“Can the constitutional right to approach courts be treated in so cavalier and revengeful a fashion that the persons seeking justice are put behind bars?” the statements has asked. The most dangerous part of the judgment, it continues, is that “The Court has come out with a doctrine which enjoins the state to arrest and prosecute persons who dare to question the findings of investigating agencies, if the Court decides that these findings are beyond reproach.”

The signatories have urged the court to withdraw this order and the observations made in it, especially since the court itself has earlier noted the laxity of the government agencies while probing cases related to the 2002 communal violence in Gujarat.

Read the full statement below.

The recent three judge verdict in the Zakia Ahsan Jafri Vs. State of Gujarat (SLP Crl. No. 7899-90/2015), decided on 24.06.2022 has, to say the least, left citizens totally disturbed and dismayed. We, a group of former civil servants of the All India and Central Services who have come together as the Constitutional Conduct Group and are committed to the values enshrined in the Constitution, are deeply anguished by some of the contents of that judgement and the arrests that have followed in its wake.

It is not just the dismissal of the appeal that has surprised people – an appeal may, after all, be allowed or dismissed by an appellate court; it is the gratuitous comments that the bench has pronounced on the appellants and the counsel and the supporters of the appellants. In the most astonishing comment, the Supreme Court has lauded the officials of the Special Investigation Team who have defended the State and has excoriated the appellants who have challenged the findings of the SIT. The Supreme Court says in Paragraph 88:

“While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

“Need to be in the dock …”!! Has the Supreme Court now decided that appellants before it and their counsel should be proceeded against merely for being assiduous and persistent in their appeal? What about the NHRC reports and the report of amicus curiae, Raju Ramachandran, which had stated that investigation was required to probe the role of then chief minister Narendra Modi? These were weighty grounds to question the view taken by the SIT and therefore, they would confer sufficient heft to a petition that sought to challenge the SIT’s findings. Moreover, the Supreme Court’s own earlier observations clearly mention the laxity of the state government officials. On April 12, 2004, a bench of Justices Doraiswamy Raju and Arijit Pasayat while ordering a retrial in the Vadodara Best Bakery case, said:

“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”.

It went on to say:

“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.”

The implications of the Zakia Jafri judgement are extremely serious. It has overturned a core precept that, we believe, ought to guide an apex court established under a liberal democratic Constitution: to safeguard the basic right to life and liberty against questionable actions of the state. The Court has come out with a doctrine which enjoins the state to arrest and prosecute persons who dare to question the findings of investigating agencies, if the Court decides that these findings are beyond reproach.

Our distress mirrors the horror and anguish that the words used by the Supreme Court, and the events that have occurred in the aftermath of this judgement, have evoked amongst respected individuals and organisations wedded to upholding human rights and the democratic values that underlie our Constitution. The directions contained in the order of the Court have been characterised in words never known to have been used before in the case of judgements delivered by the Supreme Court. The immediate action of the state in arresting human rights lawyer Teesta Setalvad and former DGP, RB Sreekumar, as well as filing a fresh case against Sanjiv Bhatt, who is already in prison, clearly occurred because the Supreme Court told the State government authorities to put those who ‘kept the pot boiling’ ‘in the dock’, though these persons were neither the appellants nor the accused in the case.

Constitutional lawyer and legal scholar Gautam Bhatia tweeted: “Indian SC’s contribution to global jurisprudence is to decide an individual vs State case by telling the State to arrest the individual. A remarkable constitutional innovation.”  Amnesty International India observed that “Detention of prominent human rights activist @TeestaSetalvad by the Indian authorities is a direct reprisal against those who dare to question their human rights record. It sends a chilling message to the civil society and further shrinks the space for dissent in the country”. A group of 300 lawyers and activists have, in a letter to the Chief Justice of India, said “This sequence of events has sent a chilling message for the practice of law in the courts and for the rule of law in the country. It appears that a petitioner or a witness, who diligently pursues a cause in the courts, runs a risk of being put in the dock if the court deems the cause as devoid of merits.” We also endorse the statement made in support of Teesta Setalvad, R.B. Sreekumar and other human rights defenders by concerned citizens of the world in the alliance named Solidarity for the Prisoners of Conscience in India.

Here are some fundamental questions: Can the constitutional right to approach courts be treated in so cavalier and revengeful a fashion that the persons seeking justice are put behind bars? Shall we henceforth presume that natural justice can be given the go-by as a cardinal principle of our jurisprudence and people condemned without being heard?

We would urge the Supreme Court Justices to suo motu review their order and withdraw the observations contained in Para 88. We would also request them to adopt the course of action advocated by a distinguished former member of their fraternity, Justice Madan Lokur. He has said that the court would do well to issue a clarification to the effect that it was not their intention that Teesta Setalvad should face arrest and at the same time order her unconditional release. Every day of silence lowers the prestige of the Court and raises questions about its determination to uphold a core precept of the Constitution: safeguarding the basic right to life and liberty against questionable actions of the state.

SATYAMEVA JAYATE

Constitutional Conduct Group (92 signatories, as below)

The original piece may be read here