Supreme court ruling of 12 september 2011 has'nt cleared Modi (comment by Javed Anand)

From: Indian Express

Should Modi feel vindicated?

by Javed Anand

September 17 2011

After the September 12 Supreme Court order in the Zakia Jafri case, the Gujarat chief minister, Narendra Modi, claimed it was clear that “the unhealthy environment created by the unfounded and false allegations made against me and the government of Gujarat, after 2002 riots, has come to an end.”

Really? Should we then not be questioning the wisdom of the highest court in the land in ordering the Special Investigation Team (SIT) to submit a fresh charge-sheet (also called a final report) before a trial court, naming a chief minister (Modi), 11 of his cabinet ministers, three sitting BJP MLAs, six BJP and VHP leaders and 38 high-ranking police officers and civil servants, in response to the “unfounded and false allegations” made by Zakia Jafri and her co-petitioner, Citizens for Justice and Peace (CJP)?

Perhaps a look back at the November 2007 petition before the Supreme Court that culminated in the order of September 12 might help. In June 2006, Jafri, assisted by CJP, submits a 128-page complaint to Gujarat’s then-director general of police (DGP), P.C. Pande. The complaint is supported by 2,000 pages of documents, including certified copies of depositions before the Gujarat government-appointed Nanavati-Shah commission of inquiry into the 2002 carnage by two senior serving IPS officers, R.B. Sreekumar and Rahul Sharma.

The complainants seek the DGP’s help in registering an FIR, as earlier efforts to lodge it at the lower rungs of the police hierarchy got no response. The DGP is not very helpful either. How can he be, when his name also figures in the list of the 62 accused of serious crimes? When the charges include criminal conspiracy to commit murder, the punishment for which under Section 302 of the IPC is death or life imprisonment plus fine? Next, the complainants file a writ petition in the Gujarat high court, which is rejected. Then in November 2007, they petition theSupreme Court with two prayers: directions for the FIR registration and ordering that investigations be carried out by the CBI.

Had the Supreme Court found the allegations in the petition to be prima facie “unfounded and false”, the obvious thing to do would have been to dismiss the petition in 2007 itself. In lay terms, the apex court could have told the appellants something like: “Ms Jafri, we understand your pain and your search for justice. But your appeal alleging heinous crimes by Mr Modi and others are based on ‘unfounded and false allegations’. This, frankly is a bit over the top. Sorry.”

But the apex court did not dismiss the appeal. Now, four years later, the opening words of the order of September 12 read: “Leave granted”. Keeping the petitioners’ first prayer (FIR registration) on hold, in response to the second prayer for CBI investigations, in April 2009 the bench instead asked the SIT (appointed by it in March 2008 to investigate the nine major Gujarat carnage cases) to also “look into” the June 2006 complaint of the petitioners. Earlier this year, the court asked amicus curiae Raju Ramachandran to “independently” examine all the material collected by the SIT in view of the serious mismatch between the “findings” placed before the court (which are damning of several acts of commission and omission of many of the 62 accused by the petitioners) and the “inference” of its director, R.K. Raghavan (insufficient evidence for criminal prosecution).

The September 12 order directs the SIT to “forward a final report (also called a charge-sheet), along with the entire material collected by the SIT” to the specially constituted court before which the trial in the Gulberg Society carnage case is being conducted. The SIT would obviously also need to place the amicus curiae’s independent report before the trial court.

The Supreme Court is a court of appeal, not a trial court. For it to have passed any remarks or observations on the SIT report could be seen as influencing the conduct of the trial court. Jafri’s and CJP’s prayer before the apex body was never to short-circuit the judicial process. And they got more than what they asked for.For the first time in India’s history, a trial court is to examine whether a chief minister, along with 61 other top politicians and officers, should be charged with criminal conspiracy for murder and other serious offences. The court’s order clearly says that the charges against any of the 62 accused cannot be “closed” by the magistrate before giving a proper hearing to Jafri and CJP. The order also reiterates the petitioners’ right to appeal should they believe the magistrate has erred in his decision.

Should Modi and party be laughing or crying?

The writer is a founding member of Citizens for Justice and Peace.