Zakia Jafri #2: Petitioners Highlight Lapses in the SIT’s Investigation

October 27th 2021

A three-judge Bench comprising Justices Khanwilkar, Maheshwari and Ravikumar continued final hearings in a petition filed by Mrs. Zakia Jafri on October 27th, 2021. Jafri is the wife of Congress MP Mr. Ehsaan Jafri, who was killed in the 2002 riots in Gujarat. 

The Supreme Court appointed Special Investigation Committee (SIT) had given a clean chit to 64 accused persons, including the then Gujarat Chief Minister Mr. Narendra Modi after probing the 2002 riots. The magistrate’s court had accepted this conclusion, and taken no action upon a 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 Court. (date)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 October 27th, Senior Advocate Kapil Sibal, appearing for Mrs. Jafri, drew the Court’s attention to the problems with the SIT closure report as set out in Mrs. Jafri’s protest petition. Khanwilkar J asked Mr. Sibal to limit his arguments to what happened after the SIT had filed its closure report. Specifically, the Court wanted to hear what information the SIT had overlooked as per the protest petition, and how the magistrate had dealt with this knowledge. Khanwilkar J said the Court will be ‘under sea’ if they move backwards. ‘We are already under sea’, Mr. Sibal remarked but limited his arguments as per the Bench’s instructions. 

Sibal highlights four critical lapses in the SIT’s investigation

Mr. Sibal submitted four specific instances that the SIT did not properly investigate, as contained in Mrs. Jafri’s protest petition. 

First, Mr. Sibal submitted that the SIT had ignored journalist Ashish Khetan’s sting operation while dealing with Mrs. Jafri’s complaint, even though the sting had been authenticated by the CBI and was used by the SIT to investigate other complaints. This sting was crucial, since Mr. Khetan had recorded many right-wing leaders admitting to the part they had played in the riots. Mr. Sibal argued that those recorded had told the SIT that they were merely reading from a script on tape, assuming Khetan was recording them for a film. The SIT took their word without investigation, and set the evidence aside. 

Second, Mr. Sibal argued that the police had handed over the bodies of the Godhara deceased to representatives of the Vishwa Hindu Parishad (VHP). The VHP leaders had then paraded the bodies by road, and were met with large mobs when they finally handed the family over to the families of the deceased. Mr. Sibal argued that the road parades had incited the reprisal killing of muslims in gujarat. He submitted that the bodies were handed over to private parties by the police against the rule of law. Yet, the SIT did not investigate why this was done. The SIT’s report states that a departmental inquiry would be conducted to find out who was responsible for this, but Mr. Sibal submitted that nothing had come out of the inquiry even a decade later. 

Third, Mr. Sibal argued that the SIT had ignored the presence of Mr. IK Jadeja (Minister of Urban Development, Gujarat) and Mr. Ashok Bhatt (Minister of Health, Gujarat) in the police control room during the violence. He stated that both their ministerial portfolios did not require them to be present in the control room. He suggested that they were positioned there to interfere with the police response to the pogrom. Mr. Jadeja told the SIT that he was in the control room only briefly, and that he did not interfere with the police’s actions in any way. The SIT accepted this without further investigation. Mr. Sibal argued that no investigating body will accept the explanation of an accused person without conducting further investigation. 

Finally, Mr. Sibal submitted that the fire brigade had not responded to forty-seven distress messages from the police control room. There is no explanation for the lack of response in the SIT’s closure report. 

Petitioner has no case If Mr. Sibal Refuses to Invoke Mr Modi’s name, Says Mukul Rohatgi

Mr. Sibal did not read out those parts of the protest petition that referenced allegations made against the then Gujarat CM, Mr. Narendra Modi. Senior Advocate Mukul Rohatgi, appearing for the SIT, stated that every paragraph in the protest petition contained references to Mr. Modi, and his alleged statements that the police should turn a blind eye while Hindus ‘vent their anger’. Rohtagi argued that Sibal had no case if he chose not to read out the allegations against the erstwhile Chief Minister. He further added that the SIT had conducted thorough investigations before filing its closure report. 

Khanwilkar J implored Mr. Sibal to address Mr. Rohatgi’s arguments. Mr. Sibal stated that he was not interested in the roles played by specific individuals, but in the inaction of the entire state machinery. Khanwilkar J stated that criminality can be committed by individuals, not by the State. Even so, Mr. Sibal refused to name Mr. Modi, and insisted that Mrs. Jafri’s petition was not political in nature. He refused to enter ‘muddy waters’ by blaming the pogrom on the Chief Minister and his alleged comments.