Amicus report on Modi full of infirmities, conjectures
The report of the amicus curiae on Narendra Modi tries to put two and two together to arrive at five on the basis of doubtful evidence
The amicus curiae report (“ AC report”) on Narendra Modi, prepared pursuant to a Supreme Court directive has, on the basis of the same evidence before the Special Investigation Team (SIT), arrived at a different conclusion. The AC, Raju Ramachandran, has opined that certain offences under the Indian Penal Code can prima facie be made out against Modi at this stage.
This deductive exercise based on IPS officer Sanjeev Bhatt’s allegations is replete with infirmities and speculation. Bhatt has alleged that (a) he was present at the law and order review meeting called by the CM on 27 February; and (b) Modi instructed the police “not to deal with the Hindu rioting mobs”.
Using two negatives instead of a positive
Firstly, the AC report uses two negatives to support a prima facie case which should ideally be supported by a positive. While the question of burden of proof in criminal matters admittedly comes only at the trial stage, the prosecuting agency has a stronger prima facie case if it has material proving the accusations rather than absence of material negating the accusations.
For example, Ramachandran asserts that because there is no documentary material which can establish that Bhatt was not present in the meeting, he should not be disbelieved (Paragraph 23). It may be useful to point out here that Ramachandran has had to recant a similar premise regarding Haren Pandya’s presence in an interim note submitted to the Supreme Court (SC) in which he had said that “it may not be totally unbelievable that Haren Pandya was present at the meeting” (Observation No 4, Chart-A; Recanter in Paragraph 46 of the AC report).
Indeed, Haren Pandya had passed away by the time the SIT initiated investigations. But the negligible prosecutable value of such a premise is rather obvious.
Bhatt's word against everyone else’s
The AC report seeks to undermine the credibility of the officers who attended the meeting by quoting SIT’s Preliminary Report which places them into categories such as: (a) those claiming loss of memory; (b) those who obtained lucrative post-retirement benefits; and (c) those who were serving public officers.
Even if this were the case, one important retired officer – the then DGP K Chakravarthi – has categorically denied Bhatt’s presence on more than one occasion. Chakravarthi, who knew Sanjeev Bhatt better than the rest due to their hierarchy in the Gujarat police, is one such attendee officer who does not fall into any of the three categories.
Impeachment of Bhatt as a witness on grounds of lack of credibility
Ramachandran asserts that the evidentiary value of testimonies of some attendee officers is doubtful due to the “lack of credibility”, in that they obtained lucrative post-retirement benefits. Admittedly, some substance can theoretically be shown in these assertions even if post-retirement benefit is the only factor. What he misses, however, is the presence of several factors significantly eroding Bhatt’s own credibility as a witness.
For example, Bhatt had also claimed the presence at a subsequent meeting at the CM’s residence on the next day at 10:30 am whereas the call records indicate that he was in Ahmedabad at 10:57 am and he could not have reached Gandhinagar till 11:30 am.
Further, Ramachandran himself states that Bhatt’s repeated attempts to make himself heard in several forums shows that he has not been a “detached police officer” content with giving his version (Paragraph 22). Bhatt’s latest attempt to expand the limited scope of a private complaint before the NCM to his personal agenda has been pointed out earlier.
Further, he is “fully conscious” of the fact that Bhatt has made attempts to get other witnesses to support his case as a part of his active “strategising” efforts along with those who would gain mileage from his testimony (Paragraphs 22 and 29). These are only a few out of many reasons why the SIT has chosen not to rely on Bhatt’s statements that could be seen as motivated.
Under Indian evidence laws, Bhatt, as a witness, would be impeached in no time due to lack of credibility. Yet, according to Ramachandran, these factors cannot be grounds for ignoring his statements primarily because it is unlikely that a serving police officer would make such a serious allegation against a chief minister without some basis (Paragraph 23).
That Ramachandran overlooks his own assertion regarding Bhatt’s strategic motives which have been at full display since he made allegations against Modi is quite surprising.
Ramachandran then makes several speculations as to what could have happened in order to rebut what much of the hard evidence collated by the SIT sufficiently indicates did not happen.
In relation to SIT calling Bhatt’s bluff as to his presence in the subsequent meeting of 28 February, Ramachandran makes a contrived attempt by raising possibilities such as: (a) there is no evidence to show that Bhatt was at a place other than Gandhinagar after 10:57 am; and (b) the 28 February meeting could have been held at a time other than 10:30 am.
He further guesses that since Bhatt had accompanied the then ADGP (Intelligence) in the past to a few meetings called by the CM, Bhatt could have been directed to attend the 27 February meeting as well and that his “juniority” need not have come in the way of his attendance (Paragraph 25).
While there are no tightly defined requirements for establishing a prima facie case, it certainly does not mean a collection of double negatives and theoretical possibilities are valid. The SIT, unlike everyone else, does not have the luxury of relying on flimsy grounds to take the case forward. Therefore, if the prosecution relies on a witness whose credibility is open to challenge, it reflects poorly on the prosecuting entity.
How the AC report will weigh in the proceedings before the Ahmedabad Metropolitan Court remains to be seen. For the moment, however, it will be peddled as truth by those very “strategists” Ramachandran decries in his report.
The author has explained other aspects (such as the meaning of a prima facie case, magistrate’s options and Ms Ehsan Jafri’s rights) of the amicus curiae report at length on his website here .
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