Zakia Jafri #5: Petitioners Argue SC Ordered Retrial in Response to Similar Complaint

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 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.

Previously, Senior Advocate Kapil Sibal, appearing for the petitioner,had accused the SIT of ‘collusion’ with the politically influential accused. On November 16th, Khanwilkar J warned Mr. Sibal to be wary of imputing collusion to a team appointed by the Supreme Court in such early stages of the hearings. He advised that Mr. Sibal limits himself to pointing out what evidence the SIT had overlooked. He noted that the petitioner had not objected to the same SIT’s conviction of the accused in other proceedings related to the riots. The SIT should have a chance to respond before it is accused of protecting the accused. 

Noting this suggestion, Mr. Sibal stated that he would only argue that the SIT had failed to adequately investigate accused persons. He continued to present incriminating evidence that the SIT had ‘deliberately’ ignored. Specifically, he argued that statutory commissions such as the NHRC and the Election Commission recorded this evidence in 2002 itself. He also briefly explained to the Court that the magistrate had dismissed the Tehelka tapes since he considered them to be weak evidence. According to Mr. Sibal, this ran contrary to the Supreme Court’s holding on extra-judicial confessions. 

SIT Ignored NHRC, EC and Independent Organizations Reporting Violence and Collusion

Mr. Sibal stated that the National Human Rights Commission investigated the Gujarat riots in March 2002, immediately after the violence. It submitted its report to the State and Union governments under sealed cover. 

In this report, the NHRC noted that police registered complaints without naming the accused so that arrests could not be made. In rare instances where arrests were made, the accused easily got bail as the Public Prosecutor did not object. The report contains Retd. Justice Divecha’s letter to the NHRC documenting that he was denied police protection and fire brigade aid before and after the rioting mobs burned down his house. 

Even though the commission has statutory authority, and is headed by retired judges of the Supreme Court, the SIT placed no emphasis on its credible report. It did not examine any members of the commission who had investigated the riots either. 

Mr. Sibal brought to the Court’s attention a similar report from the Election Commission dated August 2002. When the Commission reached the State to decide how to best conduct elections, it reported that unrest and violence continued, and that most accused persons continued to remain at large in the State. Mr. Sibal also mentioned similar reports from the Committee for Empowerment of Women, and various civil society organizations. He asked once again, why was none of this investigated? 

Treatment of Jafri’s Complaint Similar to Best Bakery Complaint, Where SC Intervened to Order Retrial

Mr. Sibal read out excerpts from the Supreme Court’s 2004 judgment in Best Bakery victim Zaheera Habibullah’s case. In this judgment, Justices Raju and Pasayat dismissed the Gujarat High Court’s order acquitting the accused, and ordered the Bombay High Court to hear the case afresh. The retrial was granted on the grounds of police collusion, wilfully ineffective public prosecution and deliberate omission of key evidence by the judiciary. 

Mr. Sibal argued that Mrs. Jafri’s complaint had received similar treatment from the police, public prosecutors, subordinate courts and even the SIT. The Supreme Court intervened to protect justice in Zaheera Habibullah’s case even though their burden was much higher- two lower courts had already investigated and acquitted the accused. In Mrs. Jafri’s case, Mr. Sibal argued, the task should be much easier. The complaint never advanced to such stages since there had been a concerted effort to ensure that the accused were not investigated, and cognizance was never taken.