The arrest came close on the heels of the Supreme Court judgment dismissing the challenge by the widow of late Congress leader Ehsan Jafri, to the closure report filed by the special investigation team (SIT), thereby discarding the allegations of a larger conspiracy by high state functionaries, in the Gujarat riots of 2002. The arrest was preceded by home minister Amit Shah’s coming down heavily on Setalvad, accusing her of giving baseless and false information about the Gujarat riots, soon after the Supreme Court’s clean chit to Prime Minister Narendra Modi.

The Supreme Court judgment gratuitously slams not only Zakia Jafri but also Setalvad and others by its totally unwarranted and incriminating remarks, saying, “All those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law.”

Such an order is unprecedented for a constitutional court that is tasked as the custodian of people’s fundamental rights and is mandated to be a neutral arbiter of justice at the highest level. It is appalling for the Supreme Court to openly prod the authorities to bring to book those who fearlessly and selflessly undertook a difficult battle against the State and police authorities at all levels of the judiciary for many years, with the hope to bring justice to the victims of the 2002 Godhra riots.

A former Congress MP, Ehsan Jafri, was killed by a mob in the first wave of violence in Gujarat in 2002, along with 68 others when the Gulberg Society was attacked by a mob. He was killed despite his frantic calls for help to various police and state officials and a few minutes after he was visited by the commissioner of police, Ahmedabad, who had assured him protection.

Since then, his wife has been seeking a fair investigation to bring to justice those who were allegedly complicit in the riots that led to her husband’s death and especially those who were in charge of the state administration at that time.

Since 2002, human rights defender Teesta Setalvad has been working tirelessly to bring to justice the perpetrators of the Gujarat riots.

When the local courts exonerated the then chief minister Modi of all wrongdoing, Jafri’s wife Zakia, with the assistance of Setalvad, moved the Supreme Court seeking a wider probe into the riots, in the case that was recently dismissed.

As the secretary of Citizens of Justice and Peace, Setalvad has been the main litigant in over 68 criminal cases trying to ensure justice for the victims of mass communal crimes. In the BEST Bakery case, justice was assured after the transfer of the case out of Gujarat because of Setalvad’s efforts to bring the case before the Supreme Court.

The Supreme Court ordered a re-investigation apart from quashing the acquittal of 21 accused, while marking strong remarks against the Gujarat government, calling them “modern day Neros” looking elsewhere when innocent children and helpless women were burning!

With Setalvad’s legal assistance to the victims of the riots, numerous victims were able to access some relief and monetary compensation. Her arrest, along with former DGP R.B. Sreekumar, is a reprisal against those who have dared to expose the complicity of the highest functionaries of the state of Gujarat, in the riots.

In 2008, the Supreme Court constituted an SIT to probe the Gujarat riots. The SIT submitted its report in 2012.

Zakia Jafri moved the Supreme Court challenging the 2017 high court order rejecting her challenge to the SIT’s clean chit to 64 people, including Modi. The petition pointed out that there was overwhelming evidence to suggest that the Gujarat anti-Muslim violence was sponsored and abetted by the state. The thrust of the appellant’s argument was that the SIT had jumped to the conclusion that no offence was made out against the persons named in the complaint/protest petition despite enormous material before it, which the SIT had failed to investigate and which pointed towards the culpability of the accused.

Zakia Jafri. Photo: PTI

For instance, the petition presented strong evidence to show how the state had supported the call for a bandh, and the handing over of the charred bodies to Sangh parivar activists, so that they could parade them in a funeral procession in communally sensitive areas of Ahmedabad. No investigation was done into this matter.

The petition provided a lot of evidence that the instructions allegedly came from the top (chief minister) to the state officials to give a free hand to the mob. There was evidence of people such as Haren Pandya, a minister in the Modi government then, who appeared and deposed before the Concerned Citizens Tribunal consisting of former judges, that he had attended a meeting at the residence of Modi, in which the latter had allegedly made it clear that there would be a backlash from the Hindus on the next day and that the police should not come in their way.

This was not considered by the SIT.

Again, the SIT did not bother to record the statements of or collect evidence from Justice (Retired) J.S. Verma – who had been chairman of the National Human Rights Commission (NHRC), and who had visited Gujarat after the riots and recorded proceedings which shed unfavourable light on the Gujarat government’s complicity in the riots.

Further, the petition alleged that the commissioner of police, P.C. Pande, kept the SIT and the court in the dark about the PCR messages (to and from police vans) that pointed to the existence of a conspiracy, and only produced them in 2010. The SIT, which received these records in 2010, neither questioned Pande about why he did not produce the PCR messages earlier, did not analyse the PCR messages, investigate them or place this analysis with the material before the magistrate.

The statements of several senior police officers, including R.B. Sreekumar, Rahul Sharma, Sanjeev Bhat, and in particular the Tehelka tapes, which were validated by the sessions court, were themselves enough to file a chargesheet. Instead, the SIT accepted Section 161 CrPC statements of the charged officials and uncorroborated irrelevant material to whitewash the entire exercise.

An analysis of phone call records officially procured by former IPS officer Rahul Sharma, and presented to the Nanavati-Shah Commission, had been made, which showed incriminating phone calls during the riots and evidence of elected representatives talking to some of the offenders/accused etc. However, the SIT did not investigate these records.

Despite this compelling evidence placed before the SIT, which were simply falsified by the SIT without any effective investigation, the Supreme Court judgment in dismissing Zakia’s case, surprisingly surmises:

“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.”

There is an uncritical acceptance by the Supreme Court that the submissions before it by the appellant and as examined by the SIT, were “false,” as “exposed by the SIT.” And therefore, the court goes on to make an alarming order that these parties interceding before the court, and others, “need to be in the dock,” because of their “audacity to question the integrity of every functionary (of the state).”

With one stroke, the Supreme Court makes the complainants, the accused, and passes on the buck to the relevant authorities to take immediate action! The Supreme Court has rendered its bias bare by its uncritical acceptance of the versions of the State and police authorities as reproduced by the SIT, exonerating the state officials and the then chief minister as it being “beyond comprehension of any person of ordinary prudence to bear suspicion about the meeting of mind of named offenders and hatching of conspiracy by the State at the highest level!”

It goes on then to condemn Setalvad’s human rights advocacy and her daring to pursue justice for more than 16 years. The Supreme Court conveniently glosses over the fact that the head of the SIT, R.K. Raghavan, former CBI head, was picked by Prime Minister Modi in 2017 to be India’s high commissioner to Cyprus. Rewarding sympathisers, while settling scores with political opponents through arrests and raids, has been routine under the present political dispensation but astoundingly, the Supreme Court has abetted the settling of scores this time!

In a totally arbitrary and unfair manner, the Supreme Court judgment makes disparaging and incriminating remarks against Setalvad, despite there being no prior notice to her as she was not recognised by the SIT or the court as a party to the proceedings. Such remarks are extraordinary and uncalled for, especially by a court that is meant to be impartial, especially in politically charged matters.

Dismissing a widow’s quest for justice as motivated by civil society activism of those “sitting in a comfortable environment in their air-conditioned office” betrays a brazen lack of understanding of civil society’s collective resistance on behalf of the oppressed. Such persecution and targeting of civil society and human rights defenders by the Supreme Court has sent a chilling message of denunciation of civil society’s contribution to building a caring and inclusive society.

The language of the judgment betrays a prejudice that is all too apparent. It has the effect of further shrinking that narrow space left for dissent and questioning the authority of the state.

Activist Teesta Setalvad at Santacruz police station after being detained by Gujarat police, in Mumbai, June 25, 2022. Photo: PTI

Politically sensitive judgments

It is significant to note that the senior judge heading this bench was also heading the bench that granted bail to Babu Bajrangi, a Bajrang Dal leader who was convicted and sentenced for life, for his role in killing 97 Muslims in the Naroda Patiya riots case. The Tehelka sting by Ashish Khetan included conversations with Bajarangi where he confesses to his role in the massacre, and also speaks of the complicity of the police and then chief minister Modi.

It is also noteworthy that the judges on the bench in the Zakia Jafri case do not take responsibility for the judgment, and the judgment is unauthored, a deviation from the Supreme Court convention regarding delivering judgments which have clear named authorship by a judge. The probable only other case of deviation from this convention was the constitution bench judgment by the Supreme Court in the Ayodhya case.

We have been witnessing the unedifying spectacle of judges who on the eve of their retirement author such politically sensitive judgments, taking up post-retirement jobs. Arun Jaitley, when he was the leader of the opposition in the Rajya Sabha in 2013, had spoken eloquently about how post-retirement jobs to judges influence their pre-retirement judgments, which is a threat to the independence of the judiciary.

Justice Gogoi took up Rajya Sabha membership offered by the Bharatiya Janata Party (BJP) immediately after retirement and after having delivered the Ayodhya and Rafale judgments in favour of the ruling party and Prime Minister Narendra Modi. Justice Arun Mishra was given the chairmanship of the NHRC immediately on retirement, after he had delivered several important judgments in politically sensitive cases, in favour of the BJP and Modi.

Justice Arun Mishra. Photos: PTI and Reuters Ilustration: The Wire

In fact, it was the allocation of the sensational Judge Loya case to Justice Arun Mishra, bypassing 11 senior judges, which led to the unprecedented press conference, by the four senior-most judges of the Supreme Court, where they had said, that democracy was in danger due to the collapse of the independence of the judiciary. Justice Khanwilkar, who led the bench that dismissed the Zakia Jafri petition, is retiring soon. We will have to see if he too takes up a post-retirement job offered by the government.

During the Modi government, we have seen an unprecedented assault on the independence of the judiciary in many ways, including by stalling the appointment of independent judges recommended by the collegium. This has led to many questionable judgments, especially in politically sensitive cases, where the court has not performed the role assigned to it.

One could cite any number of judgments by the Supreme Court recently, which have reinforced the perception that the court has acted under the influence of the government. This has led to an alarming slide in the faith of the people in the judiciary and its ability to protect the Constitution, the fundamental rights of citizens and the rule of law itself.

As Lord Denning said, public confidence in the judiciary depends on the actions of the judiciary and whether judges are seen as truly doing their job as custodians of people’s rights. This confidence and respect for the judiciary cannot be garnered by using the power of contempt to prevent people from criticising it.

Judges need to remember that only those of them are respected and remembered who stood up to the government of their day and performed their duty assigned by the Constitution. Justice H.R. Khanna, who wrote the dissenting judgment in the Habeas Corpus case, is a glowing example. The others may enjoy a brief period in office after retirement, but they go out in ignominy and are consigned to the dustbins of history.

If the judges wish to redeem the damage they have done to themselves and the institution of the Supreme Court in the Zakia Jafri case, the minimum that they need to do is to expunge the remarks made against Teesta Setalvad and others in the judgment and direct that the FIR based on the Supreme Court judgment be quashed and she and Sreekumar be released immediately.

Prashant Bhushan is a Supreme Court lawyer.

The original piece may be read here