On November 17th 2021, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar heard final arguments in the petition filed by Mrs. Zakia Jafri for the fifth day. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in Gulberg Society in the 2002 Gujarat riots. 

In 2012, the Supreme Court appointed Special Investigation Team (SIT) gave a ‘clean chit’ to 63 accused persons, including former Gujarat CM Narendra Modi, in relation to the 2002 riots. The Magistrate’s Court accepted this conclusion, and dismissed the 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.

In his morning arguments on November 17th, Mr. Sibal took the Court through Tehelka reporter Ashish Khetan’s sting operation into the Gujarat riots. The Tehelka tapes contain incriminating statements from some of the key accused in Mrs. Jafri’s complaint. Mr. Sibal had previously argued that these statements were extra-judicial confessions, and formed crucial evidence that should not have been ignored by the SIT. After lunch, the Bench instructed Mr. Sibal to specifically point out the deficiencies in the SIT’s closure report.  

 

SIT Ignored Evidence of Police Collusion, Corrupt Public Prosecutors and Planning by Political Elite in Tehelka Tapes

To establish the credibility of the Tehelka tapes, Mr. Sibal stated that they had been authenticated using forensic voice tests by the CBI upon directions from the National Human Rights Commission in May 2009. The authenticated tapes were provided to the SIT on October 1st, 2009. Mr. Sibal pointed out evidence of police collusion, violence against minorities planned by political leaders, and witness intimidation by the public prosecutor from the tapes. 

Mr. Sibal read out VHP leader Anil Patel’s statement to Khetan, where he said that the police implored the rioters to ‘do something’ about the Muslim populations of Gujarat, to ‘loot them’ and to ‘finish them’. Mr. Sibal also read out statements from BJP members recounting two secret meetings immediately after the Godhara incident, where the local leadership gave clear instructions to ‘retaliate’. Mr. Sibal recounted statements of the then Attorney General of Gujarat, Arvind Pandeya admitting to threatening the Director General of Police to give favourable statements before the Nanavati commission. 

Mr. Sibal then argued that the SIT had ignored the evidence in the tapes without any investigation. They based this decision solely on the word of the accused. One accused, Babu Bajrangi, claimed that he was reading from a script Khetan had provided him for what Bajrangi believed was a fictional film. Pandeya denied all claims he made in the tapes, called them fabricated, and stated to the SIT that he had even filed a criminal complaint against AajTak for airing the tapes. 

Bajrangi’s defense was rejected by the Special Court in the Naroda Patiya case. Pandeya’s criminal complaint was also dismissed. When Mr. Sibal pointed this out, Khanwilkar J advised him to not spend too much time on the point. He stated that the Court was not investigating the truthfulness of the claims in the tapes, and had sufficiently noted that the SIT had not investigated the claims. 

 

Closure Report Deliberately Ignores Evidence of Police Collusion in Mobile Records and From Citizen’s Tribunal

Mr. Sibal started pointing out deficiencies in the SIT’s closure report, beginning with evidence of police collusion that the closure report had ignored. 

Mr. Sibal first argued that the Gujarat Police was obligated to to pre-emptively deploy forces upon gaining knowledge of potential unrest as per a state manual for preventing violence. He stated that the police force had started receiving fax messages about potential violence immediately after the Godhara incident. Yet, the declaration of curfew and deployment of preventive forces was not done until two days later. DGP PC Pandey defended himself before the SIT by saying that he was busy handling the Godhara corpses over those two days, but his phone records show that he was continuously in his office making calls to local leaders, some of whom were later accused. 

Mr. Sibal argued that the manual is only ‘printed word’ if the police authority does not act in accordance with it. He stated that all laws, including the Constitution, need the judiciary to ‘give energy’ to them through its pronouncements. He referred to earlier pronouncements in which Courts had held that the intent of police forces becomes suspect if they do not follow their manuals. The SIT, he argued, had investigated the violation of the police manual. 

Finally, Mr. Sibal read out parts of ADGP Sreekumar’s letters to a Citizen’s Tribunal comprising retired Justices Iyer, Suresh and Sawant. In these letters, Sreekumar recounted instances of police collusion, and complicity of the political leadership of the State. The SIT did not investigate Sreekumar’s claims, calling him a ‘motivated officer’ since he was superseded for promotions by the State government in 2002. Mr. Sibal argued that this was a deliberate oversight, especially since Sreekumar’s claims were corroborated by another police officer named Maniram. He also submitted that the SIT record contained reports from the NHRC, the Citizen’s Tribunal and Tehelka magazine confirming Sreekumar’s claims. 

Mr. Sibal will continue to make arguments in relation to the SIT’s closure report on November 23rd, 2021.

 

 

 

(Written by Ayushi Saraogi)