Day 10 Oral Hearing

Zakia Jafri and Gujarat Riots SIT

On December 1st, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar began the tenth day of final hearings in a petition filed by Mrs. Zakia Jafri challenging the SIT’s closure report in the Gujarat Riots case.  Mrs. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in the Gulberg Society massacre. Mrs. Jafri’s co-petitioner, Teesta Setalvad is the founder of NGO Citizens for Justice and Peace. Read more about the case here

The Supreme Court formed the SIT upon the NHRC’s complaint that the Gujarat Police was not conducting a fair investigation. It was tasked with investigating nine FIRs arising out of the riots. Senior Advocate Kapil Sibal, on behalf of the petitioners, had argued that Mrs. Jafri’s complaint of ‘larger conspiracy’ should have been treated as the tenth FIR in this case. 

Today, Senior Advocate Mukul Rohatgi, appearing for the SIT, made two major arguments— first, that the SIT had reached well grounded conclusions that were corroborated by three other judicial investigations, and second, that Mrs. Jafri’s case had been overtaken by co-petitioner Teesta Setalvad’s sinister motive. 

 

SIT’s Findings Corroborated and Commended by the Nanavati Commission and Three Courts

Mr. Rohatgi stated that the ‘guiding pole-star’ in this case was the Supreme Court’s order instructing the SIT to conduct a limited investigation into Mrs. Jafri’s complaint for ‘further evidence’ in the Gulberg Society FIR. Mr. Rohatgi argued that investigations conducted by three other bodies, namely the Nanavati Commission, the Trial Court and the Gujarat High Court, had come to the same conclusion as the SIT in relation to the key evidence that Mrs. Jafri accused the SIT of ‘deliberately ignoring’. 

Mr. Rohatgi argued that the Protest Petition makes these accusations based on the findings of a ‘self-styled’ Citizen’s Tribunal that was guided only by co-petitioner Ms. Setalvad’s view of the case. Mr. Rohatgi submitted that a Citizen’s Tribunal has no constitutional authority or legitimacy. The trial court also found that the members of the Tribunal did not have the advantage of the State Government’s submissions when arriving at their judgment. 

The Nanavati Commission was formed by the Gujarat Government to investigate the riots. Mr. Rohatgi argued that, like the SIT, the Commission had also arrived at the conclusion that the bodies of the Godhra deceased were not handed over to VHP leaders, and paraded around the state to incite mobs, as alleged by Mrs. Jafri. The Commission also found that two of the petitioners’ three ‘star witnesses’, Rahul Sharma and RB Shreekumar, were unreliable. He stated that the Trial Court in the Gulberg case also made the same observations. Mr. Rohatgi will take the Court through the Gujarat High Court’s judgment tomorrow. 

Mr. Rohatgi also submitted that in an order from May 2009, the Supreme Court had commended the SIT for conducting an unbiased and thorough investigation. Khanwilkar J pointed out that the Court’s order entrusting the SIT with the responsibility of looking into Mrs. Jafri’s complaint may also be understood as a commendation of their work in the other FIRs. Mr. Rohatgi thanked Khanwilkar J for providing an interpretation of the order that he had not considered.

Mr. Rohatgi argued that it was impossible to have a more independent investigation than one conducted by a committee formed and overseen by the Supreme Court. He contrasted the SIT’s work with the police investigations in the Bilkis Bano and Best Bakery cases, two instances from the riot that were not referred to the SIT. The Supreme Court was forced to order a re-investigation in those matters, since the investigating officers had not done their duty well. 

 

Mrs. Jafri’s Complaint Overtaken by Setalvad and Shreekumar’s ‘Sinister Motives’

Mr. Rohatgi stated that the Supreme Court had referred Mrs. Jafri’s conspiracy complaint to the SIT out of sympathy for a ‘widow’s tears’. Her original complaint was merely forty pages long, and looked like it was written by a ‘semi-literate’ person. He argued that the protest petition, which runs into thousands of pages, shows that the case is no longer in her hands. 

He argued that this case was now being driven by Ms. Setalvad’s motive of ‘keeping the pot boiling’ endlessly, so that the names of the accused remain under suspicion. He submitted that the Investigating Officer at Gulberg had noted that some witnesses came to him with pre-prepared statements, which were written and signed by Ms. Setalvad. 

Mr. Rohatgi suggested that Ms. Setalvad is joined by RB Shreekumar, who gave statements against the state government only after he was passed over for promotion. He also pointed out that in her deposition in the Gulberg FIR, Mrs. Jafri had stated that Mr. Shreekumar harboured resentment (‘narazgi’) towards the state government, and that he was working with Ms. Setalvad. 

Mr. Rohatgi submitted that the instances of inaction and oversight that the petitioner used to argue conspiracy, such as the failure of the fire brigade to rescue victims on time, show a paralysis of the civil administration, which is to be expected when police are outnumbered by mobs in a riot. While a charge of negligence, or dereliction of duty may still have some basis, there is no evidence to show the meeting of minds necessary to prove conspiracy. 

Mr. Rohatgi also read out portions in the Protest Petition that refer to the Godhra train burning as ‘mystery fires’, describe the karsevaks’ ‘provocative behaviour’, and make allegations of VHP’s arms buildup even before the Godhra incident. The insinuation of the Protest, he argued, was that the VHP was involved in killing its own karsevaks, and that the riots were not a retaliation, but a planned conspiracy. He called such arguments attempting to ‘justify’ the Godhra train burning preposterous. It may be noted that Mr. Rohatgi also submitted that the Nanavati Commission had found that the rioting mobs who killed Ehsaan Jafri were ‘incited’ by eight shots that he fired from his gun. 

The Bench will continue to hear Mr. Rohatgi’s submissions on behalf of the SIT tomorrow, after which the State of Gujarat will also present its case.