On November 10th, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar continued final hearings in a petition filed by Mrs. Zakia Jafri for the third 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 64 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 taken 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. 

On November 10th, Senior Advocate Kapil Sibal, appearing for Mrs. Jafri, stated that in this case, the concern was not about the past, but about the future. He described communal violence as ‘lava erupting from a volcano’ which leaves the earth ‘fertile for future revenge’. So, it is essential to send the message that institutionalized violence against minorities is not acceptable. 

 

SIT Did Not Follow ‘Procedure Established by Law’

Mr. Sibal argued  that Article 21 of the Constitution not only mandates the protection of personal liberty, but also emphasizes that the State can only deny liberty through procedure established by law. In 2011, the Supreme Court directed the SIT to conduct investigation ‘in accordance with law’, and empowered it under Section 173)8), CRPC,  to collect and consider more evidence than was presented by the police in the final chargesheet. According to Mr. Sibal, the SIT had not conducted any investigations, and as such, had not followed procedure established by law. 

Mr. Sibal further stated that in Bhagwan Singh v Commissioner of Police, Delhi (1983) the Supreme Court had held that the concerns of affected parties must be considered by the SIT. When they are not, the parties are entitled to protest the findings of the SIT through a petition before the relevant court. Since Mrs. Jafri was both the complainant and the injured party in this case, Mr. Sibal argued that she ought to have been heard. However, the evidence she submitted was not investigated by the SIT. 

 

What Was the SIT Mandated to Investigate, Asks Khanwilkar J

To determine the scope of the SIT’s mandate, Khanwilkar J inquired what complaint it had been directed by the Court to investigate in 2011. Specifically, he wanted to know if the SIT was issued directions only under the Gulberg Society complaint, or if a fresh FIR  registered in relation to Mrs. Jafri’s conspiracy claim was also referred to the SIT. Mr. Sibal repeated his earlier argument that Mrs. Jafri’s complaint was distinct from the Gulberg Society complaint, and that the SIT was tasked with investigating all nine instances of violence in the Gujarat riots broadly. 

Senior Advocate Mukul Rohatgi, appearing for the SIT, clarified that the Gulberg Society case, in which Ehsaan Jafri was killed, was on of the nine major trials that made up the Gujarat riots case. Mrs. Jafri filed a separate complaint of conspiracy in 2006. When the police failed to convert the complaint into an FIR, she went to the Gujarat High Court, which directed her to file a private complaint. Instead of doing so, Mrs. Jafri appealed to the Supreme Court. By the time she reached the Supreme Court, an SIT  was already being deliberated upon the NHRC’s insistence. So, when the SIT was finally formed in 2009, it was directed to investigate Mrs. Jafri’s complaint along with the 9 other cases. Since no FIR was ever filed in Mrs. Jafri’s complaint, Khanwilkar J clarified that the SIT did not derive its power to investigate from the CrPC, but from the Supreme Court’s mandate. Mr. Rohatgi argued that the SIT had investigated Mrs. Jafri’s petition, but had concluded that there was no basis to charge any of the 63 accused in Mrs. Jafri’s complaint. 

 

SIT’s Bias ‘Shows’ in its Decision to Not Appeal the Maya Kodani Acquittal

Maya Kodani, the BJP MLA from Naroda, was one of the 32 accused held guilty by the Ahmedabad Special Court in the Naroda Patiya case. Even the SIT attributed much of the violence to her hate speech after the Godhara incident, highlighting her intention to incite the mobs. Kodani appealed the Special Court decision before the Gujarat High Court, where many State witnesses turned hostile, and six judges recused themselves from the hearings. Eventually, the High Court acquitted Kodani. 

Mr. Sibal argued that the SIT did not appeal or oppose this decision. According to him, this ‘shows’ their political biases. 

 

Mr. Sibal will continue to argue Mrs. Jafri’s case on November 11th, 2021.