On November 23th, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar continued final hearings in a petition filed by Mrs. Zakia Jafri for the seventh time. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in the 2002 riots in Gujarat. 

The Supreme Court appointed Special Investigation Committee (SIT) had given a clean chit to 63 accused persons, including the then Gujarat Chief Minister Mr. Narendra Modi after probing the 2002 riots. The Magistrate’s Court had accepted this conclusion, and took no action upon a protest petition filed by Mrs. Jafri against the SIT’s report closing the investigation. In October 2017, the Gujarat High Court upheld the decision of the Magistrate’s Court. Mrs. Jafri has challenged the High Court’s decision before the Supreme Court. She argues that the SIT and the Magistrate’s Court ignored key evidence. 

Over the first six days of arguments, Senior Advocate Kapil Sibal, appearing for Mrs. Jafri, has shown that crucial evidence of police inaction, complicity of public servants,and hate speech was part of the SIT’s records but was ‘deliberately ignored’ in the closure report. On November 23rd, he took the Court through the judgments of the Metropolitan Magistrate’s Court and the Gujarat High Court to show that neither had investigated the crucial evidence of conspiracy. 

With this Mr. Sibal concluded his arguments, stating that the Bench must ‘steady’ the ‘ship of the Republic’ by restoring the ‘majesty of the law’ and ensuring that Mrs. Jafri’s complaint gets an unbiased investigation. 

 

Gujarat Government’s Failure to Respond to Hate Speech Not Investigated

Relying on some of Khanwilkar J’s past orders on hate speech, Mr. Sibal argued that the State government had a constitutional duty to prohibit the circulation of speech that negatively targeted a minority community, and to take swift preventative measures against further harm. The Gujarat government failed to do so. 

The SIT, Metropolitan Magistrate and Gujarat High Court were shown local news articles spreading false narratives about Muslims, anonymous pamphlets containing hate speech, and statements of high-ranking police officials saying they had implored the  government to act against such speech. Despite this, the Courts only investigated the charges of hate speech against the pre-election speeches of the erstwhile Gujarat CM, Mr. Narendra Modi. The Courts found these to not be hate speech. Mr. Sibal stated that the petitioner was directing the Bench’s attention to the fact that institutional inaction in relation to all other hate speech was ignored. 

 

Without Investigation, Circumstantial Evidence for Conspiracy Cannot be Unearthed

In previous hearings, the Bench had implored Mr. Sibal to more squarely show clear evidence on ‘larger conspiracy’. Mr. Sibal, in the November 23rd hearing,argued that given its secretive nature, conspiracy can rarely be established through direct evidence. Circumstantial evidence is crucial to prove conspiracy. In Mrs. Jafri’s case, there was prima facie evidence of conspiracy in the Tehelka Tapes, but Mr. Sibal argued that neither the SIT nor the subordinate Courts investigated the charge. Without investigation, circumstantial evidence would remain illusive. 

 

Metropolitan Magistrate Misunderstood the Supreme Court’s Orders, High Court Failed to Correct Him

The Metropolitan Magistrate had refused to consider Mrs. Jafri’s complaint stating that the Supreme Court had only ordered him to deal with the Gulberg Society FIR. To counter this, Mr. Sibal read out paragraphs 10 and 11 of the 2011 judgment through which the Supreme Court had referred Mrs. Jafri’s complaint to the SIT. 

According the Mr. Sibal, the 2011 judgment ordered the SIT to investigate all the evidence arising out of the Gujarat riots, including in Mrs. Jafri’s complaint, and then file it before the Magistrate. If the SIT concluded that there was no need to prosecute the accused, as it did in Mrs. Jafri’s case, the Magistrate was ordered to issue notice to the complainant and make all documents available to her. Mr. Sibal clarified that the Supreme Court had not relieved the Magistrate of his duty to give Mrs. Jafri a fair investigation and hearing. 

Taking the Bench through the Magistrate’s judgment, Mr. Sibal pointed out that he did not deal with the evidence of police inaction, destruction of police control room records, hate speech and lack of preventive action based on the State Information Bureau’s alerts. The Magistrate ignored the confessions in the Tehelka Tapes, stating that extra-judicial confessions are a weak form of evidence. Mr. Sibal had previously argued that this was an incorrect understanding of evidence law. 

At the Gujarat High Court, Sonia Gokani J had faulted the Magistrate for wrongly assuming that he was bound by the findings in the SIT’s closure report, and that he lacked the jurisdiction to order further investigation. Despite this finding, Mr. Sibal argued that Gokani J did not order any further investigation on the conspiracy charge. 

The Bench will hear Senior Advocate Mukul Rohatgi’s arguments on behalf of the SIT on November 24th. Khanwilkar J has previously reprimanded Mr. Sibal for alleging political bias within the SIT and the subordinate judiciary. Mr. Rohatgi will have to prove that the SIT did not ‘deliberately’ ignore crucial evidence to counter Mr. Sibal’s allegations.