Zakia Jafri Verdict Slams Those Who 'Kept Pot Boiling' – What About SC's Orders?

Supreme Court had in previous orders commented on failures of the Gujarat administration, moved cases out of state.

Was the Supreme Court expected to overturn a magistrate's decision to accept the SIT report on the 2002 Gujarat Riots (which gave a clean chit to Prime Minister Narendra Modi)? Probably not.

Was it expected to include a random one-paragraph tirade in its judgment about the "audacity" of those who questioned the SIT's findings, and provide an excuse for the arrest of activist Teesta Setalvad and former ADGP RB Sreekumar? Definitely not.

Paragraph 88 of the Zakia Jafri judgment is going to have far-reaching consequences not just in the discourse around the 2002 Gujarat Riots, but potentially any future cases where attempts are made to hold an administration or its officials to account for alleged failures to act.

What is interesting, however, is that while the apex court has complained in the judgment about the way in which the case had stretched on for 16 years, it was the apex court which played a key role in the cases regarding the Gujarat Riots from the start.

After all, it was the Supreme Court which appointed the SIT to look into cases arising out from the Gujarat Riots in 2008. It was the Supreme Court which included Jafri's case within the purview of the SIT's investigation in 2009.

And it was the Supreme Court, which in August 2004 had said “The modern-day Neros were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be protected.”

Here are several comments by the Supreme Court over the years in cases connected with the Gujarat Riots, that show its own displeasure with the way in which the Gujarat Riots were handled, and the investigations conducted, which make its decision to tar the names of those who questioned the administration a rather bizarre one.

April 2004 – 'Justice Delivery System Taken For a Ride'

This was the judgment where the "modern-day Neros" comment came from. The court ordered a retrial in Vadodara Best Bakery case after the accused were acquitted en masse. The court strongly criticised the investigation, as well as the way in which the prosecution had been conducted, saying:

“Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’.”

“One gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the court. The court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the state government also leaves much to be desired.”

April 2004 – Expunging of Remarks Against Teesta Setalvad

In stark contrast to its judgment on 24 June, the Supreme Court in 2004 took a stern view of the way in which the Gujarat High Court had made comments about activist Teesta Setalvad.

While rejecting requests to reconsider the acquittals of the accused in the Best Bakery case (which had been filed with Setalvad's assistance), the high court had, without giving the activist a chance to respond, made several "caustic" observations about her and other activists.

"It is not in dispute and the records also reveal that the appellants were not parties in the case before the high court. It is beyond comprehension as to how the learned Judges in the gigh court could afford to overlook such a basic and vitally essential tenet of 'Rule of law', that no one should be condemned unheard and risk themselves to be criticised for injudicious approach and/or render their decisions vulnerable for challenge on account of violating judicial norms and ethics. The observations quoted above do not prima facie appear to have any relevance to the subject matter of dispute before the high court. Time and again this court has deprecated the practice of making observations in judgments, unless the persons in respect of whom comments and criticisms were being made were parties to the proceedings, and further were granted an opportunity of having their say in the matter, unmindful of the serious repercussions they may entail on such persons. Apart from that, when there is no relevance to the subject matter of adjudication, it is certainly not desirable for the courts to make any comments or observations reflecting on the bonafides or credibility of any person or their actions. Judicial decorum requires dispassionate approach and the importance of issues involved for consideration is no justification to throw to winds basic judicial norms on mere personal perceptions as saviours of the situation."

"Courts are not expected to play to the gallery or for any applause from anyone or even need to take cudgels as well against any one, either to please their own or any one's phantasies. Uncalled for observations on the professional competence or conduct of a counsel, and any person or authority or harsh or disparaging remarks are not to be made, unless absolutely required or warranted for deciding the case."

It is fascinating that the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar should also fail to allow Setalvad and the others to respond in the hearings to the allegations against them, a similar failing of the 'Rule of Law' pointed to by Justices Doraiswamy Raju and Arijit Pasayat back in 2004.

Zahira Sheikh, whose accusations against Setalvad had been key to the comments against the activist, was convicted of perjury by the Supreme Court, and sentenced to a year in jail in 2013.

March 2008 – Formation of SIT

While the court in August 2004 and then March 2008 declined to make observations to the effect that the investigating machinery in the state had failed, the court nonetheless appointed a Special Investigation Team (SIT) on 26 March 2008 to look into several cases arising out of the riots.

This was in addition to orders for moving several riots cases out of Gujarat because of concerns they weren't being dealt with fairly. In the March 2008 order, the court said:

"After having heard learned counsel for the parties, we feel that considering the sensitive nature of the cases involved, appointment of a Special Investigation Team (in short ’SIT’) is warranted. Communal harmony is the hallmark of a democracy. No religion teaches hatred. If in the name of religion, people are killed, that is essentially a slur and blot on the society governed by rule of law. The Constitution of India, in its preamble refers to secularism. Religious fanatics really do not belong to any religion. They are no better than terrorists who kill innocent people for no rhyme or reason in a society which as noted above is governed by rule of law. These are cases where there is an element of communal disharmony, which is not to be countenanced. The state of Gujarat has stated that it has no objection if further investigation is done so that peoples’ faith on the transparency of action taken by the state is fortified. Mr Mukul Rohtagi, learned senior counsel appearing for the state stated that the state’s approach is fair and it is not interested in shielding any culprit or a guilty person, but on the other hand, would like all those who are guilty, to be punished. This statement of Mr Rohtagi is not accepted by some of the learned counsel appearing for the alleged victims. We need not go into that aspect, in view of the fact that there is an agreement that there is need for a Special Investigation Team."

2011 – Allowing Amicus Curiae to Examine SIT Report & His Recommendations

On 15 March 2011, the Supreme Court received the report of the SIT. On 5 May 2011, it provided a copy of the report to senior advocate Raju Ramachandran, who had been appointed as amicus curiae by the court.

This is raised in the judgment on 24 June 2022 to point out that the SIT's functioning had been reviewed by the amicus as an independent expert and approved.

Ramachandran was allowed to speak to the witnesses while examining the report and even spoke to Setalvad. While the amicus curiae did not raise objections to the SIT's investigation in general, he did not recommend action against Setalvad or Sreekumar.

Indeed, Ramachandran specifically said that while Sreekumar's allegations about verbal instructions from the then chief minister, Narendra Modi, couldn't be proved, they couldn't be said to be motivated:

"It may not be possible to prove the so called illegal instructions in absence of any other material, except the statement6s of Shri RB Sreekumar himself. Hence, though the finding of the SIT be accepted, it may not be appropriate to say that the register is motivated."

While the amicus' recommendations, including the one that the CM might have committed offences under, inter alia, Section 153A of the IPC, were not adopted by the Supreme Court per se, it did not deprecate or reject them either.

This makes the decision to criticise those who have consistently argued that the Gujarat administration was lacking in its response to the riots, a very strange one indeed.