The unmaking of an investigation

SHIV VISVANATHAN

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Dear Mr. Raghavan,

One of the most inspirational acts of the Supreme Court was its decision that a little postcard could be treated as an application. This letter is longer than a postcard. It is a reflection on the processes of justice and of the unravelling of that process. The essay is written as a personal letter to you, not to emphasize the personality but the persona.

The SIT is a crucial ethical presence and your role is crucial to that act of ethical creativity. This set of reflections seeks to avoid the ethical disappointment of earlier efforts. It is divided into six sections. The first is a reflection on genocide. The second looks at the role of the SIT and its dramatis personae. The next two examine the rituals of omission and their significance for justice. The fifth section is an appeal for protection of witnesses in such a process. Finally, the letter locates the SIT investigation within the wider dynamics of Gujarati society.

As a sociologist based in Ahmedabad, I have for the last few years been listening to and watching a city in the aftermath of genocide. Genocide is a serious word. It demands numeracy, an understanding of exterminism, a different mindset because killing on that scale takes time. The smell of a society changes when neighbours can kill you and move on with their lives without regret, as if murder was an act of pity and genocide a mere logic of duty.

Genocide and Cleansing: Democracies have a strange affinity for genocide. Electoral majorities get tired of the persistence of minorities. In fact, when minorities thrive, majorities often feel paranoid. The former are seen as pieces of dirt that do not disappear despite repeated washing. Washing then gets replaced by ethnic cleansing and the majority is content like a housewife who has discovered a more powerful detergent. Minorities like dirt are just matter out of place. Murder like cleansing keeps things orderly. Ghettoize, exterminate, and celebrate so that democracies can function more efficiently. Genocide provides an effective hygiene for majoritarian imperatives.

Genocide has shades of a soap opera, of teledrama. People watch in awe and the TRP ratings are impressive. Genocide also produces its own forms of consumption. Secularists almost feel legitimized in the aftermath of a riot and geno-terrorism like disaster tourism has its standard rituals. A rights report which lacks flavour a week later, an angry essay from the assembly lines of standard critique where the rhetoric is the same, only the place different.

A few official feminists arrive accompanied by a diasporic academic who suddenly sees his tenure guaranteed. The diaspora has its own inexplicable logic. Having created an IPR out of words like suffering and subaltern, it insists on deciding who has suffered. This new Orientalism decides which form of suffering is to be valorized and which not. Left and Right battle it out in the postmodern frenzy of the diaspora even as victims watch in quiet perplexity wondering what deconstruction means. But soon they are alone because strip mining a victim for a research paper does not take long. Sociology like dentistry can be paying and quick when all that is demanded is extraction.

 

The aftermath of a riot creates a strange world, a no-man’s land of memories where survival demands that you forget and dignity insists that you remember. The aftermath of a riot is almost archaeological with only the shards, the broken pieces, the flesh, bone, memory and property constituting fragments of life which you have to put together in a macabre exercise of jigsaw building. At one level the process feels like a still life; at another it moves like an exaggerated slapstick. It is not easy to return to the normal after your mother and sister have been raped and killed before you.

If words could be punished, I would sentence the word ‘rehabilitation’ to hard labour. Its pomposity and illiteracy about emotions is unbelievable. It sees a human as a machine. There is a secret threat in the word. Implicit in it is a message that if you cannot be rehabilitated then you must be erased or abandoned. Why does society offer the dreaded either-or of terror or silence to the victims? Rehab standardizes. It assumes that a drug addict, an alcoholic and a riot victim need similar tactics to return to the normalcy of citizenship.

 

But no one talks of the ethical repair. Ethical repair emphasizes healing over rehabilitation. It recognizes the riot as a social wound and seeks a return to the normative. It demands a return to norms which allow you to trust the social order, feel reassured that the social has been reinvented such that you still have a claim to citizenship. Ethical repair demands more than forgiveness or a confessional; it requires that you recognize what happened. It challenges denial, neglect, indifference and erasure. Ethical repair is a mending of maps within your head, the stitching up of concepts you need to live by. It acknowledges murder and then asks: How does one continue to live with the murderer, especially when he is your neighbour? Justice needs ethical repair as a horizon. It saves it from being somnambulistic.

When the Supreme Court established the Special Investigating Team, the victim and survivor, almost dormant with despair, felt that finally something different was happening. The Supreme Court held, ‘Communal harmony is the hallmark of democracy… If in the name of religion, people are killed, that is a slur and blot on democracy.’ It instituted a Special Investigation Team to investigate cases and to discern any suspicion of communal dissonance. After seven years of indifference and harassment, the SIT appeared like manna from heaven. But such beginnings are deceptive and can be easily misunderstood, especially by those who lack a sense of police procedure.

 

SIT – Dramatis Personae: An SIT can be read as a script for a play. The choice of actors is critical. In this case the selection of members eventually demanded a split between three insiders and three outsiders. The outsiders were unproblematic but the choice of insiders was distressing. The SIT should be like Caesar’s wife but the eventual choice of members made it appear like Caesar’s harem. Consider the personalities of the three members. First Ashis Bhatia, a career officer. Despite being additional commissioner of police of Surat city, he failed to file an affidavit before the Nanavati Commission. Instead of being punished he gets appointed to succeed D.G. Vanjara, currently in jail for his infamous encounters. Yet, while Bhatia could be tolerable, the next person is an absolute specimen.

In Shivanand Jha, the perpetrator’s accomplice masquerades as an investigator. If Modi wishes to make assurance double sure, the choice is immaculate. Jha is suspected of being hand-in-glove with the regime. He was additional CP-Ahmedabad city (Sec 1) where 500 people died on account of police inaction. As home secretary, he handled the reinvestigation of Narodia Patia and the transfer of the Best Bakery case. Appointments like Jha’s add to the cynicism. How is a man seen as accomplice to murder to guarantee justice? The third member is Geeta Johri. She is facing a spate of enquiries and her husband, a forest officer, is facing departmental proceedings on corruption. This makes her vulnerable to pressure by the regime. The point is not that we are short of good officers. There are, among others, Rageesh Kumar Rai, Neerja Gotru Rao and A.K. Singh, all outstanding officers with unimpeachable integrity. One wonders why they were not considered.

 

Lest you think I am being paranoid about justice, consider a few questions about the immaculate performance of Shivanand Jha. When the message about Godhra was received at 8:39 hours on 27.02.2002, Jha instructed his officers to maintain vigil. Apart from patrolling, he recommended no action though he claims that he gave the necessary instructions. Let us match our illiteracy with his and ask how far did he follow official manuals? Let us naively ask why even as there was a steady escalation of violence against minorities, our officer never thought of imposing curfew. Curfew was not imposed till 13:00 hours on 28.02.2002, while less sensitive areas like Rajkot and Jamnagar were under curfew by 10:00 hours. Even assuming a need for benign neglect, why were BJP goons who led armed mobs, torched shops and hotels owned by minorities not arrested? Ignore even this. How about those who committed sexual crimes against minorities? We recognize that Jha appeared busy but fail to understand why not even a single person was arrested for unlawful assembly? Let us call it a soft approach to murderous mobs and explore its consequences.

Just imagine the wave of violence as rioters went on rampage in areas under Jha’s jurisdiction. The roll call includes Dudheshwar and Madhavpura on 02.03.2002, Bakaraliwadi and Dalgarwade on 03.03.2002, Kalupur tower on 04.03.2002, Kalupur police station on 04.03.2002, the Idgah Jugaldas lane on 15.03.2002, the Panch Kua, Mirdhawade on 21.03. 2002, Vasna Circle on 24.03.2002, Ramol Janata Nagar on 26.03.2002, Nagori Wadi police station on 27.03. 2002, Shahpur Bhilwas on 01.04.2002, Saerkota Nirmal Pura on 02.04.2002, Akshay Society/Madhavpura on 03.04. 2002. In not one of these places was firing resorted to. One is not listing out a track for riot tourism but merely asking how such an officer was appointed to the SIT. Jha claimed he was moving around with 30 policemen and yet, he never fired a shot to protect minorities. Correction, he did open fire once, but that was when crowds attacked the Sabarmati police station.

 

The Rites of Omission: The SIT provides a civics of understanding of how justice works or fails to operate. One realizes that courage is not enough, that memory will not suffice, and that a scream is irrelevant. What we have to master is the craft of justice as the rituals of procedure. The process of legality as administrative procedure makes one realize that a clerk’s way of perceiving justice and a citizen’s way of constructing justice are not the same. These are two different attitudes, mentalities and ways of life. But survival demands that we translate our story as the civics of resistance moves from survival to the new literacy of law. Manuals, procedures, the tacit habits of the police all become critical now. As one learns the craft of affidavit making and the table manners demanded of the act of witness, one senses that the state is indifferent to its own systems of justice. One is not talking of personal oversight; one is talking of a systematic indifference to justice.

Let us recognize the magnanimity of law, especially its institution of the SIT. It promotes a second coming of justice in its very terms of reference. The Supreme Court established the SIT to go into the ‘facts, circumstances and course of events of the subsequent incidents of violence in the state after the aftermath of the Godhra incident.’ The focus it requires is on ‘the adequacy of administrative measures taken to prevent and deal with the disturbances in Godhra and subsequent disturbances in the state.’ Finally, it suggests that the SIT ‘recommend suitable measures to prevent recurrence of such incidents in the future.’

Terms of reference are not acts of piety. They demand adherence in a formal procedural and substantive sense. The rituals of competence involved are as demanding as a Noh play. The idea of justice in a tacit and explicit sense must dovetail to create a sense of harmony. The survivor begins to understand this only gradually. The law is a gauntlet of rituals. Worse, it demands evidence in two languages and in terms of endless copies. In fact, as he plays munshi to himself, transforming memory into record, the survivor realizes that the SIT is a thought experiment of a significant kind. It demands an act of imagination, a commitment to elasticity which will determine if it is protean and sensitive or procrustean and indifferent to the exigencies of the investigation.

 

The citizen, in exploring this, starts acquiring legal intelligence, a step towards a new literacy of citizenship. The first thing a survivor realizes is that the SIT investigation will have to examine an entire ecology of law around communal riots. It has to be embedded within the existing literacy of law. This includes the Gujarat Police Manual volume 11, rule 52, rules 22-31. These deal, respectively, with ‘measures taken during communal riots’ and ‘an itemization of the responsibility of various ranks.’ The thicket of regulations includes a booklet on ‘immediate necessary action’ to be taken by all commissioners of police. There is also a separate compilation of government instructions on communal peace.

The volume of codified wisdom from manuals, directives to circulars, is voluminous. The literature covers preventive deployment, patrolling reserves, escorts, preventive arrest of objectionable people, raids on underworld dens and enforcement of curfew. In fact, there is an anticipatory ethnography of rituals to be enacted when a threat of riots emerges on the horizon. These interestingly include the refusal to allow funeral processions and denial of permission to the parading of dead bodies. Religious rituals have fewer dos and don’ts than riot control literature.

Yet the amnesia surrounding these texts is amazing. One feels surreal, almost sensing there are two states, one built on this paperwork of riot regulations and other living in blissful erasure. Citizens, in fact, the network of survivors, gradually realize that the thicket of records that the SIT would have to examine would demand the enormity of a secretariat. Consider a simple but utterly concrete scenario. Ahmedabad city has an exclusive intelligence cell with a staff of 1 DIG, 3 Dy. SPs, 8 Inspectors, 32 PSI and 228 other personnel. In addition, at the state level, the State Intelligence Bureau has a staff of nearly 425 personnel. This is a huge paper producing machine which is obsessive about records, instructions and information. Surely a cornucopia of records would have accumulated around the horizon of a riot. Yet the surreal part is whether the SIT even considered this.

 

An enormous amount of information, it appears, has disappeared into a black hole. Where are the references to tips from intelligence, warning messages and instructions from senior officers, minutes of meetings and information from intelligence branches? The instructions are specific. The instructions are oral. Where is any reference to a papyrophilic world? Was this benign neglect or a more malign act where the police ignored and subverted all these instructions to let the riot proceed undisturbed? What irks and intrigues more is the sheer indifference of the SIT to this mass of material.

As a citizen watches the investigation unfold, he realizes that his sense of justice changes. What looked like a singular granite bloc becomes a hieroglyph. The facts are not there; they need to be constructed. The citizen feels like an inept child with building blocks or a puzzle. The child in a rage can throw a few pieces around. But for an adult, anger is the blowtorch that can weld the fine mesh called justice. As a community of learners, the survivor and his family learn that justice has to be fought for, layer by layer. The survivor realizes what the Dalai Lama recently said, ‘Once the facts are there, the truth has to be extracted from them.’

 

One soon realizes that nothing can be taken for granted. One would expect top policemen to know which witnesses to summon. Yet the role of the absentee investigator makes one wonder whether the SIT was absent-minded, or indifferent, or is it that justice is not that rigorous in its demands as corporate life? Mr. Raghavan, you are supposed to be a conscientious man. Could I ask you a few questions as a little munshi of the survivors? Where were the following people when the SIT commenced its review? Ordinary people, Mr. Raghavan, but they add up in significance. In fact, the list of absentees becomes your indictment rather than that of the perpetrators.

Consider first, the PSO of Vijaypur, H.C. Devjibhai. He was pre-sent when the violence in Sardarpura was taking place, between 8 p.m. on the night of 01.03.2002 till the morning of the second. He was a crucial presence and a critical witness and yet the SIT did not feel fit to record his statement. One has to also ask about Babubhai. As a police wireless operator, he would have been aware of wireless calls and records. Let us get a touch civilian. Mansuri Nisar Ahmed Gulamnabi made a statement stating that the DGP control, Gandhinagar and Mehsana, were repeatedly contacted for help from his mobile phone. Yet his statement goes unrecorded by the SIT.

 

Witnesses repeatedly testify to the involvement of those in power at different levels. Thus, Ibrahimiya Rasoomiya, before the apex court mentions sarpanch Kanubhai Joitabhai Patel and Transport Minister Narayan-bhai Lallubhai Patel in his affidavit. At least eight witness statements recorded by the SIT suggest that prior to the incident of 01.03.2002, signs of a build-up were evident and yet the SIT chooses not to investigate this. Numerous applications filed before the SIT reveal that key witnesses have deliberately not been examined. But the rituals of tardiness and indifference go deeper. The SIT seems strangely reluctant to obtain documentary evidence. For instance, the SIT has not obtained mobile phone call records of calls made by PSI Rathod and PSI Parmar between 28.02.2002 and 02.03.2002 even though mobile phones leave a trackable trace of activity.

Let us leave litanies out and consider one poignant event. It is apparent from the statement filed by the witness Munsaf Khan Yasin Khan Pathan that he made innumerable phone calls from his own land line number 32328 and also from the mobile of Nisar Ahmed Gulamnabi, appealing for help from the police. These phone calls were made from 8 p.m. of 01.03.2002 until 4 a.m. of 02.03.2002 both to Vijaypur police station and the station control room. Yet, the SIT benignly ignores this, refusing to investigate these distress calls. Nor has it recorded any statement in this connection, not even bothering to collect records of these calls. One realizes evidence turns Malthusian as a demographic exercise, but is the SIT strategy a systematic culling of testimony? Well, maybe the telephone revolution is not part of the IT revolution in India.

 

Could we then move to the methods of a few decades back and look at bodies and certificates. Bodies of dead victims were removed from the spot without panchnamas being carried out and recorded. The SIT has not viewed these as serious procedural lapses. Is the DNA of SIT justice coded differently or are we suffering from too many bad novels of detection? Do we say adieu Chandler and McBain? But these detectives stuck to the investigation. Maybe, ours is a more pragmatic understanding of modern investigation where missing records, neglected certificates are holes in an information system. Holes become silences as time sutures them and soon witnesses and events cease to exist.

Let us get even more old-fashioned and stick to rumour as information. Witness no. 65, Munsaf Khan Pathan in a statement before SIT on 16.06.2008 observed, ‘On the day of the incident around 2 p.m. PSI Parmar while on police patrol of the village, had come to my home. At the time, one Shankar Revabhai Prajapati informed me that the Patels are likely to cause trouble in the village today and that he had informed PSI Parmar.’ Parmar called the Vijaypur police station and told them to make an entry in the station diary. Witness 99, PSI G.K. Parmar noted in his statement of 16.06.2008 that, ‘Munsaf Khan Pathan had called a ‘peace meeting’ with fifty odd persons including women and men and he had also called the former sarpanch Dashrathbhai Patel to the meeting.’ The witness also stated that at the time Munsaf Khan had made several phone calls from his landline to the Vijaypur police station. He then added, he spoke to PSI O.K. Jenu from his landline asking for more protection. The investigation has not looked into what steps were taken in response. Records are available from the police station diary and the phone call inward register. Movements of police vans are also critical. Records would be available with the charge sheet. Beyond justice to the victim, the integrity of the police makes it imperative that these ‘allegations’ be investigated.

 

Often when one approaches such documents, one wonders how Solzhenitsyn recorded his Gulag, document after document, witness after witness. What we are suffering is a Gulag of the mind which refuses to recognize testimony, respect witness and, in fact, even follow procedure. Time, date, place and event of these micro-narratives of murder which collage into what we call a genocide, all become noise in your investigation. But beyond the logic of lapse and indifference, one has to face the logic of complicity. The complicity of the local alters the nature of narrative. As the ethnography of charges gets thicker, one wonders why the SIT files appear so indifferently thin. It is tough for a citizen, who is otherwise haunted by paper, to realize that both orality and print leave this investigation deaf. One realizes that the act of witness is not enough and that testimony is but a fragment. One recognizes that a community of survivors has to map the networks of indifference, absenteeism, neglect, complicity and connivance that went into the making of murder and its erasure. The somnambulism of law meets its double in the sheer amnesia of official memory.

 

One faces the deadly reality of faulty procedure, where a Supreme Court agency instituted to reinvestigate procedure mimics the earlier investigation. Let us examine how faulty procedure combines with benign neglect. Consider the following: Key police officers were exchanging messages on their mobile as well as wireless sets while the offence was taking place but no message book printouts have been recovered by the SIT. This is a gross lacuna in the investigation, making us wonder if the SIT is a lens or a sieve.

More particularly, the SIT made no attempt to investigate the phone call entries made by Ehsan Jaffery. The Member of Parliament made dozens of frantic calls; in fact, according to witnesses, the second last call was to Mr. Modi. It was only when he realized that he was facing a premeditated attack that he gave himself up to the crowd. The SIT blithely ignores his phone records. It has done nothing to interrogate when this happened, who he rang up. Was his phone record subject to routine destruction or destroyed as a result of instructions from those higher up? Jaffery had called several police officers and politicians from 2129266, his land line number.

Nor did the SIT investigate how the dead bodies were shifted to the hospital before the panchnamas were recorded. Though the panchnama of the scene of offence was drawn, it was without any proper technical map. The SIT too has made no effort to get a proper map drawn. One fears that this is beginning to sound like an academic discourse on investigation. One recognizes that the station diary of the Meghani Nagar police station, the vehicles of the station during bandobast, the logbook of the concerned officer and the logbook of the police are important. The SIT made no efforts to procure them. Worse, many eyewitnesses received serious injuries and were treated in dispensary relief camps. Yet, the investigating officers have made little effort to recover the medical certificates.

If the events do not confound us, the individual officers do. Consider N.D.Parmar of the erstwhile Meghani Nagar police station. Witnesses in their sworn affidavits complained in 2002 and 2004 that he had not recorded their statements accurately. Parmar then turned more ‘proactive’. Filing an affidavit in the Sessions Court, he stated that these investigations into the affidavits and applications made by the victims and witnesses did not require further action. In his account, the murder accused had a fairy angel presence. Though the SIT did reopen some of the cases after recognizing the truth in witness complaints, one still faces the fact that Parmar has not been charged for firing false affidavits.

 

Meet P.N. Barot, assistant PC ‘B’ Division. Barot was appointed as an enquiry officer for the Gulbarg case. He was in charge of this case between 08.03.2002 and 30.04.2002. During his tenure, he made no further investigation nor did he record statements of any other witnesses. He did not inquire into the quality of the panchnamas recorded by the police. Seventy persons were slaughtered in cold blood in the Gulbarg massacre and yet no forensic tests were conducted at that time. No inquiries were made by Barot about these lapses. The Supreme Court instituted the SIT to go into lapses of earlier investigations. Yet the SIT treats this earlier ‘still-life’ as adequate. One wonders why the names of powerful accused were omitted and why no preventive action was taken. One is intrigued as to why SIT mimics the superficiality of the earlier investigation.

Enter M.P. Rana, ACP on duty when the Gulbarg Society investigation occurred. Rana explains away his lack of commitment to the investigation, contending that he helped issue guidelines but lacked the time to pursue inquiries or visit the place because he was involved in VIP bandobast. As a senior officer, one would have expected him to inquire into the lapses of officers under him. Predictably he refrains and the SIT follows suit. The plot thickens when one realizes that many of the survivors of the Gulbarg Society massacre stayed at the police station on that eventful night. Many senior officers were present there. Yet oddly, no effort was made to record an FIR. The SIT betrays little curiosity about it.

 

After the Gulbarg Society massacre occurred, PI Erda filed the FIR in his name and conducted the inquiry himself. Such a procedure, to state mildly, is unlawful. Many persons were injured by stones or burned as a result of being thrown into the fire or were brutally shot. The police made no attempt to take them to the hospital. The SIT finds little amiss in such brazen lapses. Without wishing to be obsessive, one must observe that many persons were burnt alive at Ehsan Jaffery’s residence. Yet Rana did not attempt to obtain the dead bodies, nor did he summon fire engines. Dead bodies remained in a horrific condition. The SIT reacts as if complicity is a normal part of the activities of the Gujarat Police.

Visualize the situation. The violence continued the whole day. Thousands congregated as a mob, yet not one is arrested. In fact, for the following six days not a single arrest was made. Can one conclude that the police gave them an adequate chance to escape? In fact, though Jaffery’s house continued to burn even the next day, the fire brigade register shows that no one thought of summoning a fire engine. Finally, let us nit-pick on a few technical details. Panchnamas were not prepared properly. No video or photograph at the site of the offence was taken and no map was prepared of the place. In fact, the violence was attributed to firing from within Gulbarg Society though the incident occurred only after 2 pm while the violence had started as early as 10:30 am. Incidentally, CISF commandos reached Gulbarg Society at 2 pm. Yet no order to fire was given until four hours later.

 

Caesar’s Wife and the Ecology of Justice: In many ways, a reinvestigation is not merely an act of justice but a ritual of science. The state or any other authority feels that the truth has not been told. To this, the citizen behaving like a desperate nag adds that it is not just a failure to collect evidence, or the silence of officials that is worrying. Deep down, he believes that one has to unravel the structure of a lie. Often, watching the investigations the citizen sees the SIT endorsing a lie. For example, in the Godhra Train Burning case, the SIT enthusiastically endorsed the theory advanced by the police. It failed to look into the revelations made by Tehelka. In a series of brilliant investigative pieces, dramatically dubbed ‘Operation Kalank’, the magazine conducted a series of sting operations where witnesses confessed, on camera, that they had been bribed by the police to support the police theory of conspiracy. The SIT behaves as if Tehelka’s reports belong to a parallel world. It is also intriguing that Noel Parmar, an officer accused of complicity, benefits from a surfeit of extensions even after retirement. In fact, he was continued by SIT until the media uproar. One wonders whether misinformation is a part of SIT’s investigative portfolio. Why, for instance, one asks naively, could Parmar not be removed merely to assure transparency?

 

Consider the case of Shri Mothailya, SP Panchmahals, who, it is widely believed, holds witnesses to ransom and threat. Knowing well that his very presence in court is likely to influence testimony, he is not barred from attendance, despite the advocate’s objections. One wonders whether there is a rule of law or whether police stations are fiefdoms where ordinary citizens are told what to say. To this first variety of policemen as a species, we have to add police officers who turn hostile midway through an investigation. Mr. Raghavan, what one is looking for is not only fairness in terms of correctness of procedure, but an ecology of justice which challenges the sensorium of fear that haunts this state. Consider that delightful maestro of mob attacks, Babu Bajrang Patel. He led the mob that eliminated 110 people in Naroda Patia. These are official figures. Yet despite overwhelming evidence, the SIT has not moved the courts for the cancellation of his bail. He roams around freely, even enjoying the patronage of the chief minister. Should not the fact that he is in a position to tamper with evidence intrigue the SIT?

Yet one worries that in an ironic denouement to Gandhi’s monkeys, despite being an investigative agency, the SIT ‘sees no evil, hear no evil, and speaks no evil’, while evil stalks the land. The SIT is a beacon of hope. Yet one wonders whether it may not become the eventual irony of Indian justice, a reinvestigation that borrowed old formats and became an emperor in old clothes. For a start, notwithstanding its tremendous powers, the SIT has yet to see itself as powerful and catalytic. It has to make the leap from the officially correct to the realms of justice. The SIT is a strange body. It can reopen new cases, provide for witness protection. But it is embedded in the Gujarat Police. It is they who carry out the investigation. In that sense, despite the Supreme Court imprimatur as an investigative agency, the SIT is hypothecated to the Gujarat Police, dependent on them for facts, investigations and eventually, the fate of the cases it has to examine.

The SIT has been asked to be the Caesars’ wife of Indian justice. It has to decide whether or not allegations of malafide and bias in the investigation by the Gujarat Police can be substantiated. This demands unimpeachable integrity, judgment and even the potential courage to indict a chief minister.

 

Can an organization whose entrails are local transcend its biases? Can one really expect a local officer to investigate a DGP like P.C. Pandey whose role during the events is under a cloud? Pandey, after all, is the reality principle who writes their ACRs. How does one guarantee the secrecy and integrity of an investigation allowing the SIT to be a lens and not a local net leaking information?

There is an expectation of leadership, a feeling, to quote the cliché, that when the going gets tough, the tough get going. But you, Mr. Raghavan, have still not arrived. One misses the presence of a leader. You literally appear like an absentee investigator. Blackberry’s apart, or despite them, presence has to be more physical. It adds a moral thickness to the ritual of investigation. Presence is literally embodiment. Yet you have chosen to play visiting professor with your occasional forays. As a consequence, you appear to orchestrate a performance whose score is being written elsewhere. Maybe, because of your commitments elsewhere, the officers of the Gujarat cadre are conducting the investigation. The irony strikes the witnesses but why not you?

One does not wish to engage in a time and motion study of your movements, but a quiet and informal ethnography reveals that you spend six to eight days a month here, despite the infrastructure and the emoluments provided. One wonders how you monitor eight separate trials. Since 27 April 2009, we believe you are also investigating the complaints against the CM and 61 officers. This is a serious, onerous task and one wonders whether you have devised a way of going beyond delegation to outsource justice. That, given your role in TCS, would be the eventual irony of the information revolution. The litany goes on. Witness after witness in his anonymity quietly realizes that a coral reef of testimony is being created. But does the SIT realize that a coral reef of evidence is an ecology for truth?

 

The survivors’ courage hides his vulnerability. Sometimes one wonders whether as a witness one has the rights of protection. A protection of a witness involves both dignity and security. When as survivors, we sit in court and watch perpetrators, many of them identifiable neighbours, laugh like the bullies in class who are sure that the law will not catch up with them. It makes us wonder what the logic of law is. Witnessing, Mr. Raghavan, is a strange initiation for a minority member. It becomes a rite of passage to citizenship, to a full understanding of one’s position under law and the guarantees of the constitution.

Survival makes you an expert. It is a craft which teaches you about friendship, about the networks of community encompassed in that wonderfully inept word, social capital. It demands from you that oral testimony needs to be transformed into the grid of print. But print is ruthless; it sucks you into a world of copies. Nothing is singular, the real is in triplicate. It makes you feel even justice is only available as a xerox, like a reprinted justice. But all this is only an aside to a more essential problem. The survivor, to remain witness, needs protection. What we need urgently is a Witness Protection Programme. Let me cite from a confidential letter a colleague wrote to you about a necessary framework of protection.

 

Witness Protection: One of the things one needs to address is not just the vulnerability of the witness but the frailty of the victim. The victim of crime and abuse of power enjoys protection under the 1985 resolution of the UN General Assembly. This asks that the victims should be treated with compassion and dignity. They should have the privilege of time which allows them quick access to justice through formal and informal procedures of redress. The victim carries, like a pregnant woman, the life of a testimony. He has the right to voice and to an expeditious trial. The nature of riots and atrocities is such that victim-hood becomes doubly vulnerable – once as a target of crime, once as a vehicle seeking justice.

It is the second journey that we need to focus on. Waiting, living in fear, articulating witness and learning the procedures of justice which often plays Masonic and makes victimhood a gruelling site. Protection is only an outer shell which facilitates empathy and trust. In that sense, the SIT is a high priest of the procedures of justice. To be indifferent or illiterate about the ritual claims of justice truncates its very drama. An initiation rite in all its fullness becomes instead an intimidation rite demanding so many acts of courage in response that one realizes that courage as an everyday act is rarely singular.

 

Protection is a ritual, a guarantee that the state must offer. Let us spell it out. We need protection for the 96 witnesses from the Sardarpur massacre, the Deepla Darwaza killings, Odh killings and the Gulbarg Society carnage. We believe that protection demands the presence of paramilitary forces. They are central forces and unlike the upper echelons of the Gujarat Police, not implicated in communal conduct. Protection is not merely about security but about dignity. It is also about trust, a currency that the state needs to redeem. What we propose is a formula of two persons per witness and also group protection as we depose in court. But there is a broader issue of community here. Threat haunts our landscape. We suggest CISF patrolling in rural areas to prevent mobs of the accused from terrorizing witnesses. In fact, we would like CISF in civilian dress, so that it does not attract attention as many of us pursue our livelihoods in majority areas.

We have a few specific demands. We believe it is advisable to keep the CISF battalion completely insulated for the duration of the trial. Each individual for the entire duration of the examination should be given five PSOs from the CISF cluster to accompany him to and fro from the court. This is not paranoia. Let us, with a sense of fear and play, dub it the Kodnani effect.

In April 2009 when the minister was arrested, she had gathered unruly mobs at the courtroom. Kodnani’s assemblage, for want of a more appropriate term, makes witness protection an essential requirement of the process of justice. Let us add that the witnesses feel spied upon. One also recognizes the affinity between local police and local accused. The mutual protection that these networks guarantee demands the alternative mnemonics of the CISF to remind the state of the justice beyond local affability which can explode into uncontrolled threats.

 

One can add a set of specific observations about each site. Consider the Odh massacre. The paramilitary is not just a virtual escort, it needs to show presence at the Odh village itself. One needs to understand the sociology of the village, the power of the dominant caste. One has to guarantee that Patel mobs will not be allowed to gather or assemble there. As a monetarily and politically powerful community, who have been single handedly responsible for the massacre here, they need to recognize counterforce. Counter-force is often more strategic than punitive. Sardarpur has 58 witnesses living in a relief camp. A platoon of 30-40 CISF could cater to the needs of witnesses, especially during daily work when they often encounter powerful families. As daily wage earners, they are vulnerable to these groups. Five-ten CISF men must accompany them to court and back in anticipation of hostile crowds that they might encounter on the way.

One realizes that protection for witnesses lacks the glamour of VIP security. The SIT does not seem to realize that for all its upper gloss, its lower officers hail from the Gujarat Police. To expect them to be insulated from the communities they are embedded in is naive. Ours is not an unreasonable analysis or expectation, but your indifference to our request adds to the frailty of the witness. But maybe threat is the grease that moves witness to acts of courage. Let us in the last section locate the issues in a wider frame.

 

The SIT and Society: We realize that the questions raised by Gujarat riots of 2002 have become a ganglion of difficult issues. They demand an exploration of the underbrush of words around it like communalism, fundamentalism, even secularism, in terms of everyday economics, everyday life chances and the problematic of belief and governance. One can sense that rumour, gossip, silence and suspicion have taken over and created a half-baked social science. There is a failure of understanding caused by words as clichés substituting for real information.

Communalism and its demonic cousin, fundamentalism, are growing at the cost of their suburban cousin, secularism. The density of the former confronts the emptiness of the latter. In one, the community sucks you up and in the other, it leaves you rootless and floating, creating a semblance of freedom. Watching this entire process are a group of witnesses and survivors who have become ardent ethnographers of the investigation. They include lawyers, policemen, survivors, a few journalists, all desperate to create a garden patch of dignity. This letter is based on conversations with a few of them providing as it does a survey of the unmaking of an investigation.

One must begin with three processes that in the aftermath of the riots create a communal epidermis: Ghettoization, Saffronization and Arabization. Ghettoization is not just a shrinking of space and mentalities; it is a map of the world where the world beyond family and neighbourhood is considered as hostile. The government is not an agent of welfare; but seen as an intruder into a way of life creating vulnerabilities. Reinforcing ghettoization is a process of saffronization. Saffronization thickens violence by ritualizing it. It creates a calendar of events that scripts a semiotics of hostilities. These processes are created through markers like the introduction of new festivals and the creation of new institutions. Territorialization also creates new symbolic domains, where signs and symbols carve public spaces into new forms of exclusion. Arabization performs a function similar to saffronization. It marks off a part of religion, then intensifies it and insists that only it is representative of what is in fact, a more pluralistic whole. It reduces the diversity in religion. In this case, it involves a steady reduction of customs and conventions not approved by the exponents of Mahadudism, Wahabism and Quitubism.

 

One witnesses a symbolic battle which brands communities in terms of their identities. One sees stamps of community identity on both houses and institutions run by particular communities. This is accompanied by a renaming of places as part of Hindu rashtra, creating a parallel municipality of identities through the erection of billboards. These create the props for a communalist civics. To maintain this, one intensifies leanings of the police and other local departments to the Sangh Parivar. These rituals of intensification are accompanied by a parallel drama of neglect. One needs a process of the cross-examination seeking truth from a sphinx like cast of key characters. The witnesses feel that if an SIT is an instrument for truth telling, it needs to examine the following dramatis personae: Anil Mukim, IAS (Secretary to the CM), P.C. Pande (IPS), Commissioner of Police, G.C. Raiger, IPS, Add. DG of Police, Dr. P.K. Mishra, IAS, Principal Secretary to the CM.

The Secretariat at Gandhinagar has become a forest of question marks as official halos wear thin. If truth is a form of spring cleaning, then the mustiness, even stench, of the Modi government comes from smell of rumours that need to be removed. There are simple questions that do not need the perspicacity of a Sherlock Holmes. One merely demands a minimum hygiene of investigation required to establish responsibility. Consider two in particular. The critical question centres around the minutes of the meeting of 27 February 2002. Did the CM allow or suggest a free play of Hindu vengefulness in that evening meeting? More particularly, was there a delay in re-questioning army and central paramilitary forces so that one could give a free hand to anti-Muslim rioters?

The question is simple. Did Modi as CM signal or semaphore a set of messages, intentions that legitimated the temporary suspension of the rule of law? Responsibility, after all, follows a chain of command, communication and execution. The records in terms of official documents are there. There is a need for such scrutiny not to create obsessive rituals of a witch-hunt but to give rumours and suspicions a rest. One needs to create an ethnography of the network of communication between the state control room in Gandhinagar with nodal offices, including the SP Intelligence, among others.

 

Any reader of procedural detective stories knows that a bureaucracy is a document producing machine. It records every move, particularly its own. The everydayness of intelligence demands that it observe, record and report details. Documents are the humus on which intelligence thrives and reproduces itself. The ethnography, the thick description of intelligence is always supported by a daily liturgy of statistics. These constitute an archive of evidence available for scrutiny.

 

Given the primacy accorded to right and responsible conduct in the handling of riots, the widespread dereliction of duty looms as a worrying problem. This is a malaise that needs not just inspection but reflection. A similar kind of behaviour by the army would have generated a national crisis. But a violation or neglect by the police of its own manuals seems to be treated as commonplace affair, an expected illiteracy. It tacitly emphasizes an affinity between mob and cop, an admission that the current training of the police does not enable it to rise above its social milieu. In a moment of crisis, the police appear to break ranks and merge or connive with the orgy of violence around them.

Even if one recognizes such a breakdown of discipline among the ranks, one needs to examine the role of senior officers. The Apex court described the Gujarat bureaucracy as ‘Neros’. This resulted in the transfer of the Bilkis Banu investigation to the CBI and the transfer of the Bilkis Banu and Best Bakery cases to Maharashtra in April 2004. But the scrutiny need not stop there. The investigation of the Gujarat riots is not a case of what sociologist Daniel Moynihan once dubbed ‘benign neglect’. Nor is it a recommendation for one. ‘Let sleeping officers lie’ is a policy that may not work here because what one is confronting is an architectonic of systematic neglect, connivance, conspiracy, harassment and a miscarriage of justice that boggles the mind.

As a simple ritual of review, one needs to open the 2000 odd riot cases dealing with Sangh Parivar supporters. These were closed summarily by the Gujarat Police. The witnesses note that in an investigation of violence, one cannot begin with the Orwellian assumption that some perpetrators are more innocent than others as a part of a good neighbourhood policy.

 

Any investigation is a narrative that looks for gaps that need reconstruction. Any narrative should also be clear about its own genre. An investigation into a murder, or an atrocity, even an act of vigilantism is different from a mapping of genocide. Genocide imposes a different burden on an investigation, both in scale and the hierarchy of narratives required. It is not a simple case of the butler did it. One has to specify the networks of responsibility, the locus of omission and indifference. It demands a specifying of layers and a tracing of gradients of involvement, tracking a whole chain of being.

Time is fundamental. The violence was not a momentary one. It was prolonged and systematic. One needs to ask that was there no news about it when it was happening? Violence almost summons knee-jerk the idea of curfew or Section 144. Yet curfew was not imposed till 1:00 p.m. on the 28th, while the murders had commenced on the 27th evening. One has to ask: Was curfew delayed to allow for the congregation of rioters to facilitate their activities? Was the delay in curfew a ‘collaborative omission giving free hand to rioters?’ Was this also ‘in compliance with the CM’s instructions in the meeting on the 27th evening?’ Ironically, in some of the least communally volatile areas as in Saurashtra, curfew was imposed by 10 p.m. Finally, one has to ask whether the deployment of police was in terms of real time intelligence provide by the special branches in riot-affected districts. The network of documents from station diaries, periodical situation reports, messages to district and state control rooms, instructions to field officers from the DGP need scrutiny. This becomes all the more imperative given the admission by the Joint CP of Ahmedabad city before the Nanavati Commission. Mr. Shivanand Jha admitted that only one Hindu and six Muslims were arrested as a part of preventive action.

 

Standing as a shadow above all this is the riddle of Godhra. Why was the funeral procession of dead bodies taken through the city, even when 22 of the bodies were unidentified as of 28.02.02? One has to ask who was the impresario behind this? Who in authority permitted it? Was the approval of relatives taken? Was the staging of this macabre spectacle part of a political strategy? The maze of untouched clues is phenomenal.

The question one has to ask is: Was there a facade of nominalism about the investigation to hide neglect? Consider the background: 54 people arrested in Ahmedabad city on 28 February 2002. None of the people in the list figured in the usual roster of ‘communally-minded’, people generally detained before such disturbances. One has to then ask: Was this a mere statistical display, a logic of clerical numbers assembled to satisfy protest or stem a later inquiry?

If law and order is based on a system of feedback, should one not assess the quality of instructions and the nature of implementation? Consider, for instance, that videographing of rioters is standard departmental practice. Yet the police failed even as the electronic media did obtain a stock of visual data. Was the omission an act of absent-mindedness or a design aimed to prevent identification of rioters? Prima facie there appears a deviousness to the design. We discover that Major General Zahruddin, the area commander, observed that misleading information was conveyed to army units. As a result, they landed in peaceful areas while rioters went unchecked. To avoid this, the army later responded directly to public calls of distress ignoring the local police in the later period of the riots. Incidentally, Zahruddin is the brother of the famous actor, Nasiruddin Shah. Witnesses feel that the assumption or the cloak of immaculate innocence around top officers has to be challenged. Individuals like Ashok Narayan, ACS, and DGP K. Chakravarty have to be interrogated. To pretend they are part of a silent film is no longer acceptable. Truth telling has to be a public act open to public scrutiny.

 

There were focal events where government action was already under scrutiny. Among the more publicized of these were the two presentations made by the state government before the Election Commission. Its two presentations, one on law and order and the other on rehabilitation, were rejected by the commission. The chain of deception intensifies beyond falsification as one discovers that officers were discouraged from truth telling. Where others were reluctant and hints didn’t work, threats followed. The broader question is one of civics, courage and duty. Why were so many officers reluctant to depose before the Nanavati Commission? Was this reluctance genetic or induced by threats and incentives?

The silence of the bureaucracy still stands as one of the major enigmas of the 2002 riots. Was the vow of silence an act of tutoring, a diktat or a self-imposed ‘toeing of line’ by a supine bureaucracy? The ethnography that screams to be recorded is the ritual of distortion, intimidation, the incentives that prevented a bureaucracy from truth telling while implicating it in all further acts of deception. The riots of Gujarat seem to split between the gory spectacles of murder and the pall of silence that followed it. Murder and silence now seem to be two ways of delaying justice. An investigation has to unravel both in tandem.

Godhra, or more particularly the events on the train, have been presented as an unsolvable enigma. But as a skeptic once said, behind every riddle lies a farce. In a forensic sense, Godhra as an event can be simulated or modelled to bring down the list of the probable scenarios. The list of theories of what happened are numerous and diverse. Rather than listing them as conjecture, Godhra demands a reconstruction based on evidence. Such an enactment before scientists and police officers would eliminate many doubts, whittle down suspicions. Common sense demands a simulation and yet it is one of the many things that elude the investigation.

 

The text of an investigation as a forensic act has a context. It takes place in a community. An investigation is an act of the production of truth. Justice, one realizes, is also consumed. The victim watches as justice stumbles along. Justice always has an audience evaluating its correctness, fairness, transparency, facticity and implementation. An investigation is in fact, a rite of passage enacted before a community. Yet, watching the drama of justice, one senses both of disillusionment and disappointment. One often wonders whether there is a slippage. One feels justice rather than the perpetrators seems on trial. The riot victims have been committed participants to this process of truth telling. They have realized that truth telling, the act of witness is a form of literacy, where the scream of pain has to confront a trail of questionnaires in many languages. They realize that confronting rituals of delay seems to be part of any search for justice. The victims’ sense of hope was restored by the Supreme Court and put back on tenterhooks by the SIT. Yet, even the process of review appears not as an act of investigation but of negotiation. The rule of law seeks negotiation and intimidation as part of its review process. Threats seem a normal method of reducing the quantum of complaints. In this asymmetrical bazaar, the victim inevitably loses out. Not even 20% of the cases proceed to the point of the arrest and examination of the accused.

 

Some victims feel that the SIT might become a pre-emptive exercise in truncated justice, a belated response which is asking the victims to settle for a few middle level perpetrators. Ironically, the SIT is following the line of investigation of the Gujarat Police rather than signalling a sense of autonomy. It’s handling of the state minister, Maya Kodnani, verges on the slapstick, a fragment of three stooges and the Bollywood police in a collaborative act. One senses an absent-mindedness that verges on the amnesiacal. For example, two corporators of the Ahmedabad Municipal Corporation are shown as absconding even though they are seen attending numerous public functions. The victim cannot help feel he is part of an absurd play. Yet, hope is the only hypothesis for survival.

A small number of victims and witness have forged a creative community to work within the possibilities of the system. Their creativity is the greatest invention of the riots – an informal panchayat of justice fighting its way through a cascade of delay and injustice. This essay is a salute to them and a request that you listen to their voices.

Sincerely yours,

Shiv Visvanathan

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