It then asks the Supreme Court to direct the trial court to consider the application on the evidence that has been brought before it.
In other words, the amicus report wants the case against the two police officers to be reopened.
Which leaves the third – and most sensational charge- against Modi, in respect of what he did say (or did not say) at the meeting convened at his residence on the night of 27 February 2002. The charge leans pretty much on Bhatt’s allegation, and the SIT had dismissed his evidence as not believable. It cited other senior officers who were present at the meeting who said Bhatt was not present; it said that Bhatt’s statement was motivated – since he had many departmental and criminal proceedings against him; it also noted that Bhatt had tried to tutor witnesses (including his former driver Tarachand Yadav); and established, based on emails retrieved from Bhatt’s account, that he was part of a conspiracy involving Congress party leaders to tarnish Modi’s reputation.
The amicus report deals extensively with Bhatt’s testimony. It acknowledges that Bhatt’s testimony is problematic at several levels: in particular, it cites Bhatt’s delay of nine years in coming out with his version, and the statements of other senior officers (who too were present at the 27 February 2002 meeting) contesting Bhatt’s claim that he was present. The amicus also acknowledges he was “fully conscious” that Bhatt had made attempts to get other witnesses (including his former driver Tarachand Yadav) to support his case, and was part of a “strategizing” effort.
Yet, the report notes, “it is ultimately for the competent court to decide whether Bhatt is to be believed or not. As long as some material indicates that the allegation may be true, the case must proceed further in accordance with law.”
The amicus report says that although the SIT had disbelieved Bhatt’s testimony, the question of whether Bhatt was present at the meeting and whether Modi did say what he is alleged to ahe said could only be decided by a court of law. “It would not be correct to disbelieve the version of Bhatt, at this prima facie stage, on the various grounds set out by the SIT or because other participants in the meeting have denied (either categorically, or to the best of their memory) his presence and the alleged statement made by Modi.”
If in fact Bhatt “stands the test of cross-examination”, regardless of the fact that other witnesses have not supported his statement, a court of law may return a finding that Bhatt indeed was present at the meeting on 27 February 2002 ,and that Modi did make a statement as alleged.
Yet, even though Bhatt’s testimony about the meeting at Modi’s residence has not been established as believable – and the amicus wants further investigations to establish it – he goes one step further and says that the question to be examined is whether Modi’s “making of the statment” at the 27 February 2002 meeting is an offence under law.
“In my opinion, the offences which can be made out against Shri Modi, at this prima facie stage, are offences” under several sections of the Indian Penal Code.
This statement offers something of a legal conundrum: Only if Bhatt’s testimony is clearly established as true – and even the amicus says it needs further investigation to establish it – does the question of a prima facie case against Modi arise. Yet, the amicus appears to have jumped the gun.
There are also other contradictioins within the amicus report. It acknowledges elsewhere, for instance, Modi did take adequate steps to control the riots in Ahmedabad. “As far as the SIT’s conclusion with regard to the steps taken by the Chief Minister Shri Modi to control the riots in Ahmedabad is concerned, the same may be accepted, in the absence of any evidence to the contrary.”
It’s becoming clear that the legal case against Modi now rests on one infirm pillar: the testimony of Sanjiv Bhatt, which the SIT had concluded was not believable. The amicus report wants the magistrate court to have the last word on it. On the face of It, it is not an unreasonable request. The Supreme Court, which is monitoring the cases, had anyway ruled that the trial court would have the last word on the matter.
Yet, the political project to pin the blame for the riots on Modi will almost certainly be advanced by the amicus report. In large parts, it rests on keeping the issue of the Gujarat riots alive, to administer ‘death by a thousand cuts’ in the political space. And the outlier statement in the amicus report that there is a prima facie case against Modi will feed that project.