provocation by the likes of Jaideep Patel, Kaushik Mehta (both also accused) and Dileep Trivedi were recorded by the SIB. They made inflammatory false statements of “women being molested at Godhra” and the SIB records that other meetings at Vapi, Khedbrahma, Bhavnagar, etc, are being held by RSS, VHP and the BD to whip up sentiments (paras 631-37, pp 274-76 of the protest petition). One message at Annexure III, file XVIII (D-160) at page no 19, message no 531 from SIB police to K R Singh at 6.10 pm on 27 February 2002, actually records that “on 27 February 2002 at 4.30 pm when the train arrived at the Ahmedabad Railway station, the kar sevaks were armed with ‘dandas’ and shouting murderous slogans ‘khoon ka badla khoon’”.
SIT: Omissions and Commissions
While Modi travelled 300 kms to Godhra and returned the same night, he did not visit any of the refugee camps where women, children and men of the minority community had taken shelter until well after the 21-22 May 2002 visit of J S Verma, the then chairperson of the National Human Rights Commission (NHRC) and former chief justice of India. He also announced a discriminatory compensation package for those killed at Godhra and those thereafter. The crucial, and sensational, meeting at his residence on the night of 27 February 2002 is where direct evidence of the conspiracy in operation has been alleged. Officers and others who were present have, over the past 11 years, indicated that clearly illegal orders were conveyed by the accused chief minister. Unlike crucial law and order meetings at times of crises, this meeting has not been minuted.
What transpired at this meeting was first publicly revealed through the report of the Concerned Citizens Tribunal – Crimes Against Humanity – headed by Justices V R Krishna Iyer, P B Sawant and Hosbet Suresh. Thereafter in the course of the SIT investigations, a serving officer of the Gujarat police, Sanjiv Bhatt testified directly and corroborated this. The protest petition makes a strong case for testing this evidence in court. Amicus curiae Raju Ramachandran in his report to the Supreme Court had also clearly opined that it is not for the investigating agency to prejudge the evidence but place it to be tested during trial.
Despite the evidence of intense communal mobilisation, bloodthirsty speeches and actual attacks on Muslim citizens on the day of the Godhra tragedy, there is no appeal for peace and calm by the state’s chief minister and home minister. No preventive arrests were made, despite 19 attacks on minorities in Ahmedabad on 27 February 2002 itself, nor were prohibitory orders issued. There is no clarity either, from the investigation papers, as to when the army was actually called and deployed. The SIT had not bothered to record the statement of major Zameeruddin Shah, in charge of the army operations in Gujarat, nor that of K P S Gill, sent by the central government in May 2002 simply because the violence continued and refused to stop. Hence the protest petition, apart from praying for the charge sheeting of all the accused, also makes a strong case for a transfer of the further investigation to an independent agency.
The failure of the SIT was in its inability to examine the evidence objectively. An honest and robust investigation would have made a strong comparative analysis between those districts of Gujarat that burned and those that withstood the illegal instructions from above while succumbing to rampaging militias of the RSS-VHP-BD combine from below. Bhavnagar and Panchmahals are interesting studies. Superintendent of police Rahul Sharma, despite all attempts to unleash bloodshed, held his own, even though reinforcements and troops were deliberately delayed by his seniors in Gandhinagar. Annoyed at his non-partisan conduct he was transferred by 26 March 2002. Brought to the crime branch, he again made significant inputs about non-partisan charge sheets in both the Gulberg and Naroda Patiya investigations; he was transferred yet again.
In Conclusion
The narrative of the conspiracy of partisan governance and subversion of the justice process runs parallel to a cynical policy of punishing those officers who refused to become collaborators in the planned bloodshed. Unfashionable as it is to quote from Jawaharlal Nehru when he said that “The [real] danger to India, is from Hindu right-wing communalism”, it seems more than appropriate given the continued attempts by the government in power in Gujarat and the party in power, to belittle what has been an onerous and exacting battle, fought at great risk, within the courts.
kracktivist 