These matters should not be forgiven or forgotten: NHRC report revisited during Zakia Jafri SLP hearing SIT turned a blind eye to reports of Constitutional, statutory bodies

17, Nov 2021 | Sanchita Kadam

The hearing on November 16 in the Zakia Jafri Special Leave Petition (SLP), largely dealt with how contemporaneous evidence at the disposal of the Special Investigation Team (SIT) was also ignored and overlooked leading to miscarriage of justice. Citizens for Justice and Peace (CJP), through its secretary Teesta Setalvad, is the second petitioner in the Zakia Jafri case, and has been assisting the complainant and victim since 2006 in the filing of the complaint and furtherance of the investigation.

While the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar expressed its reservations on casting doubts on the motive of the SIT, Senior Counsel Kapil Sibal insisted that he will demonstrate in due time, why he was casting such aspersions. In due course of the hearing, Sibal submitted how reports of a statutory body, a constitutional body and a Parliamentary Committee were not even considered by the SIT, and said that it was for the court to question why the SIT did so.

The hearing will continue on November 17.

CJP was born right after the Gujarat 2002 carnage to serve as a tool to aid in the quest for justice for victims and survivors. Our aim is to take all the cases to their logical conclusion in the courts so that there can be closure and healing. CJP has played a key role in putting together the incredibly challenging investigative ground work in the Zakia Jafri case. CJP through its Secretary Teesta Setalvad is also the second petitioner in the case after Zakia Jafri.

Can the SIT’s motives be questioned?

Sibal told the court that he would demonstrate how there was contemporaneous evidence since 2002 which were available for the Supreme Court appointed SIT. When Sibal began his argument that after the Godhra incident, investigators became collaborators in the crime, the court questioned whether this was directed towards the SIT.

Justice Khanwilkar asked, “The collaborator with the police at ground level we understand and would look into in. How can you say that about SIT appointed by the Court? Is that your argument?” He added, “You are attacking the manner of investigation done by SIT? It is the same SIT that had filed chargesheet in other cases and they were convicted. No such grievance in those proceedings.”

When the bench said that collaboration was a strong term for an SIT constituted by the court, Sibal insisted that the SIT overlooked certain matters and evidence on purpose. “SIT had knowledge of Tehelka tapes. They knew about the judgment of Gujarat High Court that authenticated the tapes. That is a question that anyone would ask. Why was the defence accepted by the SIT? What does it show – was SIT collaborating and saving some people. Why?  Yours Lordships will have to ask that question,” Sibal submitted.

The bench insisted, “We can understand you saying that the SIT did not deal with the issues but you cannot ascertain motive. Maybe they overlooked or there was an error in judgement.” The bench continued in a lighter vein, “Maybe you have missed it in the record of the cases.”

The NHRC proceedings

Sibal then proceeded to point out how early the suo moto cognisance was taken by the National Human Rights Commission (NHRC) in this matter. The orders begin as early as March 1, 2002, and he pointed to the proceedings of March 6, 2002 where the NHRC has noted that “a large number of media reports have appeared which are distressing and appear to suggest that the needful has not yet been done completely by the administration.” The Commission had also noted its dismay that a detailed reply from the Gujarat government was not yet forthcoming and instead more time was sought, however, the Commission expected at least a preliminary report indicating action taken so far and an assurance of rule of law.

In the proceedings on April 1, 2002 the Commission stated that the chairperson along with some others visited Gujarat between March 19 to March 22, 2002 as normalcy had still not been restored in the state and during this visit they met with numerous victims in groups and a report on the same was provided to the central and state government in separate covers.

Sibal asked why the SIT did not question any members of the Commission who visited Gujarat at that time and seek the report that was given in sealed covers to the government.

In its preliminary comments, the NHRC had, inter alia, observed thus, “The commission is constrained to observe that a serious failure of intelligence and action by the State government maked the events leading to the Godhra tragedy and the subsequent deaths and destruction that occurred. On the face of it, in the light of the history of communal violence in Gujarat, recalled in the report of the state government itself, the question must arise whether the principle of ‘res ipsa loquitur (the affair speaking for itself) should not apply in this case in assessing the degree of state responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat”.

The Commission also pointed out that the violence was certainly not contained within 72 hours and that “there was a pervasive sense of insecurity prevailing in the state” when the team visited in March, 2002, and pointed how one sitting and one retired judge of the High Court were compelled to leave their own homes due to the vitiated atmosphere.

The recommendations given by the NHRC included taking action against public servants who failed to act appropriately to control the violence, provocative statements made by persons to the media to be examined and acted upon and so on.

Even thereafter the proceedings continued and on May 1, 2002 the Commission notes that the Gujarat government did not respond to the NHRC’s confidential report which was based on the team’s visits to the state in March 2002. On the proceedings of May 31, 2002 as well the Gujarat government had not responded to this report, despite several reminders and thus decided to release the confidential report.

Sibal pointed out that the SIT did not even have to wait for their Protest Petition when it already had such evidences at its disposal and the Protest petition merely brought all evidences together which were already available for the SIT.

The NHRC also pointed to the failure of intelligence in the state as it failed to keep in touch with its counterparts in UP on the movements of kar sevaks back to Ahmedabad after the Maha Yagna. It further pointed out the failure of the state government to identify local factors and players in participating in the violence, the pattern of arrests and also distorted FIRs. The NHRC noted that there were several allegations that FIRs were poorly recorded. Sibal had pointed this out in the previous hearing that FIRs during riots are usually recorded by the police and when the victim comes ahead to report the incident and name the accused, the same is not done. Sibal requested the bench to issue directions in this regard in its final decision, that in such cases, FIRs already registered should be able to register additional information that may be provided by witnesses or victims of the crime.

Until April 24, 2002 when Mr. PGJ Nampoothri, ex-DGP of Gujarat submitted his report, the victims were experiencing difficulty in having FIRs recorded, in naming those whom they had identified and in securing copies of the FIRs.

“This shows collaboration of the machineries of the State,” Sibal remarked.

“These are grave matters indeed that must not be allowed to be forgiven or forgotten,” NHRC had said. The Commission had also warned that the “danger persists of a large scale and unconscionable miscarriage of justice of the effort to investigate and prosecute the crimes” is not directed with skill and determination as well as integrity and freedom.

The Commission had also called for identification of officers who had failed to discharge their statutory responsibilities. The government had said it will await report of the inquiry commission instituted by the state, however the Commission was not convinced with this response. The Commission had also pointed out the various sections of the Indian Penal Code and Code of Criminal procedure that would apply in these cases to punish delinquent public servants.

The Commission also pointed out that “Guidelines to promote communal harmony” issued by the Ministry of Home Affairs in 1997 states that “at first sign of trouble, immediate steps have to be taken to isolate elements having a non-secular outlook.”

Judges of High Court were in danger

The NHRC had pointed out how retired judge, Justice Divecha were forced to leave their home due to the disturbances and no real protection was given to him. He told the Commission that on February 28, 2002 a mob destroyed the property in their building and left. They were compelled to leave their home and by evening they received news that the building was set on fire.

NHRC recommendations ignored

The NHRC’s recommendations with respect to involving CBI in the investigation was ignored by the state government stating that it is not required at this stage. It also ignored the recommendation of establishing Special courts for critical cases to be heard on a daily basis.

The report of the NHRC team’s visit

The report of the team’s first visit which was between March 19 to March 22, 2002 led by the then Chairperson Justice JS Verma states that the police should have been better prepared for the Bandh called by the VHP which was supported by the state BJP. “The police by and large chose to act as silent spectators allowing the crowds to swell in size and become uncontrollable,” the report reads.

“The failure of police and administration in the current riots is attributed not to their professional incompetence but to their attitude of apathy and callousness in general and the accusation of connivance and complicity which was made in some cases,” the report adds. It was also alleged that crowds involved in destruction of slums near Ambika Mill had the support of the administration. It was also alleged that mobs were equipped with gas cylinders, kerosene, petrol bombs for burning people and torching houses and they also had full details of Muslim houses and establishments which were then targeted.

Sibal pointed out that the recommendations of NHRC are a statutory exercise under section 12 of the Protection of Human Rights Act (PHRA) and such a statutory report of a statutory report should have been acted upon by the government or the Police of the state and eventually also considered by the SIT, which was not done.

Statutory value of NHRC report

Sibal referred to a Madras High Court judgement (W.P.No.41791 of 2006; decided on February 5, 2021) to establish the importance of NHRC and its recommendations. The High Court stated thus,

“450. Likewise, the Commission which has been assigned a constitutional role with statutory backing, its recommendations are not liable to be slighted or ignored. If the recommendations are open to be ignored or the concerned Government in its discretion, can refuse to accept the recommendation and provide reasons for non-acceptance of the recommendation, the remedial action contemplated in the Act would be a empty promise and a mirage, betraying its core purpose. It is needless to mention that any act done by the agents/officials of the Government in violation of the human rights, is purported to be at the behest of the Government. In that view, the Government either directly or vicariously liable for the transgressions of its officials/agents. The violation of human rights is too serious sacrosanct a matter to be left to the Government’s discretion towards redressal of the grievances of the victims”.

Election Commission’s observations

Amidst demands of holding elections in Gujarat since the Assembly was dissolved in July 2002, the EC had visited the State to assess the situation. The EC was informed by then ADGP RB Sreekumar that 151 towns, 993 villages covering 154 out of 182 Assembly constituencies were affected by the riots. “This evidently falsified the claims of the other authorities that the riots were localized only in certain pockets of the state,” the EC noted.

The EC also noted that it had complaints of culprits of violence still moving around scot-free including some prominent political persons and those out on bail. In Dakor, the EC team was told that the culprits had been identified before the police but no arrests had taken place and the main culprits continued to threaten the villagers to withdraw their FIRs. Similar instances were reported from 12 other districts and in Ahmedabad itself Muslim families stated that they could not return to their homes because the culprits had blocked accesses to their homes.

The EC also noted that while the Chief Secretary and DGP painted a picture of normalcy, ADGP (Intelligence) Sreekumar, whose views were supported by new Commissioner of Police, Ahmedabad, KR Kaushik, stated that an undercurrent of tension and fear was prevailing beneath the apparent normalcy.

Parliamentary Body’s report

The Committee on empowerment of Women (2002-2003) submitted its report on “Violence against women during riots” to the Rajya Sabha on August 12, 2002. The committee made visits to the relief camps in July 2002. The committee noted that 185 cases of attacks on women were registered out of which 100 were from Ahmedabad city alone.

The Committee also received complaints that police did not register several FIRs in cases of crimes against women. The Committee also handed over a list of 58 women who complained of being sexually assaulted during the riots in the Shah Alam camp alone, to the police.

The Committee also noted with regret that no efforts were made to confiscate the hate literature that was widely circulated in the state. The Committee also noted that recommendations of Commissions like National Commission for Women including establishment of special courts and impartial inquiry by an impartial agency into violence against women were not implemented by the state.

The hearing will continue on November 17.


Tehelka sting tapes containing crucial evidence ignored by SIT: Zakia Jafri to SC

Unbiased investigation is umbilical cord connecting CrPC to Article 21: Kapil Sibal in Zakia Jafri SLP 

No court with a conscience would ignore such evidence: Kapil Sibal argues in Zakia Jafri SLP

SIT Investigation flawed, evidence of serious lapses by state functionaries ignored: Zakia Jafri & CJP argue in SC


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