By Nadim Nikhat,
How long will the dead as well as the survivors of India’s bloodiest ever communal riot – Gujarat pogrom 2002 – have to wait for justice? Given the course of investigations and trials, will the accused ever be punished? In this piece, the author analyzes the implications and fallout of the 12th September order of the Supreme Court on the complaint of Zakia Jafery against Chief Minister Narendra Modi and 62 others – Editor.
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Background
On 8th June 2006, Mrs. Zakia Jafery, wife of slain Congress’ Member of Parliament, sought the High Court Gujarat to issue direction to register FIR and carry out investigation by an independent agency like CBI against the CM Narendra Modi, Ashok Bhatt (The then Health Minister), Dr. Maya Kodnani (MLA), Dr. Praveen Togadia (International General Secretary, VHP), Jaideep Patel (VHP-Gujarat Secretary), Babu Bajrangi, DG Vanjara, Narendra Amin, Tarun Barot, others including six ministers of Gujarat Cabinet, eight MLAs, five BJP, VHP, Bajrang Dal office bearers, two former DGPs, one former Chief Secretary, two former Home Secretaries, Personal Secretary to the Chief Minister, two former Commissioner of Police, two former District Collectors, eleven IPS officers, three Asst. Commissioner of Police, two Secretaries, four Collectors, two IGs, two DIGs, one Police Commissioner, two Deputy Commissioner of Police and three Police Inspectors, for aid and abetment and conspiracy to commit homicide and other serious offences related to promoting and instigating religious hatred and enmity, injuring religious and places of worship, destruction and fabrication of evidence and deliberate neglect of public duties.
On 2nd November, 2007, the High Court of Gujarat dismissed the Special Criminal Application No. 421 of 2007, suggesting her to go for investigating agency or court for further investigation under the Code of Criminal Procedure (CrPC).
The matter went to Supreme Court then and on 3rd March, 2008, it appointed an amicus curiae (Friend of Court) and later on 27th April, 2009, the SIT, which was already doing further investigations in other nine important Gujarat riot cases, was directed ‘to look into’, her complaint. Subsequently, on 12th May, 2010, SIT submitted its preliminary report concurring with the findings of the earlier amicus curiae. The amicus curiae recommended for further investigation under CrPC to ascertain roles of certain Police officials and a Minister in the State Cabinet. SIT submitted its enquiry report on 17th November, 2010 followed by submission of a preliminary note the new amicus curiae Mr. Raju Ramachandran on 20th January, 2011. Acting on the above note, the SIT submitted its final report in Meghaninagar Police Station Crime Report No.67 of 2002 (Gulberg Society case) on 24th April, 2011 and on the instruction of the Supreme Court, the amicus curiae has submitted his independent assessment in the final report on 25th July, 2011 after examining and analyzing the SIT’s report. Then reached the judgment day, 12 September 2011 and Supreme Court gave the ‘final solution’.
‘Final Solution’
Supreme Court of India gave its final verdict (on 12th September 2011) by disposing off the petition with a direction to the SIT to forward the final report including all the collected material to the Court of cognizance in Crime Report No.67 of 2002 and observed that the trial Court/court of cognizance will act as per the law of trial.
Further, the Supreme Court has reiterated the general procedure of law while issuing directions that all the reports and materials including copies of statements of witnesses must be made available to Mrs. Zakia Jafery and she should be provided with an opportunity in the Court to defend her complaint, before taking a final decision on the ‘closure report’.
Also, it has observed that ‘it would neither be desirable nor advisable’ to further monitor the case as it has reached a stage where monitoring would mean interfering in the judicial process of trial.
The Court did not give any opinion on the reports of SIT and Amicus Curiae except a noting about the SIT’s opinion on the substance of the complaint, that ‘there is no sufficient evidence or reasonable grounds’ for incriminating any of the 63 accused as alleged by Mrs. Zakia Jafery, leaving rest to the court of cognizance to proceed with.
Despite the fact that both the reports are not public but it was alleged that Amicus Curiae’s version doesn’t match with SIT’s version and there is a difference in findings of both the SIT and Amicus Curiae but indeed no one knows the exact nature of the content of both the reports.
From investigating agency points of view ‘SIT report’ is indeed a ‘final closure’ but from the Court’s procedure angle, it is now for the court to look into the report and other material to find out whether ‘sufficient evidence or reasonable ground’ exists for incriminating the accused or not.
To even further explore the Supreme Court’s order, it has to a large extent upheld the Gujarat High Court’s position to approach the investigating agency or the court for further investigation. It had just added salt to the taste as a faith building measure for the complainants by supervising directly the investigation by SIT and appointment of amicus curiae in this case to look independently. At the same time it continued with the same SIT, which have been criticized over his style of working, which still holds relevance that why Supreme Court has not handed over probe in Zakia’s complaint to any agency other than the SIT?
The crux of the matter is that for the Court to hand over the investigation to a different agency instead of SIT (which is doing or has done investigation in key pre and post-Godhra riot cases at the instance and supervision of the Supreme Court only) would have meant buying the arguments of those who were raising questions on the credibility on the SIT and would also have meant doubt on their quality and credibility in the present and other riot cases too.
In addition, the final order is also meant that investigation in Mrs. Zakia Jafery’s complaint by SIT is complete therefore the central plea to register a fresh FIR against all of the accused including CM Modi was not upheld and set aside and things have narrowed down to the discretion and decision of the Magistrate alone and that is too independent of SC’s supervision and monitoring to put a final seal on the charges leveled against the accused in the Mrs. Zakia Jafery’s complaint and on the SIT’s ‘closure report’.
‘No Sufficient Evidence or Reasonable Grounds’: Its Larger Meaning and Implication
Court’s finding on SIT’s report as to serious lack of ‘sufficient evidence or reasonable grounds’ to substantiate offences as charged in the complaint of Mrs. Zakia Jafery would precisely mean that all accused including Chief Minister, Cabinet Ministers, Member of Legislative Assembly, political and religious leaders and high rank public officers etc. are absolved of charges of criminal conspiracy to commit homicide and other serious offences related to promoting and instigating religious hatred and enmity, injuring religious and places of worship, destruction and fabrication of evidence and deliberate neglect of public duties.
To recall here, Nanavati-Mehta Commission Report (Part- I) made assertions about the Godhra conspiracy and negated the political conspiracy theory and planned rioting against Muslims led by right wing extremists.
Though the verdict does not talk anything about the above but in essence the SIT’s finding about lack of ‘evidence and grounds’ sufficiently suggestive of what Nanavati-Mehta Commission Report (Part- I) asserted some time back about the role of Narendra Modi and his associate politicians and bureaucrats in carrying out communal design.
Supreme Court’s silence on the SIT’s report at this juncture is actually an act of smartness and also to some extent a legal compulsion that it can review actions involving question of law and not the question of fact. At the same time it chose not to create any pre-judgment in the trial court by leaving it completely to it to look in to the facts and materials and decide about adequacy and reasonability of evidence and grounds respectively, for nailing these accused in the trial under existing penal laws of land. It leaves a room for itself and high court to reconsider the legal questions arising from the awaited Magistrate’s action.
Apart from the legal arguments it definitely raises certain serious concerns such as how one should construe SCI’s silence on the SITs findings re ‘no sufficient evidence or reasonable grounds’ for proceeding against any persons named in the complaint’? And then why there is no mention of findings of the amicus curiae in the judgment? Why does it not make any reference to the legal question arising out of the content of the SIT’s ’closure report’? Does it mean that SCI is convinced with SIT’s Report and has indeed accepted the report in totality or consciously chose not to interfere/indulge, leaving it to the concerned Magistrate to decide on Merits of the SIT’s report?
All these concerns are essential and will only be addressed only when the Magistrate will give its final decision on the SIT’s ‘closure report’.
Interesting to note here that, from the day one, Modi, his comrades and the BJP and the family (mother/father/sister & step-father/mother/sister organizations) are shouting that Godhra Train Carnage was a Muslim conspiracy, which is actually established by the Gujarat Police in its FIR, investigation and other actions, subsequently by Nanavati-Mehta Commission Report (Part 1), SIT and the trial court; the same day one political line is followed across.
On the other hand the riots aftermath Godhra Train Carnage is a reaction to the carnage and not a design and conspiracy (political and communal) was maintained throughout and was reflected in all reports/FIRs/Charge sheets of Gujarat Police, the same line came out preemptively in the Nanavati-Mehta Commission Report (Part 1) (Actual report on riots is yet to come), now SIT has also come up with its investigation report stating lack of ‘sufficient evidence and reasonable ground’ against any of the accused for committing criminal conspiracy etc. Actually all these reports, investigations, trials etc. are reinforcing rather legitimizing the same version which was seriously questioned by the human rights groups.
Is it the final solution?
(The author is Senior Research Fellow, Centre for Study of Social Exclusion and Inclusive Policy, National Law School of India University, Bangalore)