Zakia Jafri and CJP: Still seeking justice for Gujarat 2002 victims and survivors A nuanced and sustained quest for justice has continued over a decade
15, Jan 2022 | CJP Team
The Zakia Jafri case, which deals with the accountability of the administration and law order machinery for their failure to prevent the outbreak of targeted violence, contain its spread and prosecute the perpetrators – all relating to the Gujarat 2002 genocidal pogrom – has been one of CJP’s most substantive legal interventions. While Zakia Jafri, widow of slain Congress Member of Parliament (MP) Ahsan Jafri, is the main petitioner in the case, CJP, through its secretary Teesta Setalvad is the second petitioner in the case.
2021 saw culmination in the arguments of our appeal against the 2017 Order of the Gujarat High Court upholding the Magistrate’s rejection of Zakia Jafri’s Protest Petition. We had moved a Special Leave Petition (SLP) before the Supreme Court seeking a clarification about a Magistrate court’s order in 2018. The lower court had, through a detailed order dated December 26, 2013, not only accepted the Closure Report of the Special Investigation Team (SIT) without ordering further inquiry but had remarked on the merits of the evidence despite the glaring lacunae in the SIT’s investigation and the fact that acceptance or denial of evidence is a matter of trial/prosecution.
CJP’s contention has always been that a proper probe was never conducted, that the Protest Petition had in any case galvanised enough material from the SIT’s own investigation record to be put to trial and that the Magistrate could have both taken cognizance of existing material and ordered further investigation into those issues that required a further probe. Detailed arguments made over several days starting October 26,2021, presented several examples of investigative lapses before the Supreme Court.
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.
On October 26, 2021, the Supreme Court began hearing this SLP.Senior counsel Kapil Sibal, appeared for the petitioners and methodically revealed each mis-step by the SIT with respect to different aspects of the case, based on the original complaint of Zakia Jafri (dated June 8, 2006) and the Protest Petition filed by the petitioners.
Here’s a summary of the elements of the investigation that required to be taken cognisance of, given how they constitute official documentary evidence:
Intelligence reports ignored
Petitioners pointed out that the State Intelligence Bureau (SIB) had fore-warned the state government’s home department of the build-up of communal tension. For example, SIB messages from the SIT Investigation records, document mobs gathering, given reports of swords and trishul (traditional tridents) were carried to Faizabad-Ayodhya and all generating a lot of communal tension.
There were even intelligence messages that immediately after the Godhra incident, provocative speeches were made by various right-wing and even religious leaders, that were not acted upon by authorities. Vishwa Hindu Parishad (VHP), Bajrang Dal and Shiv Sena leaders had held meetings; karsevkas were making speeches and vehicles were burnt and many such messages shared by intelligence agencies that were completely ignored during investigations. A SIB message from the early afternoon of February 27, 2002, states that Kar Sevaks were shouting Jai Sriram, Bharat Mata Ki Jai and Khoon Ka BandlaKhoon as they arrived by the same Sabarmati Express to the Kalupur Railway Station, Ahmedabad. Clearly there was enough time for imposing curfew in Ahmedabad but no such action was taken on February 27, 2002.
Almost every message sent by SIB ends with a warning, “maintain law and order” or “keep police bandobast”. Another message in the evening of February 27 from Gandhinagar Police states, “Preventive action to be taken so no communal reflection takes place and also take preventive action so no serious incident occurs”. There were also messages like, “Keep watch on communal-minded peoples and take action if any doubt”, “Keep patrolling and take action against antisocial elements”, “To take preventive action in your areas against a reaction to kar sevaks being injured at Godhra who are from Ahmedabad city, Mehsana, Vadodara, Sojitra, Anand.”
The SIT failed to investigatewhy suitable action as per law was not taken by the police to prevent further exacerbation of these violent incidents. Were police officials specifically asked not to take action; if so then by whom? Or if they voluntarily decided not to take action, why were they not asked to explain that decision? Many basic questions that any investigation agency would ask, were left unasked!
Bodies of Godhra train-burning victims handed over to right-wing group leader
Senior counsel Kapil Sibal pointed out, “A private person was handed over the bodies of persons who were killed and burnt in the train incident. He was Jaydeep Patel, a VHP functionary. Patel had said that it was unanimously agreed that the bodies should be handed over to him. Somebody needs to be prosecuted for this.”
Rashtriya Swayamsevak Sangh (RSS) workers in thousands had gathered around the Sola Civil Hospital in Ahmedabad after Jaydeep Patel, a VHP leader arrived there with dead bodies from Godhra. Sibal referred to this saying, “By the time the bodies reached Ahmedabad in a truck, 3,000 people had already gathered there. Section 144 curfew of the CrPC was still not in place. This calls for serious investigation.”
Petitioners pointed out key questions the entire episode raises, “How were these bodies handed over to Jaydeep Patel? Under police escort the bodies were taken in trucks, why was this allowed? Contrary to law and procedure, how were dead bodies handed over to a private person like Patel in Godhra? How did people come to know that bodies were arriving in Ahmedabad?”These were aspects that required further investigation which the Magistrate erred in not directing.
Complicity of police
Zakia Jafri’s Protest Petition that was filed before the Magistrate as well as Gujarat High Court. It states that no action was recommended against former Commissioner of Police, P. C. Pande who had first withheld evidence, and then only produced it in 2011… both acts which are serious criminal offences under the IPC. The Wireless Message Book of PCR Ahmedabad of February 27, 2002 onwards got made available to the Investigating Agency only after March 15, 2011. Pandey suddenly produced 3,500 pages of scanned messages which were withheld earlier.
The records were destroyed by the government merely 5 days after the SIT was appointed claiming that it was routine procedure. Yet, these records happened to be in possession of Pande in 2011! The question remains if all records were destroyed as part of routine procedure, why and how did these records get left out? And if Pande was in possession of the same, why had he withheld them before? Read more here.
Confessions made during Tehelka’s sting operation
Tehelka journalists had caught on tape several perpetrators detailing the role they played in the planning and execution of the targeted violence against the minority community. While these tapes were relied upon during trials in individual cases such as the Naroda Patiya trial, the SIT completely ignored these confessions and instead took on face value the “explanation” offered by the accused who claimed that they were merely reading from a script!
Even Ashish Khetan, the reporter who carried out the sting operation, gave his statement to the SIT in August 2009, where he stated that he met with Haresh Bhatt, then MLA of Godhra who told him that he had a cracker factory in Ahmedabad where he manufactured bombs and other weapons and distributed to VHP members. Khetan stated that he also met with Arvind Pandya, then Special Prosecutor for the Gujarat Government who stated that he had threatened RB Sreekumar, who was then Additional Director General of Police, to not speak against the government.
Khetan further also met with Babu Bajrangi, Bajrang Dal activist, who stated that if the police wanted, they could have stopped them (mob) from entering the Naroda Patiya locality, since it had only one entrance and there were 50 police personnel present, but they didn’t. He also claimed that when he called Gordhan Zadaphia, then Minister of State for Home in Gujarat, Zadaphia advised him to leave Gujarat and go into hiding.
In the transcript of Anil Patel, VibhagPramukh of VHP, he made some explosive confessions about killing Muslims in various areas, demolition of mosques, supply of bombs to Ahmedabad as well as complicity of ND Solanki, who was a Deputy Superintendent of Police (DySP) at the time.
Sibal pointed out that even if the SIT considered these to be ‘extra judicial confessions’, the same have been validated by the Supreme Court in Gura Singh vs The State Of Rajasthan (2001 2 SCC 205).
Apart from this, even the National Human Rights Commission (NHRC) had directed the CBI to authenticate the Tehelka Tapes in March 2008, which was eventually done.
Despite a Sessions Court and the High Court rejecting claims of the accused of “enacting a script”, the SIT accepted these flimsy claims and refused to further investigate upon the confessions of murder, supply of bombs, complicity of state actors which could have led them to establish a conspiracy.
The petitioners had urged the SIT in 2010 to investigate the Tehelka Tapes which were provided to the SIT in form of transcripts. Read more here.
NHRC’s proceedings ignored
The National Human Rights Commission (NHRC) has taken suo motu cognisance in this matter. Referring to order that began as early as March 1, 2002, Senior Counsel Kapil Sibal 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 had not been received at that point of time, 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.
Petitioners 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. Read more here.
State fails to defend itself, deflects by targeting co-petitioner
The eleventh day of the hearing in the Special Leave Petition (SLP) by Zakia Jafri and Citizens for Justice and Peace (CJP) was supposed to end with SIT’s submissions and a brief submission by the State of Gujarat. But Solicitor General, Tushar Mehta appearing for the State of Gujarat, merely regurgitated cases that were used as a form of intimidation via malicious prosecution, to hound and defame CJP Secretary Teesta Setalvad, who is the second petitioner in the wider Zakia Jafri case that pertains to the conspiracy behind the Gujarat genocide of 2002.
Perhaps the frustration stems from the fact that the Supreme Court has not made any remarks about her locus standi in the case. In the last hour of the hearing, SG Mehta came before the bench in what was expected to be an attempt to defend the State of Gujarat against the allegations made by the petitioners, on basis of law and facts. However, it only turned out to be a mud-slinging exercise, where Mehta conveniently skipped crucial details in many cases where Setalvad has been exonerated and even granted protection by the highest court of the land! Read more here.
The new year will bring the judgement of the Supreme Court of India in this crucial case that has high-lighted issues of state accountability and command responsibility as never before.
A list of important dates tracing the chronology of key events in this case may be viewed here:
Zakia Jafri Case: Bringing the High and Mighty to Justice
Gujarat Genocide: Mystery of the ‘Clean Chit’
Zakia Jafri SLP: All we want is an investigation, argues senior counsel Kapil Sibal
Unbiased investigation is umbilical cord connecting CrPC to Article 21: Kapil Sibal in Zakia Jafri SLP
Tehelka sting tapes containing crucial evidence ignored by SIT: Zakia Jafri to SC
These matters should not be forgiven or forgotten: NHRC report revisited during Zakia Jafri SLP hearing