20 March 2010

The buck must stop at the very top

The SIT’s decision to question Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the doctrine of command responsibility ...

20 March 2010
The Hindu

The buck must stop at the very top
The SIT's interest in questioning Narendra Modi for the Gujarat riots underlines the reason why the new Communal Violence Bill must embrace the command responsibility doctrine...

Siddharth Varadarajan

The Special Investigation Team's decision to summon Narendra Modi marks the first time any judicial or quasi-judicial body has seen fit to ask the Gujarat Chief Minister what exactly he was doing when murderous mobs took charge of his state in 2002.

From February 27 — when the Sabarmati Express was attacked by a mob at Godhra — to mid-March, by which time the worst of the targeted violence was over, more than 1,500 Muslims lost their lives across Gujarat. The Justice Nanavati Commission is probing the matter and criminal cases stemming from the violence are at various stages of completion. Despite these, there has, as yet, been no proper accounting for the mass killing and destruction of property. Disturbed by the lack of investigative and prosecutorial enthusiasm within Gujarat, as evidenced by speedy acquittals of the accused, the Supreme Court transferred two cases outside the State. It set up the SIT to help with the probe into a number of high profile incidents. It also put the State government on notice for its failure to punish the guilty, describing Mr. Modi and his colleagues as “modern day Neros” who chose to look the other way while Gujarat burned.

Any society built on the foundations of law would not require the widow of a victim to petition the highest court of the land in order to investigate the reasons behind the state's failure to protect the life of its citizens during those fateful days. The fact that the apex court's intervention was necessary is itself an indictment of the Chief Minister, under whose watch such large-scale death and destruction took place, and under whose leadership, eight years on, justice continues to be elusive.

The petition filed by Zakia Jaffrey and the Citizens for Justice and Peace asks questions that any honest investigator probing the violence would want to ask. At stake is not so much the individual guilt or innocence of Mr. Modi but the need to unearth and dismantle a system of rule which could allow so many innocent people to be massacred.

The petition, pursuant to which the SIT now wants to question Mr. Modi, began life in 2006 as a criminal complaint filed with the Director-General of Police in Ahmedabad by Ms Jaffrey and the CJP. They wanted a First Information Report to be registered against 62 individuals, including Mr. Modi, his ministers and senior police officials and bureaucrats for their role in the 2002 violence. With the police refusing to file an FIR — a requirement under Indian law — the petitioners approached the Gujarat High Court and then the Supreme Court, which last year asked the SIT to look into the matter.

Two categories

The questions posed in the petition fall into two categories. One focuses on the administration's sins of omission, the other on its alleged acts of commission. Why were the bodies of the victims of Godhra train carnage, all but one of whom were Hindu, brought to Ahmedabad, for example, and why were they paraded in the street? Prima facie, that decision, which was cleared at the highest level, seems to have been designed to inflame communal passions. The petition asks whether senior police officials told the Chief Minister or higher officers in writing about the likely repercussions of parading the bodies. Why was no preventive action taken when a bandh call had already been given by VHP? Why was the Army not called out immediately and why was there a delay in its deployment when it finally reached Ahmedabad? By themselves, none of these questions implies the commission of a crime. But the answers they elicit would obviously provide clues for further investigation.

The petitioners also asked for an investigation into reports that the Chief Minister had held a meeting in Gandhinagar on February 27 evening with senior officers to review the situation arising out of the Godhra incident. A former police officer, R.B. Sreekumar, has alleged in an affidavit that instructions were given to the police at that meeting to allow “Hindus” to “vent their anger” against the state's Muslims. The petitioners also charged collusion between the Modi government and the Vishwa Hindu Parishad -- whose leadership and cadre spearheaded much of the violence against the Muslims – and called for the telephone records of the Chief Minister and senior ministers and officials to be examined.

Some pointed questions

Besides asking the SIT to probe the existence of a conspiracy to unleash communal violence in Gujarat, the petitioners also sought answers to some pointed questions. Why, for example, was there was no response to the desperate calls for help made by Ehsan Jaffrey, the former Congress Member of Parliament and husband of Ms. Jaffrey, who was murdered at the Gulberg housing society in Ahmedabad by a mob along with 68 others on February 28, 2002?

Fearing attacks, many Muslims from the Chamanpura locality of the city had sought refuge in Ehsan Jaffrey's compound believing the police would adequately protect the former MP. As the mob outside grew more menacing, Jaffrey made phone calls to senior politicians and police officers asking for help. But to no avail. In the end, the mob broke in and slaughtered dozens of women, children and men, singling out the elderly Jaffrey for particularly brutal treatment.

One of those who went missing in the violence at the housing society that day was a 10-year-old Parsi boy named Azhar, later to become the subject of Parzania, a feature film on the riots. Last November, his mother, Rupa Mody, testified before a trial court in Ahmedabad that Jaffrey told her he had spoken to Narendra Modi too on the telephone about the threatening mobs outside his compound but the Chief Minister had refused to help.

The Indian Penal Code has powerful provisions dealing with conspiracy and the Prevention of Terrorism Act (which was in force at the time) also has sections which apply well to those responsible for the carnage. But at the heart of the ‘riot system' lies the vicarious responsibility of the political leadership. Both in Gujarat and in Delhi in 1984, when more than 3,000 Sikhs were massacred, the leadership knew mass crimes were happening under its jurisdiction. It could have stopped those crimes promptly but chose not to. Some leaders may even have directly facilitated the commission of those crimes by instructing the police not to act.

As an investigative arm of the Supreme Court, the SIT must be allowed to establish the broad facts about what Mr. Modi did or did not do during the violence. If its investigators find a smoking gun linking him directly or indirectly to the violence or the wider conspiracy to commit violence, one could expect an FIR to be lodged. In the absence of such evidence, the SIT may nevertheless establish the chief minister's vicarious responsibility. If the SIT concludes, for example, that the Chief Minister failed to take timely action to stop the violence and failed to discipline or punish police officers who refused to protect the life and property of those under attack – offences which arguably figure only as dereliction of duty in the IPC and which attract relatively light punishment -- the apex court would have the opportunity to pass judgment by bringing Indian legal practice in line with customary international norms.

Eight years after the Gujarat killings, it is surely time to ask how the Indian legal system could be strengthened so that future day Neros can be held strictly liable for their fiddling in the face of mass crimes. The proposed Communal Violence bill provides one such opportunity formally to embed the doctrine of command responsibility — holding superiors guilty, under certain circumstances, for the acts of those under their command. It also provides an opportunity to strip away the impunity provided to police officers and senior officials, whose acts of omission and commission allow terrible offences to be committed against vulnerable sections of the population. Unfortunately, the draft bill currently lacks such provisions, which means that had it been statute in 2002, it would not have deterred the perpetrators of the anti-Muslim violence in Gujarat. This is the basic test all justice-loving Indians must demand of the proposed new law.


vishal said...

Though i am a congress party member i believe that government lacks credibility to take this investigation forward because it should first clean up the sikh riot mess to send a strong signal to public and people like modi that they cann't get away from this.

Anonymous said...

Too many people playing God when ti comes to Modi.. so and so heard so and so say that Modi did this and did that.. No wonder till date all these vultures could nto get even a simple FIR registered with these conjectures..

Shaem on you judge jury and excutioner media ponga pandits

Deshabhakta said...

Will you apply the same International Law against Rajiv Gandhi for the 1984 riots in Delhi?
Is PNVR to be tried and summoned for 1992 Mumbai riots?
How about charging Manmohan Singh for 26/11 attack on Mumbai and so many other terror attacks on this Nation during his tenure?
This land is governed by a formal law called "The Constitution of India". Applying so called international law onto an internal matter of the Republic of India is, as expected from you, a totalitarian view undermining the sovereignty and integrity of India. The secular/jehadi union was chasing SIT to somehow get Modi involved and this summon is just a result of that. Please note, he has just been summoned by SIT; unlike being held guilty by people like you.
You talk of stories Azhar and others. Have you ever thought of those 254 Hindus who lost their lives in the same riots? And, SIT recently told SC that Teesta and Co cooked up stories of murder and rape and also 'created' evidences.

uthamanarayanan said...

Beautiful presentation Mr.varadarajan,but I do not believe ultimately any justice will be done in this mundane world.All delaying tactics ,dilly dallying the issue,technicalities involved ,procedural delay,political changes involving the procrastination of how best possible - may be good intellectual exercise by the media and writers.Lives lost , are lost for ever.Only depression set in the minds of the honest and humane readers who are helpless anyway except typing out letters or comments.Media can benefit either from the ruling or the opposition, since 'the paid news'concept eroding the confidence once we had with the fourth pillar of democracy.Money corrupts and corrupts completely the entire humanity.Homo sapiens was once a species no longer exists.

desi said...

I guess you will also publish the same comments for Rajeev Gandhi, Sajjan kumar and other who were responsible for Sikh massacre.

I guess you will also publish same comments for Pakistani leaders who were involved in 26/11 massacre.

I guess you will apply the same logic to other chief ministers under whose rule riots have happened.

~rAGU said...

Your only correct claim is that religious violence should end. Your article at least should have tried to hide bias. Incorrectness is incorrect until renaming related incorrectness are correct.

KR said...

I'm skeptical that command responsibility in the absence of direct involvement on the side of the offenders is sustainable. To take a direct example, would Manmohan Singh now be in the dock for 11/26 and the recent Pune bombing for starting talks with Pakistan that lead to negative actions from people looking to scotch his initiatives?

P4ND3Y said...

Well said Sir.

Anonymous said...

Mr.varadarajan, you are hypocrate.
Gujarat has seen worst riots than this during congress rule.More hindus were killed than Muslim but
there were never Sup.inqury.Again
2000 people were not killed.get some facts.And dont forget Shiks riots on which you are quite.You dont like Mody but Gujarat loves him that's matter to count.

Anonymous said...

Whether command responsibility is accepted or not, the fact remains that political establishments will have broad discretion to decide whether a person is guilty of a crime even in the presence of strong evidence. While it may be tempting to dismiss this as a feature peculiar to India the fact that officials from your own country like Dr. Kissinger are extended the same types of immunity makes it look like a rather universal phenomenon.

Raghu Seshadri said...

Mr. Siddharth

Good day.

We would also like to know the truth about who was behind burning the Sabarmati express in Godhra on Feb 27, 2002.

Because we know Mr. Narinder Modi, it has been easy to pick him up.

But, what about the mob that has killed 57 Hindus ? Because they are unknowns, they will get submerged in the events of past, as unknowns, forever.

The whole episode is a farce.

jl said...

There are a lot of murders committed everyday, many crimes. That's normal. That's how we humans are.It's terrible, but it happens. But when the keeper of the law orders murders, commits serious crimes---when the fence eats the crop--then we have to be seriously worried. That is the point. So, the polticians who ordered the murder of sikhs after Indira Gandhi's murder, must be punished as must be Modi and the senior functionaries of the then Gujarat government.

T Azeez Luthfullah said...

Anything can happen. After all, Narendra Damodardas Modi too is a humanbeing with a heart. His heart may prick him. His conscience may stir him. He may break into tears and beg pardon.
Anything can happen. After all, Narendra Modi too is a humanbeing with a dhadaktha dil.
He may accept his crimes, murders, sins and start crying. He may ask a glass of water. He may resign and surrender himself to the court. He may write a book sitting in jail waiting death sentence. Anything can happen. After all, Narendra Modi too is a human with a dhadaktha dil.
Let us wait. Let the law take its own course. Let Teesta and Zakia Jafferi succeed. Let us hope..!

Srinivasa Ramanujan said...

Mr. Varadarajan,

Winning a few awards in journalism should not make you so smug. Your article reveals nothing new, nothing which has not been discussed threadbare before. So why parrot the same thing? You reveal your bias and put your credibility as a neutral chronicler/reporter/journalist at stake. To quote you from the article - "If its investigators find a smoking gun linking him (Modi) directly or indirectly to the violence or the wider conspiracy to commit violence, one could expect an FIR to be lodged. In the absence of such evidence, the SIT may nevertheless establish the chief minister's vicarious responsibility." Either way, you want Modi impaled ! Due process of law go to hell. I wonder why the Supreme Court chose the SIT. They could have as well chosen you. You would have solved the case on the very same day! Do us a favour. Just sit in the US and suck up to those commies who pay you and award you for your "brilliant" articles. You are better off writing about Yugoslavia sitting in a free country like the US. Or do us a real favour. Why don't you raise the bar for yourself, and do some serious journalism, residing in (this is important - you need to reside there!) and writing about countries where communism and tinpot dictatorships flourish. Next destination Somalia? You don't have anything to write about the unjustness of law in that great country? Atleast then, people can appreciate that you are something more than an armchair hypocrite preying on easy meat to leave behind your all-too-familiar journalistic diarrhoea? It stinks!

Anonymous said...

Hi Siddarth,
Interogation of the CM of a state in a communal voilence case(maybe first of its kind in India) is great step to re-state the values of INDIAN secular democracy, judicial power and autonomy.
Irrespective of the political ideologies of different parties I believe there is need to check the loop holes in the adminstrative system and the police functioning which either directly or indirectly governed and dictated by the rogue political elements.(this may not be true in case of Gujarat till the highest court of the land decides). Nevertheless, the bottomline is 'effective checks are lacking preventing the adminstrative officials yeilding to political pressure'.

Water Engineer said...

Mr. Sidhartha

Not more than 1200 were killed, and muslims were not more than 900. Get your figure correct.

quote Any society built on the foundations of law would not require the widow of a victim to petition the highest court of the land in order to investigate the reasons behind the state's failure to protect the life of its citizens during those fateful days. unquote

But this has happened before and after Godhra riots. Off hand, many windows of anti Sikh riots are there.

SC transgered TWO cases, out of HOW MANY registered? 25,000, Mr Sidhartha!!

quote At stake is not so much the individual guilt or innocence of Mr. Modi but the need to unearth and dismantle a system of rule which could allow so many innocent people to be massacred.

Yes. Modi is yet to shown guilty. I ask you: Do you accept the system? NO?? The very system that saw ethnic cleansing of Kashmiri Pandits.The very system which allowed Bareilly to burn for 15 days, where hundreds of Hindus died? Or the Hyderabad carnage. Or pre 2002 riots in Gujarat.

Speaking in toungues?

quote Why was the Army not called out immediately and why was there a delay in its deployment when it finally reached Ahmedabad?

How much time lag is unpardonable delay Mr. Siddhartha? Get your facts clear.

Train was burnt on 27 Feb. Same day Modi issued shoot at sight orders. Contest it? Curfew was imposed. Like to counter it?

By about mid night of Feb 28-March 1, Army was in position. Delay? Army units were airlifted from Rajasthan border. Want to contest this fact? From helipads to deployment was Army business. Ask them.

quote Why, for example, was there was no response to the desperate calls for help made by Ehsan Jaffrey, unquote

Did he really call? Proof?? Oh, ZERO.

Do you know that India does not recognise the International Criminal Court?

Do you know SC cannot create a new law just to hang Modi, your sole [or soul] agenda?


Did you and wipe the tears of Pandits? NO? They do not exit?

windwheel said...

The doctrine of 'command responsibility' holds that that the person holding command is responsible for the actions of his subordinates, including acts of omission.
The allegation against Narendra Modi is that he either himself abetted, or at the very least failed to prevent, heinous acts of violence in the aftermath of the Godhra atrocity.
In Indian law, Modi would face criminal charges if admissible evidence substantiates the allegation.
A separate question- one relating to the chances of success of court cases filed against Modi, on Human Rights grounds, in a foreign jurisdiction or one founded upon a claim for damages under the U.S Alien Torts Claims Acts- has to do with 'command responsibility'.
This begs the question as to whether Modi had inherited a machinery of State that was fit for purpose and, as such, amenable to command.
What are we to say of a State where, in 1992, the police were in the pockets of a gangster (who also financed the Congress party) who assasinates a senior Congress M.P who was about to present damaging information about him to the Central Home Minister? The same gangster, together with a former Congress Minister of Fisheries, then arranges a terror attack on Surat in response to the Babri Masjid demolition before fleeing to Pakistan.
Modi, over the years, may well have eliminated at least the criminal/terrorist/police nexus. But, in a democratic set up, how much further can he go to break the nexus between land sharks and corrupt policemen? What of illicit liqor, the flesh trade, drugs and the various other ills associated with rising material prosperity?
As for religious and caste prejudices- can his mantra 'all religions are equal paths to God' really prevail?
Modi was brought into Gujerati politics because he was neither a Patel nor a Kshatriya. He was supposed to confine himself to speech making and, perhaps, building bridges to adivasis and marginalized farmers. His response to the Kutch earthquake showed the calibre of the man. But Godhra should have cut him off at the legs. Riots are the means used by the middle level party bosses to render the guy at the top impotent. It's all about countervailing power. The middle level guys are paid off by the criminals who then themselves can rise to become political figures.
Modi essentially took responsibility for the post Godhra riots, utterly obscene though they were, thus rising above his rivals and concentrating power in his hands. With the courage of desperation he then brokered a deal with the farmers whereby they gave up free electricity in return for an assured power supply at night at a lower rate. This was only one of many path-breaking initiatives that he took. Some see Modi's manic energy, post-Godhra, as a psychological defence against the horrors of the riots. What is unquestionable is that Modi changed how Government and Society interacted.
His attitude towards Panchayat Raj- where he encouraged unanimous voting in elections- indicate his supicion of the political instrumenalization of disorder that is the other side of the coin of party politics.
Modi refers again and again to the fact that he wasn't involved in student politics and held no elected office until parachuted in by the BJP high command.
Both Godhra and its aftermath were the inevitable result of a corrupt political process in which not just criminals but also terrorists could be used to appeal to 'vote-banks'. The hilarious story of Ram Vilas Paswan taking along an Osama bin Laden look alike to gather Muslim votes shows how cynical our politicians are.
In this context, Modi's moral as well as 'command responsibility' for the post-Godhra riots pales into insignificance when compared to the hereditary masters of the Nation's destiny.