Sohrabuddin

Has Canada Bought Into the Reputation Cooked Up for Amit Shah by the Indian Media?

The intelligence establishment in Ottawa can be excused for locating in the Indian home minister’s political DNA an eagerness to move beyond conventional “dos and don’ts”, an appetite for risk and recklessness.

Four days after he was officially “outed” by a Canadian minister as the prime mover in this whole unpleasant business of alleged Indian involvement in the killing of a Canadian citizen on the Canadian soil, the Indian government has rather belatedly spoken up in defence of Union home minister Amit Shah.

The Ministry of External Affairs has expectedly termed the Canadian charge as “absurd and baseless.” Our official view is that the Justin Trudeau regime is indulging in India-bashing because of its domestic political agenda. Perhaps there is substance to the Indian understanding of Canadian domestic politics. Yet, it needs to be asked why a responsible Canadian ministerial official would allow himself to “finger” Shah, that too before a parliamentary committee. If Indian officials are correctly reading Trudeau’s political and electoral calculus, then his petty domestic imperatives have already been served by the grand diplomatic hoo-ha between New Delhi and Ottawa. Naming the third most powerful political figure [ as per the latest India Today list] still does not add up. Why this extreme, precipitous step?

Could it be that the Canadian intelligence establishment has been taken in by the reputation cooked up for Amit Shah by the Indian media? Even before he moved to Delhi in 2014, a friendly Gujarati press had hailed him as the mastermind behind Chief Minister Narendra Modi’s signature political moves, within and outside the BJP. His “take-no-prisoner” approach against political rivals and allies got easily shoe-horned into the “law and order” sector. The whole Sohrabuddin/Kausar Bi caper revealed Amit Shah as an activist, hands-on home minister. Along with chief minister Modi, home minister Amit Shah was serenaded for ridding Gujarat of all those difficult “underworld figures” who had supposedly prospered over the years because of “appeasement” politics. In the post-9/11 “global war on terrorism”, there was subtle appreciation for all those police and political officials who were prepared to employ unorthodox methods against the presumed “jihadis.”

All these “facts” probably figured in the profile of Amit Shah that the Canadians had compiled, as a matter of routine, of an up and coming Indian politician. The profile had to be necessarily updated and nuanced when he moved to Delhi in 2014 to work as Modi’s empowered consigliere. A fawning media ramped up his reputation as a new Chanakaya in the BJP as the ruling party rewrote the rules of political engagement with domestic rivals. “Naya Bharat” was not to be constrained by the old, conventional political morality of the Vajpayee era.

The Canadians must have surely revised Amit Shah’s profile when Prime Minister Modi allotted him the corner office in North Block in 2019. A servile media showered him with encomiums when he “did away” with Article 370. Amit Shah’s reputation as a man who did not care for any norms or conventions or traditions was now cast in stone. Journalists vied with each other to manufacture his image as a man who not only had the complete confidence of his boss but who believes that “power” must be used to consolidate and entrench oneself. Strategy and tactics came naturally to him; he was always in his zone. The media was in thrall of Shah; even our judges and generals and bureaucrats fell for this exaggerated image of a consummate power player. The Canadians, and most probably their big brothers in Washington too, could not be impervious to this concocted portrait.

Perhaps Canadian diplomats stationed in New Delhi also heard from serving and retired Indian police officers praising Amit Shah as the boss who was unafraid of the consequences, however unpleasant, if a course of action was deemed to be in the “national interest.” Senior police officers came away impressed with his determined eagerness to move beyond conventional “dos and don’ts” of the lawful exercise of authority. He was definitely not a man who would allow himself to be dissuaded from going after an “enemy” by some ‘Western’ notions of accountability and statesmanship. Here was a man of certainties and convictions, a man who knew what he believed and what he was doing. Policemen, bureaucrats, foreign service-wallahs, and generals found him a refreshing contrast to all his predecessors who allowed themselves to be hobbled by bureaucratic rules and by considerations of political fair-play. This admiration must have wafted into the ears of Delhi-based Canadian diplomats.

The Canadian intelligence establishment can be excused for locating in Amit Shah’s political DNA an appetite for risk and recklessness. Does this mean he would be so reckless as to get involved in “encounters” on Canadian soil? Notwithstanding Prime Minister Narendra Modi’s campaign-time hyperbole that “ye naya Bharat dushman ko ghar me ghoos kar marta hai”[ the new India goes after its enemies in their homes], Indian constitutional arrangements stand in the way, as does our collective aversion to any kind of “rogue” exercise of power at home or abroad. All spy agencies across the world know the limits of New Delhi’s coercive power outside of India.

So far, the Canadians have not produced a smoking gun to back their allegations against Amit Shah, which have inadvertently enhanced his reputation as a man not to be easily trifled with. Until and unless they do so, the mystery of why the intelligence and political bosses in Ottawa pointed a finger at him will remain.

Whatever the truth of the matter, this very public diplomatic spat should serve as a reminder to everyone that Deng Xiaoping’s axiom, “Hide your strength, bide your time,” applies to New Delhi too. As an aspiring power, India will need to appreciate that over-reach is not without its consequences.

Having Covered Modi’s Gujarat, I Can Say SIT’s Claim of Ahmed Patel ‘Conspiracy’ is Ludicrous

Kingshuk Nag of ‘Times of India’, who served as its resident editor in Ahmedabad during the 2002 riots, sheds light on how the Congress leader was indeed perceived as someone who defended Narendra Modi back then.

Ahmed Patel must be turning in his grave. Nearly two years after he died in November 2020, he is back in the news once again.

To oppose the bail application of activist Teesta Setalvad, the police have now claimed – based on the report of a special investigation team (SIT) – that she was part of a “larger conspiracy” carried out at the behest of Ahmed Patel to dismiss the Bharatiya Janata Party (BJP) government in the state after the 2002 riots. The report has now been filed as an affidavit filed before the sessions court in Ahmedabad.

As the resident editor of the Times of India in Ahmedabad in those days, the charge appears ludicrous to me.

Ahmed Patel was always perceived to be on the side of Narendra Modi. He was the one Congress leader who was seen as protecting Modi and defending him from behind. Certainly, this was the view of a large section of civil society activists. As the political advisor to Congress president Sonia Gandhi his advice was probably taken very seriously by the head of the party, I thought.

The Congress-led UPA government came to power in New Delhi in 2004, some two years after the Gujarat riots of 2002. The party leadership was happy to go along with the Supreme Court’s pro-active concerns in 2007-8 that justice be done in the various riot-related cases that the state police was clearly dragging its feet over. This was the period when many cases were reopened on the apex court’s orders, much to the Modi government’s discomfort. The key players, however, were the National Human Rights Commission – which had played a major role in this process right from 2002 – and activists like Setalvad, not the Congress.

If anything, the Congress party – and Ahmed Patel in particular – internalised the belief that aggressively targeting Modi for his role in the 2002 riots and in various fake encounters (like that of Sohrabuddin) was politically counterproductive. Sonia Gandhi had attacked Modi as a ‘maut ka saudagar‘ – a merchant of death – in the 2007 Gujarat elections but the then chief minister was able to turn the taunt to his advantage. That was when the party decided to focus more on attacking Modi’s claims to being a good administrator and dropped all ‘Muslim’ related issues. This is perhaps the reason the Congress under Sonia Gandhi chose not to reopen the Haren Pandya assassination case when the Gujarat high court, in a sensational verdict, overturned the official narrative that Pandya– a Modi critic – had been killed by Muslim conspirators linked to Pakistan.

Once I asked Ahmed Patel why he was seen as a leader in favour of the Modi-led government in Gujarat. He was stumped for an answer for a few seconds, but then confided that the situation in Gujarat “had changed”. He volunteered that it was not possible to rein in Modi as Gujarat chief minister “without consequences”. He also said that the situation in Gujarat was no longer favourable to field any Muslim candidate to win an elected seat.

Patel – who is said to have been very close to Sonia Gandhi and acted as her ears and eyes – began his political career as a Lok Sabha MP from Bharuch in Gujarat in 1977. But in 1993, he shifted to the Rajya Sabha, and thereafter till his death remained in the upper house. He served five terms in the Rajya Sabha and three terms in the Lok Sabha.

But in 2017, several Congress MLAs in Gujarat were shifted from Gandhinagar to Ahmedabad. This was because it was perceived that these Congress MLAs were being goaded to vote against Patel – who was contesting another term in Rajya Sabha.

Ahmed Patel was a strong Congress leader with a lot of influence, but never became a minister in the government. He, however, held important organisational positions and drew his powers from his proximity to the topmost Congress leaders.

Apart from Ahmed Patel the only Muslim MP to ever be elected from Gujarat was Ehsan Jafri who represented Ahmedabad in the Lok Sabha from 1972-77. Ironically, it was Jafri’s brutal killing in the course of the 2002 riots that eventually led to the police case against activist Teesta Setalvad because the former MP’s widow, Zakia Jafri, filed a petition seeking registration of a case against Modi and other senior officials and leaders in the state for conspiracy to instigate riots. Her case, in which Setalvad was co-petitioner, was dismissed by the top court in May. The court, controversially, also called for the action to be taken against the petitioners ‘and others’ for what it called ‘abuse of process’.

Kingshuk Nag is the former resident editor of The Times of India. He is the author of several books, including The NaMo Story: A Political Life.

Watch | Why Was Justice Akil Kureshi Excluded from the Supreme Court?

Nine new judges of the Supreme Court, including three women judges, recently took oath. But the second most senior chief justice of a high court was not among them.

On Tuesday, Chief Justice of India N.V. Ramana administered the oath of office to nine new judges, including three women judges, at the Supreme Court, taking the total number of judges in the apex court to 33.

The appointments have not been without controversy as Tripura high court Chief Justice, Justice Akil Kureshi, was not among the Supreme Court collegium picked for elevation to the top court. This was surprising, as he was the senior-most high court Chief Justice after Justice A.S. Oka, who was elevated. Senior editor of The Wire Arfa Khanum Sherwani discusses the matter with former judge, Justice Anjana Prakash.

How Official Investigative Agencies in Gujarat Spied on a Young Architect for ‘Saheb’

In his new book ‘Undercover’, investigative journalist Ashish Khetan recalls how he broke the infamous Snoopgate story in 2013.

Extracted with permission from Undercover: My Journey Into The Darkness of Hindutva by Ashish Khetan, published by Westland/Context, January 2021.

In September 2013, when I was running an investigative news portal called Gulail, a source handed me a pen drive. It contained hundreds of recorded telephone conversations between Amit Shah—who was minister of state for home in the Gujarat government, working directly with then home minister [and chief minister Narendra] Modi—and G.L. Singhal, a high-profile Gujarat IPS officer.

Shah, Modi’s closest political ally and currently Union home minister, was the junior minister for home in Gujarat for seven years, from 2003 until his arrest in the Sohrabuddin Sheikh extra-judicial killing in 2010. Singhal was a key member of the police hit-squad led by D.G. Vanzara that had gunned down many Muslims in encounters, while passing them off as terrorists.

The tapes in the pen drive offered a close and unsettling encounter with the paranoid Modi model of governance, in which everyone was being watched, all the time. Select police officials were posted in powerful positions in the SIB, the Crime Branch, the commissioner’s office and the anti-terrorism squad (ATS). These special wings of the police had sweeping executive powers to intercept phones, develop intelligence networks, detain and interrogate suspects, and were granted large (often unaudited) budgets and human resources. Over time, these officers became a law unto themselves. They frequently crossed the line, legally and professionally, to serve the interests of their political masters. Because they were indispensable to the leaders at the top, they were promoted, rewarded, and shielded from inquiry and scrutiny. Sometimes, given the impunity with which they operated, these top police officers would run extortion rackets and threaten businessmen, builders, even fellow officers who refused to toe the line (the CBI charge sheets in the Sohrabuddin case detail these facts).

Ashish Khetan
Undercover: My Journey Into The Darkness of Hindutva
Westland/Context (January 2021)

It was all methodically arranged. The buck could never stop with the chief minister, even if it sometimes did with Shah. Modi, whom Shah addressed as ‘Saheb’, seldom dealt with the police officers directly. In fact, he only really interacted with Shah, through whom his writ ran, the tapes showed.

Singhal’s luck ran out when he was arrested by the CBI in February 2013. The arrest came after the mother of Ishrat Jahan—a nineteen-year-old student from Mumbra, a suburb of Thane, part of the greater Mumbai region, who was gunned down by the Gujarat police in an encounter—filed a petition in the Gujarat High Court seeking an independent investigation into her daughter’s killing. Initially, the investigation into Ishrat’s killing was carried out by an SIT of the Gujarat police. Later, the Gujarat High Court asked the CBI to take over. About six months before his arrest, his teenage son had committed suicide. Heartbroken, and anxious to be with his wife and family, Singhal struck a deal with the investigators, a key member of the investigation team told me. He handed over 267 recorded telephone conversations to the CBI that revealed how three key wings of the Gujarat police—the SIB, also known as CID Intelligence, the Crime Branch and the ATS—had, in 2009, stalked one young woman, in her twenties, for more than a month. The CBI drew the panchnama for the recovery of the pen drive on 9 June 2013.

Singhal told the CBI that this odd surveillance operation was mounted on oral orders alone, there was no legal authorisation or paperwork. And the operation was in aid of someone Shah repeatedly referred to as ‘Saheb’ in the calls that were recorded and subsequently turned in. Singhal also told the CBI about German-made encrypted cell phones used by him and others close to Amit Shah. Four such phones had been procured and distributed among key police officers so that they could talk to each other in complete secrecy. Mostly, Singhal told the CBI, they would talk about the legal strategy to cover up fake encounters.

The CBI was investigating Singhal’s involvement in the extra-judicial killings of Ishrat Jahan and three Muslim men, and these tapes about the surveillance of a young woman had nothing to do with the case. Indeed, it had nothing to do with any police case, let alone fake encounters. The reasons for the surveillance were entirely private, Singhal told the CBI. The young woman in question was an architect from a middle-class, Hindu family, a private individual on whom state resources were being lavished.

Why?

Singhal had produced the tapes as evidence to show that, whether it was extra-judicial killings or the illegal surveillance of a private person, he was only acting under the instructions of people higher up the food chain. His statement to the CBI read: ‘I restate the fact that previously I had been coerced to participate in and help in certain activities intended to obstruct the process of law. Although illegal, unethical and improper, I had not declined to follow instructions because I was under a cloud in this case and Shri Amit Shah used to wield his authority by making it appear that me and my subordinate officers were being protected from incarceration by his and the Chief Minister’s efforts.’ This statement is part of the CBI charge sheet, but since the trial has not started, it has yet to be tested legally.

Also Read: Delhi Riots: Is the Centre Importing the ‘Gujarat Model’ to Subvert Prosecution?

In exchange for these tapes and information, Singhal wanted the CBI to not file charges against him within the statutory limit of ninety days after arrest. That would entitle him to be released on bail. Since Singhal was cooperating with the agency, the CBI deliberately delayed filing a charge sheet within the stipulated time period, and in May 2013, he was released on bail.

It took me three months to tie up the various loose ends of this story. I made several trips to Ahmedabad to interview the key characters who figured on the tapes. I identified the woman who was stalked. She was originally from Gujarat but had spent many years working in Bangalore. I learnt that she was now married to an Ahmedabad-based businessman. To safeguard her privacy, I gave her the code name ‘Madhuri’.

The illegal spying operation was initiated on Shah’s instructions, sometime in July 2009, and continued for several weeks, Singhal told the CBI. For a month in 2009, between 4 August and 6 September, Singhal secretly recorded all of his cell phone conversations with Shah. Perhaps he had an instinct that he might one day need the protection these tapes could provide. He recorded three self-incriminatory statements before the CBI in June 2013. And the CBI prepared a ten-page panchnama while taking possession of the 267 phone recordings. ‘In the latter half of 2009, when I was posted as SP [superintendent of police] (operations) in the Anti-Terrorist Squad (ATS) at Ahmedabad,’ Singhal told the CBI, ‘Shri Amit Shah had directed me several times to watch the movements of Pradeep Sharma, who was then posted as municipal commissioner, Bhavnagar. He had also asked me to surveil a young woman named ****. I had deputed some men of the Crime Branch (as ATS was short of subordinate staff) to follow her, as directed by Shri Amit Shah.’

Amit Shah. Photo: Reuters

The tapes indicated that, for over a month, the Gujarat police and its most sophisticated surveillance tools were used in a mysterious operation to closely monitor Madhuri’s every movement. She was not a suspect of any kind and yet was tailed so thoroughly that surely laws were being broken. Her conversations were listened in on; she was watched as she went to the mall, to restaurants or to eat ice cream; she was watched at the gym, on trips to the movies; she was watched when she took a flight and stayed at a hotel. When she took a flight out of Ahmedabad, unbeknownst to her, there were orders for a pair of cops to be on the same flight. When she visited her mother in hospital, the Gujarat police was there too, spying on her movements and the people she met, as if she were a dissident in East Germany during the Cold War. It was creepy, and the creepiest perhaps was Shah’s apparent interest in the men Madhuri met, and whether she was alone or with a man when she checked into a hotel. Madhuri’s phone was illegally tapped, of course, but so were those of her family and friends. All the information that Singhal’s men could glean was conveyed to Shah in real time, who in turn would relay it to ‘Saheb’.

Such was the importance attached to the surveillance of Madhuri that several senior state police officials were ordered to personally supervise her movements and activities. On the tapes handed over to the CBI, Shah can be heard complaining to Singhal that his men were not doing a thorough enough job as Saheb was obtaining information about Madhuri’s activities from independent sources, and that his information network was sometimes faster even than Shah’s.

Gulail tied up with the investigative journalist Aniruddha Bahal to publish this story. We titled it ‘The Stalkers’. The media ended up calling it ‘Snoopgate’. We tied up with a weekly news magazine to publish the story. The magazine decided to splash it as a cover story. But by November 2013, opinion polls had started to strongly indicate that Modi would be the next prime minister. The magazine, under pressure from its proprietors, dropped the report at the last minute. Bahal and I then decided to hold a press conference to break the story. Perhaps we should have paid more attention to our timing, because 15 November, the day we chose for our big reveal, happened to be the day that Sachin Tendulkar was playing his last Test match for India. Sachin stepped out to bat at Wankhede Stadium on 14 November, and when he stepped up to the crease the next day, to resume the innings, he was on thirty-eight. Almost the whole country was watching, praying he would get one more hundred before calling it a day. Television news channels were giving a ball-by-ball account of proceedings, even though the match was being screened live.

Journalist Ashish Khetan. Photo: Context/Westland

I belong to a generation of cricket fans that grew up idolising Sachin. When I was younger, every time his wicket fell cheaply in an international match, I would be too distressed to even eat. On that day, though, I confess to secretly hoping Sachin would get out early. Had he gone on to score a century, it would have been his hundred and first international century, and our scoop would have been out for a duck. In the event, Tendulkar fell short at seventy-four. At 3 p.m., at the Press Club in New Delhi, we told the assembled media what we had found on the tapes. The story made it to the front page of every newspaper and was discussed (loudly, of course) on the evening’s news debate shows.

How Justice Arun Mishra Rose to Become the Most Influential Judge in the Supreme Court

It was to his bench that some of India’s most politically sensitive cases were inevitably marked, and it was four senior judges of the Supreme Court who broke ranks to question why this was so.

This is the first in a five-part series examining the judicial career and pronouncements of Justice Arun Mishra, the Supreme Court judge to whose docket a host of politically sensitive cases were entrusted by three successive Chief Justices of India, though not always without controversy. See also: Part 2 | Part 3 | Part 4 | Part 5

New Delhi: Justice Arun Mishra, who retires from the Supreme Court of India on September 2, is arguably the most influential puisne judge the apex court has seen in recent years.

Before we delve into the legacy of his judgments, a little bit of family background may be helpful. Son of Hargovind G. Mishra, a former judge of the Madhya Pradesh high court who served from December 1977 to July 1982, when he died in office, Justice Arun Mishra belongs to a family of lawyers.

He was recommended by the Supreme Court’s collegium for elevation to the apex court during the tenure of the then chief justice of India, R.M. Lodha, after the Narendra Modi government assumed office at the Centre in 2014. At the time, Justice Arun Mishra was chief justice of the Calcutta high court. Earlier, he had served as chief justice of the Rajasthan high court for two years, from November 2010 to December 2012. He first became a judge of the Madhya Pradesh high court on October 25, 1999 and remained there till his shift to Rajasthan in 2010. Between 1978 and 1999, he was a lawyer and his practice included constitutional, civil, industrial, service and criminal matters.

In 1998, at the age of 43, he became the youngest chairman of the Bar Council of India. In his official profile on the Supreme Court’s website, Justice Arun Mishra makes a special mention of his contribution as BCI chairman – the introduction of five-year law courses, closure of “sub-standard law colleges”, disposal of a large number of disciplinary cases, framing of rules on foreign lawyers’ conditions and practice in India, and enhancement of medical aid to lawyers.

Brother judges bring brother as judge

Last year, his younger brother, Vishal Mishra, who was an advocate in the Madhya Pradesh high court, was made a judge of the high court before he completed 45 years of age, the official minimum age for such an appointment under the draft memorandum of procedure (MOP) for judicial appointments.

The high court collegium recommended him in September 2018 and the Supreme Court collegium cleared his name on May 10, 2019 despite this apparent obstacle. The resolution adopted by the Supreme Court collegium comprising the then chief justice of India, Ranjan Gogoi, and Justices S.A. Bobde and N.V.Ramana, simply said: “As far as age factor of Vishal Mishra is concerned, the collegium is fully satisfied with the justification given by the high court collegium while recommending his name”. The resolution did not reveal what justification was given by the high court collegium.

Justice Arun Mishra was not part of the selection decision. But, as No. 4 in the Supreme Court’s hierarchy of judges at the time, he was part of the five-member collegium which recommends names for Supreme Court judges. The collegium resolution also noted, “In order to ascertain suitability of the above-named recommendees for elevation to the High Court, we have consulted our colleagues conversant with the affairs of the Madhya Pradesh High Court.” It is not clear if Justice Arun Mishra recused himself from this consultation process.

Justice Vishal Mishra’s Facebook profile, which he has not updated since 2014, makes it clear that he has definite political leanings. In one post, the Nehru-Gandhi family are presented as Muslims and this is given as the reason the “Gandhi family hates Hindus”.

Posts from Vishal Mishra’s Facebook page

Justice Vishal Mishra was born on July 17, 1974 and will retire in 2036, 16 years after his elder brother retired from the Supreme Court. If he is elevated to the Supreme Court, he will retire in 2039, at the age of 65. His young age means he is likely to not only become chief justice of India if elevated to the apex court, but will have a long tenure in that position.

The official notification for Vishal Mishra’s appointment as a judge was issued by the Union law ministry on May 22, 2019, one day before the Lok Sabha election results were declared.

Interestingly, Justice Arun Mishra too became a judge of the Madhya Pradesh high court before he completed 45 years of age, but there was no rule against it at the time.

Arun Mishra’s output as a judge

As a Supreme Court judge, Justice Arun Mishra authored 132 judgments and he was part of 540 benches which delivered judgments in the apex court since the beginning of his tenure on July 7, 2014. The year-wise break-up of his judgments is as follows:

Breakup of Justice Arun Mishra’s Judgments by Year
Infogram

Justice Arun Mishra has served under seven CJIs, of whom three were in the Supreme Court collegium which picked him for elevation from the high court in 2014. These were Justices Lodha, H.L. Dattu and T.S. Thakur. Justices B.S. Chauhan and C.K. Prasad were the other members of the collegium which recommended him for elevation to the Supreme Court. The other CJIs under whom he has served are Justices J.S. Khehar, Dipak Misra, Ranjan Gogoi and S.A. Bobde.

Although Justice Arun Mishra was elevated to the Supreme Court during the tenure of CJI Lodha, his rise as the court’s most influential judge despite being lower in seniority happened during the terms of subsequent CJIs. Right from Justice Dattu down to the present CJI, Justice S.A. Bobde, successive chiefs reposed their trust in Justice Arun Mishra not only by asking him to author judgments on their behalf, but by assigning politically sensitive cases to benches presided by him or of which he was a part.

Sanjiv Bhatt case

Though CJI Dattu headed the bench, he asked Justice Mishra to author the judgment in the highly sensitive case of Sanjiv Rajendra Bhatt v Union of India.

In this judgment, delivered on October 13, 2015, the Dattu-Mishra bench dismissed the plea by former Indian Police Service (IPS) officer Sanjiv Bhatt seeking a fair, credible and independent probe into the two first information reports (FIRs) lodged against him by the Gujarat state government. The court also rejected his plea to make Bharatiya Janata Party (BJP) president Amit Shah and several others respondents to the case.

The FIRs arose from disputed claims about Narendra Modi’s role as chief minister in the 2002 Gujarat riots. Bhatt, represented by top human rights lawyers Indira Jaising and Prashant Bhushan, told the apex court that he was present at a meeting on February 27, 2002 at Modi’s home where, he alleged, the then chief minister had given a green light for reprisal attacks on Muslims following the Godhra train fire in which 57 Hindus had died. Bhatt leaked a series of emails between Tushar Mehta, who was then additional advocate general of Gujarat, and some of the accused in the riots, alleging that Mehta shared confidential information and legal documents with the accused against whom the state was conducting cases.

In his judgment, Justice Arun Mishra held that there was no reason to constitute an SIT to investigate the FIRs filed against Bhatt. Justice Mishra also said Bhatt’s conduct was not above board and that he had not come to the court with clean hands.

Also Read: Sanjiv Bhatt Case—In 16 Years, Gujarat Saw 180 Custodial Deaths, and Zero Convictions

Bhatt’s lawyers alleged that there was a criminal nexus between Mehta and lawyers of the accused, ministers and non-state actors to undermine the administration of justice, as revealed by the leaked emails. Justice Arun Mishra held that if a law officer merely took a third party’s opinion before filing a reply in court, this would not undermine the administration of justice in any way, and is not indicative of criminal conspiracy.

What Justice Arun Mishra held in this case is relevant in the contempt of court cases against Bhushan – where he convicted the lawyer on the grounds that his tweets had brought the court into disrepute.

Justice Mishra held that Bhatt was not able to establish that Tushar Mehta’s actions interfered with or obstructed in the administration of justice in any manner. Interpreting the case law, the judge held that email exchanges between the then AAG (Tushar Mehta) and other functionaries was not tantamount to causing prejudice and did not amount to substantial interference in any other manner in due course of justice. Besides, Justice Mishra did not find Mehta’s conduct as one of scandalising the court or in any manner affecting the fair decision of the court or undermining its majesty/people’s confidence in the administration of justice or bringing or tending to bring the court into disrepute or disrespect.

What happened since: Additional cases were pursued against Sanjiv Bhatt, one of which went back to 1989, and he is now in prison. Tushar Mehta went on to become solicitor general of India.

Sahara-Birla diaries case

During CJI Khehar’s tenure, the Sahara-Birla diaries case got assigned to Justice Arun Mishra. The case was heard as an Interlocutory Application in the pending challenge against the appointment of K.V. Chowdary, as the central vigilance commissioner and T.M. Bhasin as vigilance commissioner.

In its application, the NGO, Common Cause sought a probe into the Income Tax department’s failure to hand over documents recovered during a raid in 2013 at the offices of the Aditya Birla group of companies – which suggested bribery of public servants – to the CBI. One of the entries suggested payment of Rs. 25 crore to the then Gujarat chief minister, and the present prime minister, Narendra Modi. The person in charge of the income tax investigations at that time was K.V. Chowdary.

In his order issued on January 11, 2017, Justice Arun Mishra, (who at that time had still not become senior enough to preside over a bench) sitting with Justice Amitava Roy, dismissed the application moved by Common Cause. Reason: high constitutional functionaries cannot be subject to investigation on the basis of loose papers.

Soon allegations surfaced that when Justice Arun Mishra had celebrated the wedding of his nephew at his official residence in Delhi as well as his residence in Gwalior, many BJP leaders, including the chief minister of Madhya Pradesh, Shivraj Singh Chouhan, were present at the event. Chouhan was one of the alleged recipients of money in the Sahara spreadsheets, recovered by the Income Tax department during the raid.

Also Read: Five Questions We Have to Ask Before the Birla-Sahara Payoff Case Is Buried for Ever.

Later, on July 2, 2018, Justice Arun Mishra (sitting with Justice Mohan M. Shantanagoudar) also dismissed the main petition filed by Common Cause challenging the appointment of Chowdary as the CVC and Bhasin as the VC on the ground that they did not fulfil the criterion of impeccable integrity, required for the post.

“Such complaints (against Chowdary and Bhasin) cannot be taken on face value. Even against very honest persons, allegations can be made. Those days have gone when filing of the complaints was taken as serious aspersions on integrity. Ideally, there should not be any serious complaint as the filing of same raises eyebrows. As in the instant matter, complaints have been looked into and we decline to interfere”, the bench held.

What happened since: The Birla-Sahara papers were never probed; after his retirement as CVC in 2019, K.V. Chowdary was made a board member of Reliance Industries.

From Loya to Lalu and Haren Pandya

The assignment of politically sensitive cases to Justice Arun Mishra by successive chief justices of India was a major reason behind the press conference by four senior judges of the Supreme Court on January 12, 2018. As a result of their public stand, the petition seeking a probe into judge B.H. Loya’s death – which was to be listed before Justice Arun Mishra – was later heard by the then CJI, Dipak Misra, sitting with Justices A.M. Khanwilkar and D.Y.Chandrachud. But the change made no difference to the apprehended outcome: It was dismissed. The case was specially sensitive as Loya’s mysterious death led to a situation in which Amit Shah – then BJP president, and now Union home minister – got discharged from the Sohrabuddin-Kausar Bi murder case without even having to stand trial. The apex court relied heavily on statements by Justice B.R. Gavai, then a Bombay high court judge, that Loya’s death was due to natural causes.

What happened since: The Sohrabuddin case – which had begun on the basis of the Supreme Court’s intervention – eventually collapsed with all the accused being acquitted. Justice B.R. Gavai was elevated to the Supreme Court.

Also Read: How the Sohrabuddin Case Was Allowed to Collapse

State of Jharkhand through S.P., CBI v Lalu Prasad and Others was another politically sensitive case, which was assigned to the bench presided by Justice Arun Mishra. Sitting with Justice Amitava Roy, he decided the matter on May 8, 2017. The former Bihar chief minister, Lalu Prasad Yadav was being tried in the fodder scam. The bench held that the conviction for one offence does not bar subsequent trial and conviction for another offence even if some ingredients of these two offences are common. Ruling it out as a case of double jeopardy, the bench held that it cannot be said that for the same offence the accused were being tried again. As Article 20(2) of the Constitution bars double jeopardy, the high court had quashed the charges against Yadav, while the Supreme Court revived them. Besides, the CBI, which was prosecuting the case, did not file its appeal within the limitation period. After passing strictures against the CBI for its lethargy, the bench directed the trial court to expedite the trial.

What happened since: Lalu Prasad Yadav is still in jail.

Besides the above, Justice Arun Mishra was assigned the crucial Haren Pandya murder case, in which the bench comprising him and Justice Vineet Saran, reversed the acquittal of the accused by the high court.

Also read: The Shadow of Haren Pandya’s Case Lies Long Over Justice Arun Mishra

From medical scam to sexual harassment, helping CJIs judge their own cases

Justice Arun Mishra was part of the bench during CJI Deepak Misra’s tenure when he set up a five-judge bench at short notice to set aside Justice J. Chelameswar’s order to refer the medical college bribery case to a larger bench.

On November 9, 2017, the bench of Justices J. Chelameswar and S. Abdul Nazeer found it appropriate that Kamini Jaiswal’s petition be heard by the first five judges of the Supreme Court in terms of seniority, (from 2 to 6 as the allegations were against the CJI) in view of the disturbing allegations in the FIR, which pertain to the court. On November 10, 2017, the hastily set-up five judge bench overruled it, before the Justice Chelameswar-led five judges bench could hear it on November 13, 2017.

What happened subsequently is history. On November 14, 2017, the three-judge bench which included Justice Arun Mishra dismissed Kamini Jaiswal’s petition seeking inquiry into the allegations. Clearly, the judgment offered lessons on how to turn the tables on one’s critics, besides holding that the CJI as master of the roster could assign cases to benches, hear and decide them himself even if they pertained to allegations against him.

Also Read: The Curious Saga of How the Chief Justice of India Handled Two Medical College Cases

The same bench dismissed another petition filed by the Campaign for Judicial Accountability and Reforms (CJAR) seeking similar relief by imposing exemplary costs.

In 2019, when Ranjan Gogoi was CJI, Justice Arun Mishra played a key role in the Supreme Court’s controversial handling of a former court employee’s sexual harassment charge against the chief justice. Justice Mishra was drafted by Gogoi to be part of a special bench the chief himself convened on a Saturday to address the woman’s charges. The hearing saw Gogoi declare his innocence and attack the integrity of woman and her family. The bench also entertained a wild allegation by a lawyer that the accusation against the CJI was part of a plot by corporate fixers to destabilise the judiciary an order a separate inquiry.

Also Read: From the Supreme Court, a Reminder that Justice Was Sacrificed to Save a Judge

The order issued at the end of the hearing was signed only by Justices Arun Mishra and Sanjiv Khanna and urged the media “to show restraint, act responsibly as is expected from them and accordingly decide what should or should not be published as wild and scandalous allegations undermine and irreparably damage reputation and negate independence of judiciary”.

The investigation into the wider conspiracy was handed over to a retired judge, Justice A.K. Patnaik, but Justice Mishra has chosen not to act on his report though it was submitted in October 2019.

What happened since: The woman, who had been sacked on Gogoi’s watch was reinstated by the Supreme Court in January 2020. Gogoi went on to join the Rajya Sabha as a government nominee.

Nageswara Rao as interim CBI director

In Common Cause v Union of India, the challenge was to the appointment of Nageswara Rao as the interim director of CBI in 2019 on the ground that it was arbitrary and illegal. As The Wire’s coverage of CBI v CBI showed, the matter was listed before the bench of Justices Arun Mishra and Navin Sinha, after three judges including the then CJI, Ranjan Gogoi recused from hearing the matter. The Arun Mishra bench, however, rejected the challenge saying that the appointment of the interim director had been authorised by the high powered selection committee under section 4A of the Delhi Special Police Establishment Act, 1946.

What happened since: Rao was made DG, Fire Services in July 2019 and retired from the police service last month.

Also Read: Former Cops Blast Ex-CBI Interim Chief for Communal Tweets

The Wire v Jay Shah

In August 2019, The Wire withdrew its petitions from the Supreme Court seeking the quashing of a criminal defamation case and civil defamation suit filed by Union home minister Amit Shah’s son, Jay Shah, and said it would defend itself in the trial court in Gujarat. Part of the reason for its decision was, of course, the surprise listing of the case before Justices Arun Mishra, M.R. Shah and B.R. Gavai, even though the matter should ordinarily have been heard by Justice D.Y. Chandrachud or Justice A.M. Khanwilkar, who had been part of earlier hearings on the then CJI, Dipak Misra’s bench.

Screenshot of questionnaire sent to Jay Amit Shah

Despite the withdrawal of the petition, the absence of any arguments on merits by The Wire‘s counsel and having himself asked in open court, on an earlier date, what the case was about when it was called, Justice Arun Mishra complained about the media indulging in “yellow journalism” by publishing stories without giving sufficient time to respond to queries.

This was a non-sequitur in the instant case since the story on Shah’s business affairs had been published on October 8, 2017, two days after questions had been sent to him and his replies were not only reflected fully in the story but published separately as well.

During the brief hearing, Justice Mishra turned to solicitor general Tushar Mehta, who happened to be in court, and asked whether a case could be withdrawn like this. Should the Supreme Court not consider the larger questions involved, the judge asked.

Mehta said he agreed with Justice Mishra, but failed to reveal his own interest in the matter. In October 2017, he sought and received permission from the Union law ministry to represent Jay Amit Shah in any matter arising out of The Wire’s reporting on the BJP leader’s son.

No urgency in habeas corpus cases

While Chief Justice S.A. Bobde and his predecessor, Ranjan Gogoi, failed to prioritise hearings on the constitutional questions arising from the abolition of Jammu and Kashmir’s special status in August 2019, politicians kept in detention without charge for more than a year who found their cases marked to Justice Arun Mishra have also been unable to secure relief.

Justice Mishra heard habeas corpus petitions filed on behalf of the former chief minister of the state, Mehbooba Mufti and the former Union minister, Saifuddin Soz. While the one filed by Mufti’s daughter, Iltija was not heard after February 26 , the one filed by Soz’s wife, Mumtazunnisa Soz was dismissed by the Mishra bench simply relying on the affidavit filed by Jammu and Kashmir administration that Soz was not in detention. Soz was shown by television channels unsuccessfully trying to leave his home in Srinagar that evening but no case of contempt was ever filed against the state administration for having misled the court.

What happened since: Mufti and Soz remain in detention

Rajasthan crisis

In the recent political crisis in Rajasthan which threatened the stability of the Congress government led by Ashok Gehlot, the Justice Arun Mishra bench effectively declined any relief to the ruling party in the state by refusing to stay the Rajasthan high court’s order restraining the assembly speaker from disqualifying the Congress’s rebels led by Sachin Pilot before the trust vote. It is another matter, however, that the crisis resolved itself by the coming together of the rival groups in the Congress.

In Part II: How Justice Arun Mishra’s conservatism influenced his neglect of judicial precedents

Sohrabuddin Case: Bombay HC Admits Appeal Challenging Acquittal of 22 Accused

The appeal by Sohrabuddin’s brothers stated that either the judgment should be quashed and set aside or that the sessions court be directed to conduct a re-trial.

New Delhi: The Bombay high court on Monday admitted the appeal filed by brothers of Sohrabuddin Shaikh challenging the acquittal of all 22 accused in the alleged fake encounter case. Among the accused are police officers from Gujarat and Rajasthan who were acquitted by a special Central Bureau of Investigation court in December 2018.

The court had observed in its verdict that the prosecution had failed to establish a cogent case to suggest that there had been any conspiracy to kill Sohrabuddin, his wife Kausar Bi and his associate Tulsi Prajapati – and that the accused had any role in it.

According to LiveLaw, Sohrabuddin’s brothers, Rubabuddin Shaikh and Nayabuddin Shaikh had in April appealed that either the judgment be quashed and set aside or that the sessions court be directed to conduct a re-trial.

Rubabuddin had earlier also requested the home minister, the CBI director and the cabinet secretary to file an appeal against the verdict of special CBI Judge S.J. Sharma.

Also read | Sohrabuddin Fake Encounter Case: A Timeline of Events

Sharma had expressed sympathy towards the family but said that the prosecution could not prove a conspiracy beyond a reasonable doubt. The court said despite three investigations, the evidence was lacking. Among the acquitted was BJP leader Amit Shah. The appeal against the acquittal stated that Sharma’s judgment was “wholly and completely contradictory to the evidence at hand”.

Sohrabuddin, a wanted criminal, was killed in an alleged encounter in November 2005. Three days after that, his wife Kausar Bi was allegedly raped and killed. His aide Prajapati was shot dead in December 2006 by the Rajasthan and Gujarat police for allegedly being a witness to the fake encounter.

There were a total 38 accused in the case, but only 22 stood trial and of the 210 witnesses examined, 92 were declared hostile, Scroll.in reported.

The two-judge division bench of Justices I.A. Mahanty and A.M. Badar on Monday issued notices to the acquitted persons but did not mention the date for taking up the appeal for hearing.

(With PTI inputs)

A Year After Four SC Judges’ Press Conference, Is Democracy Still in Danger?

It is fair to say that significant issues which were highlighted then still remain largely unresolved.

In the words of the US Supreme Court judge Justice Benjamin Cardozo, “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” The Supreme Court of India, for better or for worse, has assumed an increasingly proactive role, with its judgments encompassing every sphere of the nation’s activity.

In recent times, this has seen it emerging as a key player in the political scene. But politics within the Supreme Court itself has always been confined to speculation, as sitting judges speak to the public only through judgments. Or at least, that was the status quo until the unprecedented events of January 12, 2018, when four senior judges held a press conference and openly raised concerns regarding the integrity of the institution.

The press conference and its aftermath

Substantively, they had raised two major concerns – first, regarding the manner in which then Chief Justice of India (CJI) Dipak Misra was constituting benches for important cases, and second, regarding finalisation of the Memorandum of Procedure (MoP) for appointment of judges which was still pending with the government.

In the first case, the CJI’s exercise of powers as the master of the roster was questioned for being against well-settled conventions, with allegations of hand-picked benches being constituted for politically sensitive cases. Given that the Indian Supreme Court has a tendency of speaking in different voices through multiple benches, as well as the chronic backlog of cases, this administrative function of the CJI potentially has the power to influence the outcome of cases.

Supreme Court judge Jasti Chelameswar along with Justice Ranjan Gogoi during a press conference in New Delhi on January 12. Credit: PTI/Ravi Choudhary

Regarding appointments, the judges expressed their displeasure that the MoP was not considered final yet, with governmental inaction being allowed to stall the process. According to them, the Centre’s silence on the issue, several months after the court had finalised the MoP and sent it across, should have been construed as approval.

One year down the line, it is important to question whether these concerns have been addressed. CJI Dipak Misra continued to exclude the four judges from constitution benches which decided important issues including Aadhaar, Sabarimala, Navtej Jauhar, etc. Still, one thing that has changed is that the roster, which shows the work allocation chart for judges, was made public in February 2018. However, despite the appointment of Justice Ranjan Gogoi (one of the four judges) as CJI, the roster is still decided exclusively by the CJI without consultation with other judges.

Also read: Loya Case the Tipping Point, Four SC Judges Say Democracy Is in Danger

The government has not taken any action regarding the MoP either, with the Ministry of Law and Justice stating in the Lok Sabha that it would take more time. Concerns regarding judicial appointments remain pertinent, with a large number of vacancies still to be filled. The protracted elevation of Justice K.M. Joseph, delayed over several months in 2018 due to the government, highlight another aspect of this thorny issue.

One of the four judges who has since retired, Justice Kurian Joseph, has claimed that “recent appointments to the Supreme Court and the high court are being carried out as per the draft MoP that has been sent to the government.” The lack of consensus between the executive and judiciary in this regard needs to be resolved urgently.

The Supreme Court after CJI Deepak Misra

After the highly controversial tenure of CJI Misra, which even included an unsuccessful attempt to impeach him (the first ever impeachment attempt against a sitting Chief Justice of India), CJI Gogoi had to restore some public confidence in the administration of justice. The first three months of his tenure have certainly been eventful. The Rafale and CBI cases have ensured that the Supreme Court has remained in the front pages. A concerning development has been that both these cases involved information being handed to the court in “sealed covers,” an unfortunately growing practice.

The Chief Justice of India, Dipak Misra. Credits: PTI

Former Chief Justice of India, Dipak Misra. Credit: PTI

In Rafale, relying on information submitted in a sealed cover, the judgment makes reference to a CAG report examined by the parliamentary Public Accounts Committee. This report, however, does not exist. This led to a huge controversy, and the Centre has since filed an application seeking correction of the judgment.

In the recently decided CBI case, the Supreme Court had to answer a straightforward legal question concerning the decision to divest CBI Director Alok Verma of his powers and functions. Not only did it take more than two months to resolve this question – once again resorting to sealed covers – but it subsequently directed the high-powered committee to consider allegations against Mr Verma within a week.

Also read: Death of a Judge: What We Know, What We Don’t Know

This committee, which contained the prime minister, the leader of opposition in the Lok Sabha, and a Supreme Court judge nominated by the CJI, decided by a 2:1 majority to once again remove Mr Verma from office. This removal comes two days after he was reinstated. The Supreme Court’s overall handling of this sensitive issue exacerbated the controversy, with its image taking a further hit.

Even more tellingly, the disastrous NRC exercise being conducted in Assam, which threatens to render 1 million people stateless and cause enormous hardship to 3 million more, is directly attributable to the Supreme Court.

The Supreme Court in 2019

A year after the press conference, it is fair to say that significant issues which were highlighted then still remain largely unresolved. Additionally, the Supreme Court has continued to attract controversy with its questionable handling of high-profile cases. The year ahead promises to be filled with even more political drama, especially with the upcoming general elections.

It will have to decide politically sensitive issues like the Ayodhya-Ram Mandir case, and the quota for economically backward candidates which has already been challenged. The Supreme Court will have to ensure that it withstands “the great tides and currents which engulf the rest of men”, both internally as well as externally.

Kevin James is a Research Fellow in public law at the Vidhi Centre for Legal Policy.

Haren Pandya Case Should be Reinvestigated Says Policeman Who First Probed Killing

The more a reinvestigation is delayed, the greater is the likelihood of the trail going completely cold.

Ahmedabad: The Gujarat police officer who supervised the initial investigation into the mysterious murder of BJP leader Haren Pandya before the CBI came in and “botched up” the case now believes the killing should be investigated afresh so that the actual culprits can be identified and punished.

Of all the unexplained killings and encounters that happened in Gujarat during Narendra Modi’s 13-year tenure as chief minister, the murder of Pandya was in many ways the most intriguing. A popular leader of the ruling party and a former home minister of the state, Pandya had been sidelined by Modi and was known to have testified before an independent tribunal probing the state government’s complicity in the 2002 anti-Muslim riots.

On the morning of March 26, 2003, his lifeless body was found in his car just outside the city’s Law Garden. Though his car was parked near a crowded intersection, no one even heard the gunshots fired apart from a sole witness that the Gujarat high court would later describe as unreliable.

Former DSP of the Gujarat police, Y.A. Shaikh.

The CBI prosecuted 12 Muslims for the crime and secured their convictions at a special anti-terrorism court. The agency claimed their motive for killing Pandya was to take revenge for the riots. But so improbable was the CBI’s case that the Gujarat high court in 2011 not only acquitted all the accused but felt compelled to assail the shoddy quality of the investigation.

Speaking to The Wire at his residence in Ahmedabad, Y.A. Shaikh drew attention to the fact that the Gujarat high court had actually suggested action be taken against the investigating officers.

“What clearly stands out from the record of the present case,” the high court had noted, “is that the investigation in the case of murder of Shri Haren Pandya has all throughout been botched up and blinkered and has left a lot to be desired. The investigating officers concerned ought to be held accountable for their ineptitude resulting into injustice, huge harassment of many persons concerned and enormous waste of public resources and public time of the courts.”

The CBI’s chief investigator was Y.C. Modi. In 2017, Prime Minister Narendra Modi appointed him head of the National Investigation Agency.

Also read: New Evidence, Old Lies on the Murder of Haren Pandya, Modi’s Early Rival

Conceding that the basic facts of the case – from the position of Pandya’s body to the nature of his bullet wounds and the absence of blood in the car – were difficult to square with the CBI’s claims, Y.A. Shaikh said it would have been logical for the agency to have gone back to the drawing board and reinvestigated the murder.

Instead of heeding the high court’s strictures, however, the CBI decided in November 2011 to appeal its verdict.

The matter is due to be heard by the apex court later this month but the sensational revelation made by a witness in a seemingly unrelated case last November is likely to cast its shadow on the arguments and counter-arguments that will be made.

Allegation of contract killing against Vanzara

On November 3, 2018, Azam Khan, a prosecution witness in the Sohrabuddin-Kausarbi-Prajapati killings case, testified that Sohrabuddin told him senior Gujarat police officer D.G. Vanzara had put out a contract to kill Pandya.

In his deposition, Khan said, “During discussion with Sohrabuddin, he told me that he, along with Naeem Khan and Shahid Rampuri, got the contract to kill … Haren Pandya of Gujarat and they killed him. I felt sad and I told Sohrabuddin that they have killed a good person. Thereafter, Sohrabuddin told me that this contract of killing was given to him by Vanzara.”

Although Khan said in open court that the order to kill Pandya had come from ‘people on top’ – “upar se yeh kaam diya tha” (the work was given from above) – judge S.J. Sharma expunged those words from the official court transcript of the deposition.

Khan said that subsequently, Sohrabuddin engaged Prajapati and “another boy” to commit the murder. “I told before the CBI officer about my discussion with Sohrabuddin at his house in Udaipur and the killing of Shri Hariyan Pandya by Tulsiram and one boy at the instance of Sohrabuddin…,” he said under cross-examination, the court transcript records.

Was Tulsiram Prajapati the shooter?

Khan’s statement that Vanzara, Sohrabuddin and Prajapati were involved in Pandya’s killing and that Prajapati was the gunman has opened up a can of worms. Not only has it rekindled speculation about a political conspiracy behind Pandya’s murder but has also put on the table a new motive for the killing of Sohrabuddin and Prajapati by Vanzara and the Gujarat police – the fear that the duo might not be willing to keep quiet about the killing of Pandya.

A hitherto unnoticed detail about the Pandya case is also relevant here. The crime branch had prepared a sketch of the alleged shooter on the basis of a description provided by a man the CBI claimed at the trial was the sole eyewitness to Pandya’s killing, a vendor named Anil Yaadram.

The sketch proved to be of no use in the trial court with the judge, Sonia Gokani, herself noting that it bore no resemblance to the man the CBI said was the gunman, Asgar Ali. Curiously, however, the sketch does bear a striking resemblance to Tulsiram Prajapati, whom Azam Khan says was Pandya’s assassin.

Left: Police sketch of Haren Pandya’s assassin, based on inputs from the sole eyewitness. Right: Tulsiram Prajapati, identified by Azam Khan as the shooter. Prajapati was killed by the Gujarat police in an ‘encounter’ in 2006. Source: Court records

When The Wire shared the two images above with Shaikh, the original investigating officer, he accepted that there was a resemblance but had no explanation for how this could be. He said that the police artist, A.A. Chauhan, had prepared the sketch based on the witness’s inputs and that he became aware of the existence of a sketch only at the time of the trial.

What makes the resemblance especially bizarre is that Tulsiram is said to have been in a Madhya Pradesh jail on the day of Pandya’s killing.

Shaikh, who was sent to scene of the crime by the police control room on the morning of the shooting, handled the investigation for only two days. He recorded the statements of those who first saw Pandya’s body, and took charge of his mobile phone. He heard that a vendor might have been an eyewitness to the shooting and made contact with him.

Also read: Did the CBI Even Investigate Ex-Gujarat Home Minister Haren Pandya’s Murder?

The vendor Yaadram’s conduct even before he made it to the witness stand was curious. By his own account, he witnessed the shooting at 7:30 in the morning. Though the shooter fled, Yaadram did not apparently bother to see if his victim was dead or alive, nor did he call the police. Instead, he left the scene and purportedly told his employer later that someone had been shot. It is only when Pandya’s staff arrived at the scene that someone placed a call to the police control room. The time was around 10:30-10:40 and even then the PCR did not know exactly what had happened and to whom. The message which Shaikh received from the control room simply was that “there is some disturbance, please find out is going on”.

Two days later, the CBI was brought in and Shaikh was off the case. Within two weeks, the CBI declared that it had cracked the case. It charged a young man, Asghar, with the murder and roped a few others into the conspiracy, alleging that all of them had been motivated to commit the crime at the behest of a local cleric, Mufti Sufiyan. The cleric fled the state, reportedly to Pakistan, just when the CBI was unravelling the case and has remained untraceable since. His family, too, disappeared, several weeks later despite being under police surveillance.

Unanswered questions

The serendipitous emergence of Tulsiram Prajapati’s likeness in the Pandya case files is only one of the many mysteries surrounding the assassination.

After reviewing the trial court’s verdict and the arguments of the defence counsel, the high court reached the conclusion that key questions about the killing still remain unanswered. The time of the shooting remains a mystery, as does the awkward position in which Pandya’s body was found inside his car, a Maruti 800, with his feet, according to media reports, almost touching the steering wheel. The CBI’s explanation for the number of bullets found and the nature of the wounds they caused was seen as utterly implausible. The ballistics did not match the gun produced in court and the fact that another gun had been recovered from Udaipur – where Sohrabuddin had been staying – was never brought to the court’s notice.

Then there was the complete absence of blood in the car except for one drop despite the fact that one bullet entered Pandya’s scrotum and travelled upward. The trajectory of that bullet also appears to have defied all laws of physics since the eyewitness produced by the CBI said the gunman had fired on the car from the outside, through the opening of its door window that was just 3 inches wide.

This is what the high court observed:

“The opening of glass having been scientifically measured to be hardly 3 inches and [the eyewitness] having confirmed that Mr. Pandya was fired upon from outside the car, the version of the sole eye witness was practically improbablised by medical evidence and FSL reports which clearly indicated that at least [the scrotum] injury … was impossible to be caused from the height and angle of the weapon attributed to the assailant while the victim would be seated in the driver’s seat or even while he was sliding onto the adjoining seat, within seconds of the first fatal shot.”

On the mysterious absence of blood in the car, the high court noted:

The mystery of the murder is deepened by the facts, borne out from the record, that no blood was found in Shri Pandya’s car except a negligible spot on the seat near the driver’s seat even as his clothes bore tell-tale signs of profuse bleeding from injuries on the neck and forearm; and mobile phone and keys lying on the floor of the car below that seat had stains of blood.

Based on the bullets recovered, there is every likelihood that there were two weapons and two assassins. The absence of blood in the car when Pandya had clearly bled profusely suggests he was killed not in his car but elsewhere and that his body was then stuffed into his car. Why this was done, and by whom, can only be answered by a proper investigation – of the kind the CBI never did.

In an angry letter to Prime Minister Manmohan Singh in 2013 about the Sohrabuddin and Ishrat Jahan fake encounter cases, BJP leader Arun Jaitley had also complained about attempts to “politicise the [Pandya] case”. He said “suggestions … are being made in the corridors of power by senior Congress leaders to implicate BJP leaders at this belated stage…. the CBI is being pressurised to admit that its own investigation was faulty.”

Far from “politicising” the Pandya case, it was the Congress-led UPA government that moved the Supreme Court in appeal against the high court’s decision to acquit the accused. And it was the Gujarat high court judgment acquitting the 12 men accused of Pandya’s murder which made no bones about the fact that the CBI’s investigation was not just faulty but “blinkered” and “inept”.

Simply put, the high court found that Pandya could not have been killed in the way the CBI said he was. It also found that the investigation left out innumberable clues and leads and expressed surprise at the CBI’s refusal to allow Pandya’s staff to testify about the state they found his body in.

In the 15 years since the crime, Pandya’s father and his widow, various BJP leaders in Gujarat and now the original investigating officer, have all questioned the sheer improbability of the CBI’s investigation. The more a reinvestigation is delayed, the greater is the likelihood of the trail going completely cold. Perhaps that is what the CBI, which clearly knows more than it is revealing, is hoping will happen.

Note: In an earlier version of this story it was stated that the CBI appealed the high court verdict on Pandya in 2013. In fact, the agency moved the Supreme Court in November 2011.

Sohrabuddin: Even When the Accused Admit to Murder, There is No Justice

In acknowledging that the investigation was killed, finance minister Arun Jaitley concedes that justice wasn’t done. But his explanation for why this happened makes no sense at all.

The Central Bureau of Investigation (CBI) special court judge, in a hurry to leave his mark in the law books before retiring, acquitted all the accused in the Sohrabuddin case. Moreover, he sua sponte passed remarks on facts not presented in evidence and exonerated individuals not charged before his court.

Since after all it is a court of law, one must ask the natural questions : Why? And cui bono?

At the moment it’s difficult to make out. When political mudslinging reaches its peak from both sides, the truth tends to suffer.

What is welcome, however, is lawyer turned finance minister Arun Jaitely’s Facebook Note: ‘Who killed the Investigation?’

Screen grab of Arun Jaitley’s Facebook note. Credit: Facebook

In acknowledging that the investigation was killed, the BJP minister has finally conceded that justice has not been served in the murders of Sohrabuddin, Kausar Bi, Tulsiram Prajapati, and by extension, the murder of Haren Pandya.

It has taken 13 years and nearly two months for this acknowledgement to come in the case of Sohrabuddin, and 15 years and nine months in the case of Haren Pandya.

While one of the victim’s was allegedly a gangster and the other a former home minister, in the eyes of the law – they were both supposed to be equal. In a way, they were. Both were equally disregarded and denied justice.

In accepting that, Jaitely has brought about a rare event in the history of this 15 year old case: unanimity of opinion. The judge who acquitted everyone in a hurry, the Congress party and the BJP – all finally agree that the investigation was bungled.

The accused admits to the crime

More importantly, at least in the Sohrabuddin case, even the accused has admitted to the crime.

In a tweet to the world, D.G. Vanzara – who was ‘Accused number 1’ and DIG (ATS) at the time of the encounters – boasted a depreciated form of the Bush Doctrine he called “our pre-emptive encounters.”

Bombay Court Judgement in #SohrabuddinCase, acquitting all 22 Police Officers has vindicated my Stand that Our Encounters were Genuine: We were wrongly framed for performing our Duties. We became Victims of Political Cross Firing between the then Occupants of Delhi & Gandhinagar.

— DG Vanzara (@VanzaraDg) December 21, 2018

Terrorists successfully assassinated Political Leaders like Indira Gandhi, Rajiv Gandhi, Beant Singh, Benazir Bhutto & Premdasa. Had Post-Godhara Preemptive Encounters not carried out by Gujarat Police, @narendramodi would hv met d same Fate. We saved d Saviour. #SohrabuddinCase

— DG Vanzara (@VanzaraDg) December 21, 2018

In fact, just to be clear, there has never been any doubt that this was a fake encounter. Nearly 12 years ago in March 2007, then Gujarat Attorney General K.T.S. Tulsi told the Supreme Court that Sohrabuddin was killed in a fake encounter.

A month later, he told the court that Kausar Bi was killed, her body was chopped up and burnt and the remains of the burnt body were disposed off.

If there was ever a slam dunk case of a cold-blooded police killing, in which everyone agreed on the facts, this would be it. And yet, there is no justice to be had.

Two important questions have been asked and answered by the accused and the Gujarat government itself

Question one: Was Sohrabuddin’s murder a fake encounter?

Yes

Question two: Was Kausar Bi also killed, burnt and her remains disposed off?

Yes

We then ask the question that minister Jaitely is also seemingly asking: Why is there no justice to be had?

Back to the basics

The Jaitely note, recycled from his letter to then Prime Minister Manmohan Singh in 2013, makes some broad charges that the CBI judge has also repeated.

Since these seem to have become part of political, and now apparently judicial folklore, they need to be addressed.

Question 3: Was Sohrabuddin sent by the ISI and LeT ?

As is often the case, it depends on who you’re talking to in Gujarat. Within hours after “pre-emptively” killing him, and while Kausar Bi was still locked up in one of the farmhouses waiting to be killed, D.G. Vanzara was telling reporters at a press conference that he was indeed a Lashkar terrorist.

But in a written reply to the Gujarat assembly, six months later on March 20, 2006, then chief minister Narendra Modi would only say that Sohrabuddin was a murder suspect in an unspecified homicide case, and that he was wanted for offences under the Arms Act. He said the response was based on “information available at the time,” which meant D.G. Vanzara had overstated the case.

Minister Jaitely called him “a noted wanted mafia who operated in Gujarat, Madhya Pradesh and Rajasthan” who “was an absconder of various state governments,” in 2013. Vanzara’s view found no backing by Jaitely himself.

Also read: Gujarat Police Under Modi Confirmed Sohrabuddin Encounters Were Fake, Not CBI

But the minister is right about Sohrabuddin’s criminal background. Released from jail after the Jhirniya case, what exactly did Sohrabuddin do for a living? And how did he remain absconding for so long in precisely these three states?

Gujarat has been under BJP rule since 1998; Madhya Pradesh was under BJP rule from December 2003 to December 2018; and Rajasthan was under BJP rule for 10 of the 15 years between 1993 to 2008 – when Sohrabuddin was operational.

A retired DIG (Intelligence Bureau) says: “Remember this: it isn’t the mafia that runs the government. It’s the government that runs the mafia. When they [the mafia] cease to be of value, they get bumped off.”

So, if Sohrabuddin was allowed to roam freely in exactly these three states – who provided him protection? And why? It’s a question that Mr Jaitely or his colleagues in the state governments he mentions, are perhaps best suited to answer.

Sarita Rani is an engineer turned reporter of 18 years. She is currently engaged in research for an independent project.

Gujarat Police Under Modi Confirmed Sohrabuddin Encounters Were Fake, Not CBI

The Supreme Court had to directly intervene and transfer the case to the CBI because it was convinced that the Gujarat police was impeding the investigation.

It’s odd that both Prime Minister Narendra Modi and finance minister Arun Jaitley have characterised the Sohrabuddin Sheikh -Tulsi Prajapati murder investigation as politically motivated and biased. For the key premise of the case – that they were murdered by the police in a fake encounter – was actually built by the Gujarat police itself when Narendra Modi was chief minister.

The case was then taken to the Supreme Court by Sohrabuddin’s family, which sought a CBI investigation because they felt the Gujarat police would not conduct an unbiased investigation against their own officials.

The CBI came into the picture only after the Supreme Court concurred with this plea and agreed that the case had to be taken out of the hands of the Gujarat authorities. Even the trial was shifted to Mumbai. And all this happened under the Supreme Court’s monitoring.

So, are Modi and Jaitley suggesting the Supreme Court was also biased in supervising the case?

Also read: Sohrabuddin Case: Court Says Prosecution Failed to Prove Politician-Cops Nexus

Was the case politicised?

The charge of political bias is easily thrown around in these polarised times. In a way, the judgment in the Sohrabuddin Sheikh triple murder case last week has become politicised through the judgment itself; the presiding judge accused the CBI of carrying out a pre-determined investigation.

The judgment, for the purpose of arriving at this conclusion, relied on a large number of witnesses – 92 out of 210 – turning hostile. It further disbelieves the prosecution case regarding simple details like Sohrabuddin’s travel to Hyderabad and then his journey to Sangli, during which he and Kauser Bi were kidnapped and later murdered.

Sohrabuddin Shaikh was killed in an alleged staged encounter. Credit: PTI

What is curious in the ultimate indictment of the CBI is that many, if not most of these details regarding Sohrabuddin Sheikh and Kausar Bi’s final journey, had been investigated by the Gujarat police when Modi was chief minister.

In fact, in 2010 when the case was finally transferred to the CBI, the then Gujarat government staunchly opposed the move as it had already filed the chargesheet and said it was committed to bring the accused to justice.

The Supreme Court was not convinced and the CBI only built on that investigation. It’s surprising now that the entire investigation is being attacked politically, especially when it was conducted on the orders – and under the supervision – of the Supreme Court, wherein the victim’s families, the accused, the CBI as well as the Gujarat government participated in every hearing.

Also read: Sohrabuddin Fake Encounter Case: A Timeline of Events

The conclusion of the trial court judge – that words had been put in the mouth of the witnesses by the CBI – is curious as none of them, including the accused and the Gujarat government, had brought this alleged large-scale fabrication of evidence to the attention of the apex court when they could easily have done so.

On the contrary, at least one witness, Azam Khan, stated that he was being forced by the Gujarat police to retract his statement given to the CBI and the magistrate on an earlier occasion.

What the Supreme Court observed, at the time of transferring the investigation, was:

“Since the high police officials of the state of Gujarat are involved and some of them had already been in custody, we are also of the view that it would not be sufficient to instil confidence in the minds of the victims as well as of the public that the State police authorities would still be allowed to continue with the investigation when allegations and offences were mostly against them.

In the present circumstances and in view of the involvement of the police officials of the state in this crime, we cannot shut our eyes and direct the state police authorities to continue with the investigation and the charge sheet, and for a proper and fair investigation, we also feel that the CBI should be requested to take up the investigation and submit a report in this court within six months from the date of handing over a copy of this judgment and the records relating to this crime to them.”

A person’s guilt or innocence cannot be subject to a political debate, and should be left to the courts. The judgment will be challenged. The victims’ side will point out the infirmities, while the exonerated will surely uphold its virtues. What, however, should be a matter for public and political debate is the process that led to the judgment.

This is a case where the Supreme Court had to directly intervene to initiate an investigation, then to monitor it and transfer it to the CBI because it was convinced that the state police was impeding the investigation under pressure. Even after the transfer of the investigation, the trial was transferred to Mumbai to be heard by a single judge.

A botched prosecution?

This very abnormal case has ultimately fallen to the most normal threat to prosecutions in India, i.e. witnesses turning hostile. Witnesses who haven’t turned hostile are disbelieved for reasons of inconsistencies – at least some of which can be attributed to the fact that the investigation became protracted and that witnesses were afraid for their safety.

Much has been said about witnesses who gave additional details to the CBI as opposed to the Gujarat police earlier. This is completely believable as the Supreme Court held that the Gujarat police investigation was far from satisfactory. In fact, when Sohrabuddin’s brother Rubabuddin testified that Tulsiram gave him blank signed sheets to be used for whatever purpose he deemed fit – as Tulsiram was sure he would be killed – the same has been disbelieved despite the signature being confirmed to be his.

Tulsiram’s lawyer, who argued that he was afraid for his life and had complained to the courts at Udaipur where he was imprisoned – has also been disbelieved as no vakalatnama was produced to show that he was representing Tulsiram.

Also read: Gujarat Police Officer Who Probed Sohrabuddin Shaikh Case Suspended

One more class of judicial officers hard-done by in this prosecution are the magistrates who recorded the statements of various witnesses which were discarded by the prosecution. Surely, there can be no doubt they recorded these statements truthfully. Short of going into the quality and valency of recording these statements, the same cannot be ignored.

In a case where all the accused were police personnel – all the politicians had been discharged earlier – for almost half the witnesses to turn hostile creates grave suspicion regarding either the investigation or the conduct of the prosecution.

No attempt was made to safeguard witnesses. Statements recorded before magistrates during the investigation were not even exhibited during trial, and a majority of the witnesses were not even examined. They were simply not summoned by the prosecution, which closed its evidence just a fortnight before the final arguments were heard.

None of the accused felt compelled to produce any evidence in their defence – so weak was the prosecution’s case. While the judgment shows concern towards witnesses who stated their statements were wrongly recorded by the CBI, no attention is paid to the possibility that these hostile witnesses may not have been free of fear or pressure.

D.G. Vanzara. Credit: PTI/Files

This is not merely an idle concern. Azam Khan has been seeking protection from the Rajasthan high court regarding the torture and threats inflicted upon him by one of the accused and another serving police personnel in Udaipur a couple of months before his deposition. He was threatened by one of the accused on the morning of his deposition. After he named D.G. Vanzara – who had been discharged earlier – he alleged he was tortured.

He approached the court seeking to be re-examined as crucial parts of his testimony were left out and sought to avail the new Witness Protection Scheme brought into force by the Supreme Court. He was not the only one who suffered. The mother of one of the victims, Tulsiram Prajapati could not be ‘traced’ by the CBI even though warrants to produce her were issued.

Tulsiram Prajapati (centre, in a red shirt) was killed in an alleged fake encounter in 2006. His younger brother Pawan Prajapati (right) committed suicide in 2016. Credit: Sukanya Shantha

She was, however, easily traced by The Wire‘s correspondent, to whom she narrated her travails and her utter exhaustion. Inspector V.L. Solanki had publicly stated his fears about testifying and had sought protection. When the same was not provided to him by the CBI, he went to court to give a truncated version of the testimony he gave during the investigation.

A bare reading of all the chargesheets filed show that there are around 500 witnesses in the case, out of which 210 were examined. The prosecution stated that re-examining Azam Khan, Mahendra Jhala, and summoning additional witnesses, including the initial investigating officer Rajnish Rai was not required as their testimonies pertained to the discharged accused.

These witnesses, if they had been allowed to complete their testimonies, would have been able to complete the chain of circumstantial evidence which is required to prove a conspiracy. As such, the conspiracy could not be proved because many conspirators were discharged on the technical ground of non-availability of sanction. Once that happened, the evidence regarding them was disbarred from being recorded, further damaging the prosecution’s case.

The point is that all necessary evidence must be presented to the court, after which it is responsible for sifting out the irrelevant material. The CBI’s prosecutorial ‘own goal’ ensured that an incomplete picture was presented to the court. Failure to ensure any support to the witnesses perforce contributed to large numbers of them turning hostile.

Sarim Naved is a lawyer and film enthusiast based in New Delhi.