19, Nov 2018 | CJP Team
The Zakia Jafri case is a unique and unprecedented litigation that attempts to pin responsibility for the Gujarat 2002 carnage on the people who were in power at the time… people who failed to prevent the spread of violence, and may have done so deliberately. Often confused with the Gulberg Society case, mainly due to the persistence of powerful perpetrators to conflate the two, in a possible bid to derail justice, the Zakia Jafri case is a mammoth legal exercise aimed at holding accountable the architects of a vile and despicable conspiracy. While Zakia Jafri is the prime mover in the case, CJP through its Secretary Teesta Setalvad is the second petitioner.
In the aftermath of the Gujarat riots it became evident that even though mechanisms to check the spread of violence existed, the series of bloody massacres were allowed to take place. Not only this, it became clear that some of the powerful perpetrators used their influence to get their political stooges and minions to spark instances of violence by engaging in provocative behavior designed to act as catalysts for communal violence.
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.
This idea of a master-puppeteer pulling strings to allow the spread of a particularly vicious kind of violence to spread was bolstered by confidential reports of top policemen and officials who were both, willing and capable of following the standard operating procedures, but were prevented from doing so by a series of instructions and contradictory directions by their superiors… the administrative top brass that was a part of the conspiracy.
Not only this, even the subsequent investigation by multiple authorities that answered either directly, indirectly or surreptitiously to the powerful perpetrators, was not only motivated by goals other than the pursuit of truth and justice, but to an extent even brazen in its disregard for facts.
Genesis of the Zakia Jafri Case
Who is Zakia Jafri?
Zakia Jafri is the widow of Congress MP Ehsan Jafri who was brutally murdered in the Gulberg Society massacre that took place on February 28, 2002 during the post-Godhra genocide in Gujarat. 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.
Is the Zakia Jafri case the Gulberg case?
No. The Gulberg Society case is distinct from the Zakia Jafri case. While the former deals only with the massacre that took place at Gulberg Society, the latter 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. It is called the Zakia Jafri case as she is the prime mover of case. CJP Secretary Teesta Setalvad is the second petitioner in the case.
The first complaint in the Zakia Jafri Case
On June 8, 2006 Zakia Jafri filed an FIR against 63 people for offences punishable u/s 302 r/w 120-B, of the Indian penal Code with sections 193 r/w 114 IPC, 186 & 153 A, 186, 187 of the Indian Penal Code and u/s Section 6 of the Commission of Inquiry Act; The Gujarat Police Act and The Protection of Human Rights Act [PHRA], 1991. The FIR filed by Zakia Jafri named not only the then Chief Minister of Gujarat and his close associate who is now President of the political party that is in power at the center, but also several other powerful people including top ministers, MLAs, leaders of right wing supremacist groups, top IAS and IPS officers, and other powerful office bearers in the state’s bureaucracy.
The complaint addressed to the then DGP Gujarat PC Pandey, said,
I beg to bring to your kind notice the deliberate and intentional failure of the State Government to protect the life and property of innocent denizens of this country through a well executed and sinister criminal conspiracy amongst the accused above named that resulted in the breakdown of Constitutional Governance in the State.”
The complaint further adds:
The civil service was paralyzed, as was the police machinery, which was influenced, manipulated and bullied into singing the murderous tune of the conspirators who were bent on destroying Constitutional Governance in the state, a style of governance that ensures core principles of equity, justice and non-discrimination.”
The entire complaint may be read here.
Lapses and Lacunae highlighted by the Zakia Jafri Case
Instances of lack of Preventive Action
The very first instances of lack of preventive action are evident in the manner in which the messages sent by the State Intelligence Bureau, about the possibility of an outbreak of violence when bodies of victims of the Godhra Train Burning incident were brought from Godhra to Ahmedabad, were completely ignored. The arrival of members of right wing supremacist groups and their potentially provocative behaviour during processions of the bodies was highlighted but also completely ignored. Here is an illustration showing the SIB messages sent out to the Ahmedabad Police on February 27, 2002 urging preventive action.
Then there was the instance when Zakia Jafri’s husband and Congress MP Ehsan Jafri called several top policemen, bureaucrats and even the Chief Minister for help when his house was surrounded by a murderous mob on Feb 28, 2002, and received absolutely no help from anyone. Infact, according to Rupa Behn Mody, a survivor of the Gulberg Society massacre where her son Azhar went missing, when Ehsan Jafri called the Chief Minister, he was verbally abused. Ehsan Jafri stepped out of his home to reason with the mob, all the while knowing that his life would not be spared, but it might give others a chance to escape alive. Ehsan Jafri who was brutally hacked to death and then burnt, in effect sacrificed his own life to save others.
Instances of Provocation
Then there was the manner in which bodies of the victims of the Godhra Train Burning incident were kept in full public view at the Sola Civil Hospital in a purported bid to provoke people and incite violence against minorities.
Police Control Room records indicate how at 1:58 am on February 28, 2002, help was sought from the State Reserve Police SRP who were requested to send a platoon to Sola Civil Hospital fearing aggressive mobilisation at the venue. The bodies of the dead arrived at 3:34 am and by 4 am a mob of over 3000 Swayam Sevaks had reached the venue! 3 SRP Commandant were sent for ‘bandobast’ at 8:10am.
The following charts illustrate how the aggressive mobilisation at the Sola Civil Hospital could not have been possible without the complicity of powerful officials in the state administration and police.
In a huge violation of the law, bodies of the dead were handed over to a senior member of a hardline right wing supremacist organisation instead of state administration authorities.
There was also aggressive mobilisation along the routes that processions of the bodies of the dead took before cremation and also at condolence meetings.
All this and more was unearthed as a part of a mammoth investigation by the legal team of Citizens for Justice and Peace and highlighted as a part of the submissions in the Zakia Jafri case.
Instances of Interference with and Unethical Conduct during Investigation
As per the cross examination of then Bhavnagar District Superintendent of Police Rahul Sharma before the Nanavati Commission, partisan investigation was conducted betraying prejudice against riot victims. This deposition may be read here:
The then Additional Director General of Police RB Sreekumar had also filed a series of affidavits before the Nanavati Commission stating:
- No action was taken by Gujarat Government and the Chief Minister on reports about the anti-minority stance of the administration sent by Sreekumar on April 24, June 15, August 20 and August 28, 2002. (Affidavit 2 dated October 6 2004)
- Most victims of police firing were Muslim, suggesting rioters enjoyed protection from the administration. (Para 3 Appendix 5 of Affidavit 2 dated October 6 2004)
- Officers at grassroot level were not transferred as per State Intelligence Bureau’s recommendations till the arrival of KPS Gill as adviser to the CM. (Affidavit 2 dated October 6 2004)
- Gujarat Chief Minister had verbally issued several illegal instructions to officials during the riots (Affidavit 3 dated April 9, 2004)
- Sreekumar had been asked verbally by the Home Department officials to give favourable reports about law and order for facilitating holding of early elections. (Affidavit 3 dated April 9, 2004)
- Gujarat Chief Minister had during a meeting the DGP, Chief Secretary and senior officials on the evening of February 27, 2002, instructed them to allow Hindu anger to be given vent (Affidavit 4)
All affidavits by RB Sreekumar may be read here:
However, the Special Investigation Team (SIT), formed by the Supreme Court to probe the riots cases and later the allegations made in the SLP 1088 of 2008 moved by Zakia Jafri, said in its Preliminary Report that these allegations among several others along similar lines, could not be substantiated!
The Tortuous Legal Journey
The complained filed by Zakia Jafri on June 8, 2006 did not get any response, forcing Zakia Jafri to file a petition in the Gujarat High Court praying that her complaint be treated as First Information Report (FIR) so that investigation into the wider conspiracy behind the Gujarat riots may begin. But the High Court dismissed this directing Zakia to file a private complaint, a tedious and complicated option.
This is why Zakia Jafri moved Supreme Court via a Special Leave Petition (1088 or 2008) filed against the impugned judgement and order passed on November 2, 2007 by the Gujarat High Court. The SLP 1088 of 2008 may be read here. Following this the Special Investigation Team (SIT) constituted to look into the Gujarat Riots cases was also directed by Supreme Court to investigate the claims in this SLP via an order passed on April 27, 2009.
The Supreme Court first appointed noted legal luminary Prashant Bhushan as the Amicus Curiae, but he was later replaced with Raju Ramchandran.
Ramachandran was tasked with ensuring that the SIT investigation into the matter was headed in the right direction and conducted in accordance with provisions of the law. The Amicus Curiae filed the following two reports:
The SIT also filed its Preliminary Report dated May 12, 2010. The SIT Closure Report dated February 8, 2012 may be read here:
SIT Blames the Victim, refuses to share Documents and Reports
The SIT Report in case of the killing of Ehsan Jafri was shocking to say the least. Not only did they state that the Call Data Records of Ehsan Jafri were not available, they also blamed Jafri for instigating the violence by discharging a fire arm, towing the Chief Minister’s “action causing reaction” line! There were several other instances of shoddy investigation and glaring lapses.
The SIT filed a Closure Report in 2012, without giving an audience to Ms Jafri as is her legal right. Thereafter she had to petition the Supreme Court again in a fresh SLP (Nos 8989/2012) to acquire the full and complete investigation records, reports and documents. The SIT, that had been clearly directed by the Order of the Supreme Court to supply all documents and reports related to the Investigation, in effect resisted and delayed matters to such an extent that between February 8, 2012, when its final report was filed, and February 7, 2013, when the Supreme Court finally directed that all reports should be provided to the Complainant, a year had passed!
This led Zakia Jafri and CJP to file a Protest Petition on April 15, 2013. In the petition Zakia prayed,
That in deciding the Protest Petition the Hon‘ble Court has to exercise its Independent mind on the Final Report submitted by the Investigating Agency. The Court is not bound by the conclusions drawn by the Investigating Agency. The Court has to look at the material to satisfy itself whether prima facie it is a case for taking cognizance of the offence. The material has to be looked at, not from the angle that it is sufficient for conviction but that the material is sufficient for proceeding with the case. The Court cannot adjudicate on the material to find out whether an offence is made out or not, which is the domain when the trial starts and evidence is led by the parties.”
The two parts of the Protest Petition may be read here:
Here are a few additional documents related to the Protest Petition:
It is only after that order of the SC in February 2013, that the CJP legal team analysed close to 23,000 pages of documents that became the basis of the detailed construct and narrative of the Protest Petition. It is through this Protest Petition that the Petitioner has drawn out the lacunae in SIT’s investigation and constructed a more comprehensive and prima facie case for large conspiracy, abetment, dereliction of duty by First Responders and Hate Speech, which in the Petitioner’s opinion, is squarely made from the documents on record.
Key charges against the accused in the Protest Petition
1. The Home Department headed by the Gujarat Home Minister willfully ignored State Intelligence Bureau’s official reports that reveal intense communal mobilization by RSS-VHP before February 27, 2002.
2. Gujarat Home Minister conspired with VHP leader Jaideep Patel to spark reprisal killings all over Gujarat. Mobile call records show that immediately after receiving word of the fire in the S-6 compartment of the Sabarmati Express from the Godhra District Magistrate, the first person the Home Minister called was not one of his senior ministers, policemen or administrators, but Patel who then immediately rushed to Godhra.
3. The state assembly was misled to convey the unsubstantiated view that the Godhra train burning was not the result of provocations from those on the train.
4. The post mortems conducted in full public view violating statutory provisions were part of a calculated conspiracy to inflame passions of not just the crowds gathered at the Godhra railway yard, but all over Gujarat since images were circulated for the purpose widely.
5. Two decisions were designed to incite hate and violence against minorities:
a) The decision to transport bodies of the dead from Godhra to Ahmedabad
b) The decision to hand over the bodies for transportation, not to any government official, but to Jaideep Patel of the VHP
6. The Home Department headed by the Gujarat Home Minister, Gujarat DGP, failed to order preventive measures. Only 2 preventive arrests were made on February 27, both were from the minority community, even though by then it was the minority community which had been attacked in over 2 dozen places across the state.
7. Gujarat Home Minister and his party, the BJP, endorsed the VHP’s bandh call thus clearing the streets for unhampered mob rule on February 28.
8. Analysis of Police Control Room (PCR Records) show Dereliction of Duty by First Responders, Delayed Curfew Orders. Deliberate delay in imposing curfew in Ahmedabad and other parts allowed mobs to massacre minorities.
9. Though the army had arrived in the state, Orders for its Deployment were deliberately delayed so that no protection could be given to the hapless targeted community under attack.
10. Contrary to the Government’s claim that violence was controlled within three days the fact is that it continued for well over three months.
11. There is documentary evidence that names of senior RSS, VHP, BJP men involved in violence was deliberately kept out of FIRs in a clear attempt to shield them.
12. Partisan prosecutors belonging to the RSS-VHP were appointed to ensure that cases were killed in their infancy; bail was easily granted to powerful accused until the Supreme Court stepped in, in 2003 and 2004. (Two trials, the Best Bakery trial and the Bilkees Bano cases had to be transferred out of the state.)
13. Gujarat CM paid no heed to his own police officers who recommended prosecution of VHP, others and even mainstream Gujarati newspapers for inciting violence. Worse, the CM himself made hateful speeches, spewing prejudice against the minority community.
14. Destruction of Records Relating to Minutes of Meetings, Police Logbooks, Wireless Messages-There is evidence to show that in March 2008, four days after the Supreme Court appointed SIT to investigate nine major carnage cases of 2002, crucial documents including wireless intercepted messages, police control room records, vehicle logs etc. were destroyed on orders from the Home department. Other crucial documents are also proven to be destroyed.
15. False Reporting and Misleading Constitutional and Statutory Authorities-The Gujarat Government willfully misled the NHRC, CEC, Supreme Court and even filed deliberately distorted reports before the Home Department of the Central Government. This was part of the overall strategy of subversion of the system to minimize the magnitude of the violence and evade responsibility.
This Protest Petition was heard over 18 hearings. However, the petition was dismissed on December 26, 2013, when Magistrate Ganatra accepted the SIT Report and rejected the relief sought by Zakia Jafri. A summary of this judgment may be read here.
The Witch Hunt against CJP intensifies
Within days of this judgement, a false case was filed against CJP Secretary Teesta Setalvad, co-founder Javed Anand and Zakia Jafri’s son Tanveer Jafri in a bid to prevent us from filing an appeal against the judgement dated December 26, 2012 against our Protest Petition.
However, despite the obvious malicious prosecution we were able to file our appeal in the High Court on the very last day of the 3 month deadline set for filing appeals. In this, the petitioners say:
It is submitted that the Learned Magistrate in the impugned order dated 26.12.2013 errs in holding that it was not within his powers to direct further investigation or to treat the Protest Petition as a complaint (Page No.61-63 of the impugned order). The Learned Magistrate’s reliance on Paragraph No.8 and 9 of the Hon’ble Supreme Court order dated 12.09.2011 in Criminal Appeal No.1765 of 2011 to exclude the option or of further investigation by treating the Protest Petition as a complaint is completely misplaced, as the said paragraphs merely state that the Hon’ble Supreme Court having overseen the investigation in order to ensure proper and honest performance of the investigative agency and the Final Report of the Respondent SIT should be placed before the Magistrate as required under section 173(2) of the Code of Criminal Procedure. The impugned order is further flawed in holding that it was not open to the Learned Magistrate to order further investigation under section 173(8) of the Code of Criminal Procedure because the Supreme Court had already included the report of the SIT within the purview of section 173(8).”
The entire submission and all related annexures may be read here:
Even as this case was being heard in court, the powerful perpetrators were leaving no stone un-turned in harassing the petitioners. First, they got Rais Khan, a disgruntled former employee of CJP to make false allegations of misappropriation of funds against the petitioners and used that to force the petitioners to jump through multiple judicial and administrative hoops just to defend their personal freedom. A series of false cases based on unsubstantiated allegations followed and Rais Khan kept making new allegations leading to new cases being filed against Teesta Setalvad and her partner Javed Anand.
The motivated and malicious prosecution have to this date kept them running from pillar to post to secure bail. In fact the duo are deliberately harassed when even though the case falls under Mumbai jurisdiction, cases are filed in Gujarat forcing them to get transit bail to avoid arrest even before they have had a chance to present their side of the story and clear their name by providing evidence of their innocence. The powerful perpetrators have also used their political influence and other nefarious tactics to command investigative agencies to do their bidding.
For example, the Central Bureau of Investigation raided the home and offices of Teesta Setalvad in July 2015 in a false case involving allegations of violations of the provisions of the Foreign Contribution Regulation Act (FCRA) by organisations run by Setalvad and Anand. This raid took place despite the fact that the duo were not only willing to cooperate with the investigation, but had also made documents available to the Ministry of Home Affairs (MHA) for inspection earlier! The bank accounts of Sabrang Communications and Trust were frozen and the funds therein remain out of reach of the petitioners to this day.
It is noteworthy that this escalation of institutional violence coincided with the increase in the amount of damning evidence being collected by CJP against the master-minds of the Gujarat carnage who now enjoy power at the center.
A complete timeline of how Teesta Setalvad and Javed Anand have been harassed and bullied may be viewed here.
The Gujarat High Court Judgement
On October 5, 2017, Hon’ble Justice Sonia Gokani delivered a judgement that once again set in motion Zakia Jafri’s quest for justice. In, her judgement Justice Gokani observed:
It is one thing to say that it is agreeable with the report of SIT and hence, chooses not to direct further investigation. But, to say that in the given circumstances, it does not possess such powers is caring under the awe of events that led the SIT to directly look into the complaint.
Learned Metropolitan Magistrate Court was directed to consider the final report by the Apex Court in its final order and determine whether the collection of evidence compiled with the report of SIT and the Protest Petition cull out a case of lodgment of an FIR, by even explicitly stating the powers to direct further investigation and hence, to that extent, the conclusion drawn is in contravention of established legal principles.”
The court ruled:
… this revision application deserves to be SUCCEEDED PARTLY and the order of the learned Metropolitan Magistrate dated 16.12.2013 deserves interference to the extent the trial Court held and selflimited itself of its not having powers of further investigation.”
The entire judgement may be read here.
The Special Leave Petition of 2018
In the latest development in the Zakia Jafri case, we have filed a Special Leave Petition with the Supreme Court seeking clarification of the gross anomalies in the judgements of both lower courts (Magistrate and Gujarat High Court) that are both legal and on the facts of this case.
We argue in the present SLP, how, the order of the Gujarat HC records that the Magistrate has considered the Closure Report of the SIT and found no substance in the complaint of the Petitioner dated June 8,2006. Thereafter the Court erroneously goes on to say that the Magistrate provided detailed grounds for not accepting the Protest Petition of Ms Jafri. This, in our submission, is factually incorrect.
It is our case that the Magistrate wrongly held that it was beyond the scope of his powers to direct further investigation. Besides, key and vital issues placed before the Magistrate, detailing our case and making out a sound and substantiated case of criminal conspiracy and abetment, we argue, have been not duly considered by the Magistrate or the High Court.
In the present case before the SC we argue that it will be abundantly clear from a close perusal of the Protest Petition that the Ms Jafri has substantiated further acts of a larger conspiracy by detailing evidence about the prelude and build-up of a volatile atmosphere prior to February 27, 2002, the post mortems being conducted in the wide open in violation of statutory provisions, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread violence from February 27, 2002 onwards, among other issues.
Besides, we argue that, an analysis of Police Control Room (PCR Records) shows Dereliction of Duty by First Responders. The conspiracy, as constructed in the Protest Petition also provides proof of:
- misreporting and misleading constitutional and statutory authorities
- destruction of records relating to Minutes of Meetings, Police Logbooks, Wireless Messages
by those at the helm of power in 2002.
It is on these issues as also on the conscious and erroneous clubbing of the Zakia Jafri complaint with the single incident at Gulberg society (that took place on February 28, 2002 and according to us is just one of 300 incidents and one link In the wider conspiracy) that the lower courts have erred and we seek correction and remedy.