28, Oct 2017 | CJP Team

Zakia Jafri lost her husband, Congress MP Ehsan Jafri, in the Gulberg Society carnage that took place during the post-Godhra genocide in Gujarat in 2002. Zakia and Ehsan were sheltering their neighbours from a violent mob during the attack. Ehsan stepped out to plead with the mob for mercy for the people he was sheltering. He willingly sacrificed his own life in the process as the blood thirsty mob tortured and lynched Ehsan Jafri to death. Zakia Jafri, his widow, is no doubt a survivor of this individual incident of pre-meditated violence. In addition, she is the prime mover of the famed Zakia Jafri case that seeks to pin criminal and administrative liability — as also trace command responsibility — for the approximately 300 incidents over 19 districts that made up the shocking genocidal carnage in Gujarat in 2002.

In the first of a four part exclusive interview to Teesta Setalvad, Senior Advocate Mihir Desai, who is an integral part of the legal team seeking to forge this path breaking jurisprudence, speaks to us in detail about the litigation in what has come to be known as the Zakia Jafri case. The case began with a 119-page criminal complaint to the Gujarat police on June 8, 2002. This complaint was backed with 2,000 pages of solid evidence that included affidavits of senior police officers filed before the Nanavati Commission.

“Many different cases were filed in the aftermath of the riots. But many people including Zakia herself felt that these were not individual spontaneous incidents, but planned incidents which were allowed to happen. Which were encourage and that there was a conspiracy which played out,” says Adv Desai, explaining the genesis of Zakia Jafri’s petition. Most people were unhappy with the lack of progress in the various investigations related to different cases of violence. Zakia Jafri then made a detailed complaint before the police in 2006 stating that there was a larger conspiracy potentially involving the complicity of the then Chief Minister of Gujarat, Narendra Modi  along with various other politicians, bureaucrats, the police and certain right wing organizations.

The complaint did not receive any response prompting Zakia Jafri to file a petition in the high court demanding that her complaint be treated as a First Information Report (FIR). But the High Court rejected the petition directing Zakia to file a private complaint. “But private complaint is an impossibility in these kind of situations as it requires sanctions to prosecute ministers and bureaucrats,” explains Desai. This prompted Zakia to move Supreme Court (SC). However, during this time the Special Investigation Team (SIT) had already started monitoring other cases related to the post-Godhra genocide. “The Supreme Court asked the same SIT to look into Zakia’s grievances and subsequently also asked the police to further investigate,” he says.

The Supreme Court appointed a separate Amicus Curae Raju Ramchandran. “He was allowed to meet the survivors and ascertain if the investigation that was being carried out by the SIT was going in the proper direction,” says Desai. “The law is that once the investigation is over the High Court or the Supreme Court stops looking into the matter and sends it to the magistrate or a Sessions Court wherever the trial is going on. Accordingly the Supreme Court asked the SIT to file its report before the magistrate and the magistrate to decide whether the report should be accepted or not accepted,” explains Adv Desai. “The SC also directed that if any of the accused were to be let off, then the hearing should be given to Zakia Jafri before they are let off,” he says.

Zakia Jafri’s complaint had over 2000 pages of annexures that include the affidavits submitted by the police before the Nanavati Commission, which was a government established commission set up to go into the causes of the riots. A senior intelligence officer Sree Kumar deposed before the commission and filed affidavits. He also made presentations to the Election Commission. “All of this clearly indicated that there was a large conspiracy. When one of the senior most police officers files affidavits and his notings in a diary to show that this was not just a spontaneous outpouring. The Chief Minister was seized to the matter and he was directing the whole show,” says Desai.