Tuesday, August 4, 2015

Gujarat High Court starts hearing Zakia Jafri’s petition // Propaganda Behind Modi's so-called "Clean Chit"

Ahmedabad, August 4th, 2015.
The hearing of Smt Zakia Ahsan Jafri’s Criminal Revision Application (Nos 205/2014) began amidst a packed courtroom at the Gujarat High Court today. Present were her legal team, advocates Mihir Desai and MM Tirmizi as also Teesta Setalvad of Citizens for Justice and Peace (CJP). On the other side were a battery of lawyers for the SIT and the State of Gujarat. The Court was Justice Sonia Gokhani’s Court.

Beginning by explaining that we would be challenging the Order of the Magistrate Ganatra on several grounds, senior counsel Mihir Desai explained that the first and most substantive ground be on merits since it is the contention of the applicant that the Magistrate ignored substantive evidence that was available when he failed to issue process and charge sheet the accused.

Secondly, Desai argued that the Magistrate’s Order is faulted and worthy of challenge on the grounds that he erred materially in holding that he did not have the power to Order further Investigation(s) into deliberate and significant lacunae in the SIT’s investigation. (Pages 61 and 377 of the Order of the Magistrate dated 26.12.2013); in this he completely ignored Smt Jafri’s substantive pleas for further investigation on some points; thirdly, by deliberately ignoring substantive evidence and arguments on the elements of wider Conspiracy behind the Violence of 2002 and restricting the scope of the complaint to only what had happened at the Gulberg society, too, the Magistrate had committed both a substantive error as also an error in law; fourthly, we had argued that there are several judgements of the Supreme Court that allow for the Protest petition of Smt Zakia Jafri (dated 15.4.2013) to itself be treated as a Complaint and the Magistrate had erred on dismissing this point

Moreover, the Magistrate by simply relying on the final closure report and ignoring the Evidence (Voluminous Statements and Documentary evidence) and Reports of Malhitra dated 12.5.2010, the Magistrate had not done justice to the Complainant.

When Justice Gokhani requested to be informed on the broad facts that had led to the filing of the Criminal Complaint dated 8.6.2006 by Smt Zakia Jafri, counsel Desai explained that it arose out of evidence that pointed to the fact that the post 27.2.2002 violence in at least 300 locations of Gujarat was not a spontaneous outpouring of anger after the heinous Gujarat incident  though anger may have played some role but was the result of a Conspiracy that had its roots prior to 27.2.2002 but took fruit after the incident at Godhra. That four broad types of offences including Conspiracy, Abetment, Failure of Public Servants to Perform their Duty that include and amount to Criminal Offences, and Hate Speeches to Foment Violence as Part of the Conspiracy were what this case consisted of.

Our case, said Desai included laying evidence to show that how a systematic Build-Up before 27.2.2002 was allowed (State Intelligence Bureau Messages) which, even after the heinous tragedy at Godhra had happened, further allowed the brutal 28.2.2002 to May 2002 Violence to systematically erupt. The Bandh call and its support by the ruling dispensation, the Failure to make preventive arrests or appeal for Calm, Failure to Declare Curfew and Call in the Army in time, Failure to Respond to Distress Phone Calls all were part of this Conspiracy.

To make this strong case apart from relying on the witnesses like former DGP RB Sreekumar, former senior IPS officer, Rahul Sharma, IPS officer, Sanjiv Bhatt and the Tehelka Sting Operation (that has been validated in the judgement in the Naroda Patiya Case dated 29.12.2012) we are also relying on State Intelligence Bureau Messages, Phone Call Records, Police Control Room Records and Various Statements to the SIT by Various persons that are to be treated as 161 statements.

There is also the extremely contentious meeting on the night of 27.2.2002 at the then chief minister’s residence. Haren Pandya, former MOS revenue with independent charge testified as to the illegal instructions given at the meeting to the Concerned Citizens Tribunal in May 2002 (he was killed in March 2003), Justices PB Sawant and Suresh in their statements to the SIT in 2009 re-affirmed what he said, former chief minister Sureshbhai Mehta in his statement to the statement mentions then chief minister’s reaction on getting news of the Godhra incident etc.

 Desai emphasised that part of the criminal conspiracy in operation was Illegal Instructions periodically top officials (contemporaneously recorded by RB Sreekumar in his Register, 2002), Doctoring of FIRs, Punishing those officers who upheld the law and protected lives and Rewarding those who went along with the Conspiracy.

Thereafter, the Court asked for clarifications of law on whether or not the Complaint dated 8.6.2006 should or could be treated as a separate FIR and a close reading of all the Supreme Court Orders on the question followed. More legal issues will be discussed tomorrow. The SIT, an agency appointed in the first instance due a petition by the Citizens for Justice and Peace (CJP) praying for transfer of investigation of major cases to the CBI, has unfortunately, since 2008 adopted a posture of hostility to the Survivors.

It has also been contending that the entire matter of the Zakia Jafri case is nothing but a further inquiry into the Gulberg Society massacre. This despite the fact that it was during Malhotra’s investigation into the Zakia Jafri Complaint that, in November 2009, Sanjiv Bhatt in his first statement to the SIT revealed that he was present at the meeting at Gandhinagar at the then chief minister’s residence and illegal instructions were issued. Amicus Curiae Raja Ramachandran had found enough evidence to prosecute the then chief minister.



Comparison between SIT's Two Reports, attached
The Links to the SIT Report of 2010
The Closure Report of 2012

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Propaganda  Behind the Clean Chit to Modi
SIT has not given a Clean Chit to Modi. In both reports, first filed in May 2010 before the Supreme Court (that includes Chairman RK Raghavan's Comments separately) and the Closure report filed before the Magistrate on 8.2.2012, the SIT has held that while there is evidence and many of the allegations made in the Zakia Jafri Complaint dated 8.6.2006 are true and correct, in its own assessment,  this evidence is not prosecutable. This is not a clean chit to Modi as is being propagated. Besides Amicus Curaie Raju Ramachandran’s Report to the SC clearly stated that Modi should stand trial for offences under Section 153(a), 153(b) and166 of the Indian Penal Code.

Key Points of May 2010 SIT Report Contrasted with 2012 Closure Report

I. Callous and Communal Mindset of Modi (chief minister and state home minister since 2002)
A. Modi’s Communal Mindset The SIT Report (May 2010) report says, “In spite of the fact that ghastly and violent attacks had taken place on Muslims at Gulberg Society and elsewhere, the reaction of the government was not the type that would have been expected by anyone. The chief minister had tried to water down the seriousness of the situation at Gulberg Society, Naroda Patiya and other places by saying that every action has an equal and opposite reaction.” (Page 69 of the SIT Report to the SC, May 2010)

B. Modi’s Discriminatory Attitude. The 2010 SIT report to the SC says Modi displayed a “discriminatory attitude by not visiting the riot-affected areas in Ahmedabad where a large number of Muslims were killed, though he went to Godhra on the same day, travelling almost 300 km on a single day.” (Page 67) The SIT chairman also comments that “Modi did not cite any specific reasons why he did not visit the affected areas in Ahmedabad city as promptly as he did in the case of the Godhra train carnage.” (Page 8 of chairman’s comments, SIT report to SC May 2010)

C. Sweeping and Offensive Statements by Modi. SIT Chairman RK Raghavan (May 2010 to the SC) further comments that Modi’s statement “accusing some elements in Godhra and the neighbourhood as possessing a criminal tendency was sweeping and offensive coming as it did from a chief minister, that too at a critical time when Hindu-Muslim tempers were running high.” (Page 13 of SIT chairman Raghavan’s comments, SIT report to SC May 2010)

D. Modi Justified Killing of Innocents. The inquiry officer (AK Malhotra also notes: “His (Modi) implied justification of the killings of innocent members of the minority community read together with an absence of a strong condemnation of the violence that followed Godhra suggest a partisan stance at a critical juncture when the state had been badly disturbed by communal violence.” (Page 153 of the SIT Report to SC, dated May 2010)

Modi’s Election Gaurav Yatra Speech at Behacharaji, Mehsana controversial and definitely hinted at a growing minority population.  The explanation given by Shri Modi is unconvincing and it definitely hinted at the growing minority population. (Page 160  SIT Report to SC, May 2010). Excerpts of Text of Speech at Annexure 1.

SIT Closure Report (2012): While the amicus finds the words spoken by the chief minister an offence, an incitement to violence and hatred against a particular section of the Indian people, in its closure report, the SIT finds that no criminal offence has been committed and recommends a closure of these allegations.

On the ‘action-reaction’ statement: “As per Modi’s version, he had not and would never justify any action or reaction by a mob against innocents. He had denied all allegations in this regard.” Zee TV never sent a copy of the interview, says the SIT. Their correspondent Sudhir Chaudhary told the SIT the Editors’ Guild report contained only excerpts and he did not have the original CD. He did recollect Modi’s reply that a mob “had reacted on account of private firing done by Jaffri, the SIT says. Chaudhary told the SIT Modi was of the view that he wanted neither action nor reaction. Modi reportedly said: “Godhra mein parson hua… jiski pratikriya ho rahi hai” but Chaudhary could not recount the exact sequence” (pgs 482-483, SIT Closure Report).

“As regards the public speech delivered at Becharaji, Mehsana district, on September 9, 2002, as a part of Gaurav Yatra, Modi has explained that the speech did not refer to any particular community or religion. According to Modi, this was a political speech in which he has pointed out the increasing population of India and had remarked that ‘can’t Gujarat implement family planning?’ Modi has claimed that his speech has been distorted by some interested elements who had misinterpreted the same to suit their designs. He has also stated that there were no riots or tension after his election speech. No criminality has come on record in respect of this aspect of allegation” (p. 272, SIT Closure Report).

E. Modi Government Took No Steps to Stop Illegal Bandh. According to the SIT report of 2010 to the SC, the Gujarat government did not take any steps to stop the illegal bandh called by the Vishwa Hindu Parishad on 28 February 2002. On the contrary the BJP had supported the bandh. (Page 69, SIT Report to SC, May 2010)

(It is important to remember that it was Hindu mobs mobilised by the local VHP and BJP leaders in the name of bandhs that had carried out the horrific massacres at Naroda and Gulberg Society on 28 February 2002 and those all over the state over the next days. March 1 was a state wise bandh when massacres at Randhikpur-Sanjeli, Sardarpura, Sesan, Odh, Pandharwada and Kidiad among others took place)

F. Modi as Home Minister did not Act to prosecute Hate Speech. According to the SIT report of 2010 to the SC, despite detailed reports recommending strict action submitted to Modi by field officers of the State Intelligence Bureau, Modi as Home Minister failed to take action against a section of the print media that was publishing communally- inciting reports, inflaming base emotions. This had vitiated the communal situation further. (Page 79, SIT Report to SC, May 2010)

G. Modi as Home Minister responsible for Destruction of Crucial Records. The 2010 SIT report to the SC says “The Gujarat government has reportedly destroyed the police wireless communication of the period pertaining to the riots.” It adds, “No records, documentations or minutes of the crucial law and order meetings held by the government during the riots had been kept.” (Page 13, SIT Report to SC, May 2010)

II. SIT Confirms the Serious Allegation that Godhra Dead Bodies were handed over to Jaideep Patel of the Vishwa Hindu Parishad in an illegal and controversial move. Jaideep Patel of the VHP was also allowed to attend an official meeting at the Collectorate, Godhra.
In the 2010 SIT Report to the SC, the SIT says, “SIT inquiry revealed that there was in fact a discussion at Godhra on the final disposal of bodies of those killed in the Godhra carnage. This was during chief minister Narendra Modi’s visit to the town on the afternoon of February 27, 2002. It was held at the collectorate. It is not clear who all were present or consulted. Apart from the district collector, the presence at least of Gordhan Zadaphiya (MoS, home) and Jaideep Patel, VHP activist, has been confirmed…..”… (pgs 19-23, SIT Report to the SC, May 2010; pgs 2-3, Chairman’s Comments, SIT report to SC May 2010).

SIT Closure Report 8.2.2012 also admits that Jaideep Patel transported the dead bodies to Ahmedabad
“The above facts would go to establish that though a letter had been addressed by mamlatdar, Godhra, to Patel of VHP….Nalvaya, mamlatdar, has acted in an irresponsible manner by issuing a letter in the name [of] Patel in token of having handed over the dead bodies which were case property and therefore the government of Gujarat is being requested to initiate departmental proceedings against him” (p. 463, Closure Report).

III. Narendra Modi did hold a meeting on 27 February 2002. But Did he tell his officers to let Hindus vent their anger freely against Muslims? SIT claims there is no conclusive evidence but holds that no minutes of an Official law and Order Meeting (as is Standard Operational Procedure) were maintained.
In arriving at its conclusion that ‘there is no conclusive evidence’ of the criminal statement by Modi, the SIT has discarded the evidentiary statements of Justices PB Sawant, Hosbet Suresh, former MOS Revenue, GOG, Haren Pandya, Suresh Mehta, and Sanjiv Bhatt. It has accepted the evidence of those IAS and IPS officers who are co-accused in the Zakia Jafri Complaint dated 8.6.2006 that include former chief secretary Subha Rao, former ACS Home Ashok Narayan, former DGP, K Chakavarthi, former Principal Secretary, CMO, PK Mishra, former Commissioner of Police, Ahmedabad, PC Pande.

SIT Report to SC in May 2010 “In the light of the above, a law and order meeting was in fact held by Modi at his residence late in the evening of February 27. However, the allegation that chief minister instructed the chief secretary, DGP and other senior officials to allow the Hindu community to give vent to their anger on the minority Muslims in the wake of Godhra incident is not established” (p. 19,  SIT report to SC, May 2010).

IV. SIT Accepts that in a Controversial Move Ministers were stationed in the Ahmedabad City and State Control Rooms
 The SIT Report to the SC, May 2010, says, in an extremely “controversial” move, the government of Gujarat had placed two senior ministers — Ashok Bhatt and IK Jadeja — in the Ahmedabad city police control room and the state police control room during the riots. The SIT chairman comments that the two ministers were positioned in the control rooms with “no definite charter”, fuelling the speculation that they “had been placed to interfere in police work and give wrongful decisions to the field officers”. “The fact that he (Modi) was the cabinet minister for Home would heighten the suspicion that this decision had his blessings.” (Page 12 of chairman’s comments in SIT report to SC, May 2010)

(It is to be noted that Ashok Bhatt’s cell phone analysis showed that he was in touch with VHP leader Jaideep Patel, a key conspirator of the Naroda Gaon and Naroda Patiya massacre, and with Gordhan Zadaphia, the then minister of state for home and who is now seen by the SIT as a major culprit of the Ahmedabad massacres.)

SIT Closure Report (8.2.2012) also admits that Ministers were stationed in the Control Rooms, Ahmedabad and State but says it was not a “significant” presence

“Therefore the allegation that the two ministers were positioned in the state control room and Ahmedabad city police control room by the chief minister is not established. Significantly, IK Jadeja remained at state police headquarters for two-three hours as per his own admission but did not interfere in the police functioning. Late Ashok Bhatt’s presence in the city police headquarters on the relevant day, if any, was very negligible and it cannot be termed of any material value. In the absence of documentary/oral evidence of any directions given by these two ministers to police officials, it cannot be said at this stage that they conspired in the perpetration of riots or did not take any action to control the riots” (pgs 474-475, SIT Closure Report, 8.2.2012).

V. Criminally Negligent Actions by Joint CP Tandon and SCP PB Gondia who were subsequently rewarded by the Modi government for their criminality.
The former Ahmedabad joint commissioner of police MK Tandon, in whose area around 200 Muslims were killed, has been found guilty of deliberate dereliction of duty. (Post the riots, however, far from being censored, he got one lucrative posting after another and retired as additional director general of police in June 2007.) His junior, former deputy commissioner of police PK Gondia, has also been found guilty of willfully allowing the massacres. The SIT says that if the two had just carried out their duty hundreds of Muslims could have been saved. (Pages 48-50 of the SIT Report to the SC, May 2010) Neither of these officers was held accountable by the Modi government. The first SIT report recommended further investigation as has been detailed at Annexure 2.**

Even the SIT closure report dated 8.2.2012 holds that
The closure report is forced to concede that the actions of Tandon and Gondia were questionable. However, in its view, a simple departmental inquiry was all that was called for. Going back on its own earlier findings, the SIT now also exonerates Tandon and Gondia for being in close telephonic contact with two accused persons: Dr Mayaben Kodnani and Shri Jaideep Patel (p. 496, Closure Report, dated 8.2.2012).

 “The conduct of Tandon and Gondia was unprofessional and unbecoming of senior police officers.” However, “the basic requirements for prosecution under the above Section (304A) are that the acts (including omission) must be rash or negligent… Considering all the circumstances, evidence on record and the defence available with the suspect police officers (Tandon and Gondia), it may not be possible to prosecute them for the offence under Section 304A as proposed by amicus curiae…” (pgs 499-503, Closure Report, 8.2.2012).

VI. SIT found evidence against Zadaphiya, MOS Home
The SIT has also found evidence against the then minister of state for home Gordhan Zadaphia (who was reporting directly to Modi) for his complicity in the riots. Another BJP minister Mayaben Kodnani has already been booked in the Naroda Patiya massacre. (Pages 168-169, SIT Report to the SC, 2010)


VII. Patently Partisan Investigations by Gujarat Police Top Cops to Shield Ministers and VHP men and Women
The SIT accepted the allegation that the state police had carried out patently shoddy investigations in the Naroda Patiya and Gulberg Society massacre cases. It deliberately overlooked the cell phone records of Sangh Parivar members and BJP leaders involved in the riots — prominent among them were the Gujarat VHP president Jaideep Patel and BJP minister Maya Kodnani. “If these records had been analysed and used as evidence, it could have established their complicity.” (SIT report to SC, May 2010, Pages 101-105)

VIII. Modi Rewarded the Officers who Acted Illegally and Punished those who Acted Lawfully

Upright officers penalised
The 2010 SIT to the SC report affirms that police officers who took a neutral stand during the riots and prevented massacres were transferred by the Gujarat government to insignificant postings. SIT’s Chairman Raghavan has termed these transfers “questionable” since “they came immediately after incidents in which the officers concerned were known to have antagonised ruling party men”. (Pages 7-8 of chairman’s comments in SIT Report to SC, May 2010)

The upright officers who were penalised for performing their constitutional duty include IPS officers Rahul Sharma, Vivek Srivastava, Himanshu Bhatt and Satishchandra Verma.
“It is true that there were a few such transfers which were in fact questionable, especially because they came immediately after incidents in which the officers concerned had known to have antagonised ruling party men… Neither police officer would however admit he had been victimised (pgs 32-36, Report to SC dated May 2010, and p. 8, Chairman’s Comments to SC, May 2010).
Guilty cops rewarded

The SIT report dated May 2010 to the SC admits the allegation that police officers who allowed riots to fester were rewarded with lucrative postings.
·         MK Tandon, who was the joint commissioner of police of Sector II, Ahmedabad, in 2002 and in whose jurisdiction more than 200 Muslims were butchered to death, was given the important post of inspector-general (IG), Surat range, soon after the riots. In July 2005 he was appointed to the post of ADGP (law and order) at the state police headquarters, a position with statewide jurisdiction. Tandon retired from the same position.
·         PB Gondia, deputy to Tandon, was DCP, Zone IV, at the time. He was promoted to the powerful post of IGP, State CID, and now enjoys the post of joint director, civil defence.
·         In addition to these police officers, there were other controversial bureaucrats and policemen who have remained high in the favour of the government despite their black track records. Among them are G. Subbarao (then chief secretary); Ashok Narayan (then ACS, home); PK Mishra (then PS to Modi); PC Pande (then CP, Ahmedabad city); Deepak Swaroop (then IGP, Vadodara range); K. Nityanandam (then secretary, home); Rakesh Asthana (then IG and currently CP, Surat city) and DG Vanzara (now in jail for staging encounter killings).

IX. Partisan prosecutors appointed.  The SIT 2010 Report to the SC confirms that the government appointed VHP and RSS-affiliated advocates as public prosecutors in sensitive riot cases. The report states: “It appears that the political affiliation of the advocates did weigh with the government for the appointment of public prosecutors.” (Page 77 of the SIT report to the SC, May 2010) The SIT chairman (RK Raghavan) further comments that “it has been found that a few of the past appointees were in fact politically connected, either to the ruling party or organisations sympathetic to it.” (Page 10 of chairman’s comments to SIT report to SC, May 2010)) ##

“It appears that the political affiliation of the advocates did weigh with the government for the appointment of public prosecutors” (p. 77, SIT Report to the SC, May 2010). The allegation is partly substantiated” (p. 238, SIT Report to SC May 2010). Also, “It has been found that a few of the past appointees were in fact politically connected, either to the ruling party or organisations sympathetic to it” (p. 10, Chairman’s Comments, SIT report, May 2010). Details of the partisan appointments are at Page 157 of the SIT Report to the SC and annexed here in Annexure 3.

X. Gujarat Government Misled the Chief Election Commission. The SIT Report of 2010 to the SC also asserts that in August 2002, in a bid to ensure an early Assembly election, top officials of the Modi government misled the Central Election Commission by presenting a picture of normalcy when the state was still simmering with communal tension. (Page 79 to 86, SIT Report to SC, May 2010).  (The BJP had prematurely dissolved the Assembly on 19 August 2002, nine months before the expiry of the five-year term, and demanded an early election. The BJP clearly wanted to take electoral advantage of the communal polarisation.)

Ends. (Annexures 1, 2 and 3 in separate attachment)
SIT Reports on Gujarat 2002 are available at www.cjponline.org
  1. IO AK Malhotra’s Report, May 2010 at http://www.cjponline.org/zakia/SIT%20Enquiry_Report_In%20ZAKIA%20CASE.pdf
  2. Chairman RK Raghavan’s Comments to May 2010 report at http://www.cjponline.org/zakia/Chairman%20Raghavans%20Comments%2014.5.2010.pdf
  3. Closure Report dated 8.2.2012 at