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Over 90 Ex Bureaucrats Urge Supreme Court to Withdraw Observations in Zakia Jafri Judgment

"Can the constitutional right to approach courts be treated in so cavalier and revengeful a fashion that the persons seeking justice are put behind bars?"

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New Delhi: A group of 92 former civil servants from across the services, under the umbrella of the Constitutional Conduct Group, have issued a statement questioning the Supreme Court’s remarks in its verdict in the Zakia Jafri case. It was based on this verdict that a case was filed against rights activist Teesta Setalvad and former police officers R.B. Sreekumar and Sanjiv Bhatt.

“Can the constitutional right to approach courts be treated in so cavalier and revengeful a fashion that the persons seeking justice are put behind bars?” the statements has asked. The most dangerous part of the judgment, it continues, is that “The Court has come out with a doctrine which enjoins the state to arrest and prosecute persons who dare to question the findings of investigating agencies, if the Court decides that these findings are beyond reproach.”

The signatories have urged the court to withdraw this order and the observations made in it, especially since the court itself has earlier noted the laxity of the government agencies while probing cases related to the 2002 communal violence in Gujarat.

Read the full statement below.

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The recent three judge verdict in the Zakia Ahsan Jafri Vs. State of Gujarat (SLP Crl. No. 7899-90/2015), decided on 24.06.2022 has, to say the least, left citizens totally disturbed and dismayed. We, a group of former civil servants of the All India and Central Services who have come together as the Constitutional Conduct Group and are committed to the values enshrined in the Constitution, are deeply anguished by some of the contents of that judgement and the arrests that have followed in its wake.

It is not just the dismissal of the appeal that has surprised people – an appeal may, after all, be allowed or dismissed by an appellate court; it is the gratuitous comments that the bench has pronounced on the appellants and the counsel and the supporters of the appellants. In the most astonishing comment, the Supreme Court has lauded the officials of the Special Investigation Team who have defended the State and has excoriated the appellants who have challenged the findings of the SIT. The Supreme Court says in Paragraph 88:

While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

Also read: Setalvad, Sreekumar’s Real ‘Crime’ Was Raising the Question of Modi’s Command Responsibility

Need to be in the dock …”!! Has the Supreme Court now decided that appellants before it and their counsel should be proceeded against merely for being assiduous and persistent in their appeal? What about the NHRC reports and the report of amicus curiae, Raju Ramachandran, which had stated that investigation was required to probe the role of then chief minister Narendra Modi? These were weighty grounds to question the view taken by the SIT and therefore, they would confer sufficient heft to a petition that sought to challenge the SIT’s findings. Moreover, the Supreme Court’s own earlier observations clearly mention the laxity of the state government officials. On April 12, 2004, a bench of Justices Doraiswamy Raju and Arijit Pasayat while ordering a retrial in the Vadodara Best Bakery case, said:

Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these wanton boys”.

It went on to say:

One gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired.”

The implications of the Zakia Jafri judgement are extremely serious. It has overturned a core precept that, we believe, ought to guide an apex court established under a liberal democratic Constitution: to safeguard the basic right to life and liberty against questionable actions of the state. The Court has come out with a doctrine which enjoins the state to arrest and prosecute persons who dare to question the findings of investigating agencies, if the Court decides that these findings are beyond reproach.

Our distress mirrors the horror and anguish that the words used by the Supreme Court, and the events that have occurred in the aftermath of this judgement, have evoked amongst respected individuals and organisations wedded to upholding human rights and the democratic values that underlie our Constitution. The directions contained in the order of the Court have been characterised in words never known to have been used before in the case of judgements delivered by the Supreme Court. The immediate action of the state in arresting human rights lawyer Teesta Setalvad and former DGP, RB Sreekumar, as well as filing a fresh case against Sanjiv Bhatt, who is already in prison, clearly occurred because the Supreme Court told the State government authorities to put those who ‘kept the pot boiling’ ‘in the dock’, though these persons were neither the appellants nor the accused in the case.

Constitutional lawyer and legal scholar Gautam Bhatia tweeted: “Indian SC’s contribution to global jurisprudence is to decide an individual vs State case by telling the State to arrest the individual. A remarkable constitutional innovation.”  Amnesty International India observed that “Detention of prominent human rights activist @TeestaSetalvad by the Indian authorities is a direct reprisal against those who dare to question their human rights record. It sends a chilling message to the civil society and further shrinks the space for dissent in the country”. A group of 300 lawyers and activists have, in a letter to the Chief Justice of India, said “This sequence of events has sent a chilling message for the practice of law in the courts and for the rule of law in the country. It appears that a petitioner or a witness, who diligently pursues a cause in the courts, runs a risk of being put in the dock if the court deems the cause as devoid of merits.” We also endorse the statement made in support of Teesta Setalvad, R.B. Sreekumar and other human rights defenders by concerned citizens of the world in the alliance named Solidarity for the Prisoners of Conscience in India.

Also read: Zakia Jafri Case: Another ‘Arresting’ Judgment in Favour of BJP and Narendra Modi

Here are some fundamental questions: Can the constitutional right to approach courts be treated in so cavalier and revengeful a fashion that the persons seeking justice are put behind bars? Shall we henceforth presume that natural justice can be given the go-by as a cardinal principle of our jurisprudence and people condemned without being heard?

We would urge the Supreme Court Justices to suo motu review their order and withdraw the observations contained in Para 88. We would also request them to adopt the course of action advocated by a distinguished former member of their fraternity, Justice Madan Lokur. He has said that the court would do well to issue a clarification to the effect that it was not their intention that Teesta Setalvad should face arrest and at the same time order her unconditional release. Every day of silence lowers the prestige of the Court and raises questions about its determination to uphold a core precept of the Constitution: safeguarding the basic right to life and liberty against questionable actions of the state.

SATYAMEVA JAYATE

Constitutional Conduct Group (92 signatories, as below)

1. Anita Agnihotri IAS (Retd.) Former Secretary, Department of Social Justice Empowerment, GoI
2. S.P. Ambrose IAS (Retd.) Former Additional Secretary, Ministry of Shipping & Transport, GoI
3. Anand Arni RAS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
4. G. Balachandhran IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
5. Vappala Balachandran IPS (Retd.) Former Special Secretary, Cabinet Secretariat, GoI
6. Gopalan Balagopal IAS (Retd.) Former Special Secretary, Govt. of West Bengal
7. Chandrashekar Balakrishnan IAS (Retd.) Former Secretary, Coal, GoI
8. Sharad Behar IAS (Retd.) Former Chief Secretary, Govt. of Madhya Pradesh
9. Aurobindo Behera IAS (Retd.) Former Member, Board of Revenue, Govt. of Odisha
10. Madhu Bhaduri IFS (Retd.) Former Ambassador to Portugal
11. Ravi Budhiraja IAS (Retd.) Former Chairman, Jawaharlal Nehru Port Trust, GoI
12. Sundar Burra IAS (Retd.) Former Secretary, Govt. of Maharashtra
13. R. Chandramohan IAS (Retd.) Former Principal Secretary, Transport and Urban Development, Govt. of NCT of Delhi
14. Kalyani Chaudhuri IAS (Retd.) Former Additional Chief Secretary, Govt. of West Bengal
15. Gurjit Singh Cheema IAS (Retd.) Former Financial Commissioner (Revenue), Govt. of Punjab
16. F.T.R. Colaso IPS (Retd.) Former Director General of Police, Govt. of Karnataka & former Director General of Police, Govt. of Jammu & Kashmir
17. Vibha Puri Das IAS (Retd.) Former Secretary, Ministry of Tribal Affairs, GoI
18. P.R. Dasgupta IAS (Retd.) Former Chairman, Food Corporation of India, GoI
19. Nitin Desai Former Chief Economic Adviser, Ministry of Finance, GoI
20. M.G. Devasahayam IAS (Retd.) Former Secretary, Govt. of Haryana
21. Sushil Dubey IFS (Retd.) Former Ambassador to Sweden
22. A.S. Dulat IPS (Retd.) Former OSD on Kashmir, Prime Minister’s Office, GoI
23. K.P. Fabian IFS (Retd.) Former Ambassador to Italy
24. Prabhu Ghate IAS (Retd.) Former Addl. Director General, Department of Tourism, GoI
25. Arif Ghauri IRS (Retd.) Former Governance Adviser, DFID, Govt. of the United Kingdom (on deputation)
26. Suresh K. Goel IFS (Retd.) Former Director General, Indian Council of Cultural Relations, GoI
27. S.K. Guha IAS (Retd.) Former Joint Secretary, Department of Women & Child Development, GoI
28. H.S. Gujral IFoS (Retd.) Former Principal Chief Conservator of Forests, Govt. of Punjab
29. Meena Gupta IAS (Retd.) Former Secretary, Ministry of Environment & Forests, GoI
30. Ravi Vira Gupta IAS (Retd.) Former Deputy Governor, Reserve Bank of India
31. Wajahat Habibullah IAS (Retd.) Former Secretary, GoI and former Chief Information Commissioner
32. Sajjad Hassan IAS (Retd.) Former Commissioner (Planning), Govt. of Manipur
33. Siraj Hussain IAS (Retd.) Former Secretary, Department of Agriculture, GoI
34. Kamal Jaswal IAS (Retd.) Former Secretary, Department of Information Technology, GoI
35. Brijesh Kumar IAS (Retd.) Former Secretary, Department of Information Technology, GoI
36. Ish Kumar IPS (Retd.) Former DGP (Vigilance & Enforcement), Govt. of Telangana and former Special Rapporteur, National Human Rights Commission
37. Subodh Lal IPoS (Resigned) Former Deputy Director General, Ministry of Communications, GoI
38. B.B. Mahajan IAS (Retd.) Former Secretary, Deptt. of Food, GoI
39. Harsh Mander IAS (Retd.) Govt. of Madhya Pradesh
40. Lalit Mathur IAS (Retd.) Former Director General, National Institute of Rural Development, GoI
41. Aditi Mehta IAS (Retd.) Former Additional Chief Secretary, Govt. of Rajasthan
42. Malay Mishra IFS (Retd.) Former Ambassador to Hungary
43. Sunil Mitra IAS (Retd.) Former Secretary, Ministry of Finance, GoI
44. Noor Mohammad IAS (Retd.) Former Secretary, National Disaster Management Authority, Govt. of India
45. Satya Narayan Mohanty IAS (Retd.) Former Secretary General, National Human Rights Commission
46. Deb Mukharji IFS (Retd.) Former High Commissioner to Bangladesh and former Ambassador to Nepal
47. Shiv Shankar Mukherjee IFS (Retd.) Former High Commissioner to the United Kingdom
48. Gautam Mukhopadhaya IFS (Retd.) Former Ambassador to Myanmar
49. Nagalsamy IA&AS (Retd.) Former Principal Accountant General, Tamil Nadu & Kerala
50. Sobha Nambisan IAS (Retd.) Former Principal Secretary (Planning), Govt. of Karnataka
51. Surendra Nath IAS (Retd.) Former Member, Finance Commission, Govt. of Madhya Pradesh
52. P.A. Nazareth IFS (Retd.) Former Ambassador to Egypt and Mexico
53. P. Joy Oommen IAS (Retd.) Former Chief Secretary, Govt. of Chhattisgarh
54. Amitabha Pande IAS (Retd.) Former Secretary, Inter-State Council, GoI
55. Maxwell Pereira IPS (Retd.) Former Joint Commissioner of Police, Delhi
56. G.K. Pillai IAS (Retd.) Former Home Secretary, GoI
57. R. Poornalingam IAS (Retd.) Former Secretary, Ministry of Textiles, GoI
58. Rajesh Prasad IFS (Retd.) Former Ambassador to the Netherlands
59. Rajdeep Puri IRS (Resigned) Former Joint Commissioner of Income Tax, GoI
60. T.R. Raghunandan IAS (Retd.) Former Joint Secretary, Ministry of Panchayati Raj, GoI
61. V.P. Raja IAS (Retd.) Former Chairman, Maharashtra Electricity Regulatory Commission
62. K. Sujatha Rao IAS (Retd.) Former Health Secretary, GoI
63. M.Y. Rao IAS (Retd.)
64. Satwant Reddy IAS (Retd.) Former Secretary, Chemicals and Petrochemicals, GoI
65. Vijaya Latha Reddy IFS (Retd.) Former Deputy National Security Adviser, GoI
66. Julio Ribeiro IPS (Retd.) Former Adviser to Governor of Punjab & former Ambassador to Romania
67. Aruna Roy IAS (Resigned)
68. A.K. Samanta IPS (Retd.) Former Director General of Police (Intelligence), Govt. of West Bengal
69. Deepak Sanan IAS (Retd.) Former Principal Adviser (AR) to Chief Minister, Govt. of Himachal Pradesh
70. S. Satyabhama IAS (Retd.) Former Chairperson, National Seeds Corporation, GoI
71. N.C. Saxena IAS (Retd.) Former Secretary, Planning Commission, GoI
72. A. Selvaraj IRS (Retd.) Former Chief Commissioner, Income Tax, Chennai, GoI
73. Ardhendu Sen IAS (Retd.) Former Chief Secretary, Govt. of West Bengal
74. Abhijit Sengupta IAS (Retd.) Former Secretary, Ministry of Culture, GoI
75. Aftab Seth IFS (Retd.) Former Ambassador to Japan
76. Ashok Kumar Sharma IFoS (Retd.) Former MD, State Forest Development Corporation, Govt. of Gujarat
77. Ashok Kumar Sharma IFS (Retd.) Former Ambassador to Finland and Estonia
78. Navrekha Sharma IFS (Retd.) Former Ambassador to Indonesia
79. Pravesh Sharma IAS (Retd.) Former Additional Chief Secretary, Govt. of Madhya Pradesh
80. Raju Sharma IAS (Retd.) Former Member, Board of Revenue, Govt. of Uttar Pradesh
81. Rashmi Shukla Sharma IAS (Retd.) Former Additional Chief Secretary, Govt. of Madhya Pradesh
82. Mukteshwar Singh IAS (Retd.) Former Member, Madhya Pradesh Public Service Commission
83. Sujatha Singh IFS (Retd.) Former Foreign Secretary, GoI
84. Tara Ajai Singh IAS (Retd.) Former Additional Chief Secretary, Govt. of Karnataka
85. Tirlochan Singh IAS (Retd.) Former Secretary, National Commission for Minorities, GoI
86. Parveen Talha IRS (Retd.) Former Member, Union Public Service Commission
87. Anup Thakur IAS (Retd.) Former Member, National Consumer Disputes Redressal Commission
88. P.S.S. Thomas IAS (Retd.) Former Secretary General, National Human Rights Commission
89. Hindal Tyabji IAS (Retd.) Former Chief Secretary rank, Govt. of Jammu & Kashmir
90. Jawed Usmani IAS (Retd.) Former Chief Secretary, Govt. of Uttar Pradesh & former Chief Information Commissioner, Uttar Pradesh
91. Ramani Venkatesan IAS (Retd.) Former Director General, YASHADA, Govt. of Maharashtra
92. Rudi Warjri IFS (Retd.) Former Ambassador to Colombia, Ecuador and Costa Rica