'If Institutions Are Captured, We Are Not Independent': Observations from Tribunal on SC Judgments

In light of two recent Supreme Court judgments – on the 2002 Gujarat riots and the 2009 Gompad massacre – a people's tribunal on the 'judicial assault on civil liberties' was held for civil society and the judicial community to voice their concerns.

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New Delhi: In light of concerns surrounding the Supreme Court’s recent orders in a number of cases – in particular, Zakia Jafri’s plea challenging the clean chit given to Narendra Modi in the 2002 Gujarat riots case and Himanshu Kumar’s petition in the 2009 Gompad massacre case – a people’s tribunal on the ‘judicial assault on civil liberties’ was organised in Delhi on August 6.

The Committee on Judicial Accountability, along with People’s Union of Civil Liberties (PUCL), People’s Union of Democratic Rights (PUDR) and the National Alliance of People’s Movements (NAPM) constituted the tribunal to provide a forum for affected citizens to depose in front of a panel of retired judges. 

The testimonies of the victims of the Gompad massacre and those of the family members and lawyers of activist Teesta Setalvad, arrested a day after the Zakia Jafri judgment, were heard by a panel comprising Justices A.P. Shah (former chief justice of the Delhi high court and former chairperson, Law Commission of India), Anjana Prakash (former judge of the Patna high court), Marlepalle (former judge of the Bombay high court) as well as professor Virginius Xaxa (chair of the 2014 High Level Committee to examine the status of STs) and Syeda Hameed (former member of the Planning Commission). 

‘When courts break out faith…’

On July 14, a two-judge bench of Justices Pardiwala and A.M. Khanwilkar dismissed a petition by Chhattisgarh-based activist Himanshu Kumar and 12 others seeking a probe into alleged brutalities by security forces during anti-Naxal operations in 2009. The alleged massacres had taken place on September 17, 2009 and October 1, 2009 at the Gachhanpalli, Gompad and Belpocha villages in the Dantewada district of Chhattisgarh.

Kumar, in his petition, had stated that in 2009, 16 tribals were “murdered” by the police and security forces at Gompad. Among those killed were women, children and the elderly. Further, the fingers of a one-and-half-year-old boy were chopped off. Kumar had filed petitions in as many as 519 cases of alleged atrocities, including rape and loot by the police.

Also read: As SC Imposes Fine on Chhattisgarh Activist, Legal Experts Rue ‘Vengeful Attitude’

Speaking at the forum, one of the victims of the Gompad massacre, Mujaki Sukdi from the Nulkatong village in Chhattisgarh’s Sukma district, said, “My husband Mukka was killed during the firing in Gompad. He was there when the firing happened.”

“We were at home when we heard the police firing. I ran towards the forest, my husband was dragged out of the house and I was told that he is being taken to Konta police station, but I have not received even my husband’s body,” she said.

Activist Soni Sori, speaking about the judgment, said, “When the courts break our faith, where does one go?” 

Kumar, who has been charged with a fine of Rs 5 lakh, has said that he will not be paying the fine and is ready to go to jail as he will not betray those who have trusted him with their testimonies and the case. 

Advocate Prashant Bhushan, reflecting on the judgment, said, “We had to organise this tribunal because the recent judgments by the Supreme Court show that the petitioners are being asked to stand in the dock and are being prosecuted on the orders of the court.” 

“We expect our government to crack down on us, however, this is the first time that institutions where we have sought justice have done this,” Bhushan continued. 

Also read: The Supreme Court Has Made Progress. It Now Directs ‘Those Seeking Justice’ to Be Put in the Dock

Institutions captured 

In June this year, the Supreme Court dismissed a petition filed by Zakia Jafri, wife of slain Congress MP Ehsan Jafri who was killed in the 2002 Gujarat riots. The apex court, in its dismissal of the petition also said, without naming anyone in particular, that some people had devised a “devious stratagem” to “keep the pot boiling”.

The three-judge bench, led by the now retired Justice Khanwilkar, also added that “[A]ll those involved in such abuse of process need to be in the dock and proceeded with in accordance with law.”

A day later, the Gujarat Anti-Terror Squad (ATS) booked Setalvad and former Gujarat IPS officer R.B. Sreekumar. 

At the tribunal, lawyers highlighted how the institutions which were meant to uphold justice in the nation are being captured by the executive. 

Speaking at the tribunal, former Congress MP and advocate, Kapil Sibal said, “We are not independent if our institutions remain captured. We have hope in our judiciary because there is no other option…”

“While arguing Zakia Jafri’s case, we put forward official records in order to ensure that we are not told that we have presented anything at our whim. For example, in Gujarat, when people were burnt down, homes were burnt down, intelligence called the fire brigades. We presented to the court the documentation and the correspondence. However, no one picked up the phones, not even a single fire brigade,” Sibal said. 

“We questioned the institution, we questioned the SIT. The CBI authenticated testimonies on the basis of which many people were prosecuted. However, this is not what had happened in the case of Gulberg Society,” he added. 

Also read: Condemned by Innuendo: Some Questions on the SC Order That Led to Teesta Setalvad’s Arrest

Nizam Pasha, the lawyer representing Setalvad, highlighted the pattern of the Supreme Court’s questioning and how it put those in the dock who raised questions over the functioning of state institutions. 

“The gist of the Supreme Court judgment on Zakia Jafri’s petition is the fact that the court has questioned the audacity of the petitioners. It has said, ‘how can you question the integrity of the state functionaries?’ It is the duty of the court of law to question the government. If the Supreme Court will raise questions on those who are questioning the government, how is it doing its duty?” Pasha asked. 

The tribunal will release it’s report with the panel’s observations later this week. 

After hearing the depositions, the panel members pointed out the need to re-evaluate systemic injustice in light of the recent judgements. 

Professor Xaxa, summarising the observations of the panel, said, “The courts, through their recent judgements, have given immunity to the state, strengthening the executive. We will have to rethink the path we are on. It saddens the jury and pains us to have heard the testimonies of the victims.” 

Meanwhile, Justice Prakash said, “The question is not how injustice is being practiced; the larger question is, how do we deal with it? What we heard today is not new. We went to the court for justice, not injustice, but what has happened is grave injustice.”