Revenge for seeking justice. This is not coming from a Bharatiya Janata Party (BJP) government. It is the Supreme Court, which calls for revenge against those who seek to pursue the cause of justice. It describes the long battle for justice fought in the courts as a nefarious design to keep the pot boiling. For some ulterior motive. And it wants them to be punished.
So, it is the Supreme court which condemns those who have the audacity to question officials. Not only that it seeks them to be put in the dock.
The court is heard by the law abiding Gujarat police and as its first response, Teesta Setalvad and Sreekumar, former DGP of the Gujarat police, are arrested promptly. Between the outrage by the court against the trouble-makers and the arrest was an interview in which the home minister of the Union government of India names the organisation of Teesta Setalvad and indicates that some officials of the state worked to defame the then state government and the chief minister.
“The Supreme Court has said that Zakia Jafri used to work at someone else’s insistence. Many victims’ affidavits were signed by the NGO. Everyone knew Teesta Setalvad’s NGO was doing it. The UPA government helped Teesta Setalvad’s NGO a lot, the whole of Lutyens Delhi knows it. This was solely done to target Modiji, to tarnish his image,” he said.
It seems that the interview and the work on the first information report (FIR) by an officer of the Gujarat police naming Teesta, Sreekumar and Sanjiv Bhatt were going on simultaneously. What else explains the knock on the doors of Teesta and Sreekumar within hours of the airing of the interview.
It is not only the home minister who infantilised Zakia Jafri but the Supreme Court itself which suggests that she did not have an independent mind and had been tutored by Teesta and others as they had to settle scores with the then chief minister of Gujarat.
Zakia Jafri – wife of late Ehsan Jafri, who was burnt to death when the Gulberg Society in Ahmedabad, where he lived, was attacked by a mob on February 28, 2002, the first day of the violence targetting Muslims – ran from court to court asking for justice. She pleaded that the murder, which was part of the larger violence, could not have been possible without a conspiracy. In 2012, the Special Investigation Team gave a clean chit to the state government and rubbished the allegation of a conspiracy by Zakia Jafri.
Not satisfied, Zakia returned to the court pleading for a fresh investigation. It is this plea which has now been thrown into the dustbin by the court. Not only that, it said that she was not doing it on her own. She was being prompted by “the protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the state administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the state.”
Note the mention of the “air conditioned office.” One hopes the lordships had not switched off their ACs while writing this judgment to be more honest or sincere. This remark reminds one of the warning that the present prime minister had issued before a gathering of the judges in April, 2015. He had told them to be wary of five-star activists: “It is easy to deliver judgments based on the law and the Constitution. There is a need to be cautious against perception-driven verdicts… perceptions are often driven by five star activists.”
The prime minister had said that courts fear these activists and hence cannot judge independently. With the arrest of Teesta and others, felicitated by the highest court, he must be a contented man today. The courts have truly become fearless. They have developed the courage to direct the state to arrest the people seeking justice.
Zakia Jafri could not have pursued this course alone. The lordships have to ask Bilkis Bano, who had to fight for 15 years to get justice after she was gang-raped while fleeing attack by the Hindutva-driven mobs in 2002. She had to leave her state, keep changing her address.Her case was transfered out of Gujarat as the then judiciary felt that impartiality could not be ensured in her state.
Why was this the judicial understanding then? Even if we accept what the apex court believes that the violence was spontaneous and there was no state-backed conspiracy behind it, what explains the reluctance of the state to secure justice for the wronged. How do they see the campaign by the then chief minister of the state in the form of a ‘Gaurav Yatra’ after the violence to lead his constituents into a state of denial that the violence had happened? Why did he try to persuade them that those who were talking about it and seeking justice were in fact defaming the people of Gujarat?
Why did the Supreme Court feel compelled in 2004 to compare the state authorities of Gujarat with Nero? While discussing the Best Bakery case, it had said: “The modern day Neroes were looking elsewhere when Best Bakery and innocent children were burning, and were probably deliberating how the perpetrators of the crime can be protected.”
It is a fact and no ruling from any court can erase that murder and violence was allowed to happen. Ehsan Jafri was not an ordinary Muslim. He had been a member of the parliament of India, a prominent politician of the state. It was this reputation which made many Muslims assume that if they took shelter in his home, they could be saved from the crowd.
The mob surrounded the society. According to Zakia Jafri, the former MP called everybody he could and that included the then chief minister to do something to prevent violence. Even then the society was attacked, burnt and he was dragged out, butchered and killed.
Just before his killing, a senior police officer had met him but after his departure violence took place. Jafri was murdered. Was it as spontaneous as the court innocently believes and wants us to trust its judgment?
Zakia Jafri decided to fight for justice. She knew what she was up against. But she could not have taken forward this struggle alone. That is where the role of activists like Teesta becomes crucial. As said before, ask Bilkis, ask the victims of the Best Bakery, Naroda Patiya and numerous other mass killings, could they have done it alone? Without the support from the human rights activists?
What the present Supreme Court has done is unpardonable. It has made the victims of the alleged state-sponsered violence lonely. It has issued a threat that they cannot seek the help of the human right workers. And it has warned the human right workers: do your work at your own risk.
It has put all human right workers in danger. It seeks to put those in the dock who have, in its own words, the “audacity” to ‘question the integrity of every functionary’ when seeking their accountability.
In every case of such violence, whether in Mumbai, Bhivandi, Bhagalpur, Nellie, Delhi and many other cases, had it not been the support of the human rights activists and organisations, the victims would not even have thought of standing against the might of a vindictive state.
It was earlier the state which sought revenge against those who stood up to its wrongdoing and crimes. But now the Supreme Court has become vengeful. Some progress, we must say.
(Apoorvanand teaches Hindi at Delhi University. Courtesy: The Wire.)
❈ ❈ ❈
Teesta Setalvad Arrest: Zakia Jafri’s Case is Reminder of How the Guilty of Gujarat Subverted Law
Teesta Setalvad
(This article was earlier published on November 18, 2018 in The Wire. The Wire republished it on June 26, 2022 in the wake of rights activist Teesta Setalvad’s arrest by the Gujarat Police; we are also republishing it.)
“Somewhere between the bottom of the climb and the summit
is the answer to the mystery why we climb”
These words ring true in the ongoing Zakia Jafri case. When her criminal complaint into the Gujarat killings of 2002 was filed on June 8, 2006 – accompanied by 2,000 pages of evidence, provided by serving police officers and administrators – we were aware of the uphill nature of the ask. What we did not anticipate, however, was the resistance, across persuasions, to probing the critical issues raised fairly and transparently.
In this battle for acknowledgment, justice and accountability behind the well-orchestrated, state directed and executed crimes of 2002 in Gujarat, the system today stands subverted by the very process put in place to assess and correct the wrongs.
Sixteen years after an estimated 300 incidents racked Gujarat, described by the Concerned Citizens Tribunal, Crimes Against Humanity, as an “organised crime perpetuated by the state’s chief minister and his government” and a dozen years after the criminal complaint was filed, Zakia Jafri’s case comes up for hearing before the Supreme Court on November 19. Once again, we will seek to get back to the very basis of the charges raised in the original complaint.
The reason for this travesty is the betrayal of the mandate granted to the Supreme Court-appointed Special Investigation Team (SIT) by the officers who manned it. A former CBI director, now appointed ambassador to Cyprus by the regime whose powerful men he was investigating, and his hand-picked men (assisted over time by officers from the Gujarat cadre who have since been promoted) worked to obfuscate and nullify the original charges of criminal conspiracy, abetment, murder, hate speech, destruction of records and subversion of statutory authorities. These charges had first been outlined in the June 2006 complaint and thereafter substantiated in the protest petition filed by Zakia Jafri before the magistrate’s court on April 15, 2013.
Dilution of conspiracy charges
The irony is that the SIT’s own preliminary investigation report dated May 10, 2010 – and the chairman’s comments dated May 12, 2010 – outline its own investigation in the several charges of conspiracy (sub-divided into 32 allegations). This is also the subject matter of the final closure report dated February 8, 2012.
The SIT has dishonestly – despite the wider gamut of the Zakia Jafri complaint – consistently misled the lower courts and insisted on self-limiting the case to only the Gulberg society carnage. In doing so, they have helped the organisation to whom the perpetrators belonged, to parrot the idea of an illusory ‘clean chit’ that has, in fact never been given to either the chief accused or his fellow perpetrators.
The Gulberg carnage was a case of brute violence that marred Gujarat’s landscape in 2002. It took place in broad daylight on February 28, 2002. The FIR lodged therein is specific to that incident, the accused different from those named in the Zakia Jafri complaint.
That case has been charged, heard and 22 persons convicted, and yet the SIT has consistently sought to betray its own mandate and mislead the courts by collapsing the Zakia Jafri criminal complaint and protest petition with ‘merely the Gulberg society carnage.’
How and why the magistrate’s court and thereafter the Gujarat high court failed to see through this obvious subversion by the SIT is what will now have to be determined by the Supreme Court.
The Zakia Jafri criminal complaint first, and the protest petition filed seven years thereafter, carves out a substantial case of criminal conspiracy planned and executed by the state’s chief executive who was also its home minister, based on first-hand documentary contemporaneous evidence. This evidence includes the entire investigation papers with relation to the SIT investigation into the Zakia Jafri complaint.
These only eventually came to the possession of the petitioner when she had to once again approach the Supreme Court after the SIT filed a closure report on February 8, 2012 since the agency refused to give her the papers – a statutory legal right of a complainant in law.
These voluminous records running into 23,000 pages contain State Intelligence Bureau (SIB) records, Police Control Room (PCR) records, phone call records, maps, 161 statements, NHRC, CEC, Women’s Parliamentary Committee Reports, hate speeches, videos, home department records, among others.
Gross lacunae in the SIT investigation
The case for conspiracy has been drawn squarely from this record and the protest petition outlines this and points to the gross lacunae in the SIT’ s investigation. The nuggets of the conspiracy include
(i) a sinister prelude and systemic build up of communal mobilisation and inaction by state agencies and actors before the Godhra train burning on February 27, 2002;
(ii) phone calls made between powerful perpetrators bypassing the police and administration;
(iii) postmortems conducted in public view contrary to law;
(iv) no preventive action, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread Violence from February 27, 2002 onwards;
(v) delayed deployment of the army;
(vi) analysis of police control room records shows dereliction of duty by first responders;
(vii) the lacunae in monitoring and check on hate speech, hate writing, pamphleteering which are offences in criminal law;
(viii) the false reporting and misleading of constitutional and statutory authorities;
(ix) destruction of records relating to minutes of meetings, police logbooks, wireless messages.
SIT integral to subversion
Subversion of the entire constitutional machinery has been core to all the offences perpetrated by several of the first responders in Gujarat in 2002. This subversion marks the journey of the Zakia Jafri case too, with the SIT, appointed by the Supreme Court itself, also becoming integral to this continued subversion.
Appointed at the behest of the survivors, who wanted the apex court to transfer the investigation away from the Gujarat police, the SIT today functions as an adjunct of the Gujarat government, using power and pelf to ensure that substantiated charges of criminal conspiracy are not brought to trial.
The magistrate’s court, through over 20 sessions in 2013, and the Gujarat high court from 2015-2017 have both – in their bulky verdicts – accepted that the gamut of the charges here are wider than those raised in an individual incident of the carnage. But having done so, they have stopped short of faulting an investigation that has simply failed to look at what was meticulously provided in the protest petition and thereafter the criminal revision application.
Standing somewhere between the bottom of the climb and the summit, we still hope, that India’s Supreme Court, will unravel how an agency that it set up ended up becoming a party to a subversive cover-up of the most incredulous and sinister kind.
(The writer is secretary, Citizens for Justice and Peace, second petitioner in the present case; CJP has been providing legal assistance to the survivors of the Gujarat carnage. Courtesy: The Wire.)
