Cutting through the hype and getting down to brass tacks, amicus curiae Raju Ramachandran explains to Ashish Khetan the Supreme Court order in the 2002 Gujarat massacre case
The Supreme Court order directing the Special Investigation Team to file its final report into the allegations of Narendra Modi being the architect of the 2002 Gujarat massacre before an Ahmedabad trial court has been wrongly interpreted as relief for the Gujarat chief minister by his party and sympathisers. The amicus curiae in the case, Raju Ramachandran, who had been assisting the apex court for almost a year tells TEHELKA that the order is neither an exoneration nor a clean-chit for Modi and several other state top functionaries who have been listed as accused in the slain Congress leader Ehsan Jafri’s widow Zakia Jafri’s complaint.
Explaining the true legal and judicial essence of the order, Ramachandran said that his comprehensive and independent evaluation of the SIT report would have a significant bearing in the final outcome of the probe against Modi. He also dismissed the apprehensions that entrusting the judicial proceedings into the allegations of larger conspiracy back to an Ahmedabad court would lead to derailment of the process of justice. He said the complainant would have all the judicial remedies available to her, in case she is dissatisfied with the trial court proceedings. Contrary to the picture painted by the BJP, Modi’s tryst with the law has only begun and not ended.
In your considered view, is the Supreme Court order instructing the SIT to place its final report or chargesheet before a trial court in Ahmedabad, a legal and moral victory for Narendra Modi and others—as being claimed by BJP and the government of Gujarat?
As an amicus, I would not like to comment on the reaction of this side or the other. I am, however, keen to see that the order is correctly understood. The Supreme Court’s order is an impeccable one. It upholds the rule of law. It protects the rights of both the complainant and the potential accused. The law will now take its course. My report contains an independent assessment of the material on record which was given after an interaction with relevant witnesses. The SIT Report and my report would be before the trial court. I have no doubt that the trial court will act in accordance with law and that the ends of justice will be met. It is premature to talk of either clean chits or indictments. That stage can come before the trial court when the law is set in motion.
The complainant’s two basic prayers—a) that a separate FIR into the aspect of larger conspiracy should be registered and, b) the probe should be handed over to the CBI or some agency independent of the existing SIT—have both been turned down. Isn’t this a victory for the Gujarat government?
As far as the first prayer is concerned, it is no longer relevant since the entire material, after a statutory investigation, has been directed to be placed before the appropriate court, along with the final report of the investigating agency. The law has thus been set in motion. As far as the prayer for a CBI enquiry is concerned, the court has not found any need for it, since the investigation has been done by an SIT appointed by it. I see neither victory nor defeat for anyone in this.
In the history of Supreme Court legal activism, where do you think this order stands? A few senior lawyers have gone on record to say that the rule of law hasn’t prevailed.
I think this is—constitutionally and legally—one of the soundest orders passed by the Supreme Court in the context of a court-monitored investigation. For the reason which I have already given in answer to your first question: that is, it fully protects the rights of both the complainants and the possible accused. It furthers the rule of law and I am afraid I seriously disagree with lawyers who think otherwise.
In the first status report submitted in November 2010, the SIT clearly mentioned that it was strictly a preliminary enquiry (PE) and not an investigation as envisaged under the CrPC. But this order says that the investigation is now over and the trial court may take over. At which stage did the PE turn into an investigation?
It has, both on its own and thereafter after my first report in January 2011. The subsequent probe was a full-fledged investigation in the already existing case of Gulberg Society Massacre.
The Supreme Court in paragraph 8 and 9 of its order says: “In cases monitored by this court, it is concerned with ensuring proper and honest performance of its duty by the investigating agency and not with the merits of the accusations in investigation, which are to be determined at the trial on the filing of the charge-sheet in the competent court.” Don’t these remarks made by the court imply that the SC believes that the probe carried out by the SIT pursuant to Zakia Jafri’s complaint has been fair and honest and the court is happy with the outcome?
The court has only reiterated the well-settled legal position that once an investigation has been conducted and completed, there is no option except to forward the final report under Section 173(2) of the CrPC to the concerned court. The court has scrupulously refrained from commenting on the merits of the case or on the investigation. There is therefore no question of the court being happy or for that matter, unhappy, with either the SIT’s report or the report of the amicus.
As the saying goes that not only must justice be done, it must also be seen to be done. So in that sense hasn’t the very purpose of this order been defeated if the victims view it as wishy-washy judgment?
It is precisely because of this perception that I am speaking to you, in spite of my initial reluctance, as amicus, to speak to the media. I have already explained the meaning and purport of the court’s order, and am clear that justice has been done.
The complainant herself has said that she is deeply unsatisfied and unhappy with the order. That she was expecting much more. She has also said that if SC can’t take a position then how it could be expected that an Ahmedabad trial court will do any justice?
As I have already said, I don’t wish to comment on the reported reactions of anyone. However, the Supreme Court is not a trial court, to ‘take a position’ on the merits of a case. ‘Taking a position’ by the highest court can cause irreparable prejudice to either the complainant or the potential accused, as the case may be. The court will not stand the criminal law on its head .
Given the state of judicial process in Gujarat and also in light of the observations made and orders passed by SC itself in this regard in the past (specifically, the Zahira Shaikh and Bilkis Bano cases which were transferred out of Gujarat), isn’t it too much to expect now a lower court in Ahmedabad to deliver justice?
When the Supreme Court refrains from commenting on the merits, there is no reason why a lower court will not do justice. Should there be cause for complaint at any stage in the future, the law has adequate remedies.
We all know that the SIT in its first status report had said that there was not enough prosecutable evidence to legally proceed against Modi. Now, in view of this SC order, how far is it reasonable to expect the same agency to reverse its stated position? Won’t all future investigations and legal proceedings, if any, be impregnated with prejudice and inherent contradictions?
“You all” may know, but the SIT reports and my reports are confidential till they are formally placed in court. From the order of the court, it is clear that my report will be considered by the SIT. If there is any difference between the SIT’s viewpoint and mine, I have no doubt that such different viewpoints would be placed before the court.
But one would logically assume that SIT won’t reverse its stand. So thus doesn’t this order present a fait accompli for the victims and complainant?
I wouldn’t assume that the SIT would not consider my viewpoint, if there’s a difference between theirs and mine. If the SIT decides to file a closure report, the law gives adequate rights to the complainant and so the idea of a “fait accompli” is misconceived.
In cases of such seminal public interest such as Gujarat riots, what is the full scope of the role of amicus curiae?
Originally, an amicus curiae used to be appointed by the court in criminal cases where accused or convicted persons were undefended. Such amicus curiae were expected to play the role of defence counsel to the hilt. In other words, they were representing one side in an adversarial litigation with the understanding, of course, that a court-appointed lawyer would be fair to the court and would not adopt delaying tactics or otherwise seek to secure an acquittal by any means. Later, the court started asking senior and eminent counsel to appear as amicus curiae to assist them on complex questions of law even when the contesting parties were fully represented. With the advent of public interest litigation and with the court grappling with important issues like prison reforms, custodial deaths, the Hawala case, forest cases, unauthorised constructions etc, the role of amicus curiae has assumed much more significance. And that applies to cases like the present one as well. The amicus must not only be independent in the sense of being unconnected with the different parties to the litigation, but independent of his own likes, dislikes, predilections and prejudices. Apart from offering the specific kinds of assistance which the court may require of him or her, the amicus has a duty to assist the Court in following constitutionally legal and correct procedures. While the amicus must assist the court to the utmost to secure the ends of justice and to persuade the court to exercise its powers to the fullest extent, he must if need be also caution the court against exceeding its jurisdiction.
The court has used the word ‘may’ while referring to the amicus curiae report, which is your report, when referring to it in the strict sense of how SIT is going to use it. Don’t you think that this gives the SIT the discretion to discard your report?
All lawyers know that ‘may’ can be read as ‘shall’ and vice versa. The intent and the purport of the order are clear and while the SIT would be perfectly within its rights to disagree with my report, I don’t apprehend that they will ‘discard’ it or not place it before the court, if there is a disagreement on any aspect.
The riot victims are both angry and confused as about how in its final order the court has placed full faith in the same SIT with whose report it was deeply unsatisfied until a few months ago and had thus asked you to carry out an independent evaluation of evidence and other material facts?
There is a clear misunderstanding here. The court appointed the SIT for the purpose of conducting the investigation and simultaneously appointed an amicus. The purpose obviously was to see that an independent mind would look at the reports of the SIT, and offer comments and suggestions. It is in this light that the amicus was asked on 5 May 2011 to give his independent assessment. This did not mean ‘dissatisfaction’ or any lack of confidence in the SIT, if that is being implied. It only meant that the court wanted to have an independent perspective. And that independent perspective has been offered.
What are the broad points on which you’ve differed from the SIT with regard to what constitutes as prosecutable evidence and what does not?
I decline to answer that question, since the SIT’s report and my report remain confidential at the present point of time. I must however make it clear that an independent assessment was asked for and was given. When such an exercise is carried our, points of difference, where they exist, would be clearly stated.
Has the court given precedence to SIT report over your report and thus by doing so nullified the findings therein?
Under the CrPC it is the Investigating agency (in this case, the SIT) which is required to file its report in court. The amicus is not an investigating agency. He is a lawyer who has given his independent assessment of the material on record. The court has considered the view of the amicus to be relevant, and that is why the SIT is to consider the amicus report.
So can we sum up the situation by saying that hereafter your report will not only act as the conscience keeper of the SIT but has also laid down the broad markers for future legal proceedings?
It would be highly presumptuous and improper on my part to view my own report in such terms. However, I can say that the viewpoint of the amicus curiae has been treated by the Supreme Court as relevant; and something considered relevant by the Supreme Court will, I believe, retain its relevance.
Ashish Khetan is Editor, Investigations with Tehelka.
ashish.khetan@tehelka.com