November 11th 2021

On November 11th, 2021, a three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar heard final arguments in the petition filed by Mrs. Zakia Jafri for the fourth 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.

 

On November 11th, Senior Advocate Kapil Sibal, appearing for the petitioner, continued to point out the lapses in the SIT’s investigation. He argued that the SIT had conducted a ‘collaborative exercise’ with the accused instead of investigating them. He also highlighted that some SIT members were later rewarded for this collaboration. He gave the example of SIT head R.K. Raghavan, who was made High Commissioner to Cyprus by the Union government in 2017. 

 

While taking the Court through the annexed volumes in Mrs. Jafri’s petition, Mr. Sibal stated that he was not submitting any personally acquired evidence before the Court. All this evidence was part of the SIT’s records, suggesting that it was deliberately ignored. 

 

SIT Ignored Police Inaction and Complicity in the Violence

 

Mr. Sibal stated that Article 21 of the Constitution of India allowed the State to deprive one of life and liberty, but only through procedure established by law. This procedure is established in the Code of Criminal Procedure (1973), which ensures that justice is guaranteed in criminal investigations. If investigation committees do not carry out a just and unbiased investigation of all materials before them, the victim is doubly targeted- first by the accused, and then by the investigators. 

 

Mr. Sibal’s arguments focused on key evidence proving police inaction and collusion that the SIT ignored. He specifically brought to the Court’s attention the SIT’s exoneration of erstwhile Police Commissioner P.C. Pande. In a statement to the SIT, Pande described the funeral processions of the Godhra deceased as ‘peaceful’, to explain why he did not issue immediate directions to his subordinates to control the violence. 

 

Mr. Sibal brought on record messages from the State Intelligence Bureau alerting police officials, including Pande, about the violence that had broken out in the processions. He further pointed out that Pande had made phone calls to the VHP leader who was transporting the corpses of the Godhra deceased to Ahmedabad. The SIT was provided with this evidence which proved that Pande was aware of the violence. Sibal asked why the SIT accepted his false statements. 

 

Sibal also argued that the Gujarat government had initially told the SIT that records of Gujarat Police wireless communication from the relevant days had been destroyed in ‘routine procedure’. As per the government’s statements, this destruction of records from 2002 ‘routinely’ occurred 5 days after the SIT was set up in 2009! While this in itself should have been suspicious, the SIT did not question it. Then, in 2011, Pande suddenly produced these communication records, which were in his personal possession, to clear his name before the Supreme Court. This withholding of evidence was not questioned by the SIT, or any of the subordinate courts. 

 

Mr. Sibal lastly stated that Pande had been promoted to various powerful positions after 2002, presumably as a reward for his complicity. Notably, he was made Director General of Police, Gujarat after the BJP’s 2008 election victory. According to Mr. Sibal, ‘The journey from an accused to DGP, Gujarat is quite disconcerting’. 

 

Extra-Judicial Confessions in the Tehelka Tapes, Deemed Authentic and Reliable by the CBI, Ignored By SIT

 

Journalist Ashish Khetan, while conducting a sting operation into the riots for the Tehelka magazine, had recorded the confessions of 13 Vishwa Hnidu Parishad and Bajrang Dal leaders. They admitted to committing murder and criminal conspiracy, intimidating police officials, and hand-picking public prosecutors to ensure an acquittal. These leaders were accused in Mrs. Jafri’s complaint. 

 

Mr. Sibal cited an earlier Supreme Court judgment to argue that conviction can be based exclusively on an extra-judicial confession if the Court believes that the confession is reliable, true and voluntary. In 2012, Justice Jyotsana Yagnik, leading the Special Court at Ahmedabad, had deemed the Tehelka confessions to be reliable. This Court convicted two accused persons in the Naroda Patiya case based on these confessions. Mr. Sibal further submitted that the tapes recording the confessions had  been authenticated by the CBI. However, he clarified that he was not trying to convince the Court that the tapes were in fact true and reliable. He was arguing a more limited point: the SIT ought to have considered the tapes, and inquired into their authenticity during the investigation. This was not done. 

 

Mr. Sibal observed that similar suspicious investigations aimed at protecting powerful accused persons were being carried out all over the country even now. He emphasised again, as he has done in all three previous hearings, that he is not interested in the actions of individuals during and after the riots. The petitioners’ case is one of institutional failure. Hence, he stated that the Court’s judgment in this case is not just about the past, but will shape future investigations too. 

 

The Bench will continue hearing Mr. Sibal’s arguments on November 16th 2021.