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    Posted on 19 May 2012

    The superior is equally liable for his subordinate’s acts

    Both amicus curiae and SIT’s reports should be considered in the Gujarat 2002 case, says Justice (Retired) Judge H Suresh

    In a recent debate on a national TV channel, the question was raised as to which of the two reports—the report made by the Special Investigation Team (SIT), or the report made by the amicus curiae—should be legally considered. The argument was that while the former was made by a police officer, the latter was by a non-official. The debate was fundamentally flawed. Both had been authorised by the Supreme Court. In fact, the SIT report which was presented earlier to the Supreme Court was not satisfactory, and hence the Supreme Court appointed Raju Ramachandran, amicus curiae, to have a re-look at the SIT report and make his own report after due inquiry. Hence the answer to the debate should be that both the reports should be considered in juxtaposition with each other. And, if so analysed, one would find several glaring infirmities in the SIT report.

    Raju Ramachandran has said that Narendra Modi could be prosecuted under Indian Penal Code (IPC) Section 153 A (promoting enmity between different groups on grounds of religion), Section 153 B (appealing publishing or asserting or propagating to cause disharmony or feelings of enmity or hatred or ill-will amongst different religious groups), Section 166 (being a public servant, causing injury to people by not obeying legal provisions), and Section 505 (making statements which are likely to incite one class of persons as against any other class). All these offences are matters of record and can easily be secured as the whole world has seen and heard what Modi, or persons like Togadia, said and did.

    But more importantly, Modi can as well be charged u/S. 120 B of the IPC for criminal conspiracy for causing death of a large number of innocent men, women and children, and for arson and destruction of properties, being all crimes against humanity. In fact, he is the chief conspirator of all that has happened in Gujarat in 2002.

    To come to that conclusion, one has to go back to Godhra, on 27 February 2002. In fact, no investigation about Modi’s role would be proper without taking into account its genesis at Godhra, which must be understood in its sequence.

    The full capacity of the train was 1100, but at the time of the incident the train had about 2000 passengers, of which 1700 were Karsevaks. The reservation capacity of S-6 (the coach which got burnt) was 72. There is no evidence to show that all those found dead were Karsevaks. One such person, was definitely the local Station Master’s wife, who had boarded the train at Godhra .

    In all, 58 bodies were found in coach S-6, which were all charred beyond recognition.

    The first to arrive at the scene was Jayanthi Ravi, the District Collector, who arranged to have the bodies removed from the train.

    From 8:30 am until 7:00 pm that evening, repeated statement(s) of the District Collector was relayed on Doordarshan (TV) and Akashwani (radio) saying: “the incident was not pre-planned, it was an accident.” In fact, till date, there is no evidence as to who set the fire.

    The then Prime Minister, Atal Bihari Vajpayee, made a statement in the Parliament on that very day, in the forenoon, asking the people to remain calm and that the Gujarat government would order an inquiry.

    Modi along with Ashok Bhatt and other cabinet colleagues arrived in Godhra at about 2:00 pm. After meeting the Collector, he decided to take the charred bodies to Ahmedabad, against the advice of the District Administration. He wanted to take the bodies in the same train but the District Administration strongly opposed this for law and order reasons.

    Just as the bodies were leaving Godhra, Modi, without any material whatsoever, made a public broadcast stating that “the ISI hand was behind the Godhra incident”. The bodies were taken in a five-truck motor cavalcade to Ahmedabad, stopping at every town on the way, with slogans to incite people to wreak vengeance on the Muslims. The bodies reached Sola Civil Hospital at Ahmedabad at 3:35 am on 28 February, in a very surcharged atmosphere.

    At about 5:30 pm on 27 February, during the curfew hours, about 40 shops belonging to the Muslims, situated at Signal Falia at Godhra, were destroyed. The Rapid Action Force was present, but was not allowed to intervene.

    After returning from Godhra, Modi announced that there would be a State bandh the next day. This was after the Vishwa Hindu Parishad (VHP) and Bajrang Dal (BD) had already called for a bandh.

    He then called a meeting of senior police officers in the presence of his cabinet colleagues and instructed them that they should not do anything to contain the ‘Hindu reaction’. (The media, today, has been dilly-dallying on the question whether Haren Pandya or Sanjeev Bhatt were present or not in this meeting. What is important is that there is no denial that this meeting had taken place. Modi does not say what he said in the meeting. Having declared a State bandh, are we to imagine that he still instructed them to stop ‘Hindu reaction’?)

    On the same day, senior ministers of his cabinet organised a meeting, late in the evening, in Lunavada village, in which 50 leaders of the Bharatiya Janata Party (BJP), Rashtriya Swayamsevak Sangh (RSS), VHP and BD also took part, to work out the method and manner in which the next 72-hour-long carnage was to be carried out.

    Thus, it was Modi who should be considered responsible for spreading the holocaust to the rest of Gujarat, while it could have been controlled and confined to Godhra and Godhra alone. Undoubtedly, Modi was responsible for the spread of violence, post-Godhra, in the rest of Gujarat. All the points stated above are matters of record, and the SIT should have had no difficulty in finding them, unless the SIT had a different agenda.

    What do these facts show if not a conspiracy to commit mass crime, as has taken place? Conspiracy is a tacit understanding as between two or more persons, to do, or cause to be done, illegal acts. The series of events as mentioned above, clearly show that Modi, and all those who perpetrated the crime, had an understanding that they would indulge in acts of violence and other heinous crimes, and Modi, despite his constitutional mandate, would not exercise his powers to stop them.

    This has to be understood in the light of the fact that Modi came to the state mainly as a RSS pracharak and succeeded in becoming the Chief Minister. As a part of his agenda, he permitted wide-spread preparation for months together, by the Sangh Parivar, only to wait for an event like the one at Godhra to unleash violence and hatred against Muslims.

    The SIT seems to have found fault with some of the officers, while exonerating the Chief Minister. It is now well settled that no officer, having committed a crime, can take shelter under the orders of his superior. Does that mean that the superior can get away with it? The answer is in the negative. He is equally liable for all the acts his subordinate does. As Justice VR Krishna Iyer says: “The Chief Minister, oath-bound to defend law and order, vicariously connived at the inhuman violence”, and as such, he cannot plead that he is not liable for any criminal action.

    Justice H Suresh is a retired judge of the Bombay High Court

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    Posted on 19 May 2012



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