With the elevation of Narendra Modi as head of government, Indian justice system faces an uphill task to catch up with him. Hundreds of millions are waiting. Anxiously.
The results for the parliamentary elections in India were declared on 16 May. The right-wing Bharatiya Janata Party (BJP) won the elections with handsome majority for the first-time in the history of the republic. Much of the electoral success was ascribed to the erstwhile chief minister of Gujarat, Narendra Modi, who has now become the prime minister of India.
Within three days, the respectable newspaper The Hindu published an open letter to Narendra Modi written by Gopalkrishna Gandhi. Gandhi, a grandson of the Mahatma, is an eminent former civil servant and a well-known writer and public speaker. Since its publication, his graceful piece of resistance has become one of the most widely-read documents on Modi. Plainly, the letter has touched some deep chords of anxiety in vast sections of English-speaking enlightened people who are the primary readers of Hindu. Given the way priviledges are organized in this unequal country, this section has the least to fear from the exercise of state power. Yet, a chill shivered down the spines of many on that day as the results were announced.
In his letter to Modi, Gandhi acknowledged “in utter sincerity” that he is “not one of those who wanted to see you reach the high office that you have reached”. He noted that “many more millions may, in fact, be disturbed, greatly disturbed by it”. This is because Modi’s presence at the helm of state power carries a dark message “that has entered the day’s fears and night’s terrors of millions”. What is that message?
Beyond oblique references to “salted canes” used by tyrannical school teachers and the communal riots at Muzaffarnagar some months ago, Gandhi did not fully elaborate on the sources of this fear. However, we do not ordinarily expect a rather gentle author like Gandhi to target a prime minister designate immediately after his election to the high office. Gandhi is no Arundhati Roy. The very act of writing of this civilised letter compels us to ‘peer into the abyss of the future’, as Noam Chomsky titled one of his essays after 9/11.
In this letter, Gandhi is not directly opposing the general political background of Narendra Modi, namely the fundamentalist militant hindu organisation Rashtriya Sevak Sangh (RSS) and the BJP. Gandhi, alongwith many hundreds of millions—in fact, nearly 70% of the actual voters did not vote for BJP—may not support the combination of BJP and RSS. Yet the impression is that Gandhi probably wouldn’t have hastened to compose his agony in prose if the chosen leader was someone else from BJP; you live with them as they come. The elevation of Narendra Modi, in contrast, is disturbing, greatly disturbing. What is so uniquely disturbing about Modi?
In another celebrated essay on Modi, ‘Obituary of a culture’ (Seminar 2002), the eminent psychologist, anthropologist and writer Ashish Nandy had pointed out that Modi appeared to be a “classic, clinical case of a fascist”. On the basis of a prolonged, “rambling” interview with Modi in the early 1990s, and with decades of clinical experience as a leading analyst, Nandy observed,
He had the same mix of puritanical rigidity, narrowing of emotional life, massive use of the ego defence of projection, denial and fear of his own passions combined with fantasies of violence – all set within the matrix of clear paranoid and obsessive personality traits. I still remember the cool, measured tone in which he elaborated a theory of cosmic conspiracy against India that painted every Muslim as a suspected traitor and a potential terrorist. I came out of the interview shaken and told Yagnik that, for the first time, I had met a textbook case of a fascist and a prospective killer, perhaps even a future mass murderer.
Pogrom of 2002
There is no reason to believe that since that interview Narendra Modi had transformed into a saintly figure. In fact Nandy’s predictions grimly materialized as Modi “wormed his way to the post of the chief minister of Gujarat”, and the Gujarat pogroms followed soon after in 2002. It is important for the citizens of India to constantly revisit that nightmare in order to grasp the character of ruling power under celebration right now. The Gujarat pogroms were not just about the number of helpless victims killed (over 3000) and rendered homeless (several hundred thousand). It was about the sheer planning, the brutality, the maniacal genocide that was perpetrated over a population for days on end. Citing authoritative documents, Nandy wrote in disbelief:
What can you say about a woman eight months pregnant who begged to be spared. Her assailants instead slit open her stomach, pulled out her foetus and slaughtered it before her eyes. What can you say about a family of nineteen being killed by flooding their house with water and then electrocuting them with high-tension electricity?
What can you say? A small boy of six in Juhapara camp described how his mother and six brothers and sisters were battered to death before his eyes. He survived only because he fell unconscious, and was taken for dead. A family escaping from Naroda-Patiya, one of the worst-hit settlements in Ahmedabad, spoke of losing a young woman and her three month old son, because a police constable directed her to “safety” and she found herself instead surrounded by a mob which doused her with kerosene and set her and her baby on fire.
I have never known a riot which has used the sexual subjugation of women so widely as an instrument of violence as in the recent mass barbarity in Gujarat. There are reports every where of gangrape, of young girls and women, often in the presence of members of their families, followed by their murder by burning alive, or by bludgeoning with a hammer and in one case with a screw-driver.
With salutary decisiveness, Nandy pointed his finger straight at Narendra Modi, the then chief minister and home minister of Gujarat. Narendra Modi, according to Nandy, has not only
shamelessly presided over the riots and acted as the chief patron of rioting gangs, the vulgarities of his utterances have been a slur on civilised public life. His justifications of the riots, too, sound uncannily like that of Slobodan Milosevic, the Serbian president and mass murderer who is now facing trial for his crimes against humanity. I often wonder these days why those active in human rights groups in India and abroad have not yet tried to get international summons issued against Modi for colluding with the murder of hundreds and for attempted ethnic cleansing. If Modi’s behaviour till now is not a crime against humanity, what is?
This image of a “paranoid” “mass murderer” continues to haunt the disturbed souls of many millions of Indians. In 2002 itself, Nandy wrote that the “very fact that [Modi] has wormed his way to the post of the chief minister of Gujarat tells you something about our political process and the trajectory our democracy has traversed in the last fifty years. I am afraid I cannot look at the future of the country with anything but great foreboding”.
The “Nazi Gauleiter” not only continued to rule Gujarat for the next 12 years, he has now assumed power as the head of government of the entire country. The “great foreboding” is now the grim reality. How was it possible for a person, who ought to have faced trial in an international tribunal for attempted ethnic cleansing, to actually become the prime minister of a country supposedly governed by rule of law as enshrined in an enlightened constitution?
Before I return to this deeply disturbing issue, it is important to be clear as to why Modi is widely believed to have “presided over the riots and acted as the chief patron of rioting gangs”? There are two answers to this question. The killings, arson and rape were so systematic, widespread and prolonged in the very presence of armed police that people find it natural to believe that the pogroms were planned and approved by the authorities. Narendra Modi was not only the chief minister, he also held the home portfolio, so the police was directly under his command. Naturally, the suggested planning and approval leads directly to Modi.
This very plausible general impression was subsequently ratified by, among others, two pieces of evidence, both pertaining to the genocide at Naroda Patiya in Ahmedabad in which nearly a hundred muslims, mostly women and children, were driven to a closed low-lying area and burnt alive. As the narrative of the horror unfolded over the years, two individuals prominently stood out: Maya Kodnani and Babu Bajrangi.
The Gujarat High Court has already convicted Maya Kodnani and Babu Bajrangi, among others, for conducting the genocide at Naroda Patiya. Kodnani was actually made a minister—of Women and Child Welfare!—in the Modi government once the political heat of the pogroms cooled off. Given that Modi was both CM and HM before, during and after the pogroms, the political conclusion is inescapable: Modi appointed an organiser of mass murder as a minister in full knowledge of her crime. Although the justice system has not been able to extract the information so far, it is unthinkable that Kodnani—a prominent hindutva leader and subsequently a minister in the government—did not know about the structure and personnel of the perceived state-management of the genocides with Modi at the helm. So a natural perception is that since Naroda Patiya was one of the biggest ‘shows’ of calculated pogroms, a ministership is the least one would expect as a reward for a job well-done and a deal for silence. Kodnani’s conviction points unmistakably to Modi’s guilt.
The evidence from Babu Bajrangi is even more direct. Bajrangi revealed the entire story of Naroda Patiya in the courageous sting operation organized by the Tehelka investigator Ashish Khetan in 2007. Khetan’s explosive disclosures have virtually disappeared from the media by now. However, for many years excerpts from Khetan’s transcripts and videos formed the most influential text on the Gujarat pogroms in the public domain. Some of it needs to be recalled in this context.
It is important to emphasise that Khetan posed himself as a Sangh activist and he was believed to be so by Babu Bajrangi. Hence, Bajrangi’s rather frank disclosures were meant to be secrets shared with a fellow-Sanghi; as such, they are genuine statements of his true beliefs, not a ruse to extricate himself. In fact he had no need to extricate himself since, at the time of the interview—five years after the event—he was free and fully protected by the state, as we will see. To recall, Modi was the CM and HM throughout.
This is what Bajrangi said about Modi’s role in the pogroms.
B (Bajrangi): I am telling you if Narendra bhai (brother Narendra) had not been there, we would have never come out……It was only because of him, otherwise who would have dared…… it’s all his handiwork……. For, if he gave instructions to police, they would screw our happiness….. Absolutely, they had total control over the entire city….. in entire Gujarat…….. nobody was allowed to do anything…… let whoever do what he wants…… for two days, Narendra bhai was in total control…..
B: Narendra bhai came…… Narendra bhai came and left….. he didn’t come inside Patiya……. He had great influence…..So much so that police couldn’t even dare to speak, the guns were lying by the side, using them was out of question….. That was Narendra bhai…….. That’s why we could do what we did, otherwise it was not possible…..he came later……. He came the next day….. Narendra bhai came to Patiya with black commandos next day….. he came on the excuse of making peace……. But when he talked, he patted us for what we did…… what more he could have said than this……. You can’t expect him to say all that in the open…..
B: I ran away….. Narendrabhai supported me for long and then he kept me at Mount Abu…… I was kept at the Gujarat Bhawan in Mount Abu for four and a half months………. After that, (I did) whatever Narendra bhai told me…….. Then I was also arrested……… Then I lived in jail for six months and then Narendra bhai got me out and nobody can do what Narendra bhai has done in Gujarat…….If I did not have the support of Narendra bhai, we would not have been able to avenge Godhra….. because police was standing right in front of us, witnessing what was happening, but they had shut their eyes and mouth
B: Narendra bhai got me out of jail…… He kept on changing judges…. And then he set it up in such a way that I was out, otherwise I won’t have been out……. First judge was one Dholakiaji…… He said Bajrangi should be hanged, not once, four-five times, and flung the file aside…… then another came who only stopped short of saying I should be hanged….. then a third one…… By then, four and a half months had elapsed in jail; then Narendra bhai sent me the message to hold it for a while he will find a way out now since some time has passed….. Then he posted a judge called Akshay Mehta…. He neither saw the file or anything….. He just said granted…. And we all vacated the jail…. We were free….. For this work I believe in god……. We are prepared to die for Hindutva
B: Narendra bhai came to Patiya……He could not make it to the place of the incidents for there are commandos with him….. But he came to Patiya, saw our enthusiasm and went away…..Narendra bhai had come to see that it doesn’t stop the next day……. He went around entire Ahmedabad in Hindu areas close to Muslim areas and praised everyone and encouraged to do more……. But next day, there was tremendous pressure on Narendra bhai that he had to wrap it all up……
Bajrangi’s statements speak for themselves. They point to meticulous planning that could not have taken place in the city of Ahmedabad itself without full approval from the highest authority, as Bajrangi repeatedly asserts. Even after the crimes, the culprits were carefully protected with direct intervention in the justice system: while Bajrangi found himself well-ensconsed in a state guest house at Mount Abu, Kodnani was appointed a minister. Five years after the pogroms, in 2007, Bajrangi was still free to rant about his monstrous crime.
Justice and State-power
With such apparently clinching evidence, why isn’t Modi in jail? The answer is: Modi is not in jail not because he is innocent but because Modi held nearly absolute state power in Gujarat.
Very rightly, the justice system does not reach conclusions on the basis of common perceptions, even if they are manifestly valid. For example, the chain of inference that leads from Kodnani’s ascent to ministership to Modi’s culpability in the pogroms needs corroborating evidence at each step, mere plausibility is not enough. Similar remarks apply to Bajrangi’s otherwise unimpeachable testimony. There has to be corroboration of Bajrangi’s statement that, say, Modi visited the Patiya area in the darkness of the evening to congratulate the killers.
Any evidence directly implicating Modi can only come from top secret state documents, if any, and from testimonies from top officials from the state. I said “if any” because, in such cases, most actions follow from verbal orders and other gestures. When a ruler such as Modi is able to generate absolute power, the very structure of administration makes sure that no trace of the crime is available to a judicial enquiry. And, in any case, most top officials in the know are themselves implicated in the crime.
The Zakia Jaffrey case illustrates the grim point. After years of delay, the Supreme Court of India took cognizance of a specific complaint made by Zakia Jaffrey—the genocide at Gulberg Society as a part of the pogroms of 2002—and formed a Special Investigation Team (SIT) to investigate whether Modi needs to be charged as complained. Although the case related to the mass killings in Gulberg Society in which Jaffrey’s husband was lynched to death, it is obvious that any meaningful inquiry on Modi’s involvement in this case naturally incorporates the entirety of the pogroms, including especially the genocide at Naroda Patiya and dozens of other sites.
The SIT came up with a report and submitted it to the relevant trial court with the recommendation to close the case—the so-called “clean chit”. Subsequently, as the trial court accepted the recommendation, the complainant has appealed to the Gujarat High Court. The propaganda machine of BJP used this “clean chit argument” widely to erase the memory of 2002 from public mind.
There are several things to note about this case. First, the Supreme Court gave the clear direction that if the magisterial court fails to initiate trial, the complainant has the right of appeal. As such, the case is pending before the High Court and will not be decided until it reaches the apex court to decide on the matter. There is no clean chit. Second, apprehending possible miscarriage of justice, the Supreme Court appointed an amicus curiae—the noted advocate Raju Ramchandran—to examine the SIT report and submit his own report. The amicus curiae differed sharply from the SIT and recommended trial of Narendra Modi. The whole thing is pending before the courts. Third, meticulous examination of both the reports brings out serious lacunae in the investigations, as Manoj Mitta has shown recently (The Fiction of Fact Findin: Modi and Godhra, Harper 2014). For example, although Narandra Modi was summoned by SIT, he was asked merely to state his case; he was not subjected to genuine cross-examination. In any case, we await further judicial proceedings.
The question arises as to why the SIT failed to make a strong case against Modi so far despite the palpability of Modi’s involvement as noted. Here the hand of the state gets visible. As Raju Ramchandran pointed out, a range of methods were used to thwart a proper judicial inquiry: judges were frequently changed, briefs were given to loyal advocates, pliant officers were richly rewarded with plum postings, a handful of dutyful officers were continuously harassed including placing them under suspension, and so on. Gujarat has probably the most criminalised police in the country with dozens of its top officers in jail on murder charges. In fact, questions have been raised about the integrity of the members of the SIT in view of enormous powers weilded by Narendra Modi in Gujarat and his rapidly growing national stature. It is not surprising that the SIT might have decided to play it safe.
Thus, it is formally true that so far no court of law has convicted Modi for his culpability in the pogroms of 2002. In fact, he has not yet been charged with the suggested crimes before any court of law since the justice system has not yet reached a decision on the Zakia Jaffrey case. So, there has been no legal bar for him to contest the elections and assume high office.
Still, despite Modi’s control of the state apparatus in Gujarat, some progress has been made on this momentous case because there was a different government at the center under whose tutelage the CBI and other national agencies operated. Now, with the ascent of Modi to the helm of state-power of the Indian union with formal majority in the Parliament, the distribution of power has radically altered. The CBI is currently investigating a series of encounter cases in Gujarat some of which seem to lead up to Modi according to the testimony of some of the jailed police officers. It will be a stupendous task for the CBI now to bring these cases to a just end with the shadow of Narandra Modi directly covering its activities. It is almost entirely for the judicial system, therefore, to keep the flame of justice burning.
While the judiciary finds its way in the new equations of power, there is much merit in Ashish Nandy’s old suggestion that the human rights organisations across the world renew their demand for Modi’s trial in an international tribunal that functions beyond his reach.
Nirmalangshu Mukherji, Department of Philosophy, Delhi University