Zakia Jafri & CJP SLP: A look into the voluminous submissions A closer look at the 9-part submissions made before the Supreme Court

03, Mar 2022 | CJP Team

The journey of this case, Zakia Ahsan Jafri v/s Special Investigation Team, epitomises the legal battle for accountability and transparency in governance, and euphemistically put, the struggle of memory against forgetting.

In 2006, Zakia Jafri, widow of brutally slain ex-Member of Parliament (MP), Ahsan Jafri, assisted by civil rights organisation, Citizens for Justice and Peace (CJP), filed a comprehensive complaint that made out a case for connivance and criminal complicity in the targeted violence that broke out in Gujarat in 2002. It is now two decades since then, and the attempt to get serious cases of administrative and political complicity charge sheeted and prosecuted is nowhere near completion.

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.

 

A list of important dates in this case may be viewed here:

 

From assiduous attempts to get an FIR registered, the Courts to intervene to ensure such investigation, this case has taken specific and peculiar turns.

An effort was first made by survivor and complaint Zakia Ahsan Jafri to register a criminal complaint (FIR) with the Gujarat police on June 8, 2006. The 119-page complaint was accompanied with 2,000 pages of evidence that included sworn affidavits of serving officers of the Gujarat police that provided through annexures direct evidence that substantiated allegations of pre-meditation and conspiracy made in the complaint.

From the start, CJP provided Zakia Jafri with the legal wherewithal for this effort. After several months of efforts, when the police did not register a complaint despite the voluminous evidence, Zakia Jafri and CJP moved the Gujarat HC for directions to register an FIR. When this petition was also rejected, they moved the Supreme Court in the matter.

The SC, that had already appointed a Special Investigation Team (SIT) in 2006 to further investigate and prosecute nine major criminal trials was also asked into look into the Zakia Jafri complaint. It was through this process that finally the complainant was given the right (that already exists in law) to file a Protest Petition (September 12, 2011). However, by this stage, the SIT had turned distinctly hostile and refused to provide the Investigation Papers/record to the complainant, a right under the law. Again, they had to move the SC to exercise this right and were granted it finally in February 2013.

Finally, it was after accessing 23,000 pages of original investigation papers, a 1000 plus page Protest Petition was filed on April 15, 2013, before the Magistrate’s Court in Ahmedabad. Thereafter, in March 2014, a criminal revision application was filed before the Gujarat High Court. When only limited reliefs were granted to the petitioners then, they approached the Supreme Court in 2018. Finally, from October 2021 onwards final arguments began.

The petitioners, Zakia Jafri and CJP made voluminous submissions before the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. The hearings that began on October 26 ended on December 9. The petitioners made their arguments between October 26 to November 23, 2021 as well as concluding submissions and counter arguments between December 7 to December 9, 2021.

During the marathon proceedings, the petitioners submitted Nine Volumes to the court to establish their case that:

  1. a) there was enough evidence in the shape and form of official documents to initiate a prosecution and that both the Magistrate and the High Court had erred in not taking cognisance;
  2. b) a re-investigation/furtherinvestigation was warranted related to the cognisable offences based on evidence relied upon by the petitioners that were disputed by the Supreme Court constituted Special Investigation Team (SIT).

Offences ranged from criminal abetment to conspiracy, apart from a slew of cognisable offences under the IPC.

Prelude and build-up

Volume I (of the Convenience Volume) presents crucial evidence from State Intelligence Bureau (SIB) records that establish clearly that there was a prelude and build-up before February 27, 2002 when the tragic mass arson at Godhra took place. This build-up of communal mobilisation and hate speeches, targeting the Muslim minority were reported by ground level SIB officers to their seniors in the state capital of Gandhinagar. Predictably and tragically, no action was taken allowing an explosive situation to erupt. Apart from the SIB messages, crucial parts of the Tehelka Transcripts (Operation Kalank, released and published in October 2007), also offer corroborative violence of the systematic and pre-planned communal mobilisation prior to the Godhra train burning incident at Godhra.

Communal mobilisation: No preventive action

Volume II of the (Convenience Volume) underscores the issues which were part of the Protest Petition but were not dealt with by the Magistrate and the Gujarat High Court. The State Intelligence Bureau (SIB) messages revealed systematic and violent mobilisations within minutes of the Godhra tragedy which should have prompted preventive arrests. Further, the Vishwa Hindu Parishad (VHP) had distributed Press Releases with exaggerated accounts of the Godhra incident which riled up the mobs in addition to the hate speeches. There were also several reported violent attacks from the afternoon of February 27 itself however no preventive measures were taken until after midday of February 28, 2002. It was also pointed out that the Standard Operating Procedures in the Gujarat Police Manual about “Preventive Measures In Case of Threatened Communal Riots” were not followed.

Failure of Police and Fire Brigade

Volume III (of the Convenience Volume) describes the police inaction and failure of public servants. The CJP legal team conducted a close scrutiny of over 23,000 pages of official records which demonstrated substantive elements of a carefully woven conspiracy. The elements that indicated inaction of public servants include Police Control Room (PCR) messages that show stockpiling of arms, non-response of fire brigade, selective preventive arrests, delay in declaring curfew as well as the deployment of the Army. Shockingly, Officers on duty failed to respond to distress calls from victims, which is clear from the PCR messages.

Hate Speech not prosecuted

Volume IV (of the convenience volume) highlights howwidespread instances of hate speech,which was part of incitement to targeted violence and a systemic conspiracy, largely went unchecked and unprosecuted. The impact of these hate speeches was identified in the reports of the National Human Rights Commission (NHRC), Editors Guild of India, Concerned Citizens Tribunal as well as the State Intelligence Bureau(SIB) itself. These incendiary speeches were made by prominent political leaders and was reflected in anonymous pamphlets distributed on the streets. Moreover, misinformed news was published by vernacular press like Sandesh Newspaper with exaggerated versions of incidents which had not occurred in the first place. The then additional chief secretary Gujarat, Ashok Narayan, in fact told the SIT that the government was non-committal in taking action against hate speech.

The volume also presented post facto claims quite brazenly made by conspirators of the riots including members of VHP telling the press about its well-laid out plans, including being armed with government data and lists of electoral rolls, to target minority lives. This kind of evidence should have become a roadmap for connecting dots to the serial crimes,which the agencies involved in the investigation failed to do.

Extra Judicial Confessions in ‘Operation Kalank’

Volume V-A and V-B largely spoke about the evidence from the revelatory sting operation called ‘Operation Kalank’ conducted by Tehelka magazine. The Sting Operation had been authenticated by the Central Bureau of Investigation (CBI) following a suo motu order by the National Human Rights Commission (NHRC). In law, these have the status of extra-judicial confessions. The Sting Operation should have been considered by the Magistrate court as well as the Gujarat high Court as extra-judicial confessions in order to substantiate the pre-meditation behind the outbreak of widespread violence in Gujarat 2002. The abetment was laid bare in the many interviews of the conspirators explaining the complicit role of the police and other public servants. Many revelations (confessions) were stark and related to the making of bombs, smuggling of arms to the state before the Godhra tragedy. The complicity of the police was clear made in these tapes, which could have been considered as per the provisions of the Evidence Act. Yet, the Tehelka Sting Operation was simply not investigated thoroughly to establish any conspiracy. Many of these extra-judicial confessions were just summarily discredited by the SIT by simply believing the accused.

Rewards and Punishment

Volume VI demonstrates how documentary evidence revealed a conspiracy to neutralise the functioning of administrators and police officers as part of a wider conspiracy to allow and intensify the outbreak of violence in the state. This evidence showed that compliant officers were rewarded, while officers who defended the law were punished by way of transfers.

The SIT Investigation records also have other documents including Transfer Orders issued in the midst of the Violence in March 2002, that illustrate that there was in fact such a Reward and Punishment Policy at work even while violence raged in the state. For instance, Rahul Sharma, IPS had deposed before the SIT about orchestrated attacks in Bhavnagar city, attacks on Mosques and Madrassas,political interference in his functioning etc. Sharma faced punitive action including filing of chargesheet against him which was later quashed by a Tribunal after which he voluntarily retired.

RB Sreekumar who was ADGP (intelligence) between April 2002 and September 2002 was threatened to not speak against the government. But he went ahead and deposed before the Commission as well as the SIT. He was painted by the regime to be a motivated witness and his intentions were deemed to be malafide.

Need for Further investigation

Volume VII covers issues not given due consideration by the SIT and eventually the Magistrate Court and the High Court which accepted the SIT’s closure report without much ado. These issues include illegal post mortems of bodies of the Godhra tragedy in the railway yard, handing over of those dead bodies to a VHP leader, presence of Ministers at Police control rooms, doctoring of FIRs, easy bail for accused and Public Prosecutors who were members of VHP and Bajrang Dal who were actively part of the violence throughout Gujarat.

It also brings forth the fact that the Bandh call given by VHP was overtly supported by the state government and the threat posed by the same was called out in the SIB messages as well. The allegation of subversion of the criminal justice system was further cemented when no action was taken against police officers for their alleged failure to record FIRs and provide proper response to the complaints of riot victims. The failure in SIT’s investigation was reflected in aspects like absence of independent witness in investigation, deliberate failure to investigate the overall conspiracy and failure to investigate the many aspects as put forth in the Protest Petition, which largely remained ignoredby the Magistrate as well as the High Court.

Legal Submissions

Volume IX, the final volume presented before the Supreme Court contested the SIT’s claim that it was only asked by the apex court to merely “look into” the petitioners’ complaint and thus that limited the jurisdiction to direct any scrutiny of allegations. This point was vehemently argued before the apex court by the petitioners, and this aspect has been dealt with in details in this volume. It was argued that the SIT’s contention is beyond all canons of criminal jurisprudence as it played the role of an investigating authority which is supposed to collect evidence and the investigate the matter as set out in an FIR. The main argument of the petitioners has been that the Magistrate ought to have issued summons for offences with respect to the material before it which was very much a part of the SIT’s records as there was strong suspicion that cognizable offenses have been committed. This indicated the failure of the Magistrate to act in accordance with the law.

The convenience volumes may be read here:

Zakia Jafri Convenience Volume 1

Zakia Jafri Convenience Volume 2

Zakia Jafri Convenience Volume 3

Zakia Jafri Convenience Volume 4

Zakia Jafri Convenience Volume 5 A

Zakia Jafri Convenience Volume 6

Zakia Jafri Convenience Volume 7

Zakia Jafri Convenience Volume 9

 

Detailed reports of the daily proceedings were published on CJP’s website. They may be read here:

All we want is an investigation: Petitioners in Zakia Jafri SLP

SIT investigation flawed, serious lapses by state functionaries ignored: Petitioners

No court with a conscience would ignore such evidence: Petitioners

Unbiased investigation is the umbilical cord connecting CrPC to Article 21: Petitioners

Tehelka Sting Operation tapes containing crucial evidence ignored by SIT: Petitioners

These matters should not be forgiven or forgotten: Petitioners

Petitioners in Zakia Jafri SLP ask: Were SIT’s acts of omission deliberate?

Only SC can bring life to the cold print of the Constitution: Petitioners

More skeletons tumble out of the SIT’s closet

Hate Speech was allowed to spread with impunity: Petitioners

SIT begins submissions, says extensive investigation was done

The complaint was meant to be only additional material: SIT

Petition is building castles in the air: SIT

Guj government’s smear campaign against Teesta Setalvad, a feeble attempt to deflect from own failure

SIT argues if investigation is ordered, some accused persons will be prejudiced

Petitioners argue there was evidence for Magistrate to issue process

They want all this material to be effaced from the nation’s memory: Petitioners

All this material raises suspicion of offence: Petitioners in Zakia Jafri SLP

 

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