Vinod Mubayi


In the deeply distressing as well as depressingly criminal history of communal riots in independent India over the last 50 years, the pogrom in Gujarat in 2002 stands out for the sheer scale of its brutalities and the prolonged period of sustained hostilities against the minority Muslim community who constituted less than ten percent of the state’s population.


The events were extensively covered in the media and the political leadership led by Narendra Modi, then as now the Chief Minister of the state, under whose aegis the violence mushroomed, was enthusiastically applauded by his Hindutva supporters, who fervently believed that Muslims should be dispatched either to Pakistan or the kabristan (cemetery). As a democratically elected leader of a state whose majority either ardently supported or passively condoned the atrocities being committed against the minority population, Modi embodies the ethos and beliefs of many of those he rules, quite openly without any pretense or shamefacedness. It is commonly known that he has not uttered a word of commiseration or sympathy to Gujarati Muslims for what they suffered and continue to endure. If he did so, he would probably alienate many of his avid supporters; in any case he is not likely to articulate any sentiments that might dent his hardline image. As a former RSS pracharak, Modi undoubtedly believes in the virtues of a Hindu rashtra where the minorities, particularly Muslims, are relegated to a second-class status.  For the last decade and a half, his actions and speeches have been quite consistent with the thoroughly communalized beliefs he shares with many in his state, also known as the laboratory of Hindutva, whose voters have re-elected his party thrice to a comfortable majority in the state legislature and whose party has chosen him for the top post.  Once has to keep this background in mind in trying to follow the conclusions reached by the Special Investigation Team (SIT appointed by India’s Supreme Court.


For several years after 2002, the state police and judicial machinery in Gujarat simply refused to prosecute in any credible manner those Hindutvawadis who had engaged in some of the most gruesome acts of violence such as slitting open the bellies of pregnant Muslim women and burning their fetuses.  Instead the entire prosecutorial effort of the state administration was focused on arresting and prosecuting a bunch of Muslims in Godhra who were held to be responsible for the fire in the coach of the Sabarmati express that resulted in the deaths of 59 karsevaks returning from Ayodhya.  Although the origins of this fire, whether it was accidental or otherwise, still remain in doubt, Modi’s action-reaction statements in several speeches after the Godhra incident are a matter of public record.  It was noticed by many observers at the time that these statements, which in effect provided a justification for the violence of Hindutva mobs against Muslims in all parts of the state, were similar to those uttered by Rajiv Gandhi in the wake of Indira Gandhi’s assassination by a few Sikh members of her bodyguard, that led to a killing of several thousand Sikhs by mobs instigated by Congress party leaders in Delhi.


Why did the Supreme Court, a federal judicial body, get involved with a state legal issue? Over the last decade or so, the Supreme Court of India has increasingly become an institution of last resort to rectify the failures of the other two branches of government, executive and legislative, to provide solutions to many of the problems affecting the country.  Even on an issue like air pollution in the capital caused by vehicular emissions, which one would think was well outside the ambit of constitutional law, it was an order of the Supreme Court that finally got the local authorities to implement the necessary anti-pollution measures.  The advent and acceptance of public interest litigation and the manifest inability or unwillingness of the state administration to take any steps to punish the perpetrators of violence or provide justice to their victims finally persuaded the Supreme Court to become involved in a number of high-profile cases.  However, while some of the trials have resulted in successful prosecutions, it is mostly the foot-soldiers who have been convicted.  The higher-ups, especially politicians, who caused preparations to be made, gave orders, or instigated the rioters, directly or indirectly, have managed to escape any punishment for their role, whether in Gujarat or in Delhi.  In a state as thoroughly communalized as Gujarat this is hardly surprising; few state officials would jeopardize their own careers by outing their political bosses for culpability in communal riots, when public opinion itself is so skewed against minority populations.


However, the egregious nature of some cases such as the mob killing of former Member of Parliament Ehsan Jaffri, and the dogged pursuit of justice by some human-rights lawyers and activists finally led the Supreme Court to appoint a SIT, headed by R.K. Raghavan a retired director of the CBI, to determine if Modi should be tried for his alleged role in the riots.  The Supreme Court also appointed an amicus curiae (a person who assists the court), Raju Ramachandran, to help it in the litigation.  As widely reported in the press, the report of the SIT led by Raghavan and the report of the amicus have come to opposite conclusions, the former maintaining that there is no evidence to indict Modi while the latter concludes that there is prima facie evidence of Modi’s guilt.


Among the charges that were investigated by SIT is one relating to “promoting enmity between different groups on grounds of religion.” While SIT and the amicus reach different conclusions on Modi’s legal culpability on this charge, as a matter of commonsense one would think that promoting enmity against Muslims (and, lately, Christians) is the raison d’etre of Modi’s entire political career as well as the basic political philosophy of the organizations to which he belongs or has been associated with, the RSS and the BJP.  How India’s secular polity, and the presence of many laws in the statute book that give teeth to that polity, can be reconciled with the fast growing Hinduization of much of Indian society, of which the continued electoral victories of BJP in several states are only one manifestation, is a political conundrum that maybe the Supreme Court will have to resolve.  It missed an opportunity to do that in the mid-1990s by acquitting the notorious Bal Thakre of precisely the same charge, on grounds that were as flimsy and reasoning as specious as the one offered by the Allahabad High Court in the Ayodhya case. Some of SIT’s reasoning in its report, in particular, “Illegal instruction given within the four walls of a room is not an offense” is absurd to the point of inviting open derision.  Where does Mr. Raghavan think that conspiracies are hatched?  In open-air meetings?


Of course, it would have been useful if SIT had indicted Modi.  It would have put the communal elements, especially those who are projecting him as India’s Prime Minister, on the defensive, which would be a positive for India’s secular image.  But legal proceedings, while necessary, are insufficient to deal with the larger issue of the use of religious identity for political ends.  A much wider struggle is needed to deal with that.

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