Modi case: The danger in Justice Suresh's double hearsay

By Kartikeya Tanna Gujarat Chief Minister Narendra Modi’s criminal culpability in the 2002 Gujarat riots seems to be generating one disclosure after another, each one from quarters hitherto silent. The latest disclosure by Justice Hosbet Suresh, a member of the Concerned Citizens Tribunal, on NDTV appears to foment more rhetoric on both sides. [caption id=“attachment_217663” align=“alignleft” width=“380” caption=“How much does Modi have to worry about former judge Hosbet Suresh’s allegations? “]  [/caption] Because this is a representation by a person no less than a retired high court judge (as opposed to aggrieved IPS officers or inherently doubtful government insiders), it has the strength of cloaking assumptions as facts, particularly in reports by media outlets hostile to Modi. The question that arises is: what is the legal weight of Justice Suresh’s statements? The answer, quite simply, is: none. What Justice Suresh is saying on TV is not just hearsay but double hearsay – he is reporting what Haren Pandya disclosed to him (hearsay) on what Pandya got to know about Modi telling police officers (again hearsay) in a reportedly closed-door meeting. In other words, he is saying “Pandya told me that Modi told police officers, who later told Pandya, to let Hindus vent their anger”. Pandya was neither present in that meeting, nor was he the home minister at that point of time. Additionally, the fact that Pandya is deceased reduces its evidentiary value further. On top of it, Justice Suresh today relies on Pandya’s statement when the tribunal itself indicted him for his role in the riots! Under law, hearsay is a statement made out of court (example, Modi’s statement or Pandya’s statement) that is offered in court as evidence to prove the truth of the matter asserted in the statement. Indian law regards hearsay as generally inadmissible unless corroborated by further evidence and the reasons are fairly obvious. The Supreme Court’s views in the 2007 case of Kalyan Kumar Gogoi are striking enough. The court stated that the tendency of hearsay is to “protract legal investigations to an embarrassing and dangerous length, its intrinsic weakness, its incompetency to satisfy the mind of a judge about the existence of a fact, and the fraud which may be practiced with impunity under its cover”. This supported the general rule that hearsay evidence was inadmissible. The Special Investigation Team headed by former CBI Director RK Raghavan, which is the prosecuting agency in these cases, keeps this in mind when preparing for prosecution. In the midst of several allegations uncorroborated by any other evidence, the SIT has to take a judgment call on their inclusion in its prosecution and avoid “embarrassing and dangerous delays”. Dropping names or fabricating conversations isn’t unheard of - the rather striking ease with which senior reputed journalists in New Delhi blatantly exaggerated their camaraderie and conversations with high placed politicians is very well known. Apart from the fact that such statements are inadmissible hearsay, it is important to understand why this people’s tribunal was engaged in this fact-finding mission. This tribunal was requested by Citizens for Justice and Peace and the tribunal’s convener was Teesta Setalvad, the most visible member of CJP who also faces several charges of perjury and intimidation of witnesses in the riot cases. CJP had organised meetings of this judicial panel all over Gujarat in the riot-affected areas. What prompted Justice Suresh to appear on a private news channel and make unsolicited statements is perplexing. For a retired judge to appear on TV and conflate hearsay as scandalous evidence, particularly in a sensitive matter, is highly unfortunate. Upon being asked why he didn’t choose to state this earlier, Justice Suresh said there was no ‘occasion’ for him to do so. One wonders what the ‘occasion’ is now. Another aspect which seems to raise doubts is that if, as Justice Suresh says, Haren Pandya wanted his statements to be kept confidential, why is there an audio recording of what Pandya said? That Pandya consented to the audio recording while, at the same time, requesting confidentiality is bizarre. If Pandya did not consent, did the two judges in question, unbeknownst to Pandya (and unethically, if I may add), record Pandya? On being asked where the audio tape is, Justice Suresh, visibly unsure of the answer, said that the tape “could be” with CJP. Could be? It will be extremely rare, if not impossible, to hear a tribunal member being unsure about the physical location of the most vital piece of evidence collected by it. And, if the CJP has it, it is odd why the body, otherwise so eager to make all kinds of accusations on TV, has not gloated about it yet. It is fairly clear that, except for IPS officer Sanjeev Bhatt, whose presence in the meeting is highly questionable due to his aide’s contradicting testimony and the then DGP’s statement confirming his absence, all others making assertions on what Modi said at that meeting have heard about it from someone else which make such assertions hearsay. How and whether the SIT has dealt with these assertions remains to be seen once the report is public and if Modi’s nine-hour-long deposition is made public. Until then, needless insinuations and confusing inferences, particularly by a responsible former high court judge, seek to vitiate the atmosphere surrounding the legal process in Gujarat. Examined objectively, Justice Suresh’s disclosure raises more questions and doubts on the Concerned Citizens’ Tribunal than anything else. Given the highly sensitive nature of the legal process currently underway, such unsolicited statements and assertions seem to provoke more rhetoric than truth, something that a judge, more than anyone else, ought to foresee and prevent.