Do Modi and BJP really have reason to celebrate the Supreme Court order?

 

The Last Nine Years...

• February 28, 2002: Mobs attack Gulberg Society. Former Congress MP Ehsan Jafri is charred to death, 68 others are also killed
• June 8, 2006: Ehsan Jafri's widow, Zakiya, seeks FIR against Narendra Modi & 61 others
• May 1, 2007: Zakiya moves the Gujarat High Court after the police don't entertain her complaint. The court dismisses her plea on Nov 2.
• Apr 27, 2009: The Supreme Court asks an SIT to look into the complaint
• May 14, 2010: SIT submits its report with Prashant Bhushan as amicus curiae
• Oct 26, 2010: Bhushan quits. New amicus Raju Ramachandran finds flaws in SIT report. In Mar 2011, SIT is asked to probe case again.
• Apr 25, 2011: SIT submits final report to SC
• May 5, 2011: SC gives report to amicus curiae
• Sep 12, 2011: SC directs trial court in Gujarat to take up the case.

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It was through journalists that Zakiya Jafri, 75, heard about the September 12 Supreme Court order on her petition seeking an FIR against 62 persons, including chief minister Narendra Modi, in the Gulberg Society killings during the 2002 Gujarat carnage. Seated in her son Tanvir’s house in Surat, where a power cut had cut off her access to television, she got to know about the order when TV reporters sought her reaction on it. They told her that Modi had been granted “a reprieve, a clean chit”, making her worst expectations come true. As Modi tweeted “God is great” and the BJP exulted in “victory”, inundating the media with soundbites, Jafri’s perception only gained strength.
It was only in the next couple of hours, as she spoke with Tanvir, who was in the court with her lawyers and co-petitioners, that her reaction went from dismay and disappointment to quiet satisfaction and triumph. “I understand that we are now finally on the path of justice. I am okay with the order,” she told Tanvir. He, on his part, later told Outlook: “The channels first said Modi got a ‘clean chit’, then the BJP said the same. How is it a ‘clean chit’ when Modi has to appear before the magistrate’s court in Gujarat? Even my mother now understands this.”
The graph of reactions showed by Zakiya, widow of then Congress MP Ehsan Jafri who was killed in their house in Gulberg Society along with 68 others in February 2002, is not unique to her. It more or less represents the mood among other victims of that carnage, as well as citizens not directly affected but nevertheless interested to see how the apex court would deal with the issue.

Somewhere along the way, as Jafri and co-petitioner Teesta Setalvad’s Citizens for Peace and Justice (CJP) took the petition from the then DGP (Gujarat) to the Gujarat High Court and finally approached the SC beginning 2006, the issue had morphed from seeking an FIR against the suspects into total legal censure of Modi. It all boiled down to one simplistic formulation: would the SC put Modi in the dock? A bench comprising Justices D.K. Jain, P. Sathasivam and Aftab Alam refrained from passing such an order; it directed the trial court in Gujarat to take a decision on Jafri’s complaint, and told the SC-appointed Special Investigation Team (SIT) to submit its final report to the trial court, suggesting that it “obtain from the amicus curiae copies of his report” submitted to the SC.
In effect, it meant that, let alone filing an FIR, the Supreme Court stated that the investigation had been completed, an independent assessment made by the amicus curiae and, as per law, the trial court was the appropriate forum in law to decide the case. Modi and others would now appear in the trial court, and the complainants would have the right to be heard before any name is dropped. “It’s indeed a good order,” says Tanvir, an assistant general manager with an engineering company.

“We are five steps ahead of what we asked for, but dismayed that SIT is the agency,” says Teesta Setalvad.

However, the absence of direct strictures against Modi allowed the CM and the BJP to interpret that the SC order was in their favour. Veteran leader L.K. Advani said the order was “a big relief” to the BJP, leader of the Opposition in the Rajya Sabha Arun Jaitley said “we stand vindicated...we had always said the allegations against Modi are totally false”, while his Lok Sabha counterpart Sushma Swaraj exulted that “Narendrabhai had passed the agnipariksha”. In Gandhinagar, Modi himself expressed relief even as his acolytes took on “the pseudo-secular activists” for unfairly targeting him for direct and indirect culpability. This chimera of a victory allowed the party to again bring up his candidature for the prime minister’s chair in 2014; it undoubtedly boosted Modi’s chances in the state polls next year. Through the din, the Congress soldiered on, maintaining that the SC order “was no clean chit”. Ace lawyer and party spokesperson Abhishek Singhvi refuted the BJP claim that Modi had been exonerated in the case. Though it was the correct legal position, the Congress seemed to have lost the battle of perceptions. Every legal point was given a liberal political spin. For example, the SC order stated that it would not monitor the case now as the SIT had completed all investigation, but the BJP took this to imply that the matter was not so serious any more.
Seizing the moment, Modi wrote an open letter to his “six crore Gujarati brothers and sisters” declaring that he would fast for three days beginning September 17, his birthday, “for peace”. Not to be outdone in the tried-and-tested Gandhian tactic, state Congress leader Shankersinh Vaghela too announced his intention to fast on the same days. The political battle received a boost from another open letter, this one from suspended IPS officer Sanjiv Bhatt, who had testified against Modi before the SIT and later filed an affidavit in the SC about the crucial February 27, 2002, meeting where Modi had reportedly asked the administration to go easy to allow “Hindus to vent their anger”. Invoking Goebbels and Gujarati poetry, Bhatt termed the SC order “a very cleverly-worded order that takes the perpetrators and facilitators of the 2002 carnage a few leaps closer to their day of reckoning”.

The SC order appears to put the onus on the SIT, chaired by former CBI director R.K. Raghavan. But what is causing disquiet among the petitioners and the anti-Modi brigade is the SIT’s earlier observation that there was no “prosecutable evidence” against Modi. As Setalvad said, “We are five steps ahead of what we asked for, but are disappointed that the SIT remains the agency. Raghavan’s conclusions are a problem, but we now have the locus to argue them in the trial court.” The SIT had submitted its report, but the SC had asked the amicus curiae to independently review it.
In this context, Modi’s legal—and political—future depends on amicus curiae Raju Ramachandran’s observations and conclusions in his report (see interview). “As I understand it, Modi stands an accused now in the sessions court and we will be consulted before his name can be dropped from the case,” says Tanvir Jafri. “If there was any other kind of SC order, it might have had terrible repercussions and the whole country may have come to a standstill.” All eyes are now on the trial court.

From Oulook