Setalvad, Sreekumar’s Real ‘Crime’ Was Raising the Question of Modi’s Command Responsibility

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Nandini Sundar

The thrust of the Supreme Court’s judgment – that Modi did his best to control the 2002 violence and that his failure to do so was not deliberate – goes against its own rationale for appointing an SIT to investigate and prosecute the mass crimes that had been committed on his watch.

It is, perhaps, not a coincidence that Teesta Setalvad and former Gujarat police officer R.B. Sreekumar were arrested on June 25, 2022, the anniversary of the Emergency.

Another former police officer Sanjeev Bhatt, who is already in jail, has also been charged in the alleged common conspiracy to tarnish the image of Gujarat’s administration. They have been booked under Sections 468, 471 (forgery), 194 (fabricating false evidence), 211 (instituting criminal proceedings to cause injury), 218 (public servant making incorrect record or writing with intent to save person from punishment), and 120B (criminal conspiracy). On July 2, they were remanded to 14 days of judicial custody, after four days of police custody.

As a tit-for-tat gesture for their ‘audacity’ in getting the Special Investigative Team (SIT) to question Prime Minister Modi – even such a friendly SIT as the one headed by formerCBI chief R.K. Raghavan – the Gujarat Police has now set up its own SIT to investigate Setalvad, Sreekumar and Bhatt, alleging that they were aided by foreign funds and opposition politicians in their purported enterprise.

The clear signal being sent out by the courts, police and ruling political dispensation alike is that we are in a de facto Emergency, in which a legal fight for constitutional rights or calling the administration to account, is a crime.

Effectively, that is the crime for which which the Bhima Koregaon 16 and young activists like Umar Khalid, Safoora Zargar, Meeran Haider and others have been arrested; they were all individuals fighting to uphold the Constitution in different spheres, as academics, lawyers, journalists, or activists.

We must be grateful for the small mercy that the Gujarat police has not arrested 83-year-old Zakia Jafri, whose husband was brutally killed in 2002. To label a woman who has spent 20 years fighting for justice as a ‘stooge’ of human rights activists and to abuse her for her ‘gumption’ in believing in the Indian legal system is a gross insult not only to her and all survivors fighting for justice, but also to the Indian constitution and system of justice.

The crime which Jafri, Setalvad and Sreekumar are being made to pay for is that they chose to call to account Narendra Modi himself.

If Modi could be credited with the success of the ‘Gujarat model’ as chief minister, it is more than reasonable to ask why he couldn’t be held responsible for the failure to keep the peace in 2002. Indeed, it is a question that his own party leader, Atal Bihari Vajpayee, raised when he advised him to observe his ‘Raj Dharma’. It is a question the National Human Rights Commission (NHRC) raised when it filed a Public Interest Litigation (PIL) in the Supreme Court on the Gujarat violence (WP (Cr 109/2003). It is a question that the US raised when it denied him a visa for several years. And it is a concern that the Supreme Court recognised when it admitted the NHRC’s petition and appointed an SIT to investigate the matter.

The entire judicial saga began only because:

“…there was widespread violence bordering on failure of the State machinery to prevent and control the same including to arrest all the perpetrators of the crime and undertake fair investigation.” (para 5b, page 7 of the Zakia Jafri judgment).

It is useful to remind ourselves of what happened in 2002. On February 27, 2002, 58 Hindu pilgrims died in a train fire at Godhra. The fire which destroyed coach S-6 of the Sabarmati Express was instantly branded an act of terrorism by Modi and a Muslim conspiracy carried out by a mob assembled at the platform – though the state’s forensic lab found that this was impossible and that the fire had started within the train.

The police eventually argued that the men it charged had forcibly entered the crowded coach and poured 60 litres of petrol. Despite the fact that not a single passenger aboard the crowded coach was able to testify that they saw this, the trial court accepted this theory.

In what Modi publicly termed the “chain of action and reaction”, mobs led by activists of the Vishwa Hindu Parishad (VHP), Rashtriya Swayamsevak Sangh (RSS) and Bharatiya Janata Party (BJP) attacked Muslims across the state.

Officially, 1,044 persons died, of which 790 were Muslim and 254 Hindus; 223 went missing and 2,500 were injured. But a more commonly accepted figure, based on several citizens commissions and other reports, is that as many as 2,000 people were killed.

There were mass rapes as well as widespread arson and damage to Muslim homes and livelihoods. Muslims fled to relief camps, but these were mostly managed by NGOs and Muslims themselves, with the government wanting to shut them down. On September 9, 2002, in a public speech, chief minister Modi described the  relief camps as “children producing centres’.

The Gulberg Society case

One of the major incidents of the 2002 riots was the Gulberg Society massacre in which 69 people were killed. On February 28, 2002, mobs started attacking the largely Muslim housing society. Former Congress MP, 76-year-old Ehsan Jafri, repeatedly appealed to the chief minister and senior police officers for help, but beyond one visit by a senior official, they did nothing. Many people took shelter in his house thinking that as an MP, he would be spared.

Around 3 pm, after the burning had started, Ehsan Jafri went down to confront the mobs, asking them to spare the others. He was hacked to death and the whole society was burnt down. The police chargesheet at the time accused him of opening fire on the mob, thus infuriating them. Modi also reiterated the police version and when asked why he would have fired, replied, “It was probably in his nature to do so.” The case was registered at Meghaninagar PS as 67/2002.

The Gulberg Society case was one of the nine cases in which the NHRC pointed out that investigation and prosecution was not being properly carried out. As such, the Supreme Court, in 2008, appointed an SIT to investigate these nine cases.

In June, 2016, the special court of P.B. Desai convicted 24 persons out of 72 accused in Case 67/2002. Eleven of them were sentenced to life imprisonment. However, he said the mob did not have a murderous intent and were provoked by Ehsan Jafri’s firing:

“private firing on the part of the deceased Shri Ahsan Jafri, which resulted in some deaths from amongst the members of the mob and injuries… infuriated the mob who saw persons belonging to the majority community falling to the bullets being fired.”

What the mob had collected there for in the first place seems to have eluded the learned judge.

The SIT did not appeal the acquittals, and all those convicted are now out on bail. K.G. Erda, the inspector-in-charge of the Meghaninagar police station, was also acquitted. Among the grounds for acquittal was that the accused had reintegrated themselves into mainstream society.

As Zakia Jafri has said, she got only “half justice” at the level of the special court; instead, her husband was blamed for his own death and those of the others.

Background on the Zakia Jafri judgment

The arrests of Teesta Setalvad and R.B. Sreekumar came after the Supreme Court judgment of June 24, 2022 in the Zakia Jafri case by a bench consisting of Justices Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar.

On June 8, 2006, Zakia Jafri filed a complaint to the DGP, Gujarat naming 63 persons, including Modi, whom she accused involvement in a larger criminal conspiracy which resulted in the violence between February and May, 2002. The June 24, 2022 judgment dismisses this complaint.

The entire thrust of the judgment is to praise the SIT and show, first, that Modi did his best to control the violence; second, that even if he and his government failed, it was because the events were beyond them (the SC compares it to the pandemic); and third, that even if there was some failure in controlling violence, it did not amount to a pre-planned conspiracy. The real crime in this complaint, according to the Supreme Court, was accusing Modi as chief minister of command responsibility for the violence.

The court reproduced and ultimately endorsed the SIT’s views on Zakia Jafri as a stooge and her protest petition, where she challenged the closure report filed by the SIT, as motivated:

“The appellant had the audacity to assert in the protest petition that it is open to her to keep on adding new materials and allegations which the Court is bound to examine to do complete justice, so that she would succeed in her design to keep the pot boiling and politicising the crime. This indeed was being done at the instance of the group of persons in the name of so-called public-spirited persons like Ms. Teesta Setalvad. The protest petition is not a genuine protest petition by any standard.” (page 154)

The judges also made adverse comments against Setalvad, Sreekumar and Bhatt. The following concluding lines of the judgment have shocked the conscience of every thinking person in the nation. It reverses the blame for pendency and delay onto the petitioners, as if persevering in the cause of justice for years is a crime:

“We express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.” (Para 88, pages 304-5) (emphasis added)

Why did it take 16 years for injustice to be done? 

It took 14 years (2002-2016) for 24 persons to be convicted in the Gulberg Society massacre. Clearly, that time is not too long for the courts, even as the victims have suffered and persevered to get justice. Thanks to a Disturbed Areas Act imposed by the Gujarat government, they cannot sell their property, nor can they live there. The only person who has returned is a witness who turned hostile.

The 16 years in the Zakia Jafri complaint for which the Supreme Court has blamed petitioners passed as follows:

2006: Zakia Jafri files complaint asking for the registration of an FIR under charges of criminal conspiracy, naming 63 persons, including then chief minister Modi.

2007: Zakia Jafri files Special Criminal Application No. 421/200 on March 1, 2007. The high court rejected her complaint (on November 2, 2007) asking her to file a private complaint under Sections 190 and 200 of the CrPC (which you do if the police fails to register complaint). They did not ask the police to register an FIR on her complaint.

2008: Zakia Jafri files Special Leave Petition (SLP) 1008/2008 before the Supreme Court. It was tagged onto the NHRC’s PIL. The SIT constituted in the NHRC case on March 26, 2008.

2009:  SLP 1008/2008 comes before the Supreme Court. On April 27, 2009, the Supreme Court directs the SIT to look into this matter also.

It took 3 years for Zakia Jafri to get any court to look into her complaint. Even here, the Courts only ordered the SIT to ‘look into’ the complaint, not register an FIR as she had asked. 

2010: SIT submits its report in sealed covers.

2011:  Advocate Raju Ramachandran, who had now become amicus curiae, submitted his observations on the SIT report (on March 15, 2011), and the SIT replied. Ramachandran submitted his report on July 25, 2011.

On September 12, 2011, the court ordered the final report of SIT under Section 173 (2) of the CrPC to be given to the magistrate dealing with 67/2002; that is, the Gulberg Society case, and stopped monitoring the matter.

2012: The SIT submitted its report on February 8, 2012 the recommending closure of Zakia Jafri’s complaint. This  report was then placed before the magistrate looking into the Gulberg Society case 67/2002, to be considered along with the other material.

It took 3 years for the SIT report, after ‘looking into’ the matter and giving ‘a clean chit’ to Modi, to become public after being placed on the Magistrate’s record

The magistrate refused, on May 6, 2012, to give Zakia Jafri all the documents, including the enquiry report, further investigation reports (as per his judgment of May 6, 2012)

Zakia Jafri then had to petition to see the documents via SLP (Cr) 8989 of 2012, which was finally allowed as Criminal Appeal No. 273/2013.

2013: On February 7, 2013 the Court allowed her to see the documents, giving Zakia Jafri eight weeks after that to file a protest petition.

It took one year of fighting for her right to see the SIT report and other documents pertaining to her complaint. And she was only allowed to use these reports in light of her 2006 complaint; not in the Gulberg Society criminal case. So it took six years of fighting from Zakia Jafri for her complaint to be looked at, and get access to relevant documents and challenge the SIT report in a protest petition.

Zakia Jafri filed her protest petition on April 15, 2013.

By a speaking order of December 26, 2013, the magistrate rejects the protest petition and accepts the SIT report as final.

2014: Zakia Jafri then appeals to the high court through Criminal Revision Application 205/2014.

2017: High Court rejects her application on October 5, 2017

It took 3 years for the High Court to hear and decide her application. 

In 2017, the matter came before the Supreme Court, which generously agreed to entertain the petition even though the reasons asking for condoning the delay were “blissfully vague and bereft of any material facts and particulars.”

On April 13, 2017, R.K. Raghavan is allowed to leave the SIT on grounds of “ill health.” In September, 2017 he was appointed India’s ambassador to Cyprus.

2022: The Supreme Court delivers its judgment on June 24, 2022, dismissing Zakia Jafri’s complaint.

Four-and-a-half years passed in the Supreme Court hearing itself.  

If one adds up the time, 15 of the 16 years were the responsibility of the various court proceedings and investigative processes, including the time taken by the SIT.

The structure of the 2022 judgment

The SIT was appointed by the Supreme Court on March 26, 2008 precisely because the state of Gujarat was not doing its job of ensuring justice for the victims, and was widely perceived as having enabled the violence in the first place.

However, as is evident from this judgment, and from the closure report filed by the SIT in 2012, the SIT took the state of Gujarat as the victim, not those on whose behalf Zakia’s petition was filed and for whose benefit, ostensibly, the SIT had been constituted. Its findings have been meticulously critiqued by Manoj Mitta in his 2014 book, the Fiction of Fact Finding. In particular, Mitta drew attention to the curious manner in which the SIT’s celebrated ‘questioning’ of Modi was conducted – in which its investigators accepted the evasive and incomplete answers the then chief minister gave them and failed to ask follow-ups even when they had information which ran counter to what he was saying.

The SIT identified itself closely with the state of Gujarat – both political leaders and bureaucrats. Not surprisingly, the stands of the SIT and Gujarat government in court were similar. Again, not surprisingly, the SIT repeatedly attacked those who sought to raise concerns about its functioning.

It is useful to remember that when the Supreme Court named former Central Bureau of Investigation (CBI) director and police officer R.K. Raghavan as chief of the SIT – presumably on the recommendation of the then amicus in the NHRC petition, Harish Salve – the petitioners were never consulted.

The Supreme Court, in turn, completely endorsed the stand of the SIT and the state of Gujarat, even against the findings of Raju Ramachandran, whom it named as amicus to monitor the SIT. Indeed, it is said at the end (pages 303-4)  of the present judgment that questioning the SIT amounted to questioning the wisdom of the court.

The judgment begins and ends with the question of the locus of Teesta Setalvad to be party to the case, alongside Zakia Jafri. At the beginning, the judges say that the question of her locus should be decided in an appropriate case, practically suggesting that there should be a case on this; while at the end, they call for legal proceedings against her and others who pursued the case.

After proceeding with the timeline of the case, the court outlines the petitioner’s case (pages 44-95), followed by the SIT’s submissions (pages 96-164), the Gujarat government submissions (pages 165-171) and its own ‘Considerations’ (pages 171-307). The observations of advocate Raju Ramachandran – where he disagreed with the SIT, especially as regards the role of chief minister Modi – and the SIT’s response, are consigned to an appendix.

It is not surprising that the most space in the judgment has been given to the SIT’s submissions and that the state of Gujarat had so little to add, because all the heavy lifting of defending Modi and abusing the petitioners had already been done by the SIT.

The petitioners’ case

The petitioners’ case was that the SIT had not taken into account the voluminous material submitted to it, including the new material brought on board by a Tehelka sting operation, that it had taken ‘great pains to disbelieve and discredit anyone who spoke against’ Modi and other accused.

Neither the SIT nor the magistrate had filed a chargesheet against anyone based on the SIT investigation, despite all the evidence of cognisable offences. They also pointed out that much of the material was in Gujarati and had not been translated by the SIT. Further, the SIT stopped at finding negligence by officials and did not charge them with abetment, as was required. Their failure to properly prosecute rioters and ringleaders after the violence was further evidence of abetment.

Above all, the petitioners pointed out that it would be impossible to get direct proof of conspiracy in a matter like this, given that even in normal circumstances, conspiracy was difficult to prove. They pointed out that the SIT was evaluating evidence in a piecemeal manner rather than looking at the events that unfolded holistically. Most importantly, they also raised the principle of ‘command responsibility’ (pg 48) – an accepted principle in international humanitarian law – but this was clearly not a road the Supreme Court wanted to go down.

The actors in the conspiracy were of four categories: the political establishment, bureaucrats, police officers, and private organisations and individuals. The conspiracy included the build up to the violence, acts of omission and commission during the violence, and the subsequent failure to prosecute and punish those involved in the violence. The petitioners provide detailed and specific evidence of all of this.

The SIT’s case

The SIT’s case was that the Supreme Court had asked it simply to ‘look into’ the complaint and had not directed it to register an FIR; and that subsequently, it had directed the SIT to submit a report to the Special Court trying case 67/2002 (the Gulberg Society massacre). They accused the petitioners of bringing in new materials in order to make ‘wild and preposterous allegations” against the chief minister and others; to “sensationalise” and “politicise” the matter and “keep the pot boiling”.

Sanjiv Bhatt had alleged that at a meeting on February 27, 2002, held at Modi’s residence, he had asked the police and officials to allow Hindus to vent their anger on Muslims for Godhra. The SIT’s main defence of Modi is that none of the others present at the meeting remembered Bhatt or Haren Pandya being there, or Modi making those comments.

The SIT argued that Sreekumar and Bhatt were motivated to speak out against the government because of setbacks to their careers. However, the SIT did not care to ask if those officials who defended the government were also motivated by career considerations.

Gujarat government’s stand

The Gujarat government’s stand was to broadly adopt the SIT’s response. In addition, they claimed that the charge of larger conspiracy was being pursued by Setalvad only to defame the state of Gujarat; that she had fabricated evidence and tutored witnesses; and that Zakia Jafri was a mere tool. The Gujarat government argued that the case should be dismissed.

Instances where SIT identifies itself with Gujarat Government; and SC, in turn, identifies with both

As the petitioners pointed out, by treating each event separately in a piecemeal manner and not looking at it holistically, the SIT justified the acts of the Gujarat government. In many instances, they accepted the officials’ claims at their word. The Supreme Court does exactly the same in considering the SIT’s report on the conspiracy.

The Supreme Court dismisses the charge of conspiracy repeatedly, arguing that to say there was a build-up of weaponry, gas cylinders and the like by the VHP and Bajrang Dal would also imply that the Godhra train burning was pre-planned, and that would be “preposterous” (page 220, para 39). The court is completely silent on the numerous reports that show the fire at Godhra was most likely accidental, but that it was adroitly used as the spark to justify the pogrom that followed.

It was widely reported that the VHP brought the bodies of the Godhra train victims to Ahmedabad to incite passions, with the approval of chief minister Modi, who visited Godhra on February 27. The Supreme Court accepts the SIT’s denial of this, saying that Jaydeep Patel of the VHP merely accompanied the bodies – they were brought by police escort and handed over to relatives, and that this was a decision taken at the Godhra collectorate, not on the instruction of higher ups (pg 244-252).

The court accepted the SIT explanation that cabinet ministers Ashok Bhatt (health minister) and I.K. Jadeja (minister for urban development) did visit the police control room during the riots, but they did not interfere with the work of the police. The Supreme Court and SIT also accepted Modi’s claim that he did not know about this (pg 252-264).

The amicus had, in his submissions on the SIT report, pointed out that it was very unlikely that these ministers would go without Modi’s instructions since they were not in charge of home or law and order; and that if they had gone to supervise the police, they should have acted to control the situation and would have known what was happening at Gulberg. The court merely notes that the SIT had responded to this and accepts the SIT’s view (pages 265-6).

As for allegations that the police sided with the rioters and targeted Muslims instead of controlling the mobs, the SIT and the court asked the police commissioner, who, naturally, denied it and that clinched the matter:

“During enquiries, Shri P.C. Pande, formerly CP, Ahmedabad City has stated that during the riots, it is difficult for the police to identify as to whether any individual belongs to a particular community…In view of the aforesaid position, the allegation is not established…” (page 277, para 65).

Presumably, the Gujarat police were not as skilled as Prime Minister Modi, in recognising rioters by their clothes’.

On transfers and postings to punish or reward those who stood against or helped rioters, the SIT and the court claim that a) this is not evidence of conspiracy; and b.) not a matter for the SIT (pg 279-288).

The SIT conceded that many of the public prosecutors were chosen for their political affiliation to the RSS, but on the basis of their own claims to impartiality, accepted that there were no specific allegations that they favoured the accused. The Supreme Court went a step further and argued that in any case, it was not evidence of larger conspiracy, especially since public prosecutors were chosen on the basis of advertisements and interviews (pages 288-294).

The media being independent, the government could not be blamed for their incendiary and false reporting or for not acting against them. In any case, hate speech was not evidence of official conspiracy (pg 295).

The chief minister publicly declaring that the perpetrators of the Godhra train attack would get exemplary punishment is interpreted as saying that he did not encourage people to take punishment into their own hands.

The fact, that neither the Fire Brigade or Army reached on time are attributed to local factors like blockages, not the fact that the Army was deliberately kept idling. The Supreme Court accepted the SIT argument that the Fire Department was not under the control of the police, so how could police officials be blamed for its delay (pg 297)?

The court also accused the petitioners of bringing in the Tehelka tapes only because Sanjiv Bhatt’s version of the February 27 meeting was found to have failed. They did not accept the amicus’s argument that, prima facie, a case was made out against Modi for this and that the accuracy or otherwise of Bhatt and Sreekumar’s claims could only be established in court – and not unilaterally by the SIT.

As for the revelations in the Tehelka tapes, the Supreme Court and SIT accept the claim by MLA Haresh Bhatt that he lied to Ashish Khaitan about stockpiling weapons and being given a free run by Modi because he asked for “spicy material” on Hindutva. Babu Bajrangi, to whom Justice Khanwilkar gave bail in a separate case, claimed that he read out a script given by Khaitan – a claim that, incidentally, the high court which upheld Bajrangi’s conviction in the Naroda Patiya case failed to give any credence to. The SIT argued that Bajrangi and others were merely ‘bragging’ and ‘most of the facts stated by them are innocent.’

For instance, they say, by way of providing corroborative evidence that would help mitigate his crime, that Bajrangi had overstated the number of persons killed in Naroda Patiya. In any case, the SIT and Supreme Court argued that the sting could not be the basis of a charge against others and still less, that it could be the basis of a larger conspiracy claim (page 233-4, para 49).

The constant refrain is that the state was ‘overwhelmed’ by violence and did its best to control it; and that the chief minister publicly issued appeals for peace. In any case, ‘mere’ failure to control violence would not amount to conspiracy. The SIT and the court even accept Modi’s claim that the government looked after people in camps and that the police was directed to accept FIRs impartially – claims which the court knew to be false because the partiality of the state government was the reason it set up the SIT in the first place.

The court accuses the ‘protagonists of the quest of justice sitting in a comfortable environment in their air-conditioned offices’ of not knowing the struggles of the state administration on the ground to control the violence. (page 225, para 45; see also, page 218, para 36)

In another parting shot, the Supreme Court declared:

‘The respondents had justly contended that the attempt of the appellant was to keep on improvising their grievances and make new allegations including to involve new offenders as being party to the larger criminal conspiracy hatched at the highest level. Appellant in filing the protest petition had the gumption to assert that the list of persons was not exhaustive besides naming new persons as offenders. In the name of protest petition (running into 514 pages), appellant was also indirectly questioning the decisions rendered by the Courts in other cases including sub judice matters, for reasons best known to her. She was obviously doing so under dictation of someone. In fact, the sizeable contents of the protest petition are founded on the affidavits filed by those persons, whose version have been found to be replete with falsehood.’ (page 298, para 79)

The Zakia Jafri judgment is truly a jurisprudence for the times. The doctrine of separation of powers has been turned on its head with a complete identification of the courts and the party in power.

Courtesy The Wire

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