Zakia Jafri: Judgment Summary

On June 24th 2022, Justices A.M. Khanwilkar, Dinesh Maheshwari and C.T. Ravikumar dismissed Mrs. Zakia Jafri’s complaint of incomplete and biased investigations into her allegation of a larger conspiracy in the 2002 Gujarat Riots. Curiously, the Judgment does not mention which of the three Judges authored it. 

Mrs. Jafri lost her husband, Congress leader Ehsaan Jafri, to the riots during an attack on their residence in Gulberg Society. Mrs. Jafri claims that the riots were not a spontaneous reaction to the Godhara deaths. According to her, people in the highest echelons of power, including then Gujarat CM Narendra Modi and current Home Minister Amit Shah, conspired to cause communal violence. 

Ever since her husband’s death in 2002, Mrs. Jafri has filed repeated police complaints and petitions in various Courts demanding a thorough investigation into her conspiracy complaint. Between October and December 2021, the 3-Judge Supreme Court Bench heard what will likely be her last attempt.

Senior Advocate  Kapil Sibal, representing Mrs. Jafri and her co-petitioner Teesta Setalvad (human rights activist), argued that the Court appointed Special Investigation Team (SIT) and the Magistrate reviewing the SIT’s report ignored crucial evidence of conspiracy while giving a clean chit to those accused by Jafri. Mr. Sibal laid out the allegedly ignored evidence over 14 days of hearings. 

Senior Advocate Mukul Rohatgi and Solicitor General Tushar Mehta, appearing for the SIT and the Gujarat government respectively, argued that the SIT had conducted a thorough investigation before giving the clean chit. Both stressed that Mrs. Jafri’s cause was overridden by  Setalvad, a busybody with the intention to malign the Gujarat state administration. 

The Judgment agreed with Mr. Rohatgi and Mr. Mehta—the SIT had investigated all that it was supposed to, there was no proof of conspiracy, and Setalvad wanted to ‘keep the pot boiling’ and ought to be put on the stand for this. Despite Mrs. Setalvad’s questionable motives and a previous High Court order stating she has no locus, the 3-Judge Bench stated it would decide the case on merits for Mrs. Jafri’s sake. 

SIT and Magistrate Had Limited Scope to Investigate and Review

Mrs. Jafri’s complained that the SIT formed by the SC had ignored crucial evidence of conspiracy while preparing its report. She further stated that the Magistrate who the SC directed to consider her complaint did not independently apply his mind to the facts of the case. He passively accepted the SIT’s findings. 

The Judgment held that the SIT was given the limited scope to investigate only those crimes that were not already under investigation by other authorities. Mrs. Jafri’s complaint of conspiracy at the highest levels resulting in mass violence was within the SIT’s scope. The evidence she suggested was ignored, however, fell outside this limited scope. 

Mrs. Jafri had further complained  that the Magistrate did not follow the procedure for criminal trials set out in Code of Criminal Procedure, 1974 (CrPC). 

The SC held that Mrs. Jafri’s case was not presented to the Magistrate as an independent FIR. Hence, he was not required to follow CrPC requirements. The Magistrate adequately dealt with the SIT report and all aspects of Mrs. Jafri’s complaint, according to the SC. 

Breakdown of Law and Order Is Different From Conspiracy or Constitutional Crisis

The Judgment highlighted that a failure of state administration, as may be expected in riot situations, is not the same as a State sponsored violence and a conspiracy to cause riots. The SIT was only supposed to look into complaints of conspiracy, not of state failure. To prove conspiracy, Mrs. Jafri would have to show long-term and planned breakdown of law and order. Isolated instances would not be enough. 

Mrs. Jafri’s evidence of conspiracy to delay relief and protection relied on statements of Gujarat  police and civil services officers Haren Pandya, R.B. Sreekumar and Sanjeev Bhatt. The Court found all three statements unreliable. Besides, the Court stated that the SIT found other evidence of prompt action by State officials to stop the riots, including the quick arrival of Army reinforcements when the police forces proved insufficient to control the situation. 

Mrs. Jafri further relied on the Tehelka sting operation tapes. The tapes allegedly containing evidence of government inaction and involvement of bureaucrats, state officials, VHP, RSS and Bajrang Dal leaders and public prosecutors in a larger conspiracy. The Court called the tapes a ‘red herring’, re-stating that administrative failure is distinct from conspiracy. In the absence of other corroborative material, the Court held that the Tehelka Tapes were not enough to prove conspiracy. 

Mrs. Jafri’s lawyers attempted to provide the Court with a range of corroborative evidence to support the Tehelka Tapes during the hearings. The Judgment found all this material insufficient, unreliable or irrelevant. Mrs. Jafri argued that police tower details from the days of the violence show communication and a nexus between the BJP and Gujarat police to delay police action. The Court found the details uncorroborated, as the police had not retained copies of police tower CDs containing details of phone calls to and from the police station during the SIT investigations. Mrs. Jafri argued that protesting police officers were transferred despite the Director General of Police’s advice otherwise, showing conspiracy. The Court held that this was merely an administrative decision. Mrs. Jafri argued that compliant officers were rewarded after the riots with powerful positions in the government. The Court called this claim far-fetched. 

The Court appreciated the SIT’s ‘indefatigable work’, saying they ‘came out with flying colours’ despite difficult circumstances of their investigation. The Judgment likely marks the end of the road for Mrs. Jafri’s meandering conspiracy complaint.