On August 16, 2017, Justice A.M. Khanwilkar was part of a bench of the Supreme Court that, 33 years after the heart-wrenching events, reopened 241 cases arising out of the 1984 anti-Sikh pogrom and appointed a Supervisory Commission to examine the closure reports filed in these cases by the Special Investigation Team (SIT).
Despite the fact that multiple SITs, Commissions of Enquiry and individual trials in the matter including, incidentally, a commission of enquiry headed by Justice Nanawati and another earlier commission headed by the then sitting Chief Justice of India, Justice Ranganath Mishra, had already gone into the matter, the Supreme Court felt, and rightly so, that cases where the SIT had filed closure reports needed to be looked into again.
Cut to June 24, 2022 and another bench headed by Justice Khanwilkar expressed its indignation at the attempt by a widow, whose husband, a former member of Parliament, had a burning tyre put around his neck, had his hands and legs dismembered, and was burned alive on a pyre by a rioting mob in the 2002 Gujarat riots, to “keep the pot boiling”.
Throughout the Zakia Jafri judgement, one finds missing the soft handling one associates with an exercise which is in the nature of addressing societal wounds left open after a pogrom. At one place, the widow of the murdered parliamentarian and those helping her are described as “protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office” having little knowledge of “ground realities and the continual effort put in by the duty holders”. Instead of a word of commiseration, the judgement speaks of the petitioners’ “audacity to question the integrity of every functionary involved in the process”. As someone who believes that the most elementary function of a constitutional court is to entertain those who have the audacity to question the actions and motivations of functionaries of the State, I wholly failed to understand the chagrin of the bench.
The tone of what is to follow is set by the opening paragraph that condones delay in filing of the petition while chiding the petitioners for the fact that “the explanation offered in the application for condonation of delay is blissfully vague and bereft of any material facts and particulars”. Ordinarily, a judgment where there is some delay in filing that is being condoned simply begins with the words ‘Delay condoned’. In this justice system plagued with delays, did condonation of a delay of 216 days in filing a petition where the annexures ran into thousands of pages by the widow of a victim of genocide really merit an indignant paragraph about lack of justification for the delay? Just to put matters into perspective, the judgement itself was pronounced 197 days after hearing was concluded and orders were reserved by the court.
But then, what to speak of ordinary because ordinarily a case begins with issue of notice to the other side. In this case, despite the fact that the State of Gujarat and the SIT were both represented from day 1 and both made extensive submissions, no formal notice was ever issued, nor were the respondents called upon to file formal affidavits in reply. This departure from normal practice fortuitously saved high functionaries of the present government the embarrassment of an initial news piece that would perhaps have said ‘SC issues notice to the State in the Gujarat riots conspiracy case’.
And so this case came to be heard by the Supreme Court over 14 full final-hearing days spread over six weeks. During this period, senior advocate Kapil Sibal spent a considerable amount of time reading evidence that had been placed before the SIT and which, he argued, had not been considered in its proper perspective. He repeatedly emphasised that he was not inclined to press the issue of the meeting held on February 27, 2002 at the residence of the chief minister of Gujarat and the culpability of the then chief minister Narendra Modi, as he did not wish the matter to be politicised, and instead, he just sought to establish that the other material placed by the petitioners made out a case for a larger conspiracy between members of the political establishment, bureaucrats, police officers, private organisations and individuals.
Not once was any reference made to the then chief minister, nor was any role attributed to him. On the contrary, a written statement was submitted clarifying that the petitioners did not wish to contend that a larger conspiracy emanated from the meeting of February 27, 2002. Although the judgment reproduces this statement, it glosses over it and instead proceeds to devote page after page to the meeting at which the then chief minister was alleged to have instructed top officers of the state administration to stand back and allow the Hindus to vent their anger, and then proceeds to give Modi yet another clean chit. Once a certain submission had been given up in course of argument so as not to distract from the focus of the matter, it defies understanding why the court instead chose to ignore the submissions made and gave a judgment on the basis, primarily, of the original petition. The zealousness to hand out a clean chit to the current prime minister when the petitioners had taken a decision to not question his role is heart-warming, to say the least.
The court has proceeded further on the flawed premise that since the case of conspiracy among the accused tried in the Gulberg Society case was rejected and it had been held that there was no pre-planned intention to commit violence at Gulberg Society, “it is unfathomable” that any larger conspiracy could have been hatched at a higher level. This itself reveals the error in the reasoning of the court.
The violence at Gulberg Society on February 28, 2002 could well have been spontaneous, without any prior planning on the part of the persons who actually committed the dastardly acts. However, what was alleged in the complaint made by Zakia Jafri was that before Godhra, members of political organisations created at atmosphere conducive to the outbreak of violence in Gujarat and actively cultivated a state of preparedness for violence in the state to erupt. Thereafter, following the Godhra incident, the political establishment including the VHP wantonly stoked passions by conducting the post mortem in the open in public view, parading the dead bodies etc., the immediate consequence of which was the violence which broke out.
After the outbreak of violence, politicians, police, fire brigade etc. ensured that the state machinery did not respond to distress calls and made little or no attempt to contain the violence. And finally, private individuals and organisations subsequently interfered with the justice delivery system to ensure that the guilty in the riot cases were not brought to justice.
None of this takes away from the spontaneity and lack of pre-planning on the part of the individuals forming part of the mob that murdered Ehsan Jafri and 68 other persons in Gulberg Society that day or of the accused in other riot cases. It is only this latter pre-planning/conspiracy of the mob that the trial court in the Gulberg Society case was considering, whereas Zakia Jafri’s complaint pertained to the former. A negative finding on the latter does not preclude, and in fact has no bearing on, the former.
The case for this larger conspiracy was clearly much broader than just the alleged instruction given by the then chief minister at the alleged meeting on February 27, 2002. Despite this, the judgement finds that the allegations regarding the larger conspiracy “is founded on the alleged utterances made by the then Chief Minister in an official meeting” and therefore remains fixated on the truth or falsehood of the alleged role of the chief minister in this meeting. Referring to the fact that the allegations against the chief minister were not pressed, the court came up with the strange reasoning that a conspiracy at the highest level could have emanated only from the meeting at the residence of the chief minister and not otherwise, and giving up the allegations against the chief minister amounted to giving up the claim that there was any conspiracy at all and abandoning the appeal.
The rest of the judgement, although voluminous, is surprisingly light in content. The format followed is as follows: brief statement of the argument made (without reference to the supporting evidence that was read in court) – reproduction of the findings of the SIT on the issue with some portions highlighted – bald statement that the findings of the SIT cannot be faulted because “it is unfathomable” or “we find no reason to deviate from the opinion [of the SIT]” or “it would be beyond comprehension of any person of ordinary prudence” – rounded off with a rhetorical question along the lines of, so where is the conspiracy? Argument after argument is meted out this treatment. The several days spent by the counsel for the petitioners reading out the evidence that was ignored by the SIT were as if they never happened. No finding is returned as to why the evidence in support of a particular proposition was inadequate and did not deserve to go to trial, instead the arguments are summarily held to be “pure conjecture and surmises” or dismissed with “such a view would be preposterous”.
For instance, in relation to the Godhra incident, the judgement observes that if it were to be held that there existed a larger conspiracy and the parading of dead bodies and giving of hate speeches inciting violence was as a result of this conspiracy, then the Godhra incident would have had to be pre-planned and since all the way to the Supreme Court, it has been held in the trial of that case that there was no pre-planning involved, finding a larger conspiracy now would be to “question the wisdom of this Court” and would therefore be “preposterous”. Again, at the cost of repetition, the case of a larger conspiracy was never that each incident was planned and executed by meeting of minds of the individual accused concerned, but that there was a series of deliberate acts and omissions that formed the context and facilitated the occurrence of the individual acts of violence, with the Godhra incident acting as an unplanned trigger that was subsequently deliberately mishandled and exploited to inflame passions. The court has thus merely set up a straw man argument and demolished it without addressing the issue raised at all.
It had been argued by the petitioners that the confessions recorded on video during the Tehelka sting operation, which had since been authenticated by the CBI and had been used as evidence by the very same SIT in other trials, also included detailed descriptions by members of the VHP and other individuals as to how the pogrom was organised and orchestrated. These were dismissed by the court on the ground that the SIT had already “thoroughly investigated” the tapes. This thorough investigation by the SIT comprised of recording the statements of the offenders, who denied commission of the acts confessed to by them on tape by giving lame explanations like they had been asked to read from a script for the recording.
The Supreme Court had by its order dated February 7, 2013 held that the statements recorded by the SIT would be considered statements made to the police under Section 161 CrPC. The SIT has therefore discredited the evidence presented by the petitioners in the nature of confessions forming part of the Tehelka tapes, IB reports, call records of calls made to the police control room and fire department etc. on the basis of inadmissible Section 161 statements of the potential accused persons denying the allegations. The judgment now reproduces these findings of the SIT and re-affirms them without much analysis, primarily on the basis of the inherent reliability of the SIT and its investigation.
In constantly emphasising that the investigation was monitored by the Supreme Court and therefore could not be doubted, the judgment completely overlooks the fact that while finally disposing off the earlier petitions and discharging itself of the role of monitoring the case by its order dated September 12, 2011, this court had made it clear that it had not concerned itself with the merits of the investigation, which was to be taken to its logical conclusion in accordance with the ordinary procedure prescribed by law. The court had further specifically left it open to the petitioner to file a protest petition in case the SIT opined that there was no ground for proceeding against the persons named by the petitioner in the complaint made by her on June 8, 2006. If the SIT findings are deemed to have been blessed by the Supreme Court in its earlier role, then the right to file a protest petition was superfluous.
The present judgment also repeatedly emphasises that the amicus curie appointed by the Supreme Court “playing the role of devil’s advocate” had also given his own comments on the evidence available to the SIT, and therefore, for that reason also, the findings of the SIT are reliable. Besides the delicious irony that the court calls its own amicus curie, which in Latin means ‘friend of the court’, the devil’s advocate, what is important is that the court completely overlooks the fact that the amicus curie, in fact, disagreed with some key findings of the SIT and gave an opinion that the evidence before the SIT made out a case for prosecution of the then chief minister. Instead of addressing the contrary opinion expressed by its amicus, the court simply reproduces the entire 100-odd pages of responses given by the SIT to the observations of the amicus curie as appendix to the judgment. The fact that the Supreme Court’s own amicus disagreed with the final report submitted by the SIT on material issues should by itself have been sufficient ground for the court to pause and re-examine the findings of the SIT.
In relation to the messages by the intelligence agencies indicating inaction or lack of effective measures by the concerned officials to respond to the riots despite clear warnings being given well in advance by the IB, the court holds that mere inaction does not imply criminal conspiracy as the administration had simply been overrun by the sudden turn of events. The court notes that the remedy for this was departmental action against the erring officials for their inaction and negligence, which had already been taken. Surely, the sheer coincidence of ministers of the state government parking themselves in the police control room and the fire department and at the same time the police and fire department being “overrun by the sudden turn of events” and neglecting their duties during a riot merited a trial. However, even the second part of the court’s finding is incorrect since, in fact, the case of the petitioners was that forget departmental action, these “erring officials” had been rewarded for their “negligence” with out-of-turn promotions and lucrative postings. However, when this issue was raised, the judgement holds that the SIT was not constituted to look into administrative matters.
Finally, the court has returned findings on the actions, motivations and intentions of individuals involved without hearing them. For instance, the court finds that the testimony of Sanjiv Bhatt, R.B. Sreekumar and Haren Pandya (who was since murdered under mysterious circumstances) collectively described as “disgruntled officials of the State of Gujarat” was only to “create sensation by making revelations which were false to their own knowledge”. The court also refuses to entertain the petition at the instance of activist Teesta Setalvad on the basis of the attack mounted by the Solicitor General appearing for the State of Gujarat on her character and antecedents, all without even having to place these supposed ‘facts’ on affidavit.
Subsequent events have shown that the damning of the role played by Setalvad, Sreekumar and Bhatt by the court in its judgement has had an immediate impact on the liberty of the individuals concerned as the court’s finding that they “need to be in the dock and proceeded with in accordance with law” has been acted upon with alacrity by the Gujarat Police, which moved to arrest Setalvad (from Mumbai) and Sreekumar (from Ahmedabad) the very next day, which happened to be a Saturday since the judgement happened to have been pronounced on a Friday.
It is a fairly elementary rule of natural justice that no finding can be returned by a court about an individual without first giving them an opportunity of being heard. Setalvad, although before the court as a petitioner, was not called upon to defend her own conduct, and Sreekumar and Bhatt were not before the court at all. It is contrary to all known principles of natural justice for the court to have indicted them for their respective roles in the saga. In fact, it was specifically stated by Sibal that he did not wish to rely on the evidence of Bhatt as Bhatt’s evidence was disputed and he was arguing his case only on the basis of undisputed evidence that was before the SIT. Further, since Bhatt’s evidence related to the meeting on February 27, 2002, which itself was not being pressed, there was no occasion for the court to concern itself with his character and antecedents.
The remit of the SIT, the magistrate in the protest petition, the high court in revision and now the Supreme Court was merely to look at the evidence available and decide whether a trial was necessitated to weigh the evidence and decide the truth of the allegations. At this stage, all that the court was required to do was to look at the body of evidence collected by intelligence agencies demonstrating the failure of the administration at every step, note the confessions that were part of the Tehelka tapes that had already been forensically verified and which made out a clear case that these failures of administration were deliberate and were, in fact, carefully organised and orchestrated, note the fact that the amicus curie appointed by the Supreme Court had disagreed with key findings of the SIT and felt that a trial was necessary, note that the SIT had recorded the denials by the accused and there were contradictory statements of witnesses such as Bhatt and Sreekumar all of which required cross examination and send the matter for trial.
Instead, the SIT as well as each of the courts have conducted a mini trial where they have weighed evidence, discarded video recorded confessions on the basis of lack of corroboration, discarded corroborating evidence on the basis that it establishes the act but not the intention to commit a wrong, accepted inadmissible exculpatory statements made to police by the potential accused persons without any opportunity of cross examination, discredited witnesses on the basis of their supposed antecedents, explained away inconsistencies and returned findings of innocence, all of which can be done only during a trial.
In the end, all that remains to be done is for us, as historians of the Supreme Court, to read the judgement and explain to future generations of lawyers what the judgement leaves to be desired, until our audacity to criticise judgements of this court too is indicted and this privilege taken away.
Nizam Pasha is a lawyer practicing in the Supreme Court. He was part of the team that assisted the counsel for the petitioners in the present case, but the views expressed here are solely his own. He can be reached on Twitter @MNizamPasha.