On November 25th, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar began the ninth day of final hearings in a petition filed by Mrs. Zakia Jafri. Mrs. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed by rioting mobs in 2002 in Gujarat. Mrs. Jafri’s co-petitioner, Teesta Setalvad is the founder of NGO Citizens for Justice and Peace. Today Senior Advocate Mukul Rohatgi, appearing for the SIT, observed that Ms. Setalvad had nothing to do with the case, and that the Gujarat High Court had discussed her lack of locus at length. Despite this, Mr. Rohatgi stated that the petition was currently being ‘driven’ by her NGO. 

While Senior Advocate Kapil Sibal, appearing for the petitioners, has previously argued that Mrs. Jafri’s conspiracy complaint should have been treated as separate from the Gulberg Society FIR, Mr. Rohatgi argued that the Supreme Court had only tasked the SIT with investigating Mrs. Jafri’s complaint to see if it contained ‘further evidence’ of the Gulberg incident. Accordingly, Mr. Rohatgi took the Court through the protest petition, and argued that the pieces of evidence that the SIT had allegedly ignored ‘deliberately’ were unrelated to Gulberg, and so, beyond the scope of the SIT’s investigation. He also emphasized that Mrs. Jafri was examined as a witness in the Gulberg case after she filed her protest petition.The Bench agreed that she could have directly sought separate action on her complaint from the trial court if she wanted an independent FIR to be registered. 

 

SIT Investigated Mrs. Jafri’s Complaint Even When It Was Beyond the Scope

Mr. Rohatgi argued that the evidence presented by the petitioners indicates, at best, dereliction of service by some state officials, but it does not show criminality. Even so, he submitted that the SIT went above and beyond its mandate to thoroughly investigate all her allegations. 

Mrs. Jafri’s complaint states that two ministers, whose portfolios are unconnected to policing, were present in the police control room during the riots, and that many officers were transferred after the riots either to reward collusion or punish resistance. Mr. Rohatgi argued that these are both matters of government policy, and it is not for the SIT to decide on their correctness. Despite this, the SIT examined the accused ministers and the transferred officers, but found credible proof of conspiracy. 

Similarly, he argued that the SIT had investigated the Bilkis Bano and Best Bakery cases only because they were a part of Mrs. Jafri’s complaint. These cases were not part of the nine FIRs referred to the SIT by the Supreme Court. 

Mrs. Jafri had also argued that the Election Commission had postponed elections in Gujarat due to continuing violence after the riots. Mr. Rohatgi argued that the SIT was tasked with investigating the riots, not what happened after them. Yet, they conducted a thorough examination of the Election Commission’s report. Khanwilkar J asked Mr. Rohatgi if the Mrs. Jafri’s complaint mentioned ‘continuing conspiracy’, to determine the scope of the SIT’s duty. Mr. Rohatgi confirmed that this phrase was not used. 

 

‘Three Star Witnesses’ Have No Credibility

Mr. Rohatgi argued that the petitioners’ three ‘star witnesses’ were not credible. He did not discuss IPS officer Sanjeev Bhat in detail because Mr. Sibal had not referred to him in his oral arguments. However, Mr. Rohatgi mentioned that Bhat was relied on heavily in the petition, and that he was currently accused of planting narcotics on a lawyer in Gujarat. 

Mr. Rohatgi then turned to Rahul Sharma, a police officer who was first accused by Mrs. Jafri, but whose statements disparaging the state government have now become the basis for Mrs. Jafri’s petition. Mr. Rohatgi argued that Sharma had produced call records and other data from his personal possession years after the riots, but had failed to bring this evidence on record before the police. 

Finally, Mr. Rohatgi argued that RB Shreekumar, who Mr. Sibal spoke of at length to prove deliberate omissions by the SIT, was an errant officer who had submitted nine affidavits to the Nanavati Commission, but had started speaking ill of the government in the third, only after he was superseded for promotion. Shreekumar was only in the habit of illegally recording conversations, and maintained an unlawful personal register instead of a police diary. 

 

Why Did Mr. Sibal Skip Allegations Against CM Modi

For seven days of arguments, Mr. Sibal deliberately skipped any reference to the erstwhile Gujarat CM Narendra Modi in Mrs. Jafri’s complaint and protest petition. He stated that he did not want to make the proceedings about individuals, choosing to focus instead on institutional failure. Mr. Rohatgi submitted that nearly every sentence of the petition mentions Mr. Modi. He stated that he was prepared to address the allegations concerning Mr. Modi, but would refrain from doing so since Mr. Sibal had not mentioned them. 

The Bench asked if the petitioners had left out these allegations for the time being so that they could press them after further investigation into the other allegations raised more evidence. Mr. Sibal interjected to clarify that he had only presented undisputed facts to the Court. Since the details of Mr. Modi’s meeting with state officials on the day of the Godhra incident was disputed,he had not sought further investigation into the matter. On being asked if he was not challenging the SIT’s finding of Mr. Modi’s innocence, Mr. Sibal submitted that if more evidence comes up in the course of these proceedings,  ‘nothing is closed forever’. The Bench asked Mr. Sibal to file written submissions clarifying his stance on the Modi allegations. 

 

The Bench will continue to hear Mr. Rohatgi on December 1st.