‘Communal violence is like lava erupting from a volcano’: Kapil Sibal in Zakia Jafri hearing

The Supreme Court today continued hearing a petition filed by Zakia Ahsan Jafri, the widow of Congress MLA Ehsan Jafri, who had challenged a special investigation team’s report that granted “a clean chit” to 64 persons, including then Gujarat chief minister Narendra Modi, in connection with the 2002 Gujarat riots.

The bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar heard detailed submissions made by Zakia’s counsel Kapil Sibal, who questioned the veracity of the SIT’s closure report.

Apart from Zakia, the other petitioner in the case is Citizens for Justice and Peace, a human rights group headed by activist Teesta Setalvad.

During the hearing, Zakia’s counsel, Kapil Sibal, told the court, “The SIT did not do any investigation. I will prove it over the course of a few days.”

Zakia’s husband was among 68 people killed in Ahmedabad during the Gulberg Housing Society massacre of February 28, 2002. On June 8, 2006, Zakia filed a complaint against 63 people, including Narendra Modi, several MLAs, and political leaders.

After she did not receive a response to her complaint, Zakia petitioned the Gujarat High Court, asking that her complaint be treated as an FIR. The high court dismissed her prayer on November 2, 2007 and Zakia subsequently moved the Supreme Court against the high court order.

By then, the apex court had directed an SIT to investigate the Gujarat riots case. In its findings, an SIT report dated February 8, 2012 precluded the possibility of a "larger conspiracy" being hatched by state functionaries in instigating the communal riots following the Godhra massacre.

Zakia protested the SIT’s decision before the Gujarat High Court which, in 2017, dismissed her challenge. Zakia once again approached the apex court through a special leave petition challenging the SIT report.

Since then, her case has been adjourned five times.

‘What was SIT doing despite all this evidence?’

In the last two hearings, Sibal had pointed out that the SIT's reports were not limited to the Gulberg Society massacre, and that even Zakia’s complaint and the closure report were not confined to one case alone.

LiveLaw had quoted Sibal as saying: “I must have a remedy in law, what is that remedy? The magistrate doesn't look at it, the sessions court doesn't look at it! Who will look at it? I leave it for future generations to find out who will look at this!”

Today, he said Zakia’s case invokes the “criminal and administrative liability and accountability” in approximately 300 incidents over 19 districts of Gujarat in 2002.

Sibal pointed out that Article 21, as enshrined in the constitution, is about “not depriving anyone of their liberty and function in accordance with procedure established by law”.

“The procedure has to be fair and reasonable, and this aspect is central to this case,” he said. “The question is, has the SIT followed the procedure established by law in dealing with evidence before them, which was disregarded and never probed?”

Addressing the SIT, he said, “You don't record statements. Accepted statement of accused and file closure report. No phone seized, never examined call detail records, never checked why records were destroyed. Never checked why policemen were standing by.” He listed pieces of evidence that he claimed had been overlooked by the SIT.

Sibal also cited the sting operation on the riots accused carried out by journalist Ashish Khetan for Tehelka magazine in 2007. Khetan was a prosecution witness in one of the cases and while the SIT relied on his footage in connection with other accused, it did not do so for Zakia’s case.

“This was the most damaging and concerning fact,” Sibal said, “that the SIT ignored the sting operation reports of Tehelka..."

Sibal pointed out that the tapes had been authenticated by the CBI and the Gujarat High Court in the Naroda Patiya case. He also read out excerpts from the sting operation report.

When the bench asked whether the statements from the sting report revealed anything about a “larger conspiracy”, Sibal said, “The fact is, this was not investigated by the SIT. How do you establish a larger conspiracy?”

He added that in cases of conspiracy, there is no direct evidence; it can only be inferred from circumstances through investigating, gathering evidence, recording statements, and so on. However, he said, the SIT did none of this.

Sibal also brought up how a VHP leader, Jaydeep Patel, who was arrested in the Naroda Gam case, was officially given custody of the bodies of 54 people who had been charred to death in the Sabarmati train.

“It’s a serious issue,” Sibal said, and added that the details of what happened needed to be investigated.

The SIT had claimed a mamlatdar had been responsible for handing over the bodies. Sibal said, “Can you ever imagine a low-level officer such as a mamlatdar taking this decision when a national tragedy has happened, and he takes a call to give bodies to the VHP? Impossible! In this state of evidence, was it not required to probe the scenario? You just record statements and forget about it.”

Following the riots, Gujarat’s assistant director general of police, RB Sreekumar, had deposed against the government, claiming that police had been prevented from carrying out their duties. Sibal reminded the bench that Sreekumar’s testimony had been rejected by the SIT on grounds that he had been denied a promotion.

“His testimony was corroborated by other officers and hence it could not have been rejected,” Sibal said.

He continued, “Was the SIT trying to protect the accused? It had to gather evidence, record statements, and then come to a prima facie conclusion. Article 21 says you have to protect people by procedure by law. If you violate that, you are an accused. The SIT has to explain why they did not do any of these things.”

‘Not just about this case but about the future’

On the role of the police in the massacre, Sibal cited how the VHP’s Acharya Giriraj Kishore had been escorted by the police to Sola Civil Hospital.

“Can your lordships imagine?” Sibal said. “A VHP functionary being escorted by police? Police, instead of taking care of law and order, escorted a VHP fellow, who was trying to whip up mass frenzy and who accompanied a mob of 5,000 persons in an inflammatory funeral procession.”

He also pulled up the magistrate for washing his hands off the case. “What are the truth, what are the lies, these need investigation,” Sibal said. “The magistrate not looking at it, the high court not dealing with it. It puzzles me, to say the least.”

Drawing parallels between the Gujarat riots, the Delhi riots, and Partition, Sibal said, “Why should innocent persons be attacked in this fashion? This is not the rule of law. If this is not a conspiracy, then what is?”

He concluded, “Communal violence is like lava erupting from a volcano. It is institutionalised violence...Wherever that lava touches, it scars the earth. It is a fertile ground for future revenge.”

The hearing will continue tomorrow.