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Was the Supreme Court expected to overturn a magistrate's decision to accept the SIT report on the 2002 Gujarat Riots (which gave a clean chit to Prime Minister Narendra Modi)? Probably not.
Was it expected to include a random one-paragraph tirade in its judgment about the "audacity" of those who questioned the SIT's findings, and provide an excuse for the arrest of activist Teesta Setalvad and former ADGP RB Sreekumar? Definitely not.
Paragraph 88 of the Zakia Jafri judgment is going to have far-reaching consequences not just in the discourse around the 2002 Gujarat Riots, but potentially any future cases where attempts are made to hold an administration or its officials to account for alleged failures to act.
What is interesting, however, is that while the apex court has complained in the judgment about the way in which the case had stretched on for 16 years, it was the apex court which played a key role in the cases regarding the Gujarat Riots from the start.
After all, it was the Supreme Court which appointed the SIT to look into cases arising out from the Gujarat Riots in 2008. It was the Supreme Court which included Jafri's case within the purview of the SIT's investigation in 2009.
And it was the Supreme Court, which in August 2004 had said “The modern-day Neros were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be protected.”
Here are several comments by the Supreme Court over the years in cases connected with the Gujarat Riots, that show its own displeasure with the way in which the Gujarat Riots were handled, and the investigations conducted, which make its decision to tar the names of those who questioned the administration a rather bizarre one.
This was the judgment where the "modern-day Neros" comment came from. The court ordered a retrial in Vadodara Best Bakery case after the accused were acquitted en masse. The court strongly criticised the investigation, as well as the way in which the prosecution had been conducted, saying:
“One gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the court. The court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the state government also leaves much to be desired.”
In stark contrast to its judgment on 24 June, the Supreme Court in 2004 took a stern view of the way in which the Gujarat High Court had made comments about activist Teesta Setalvad.
While rejecting requests to reconsider the acquittals of the accused in the Best Bakery case (which had been filed with Setalvad's assistance), the high court had, without giving the activist a chance to respond, made several "caustic" observations about her and other activists.
It is fascinating that the bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar should also fail to allow Setalvad and the others to respond in the hearings to the allegations against them, a similar failing of the 'Rule of Law' pointed to by Justices Doraiswamy Raju and Arijit Pasayat back in 2004.
Zahira Sheikh, whose accusations against Setalvad had been key to the comments against the activist, was convicted of perjury by the Supreme Court, and sentenced to a year in jail in 2013.
While the court in August 2004 and then March 2008 declined to make observations to the effect that the investigating machinery in the state had failed, the court nonetheless appointed a Special Investigation Team (SIT) on 26 March 2008 to look into several cases arising out of the riots.
This was in addition to orders for moving several riots cases out of Gujarat because of concerns they weren't being dealt with fairly. In the March 2008 order, the court said:
On 15 March 2011, the Supreme Court received the report of the SIT. On 5 May 2011, it provided a copy of the report to senior advocate Raju Ramachandran, who had been appointed as amicus curiae by the court.
This is raised in the judgment on 24 June 2022 to point out that the SIT's functioning had been reviewed by the amicus as an independent expert and approved.
Ramachandran was allowed to speak to the witnesses while examining the report and even spoke to Setalvad. While the amicus curiae did not raise objections to the SIT's investigation in general, he did not recommend action against Setalvad or Sreekumar.
Indeed, Ramachandran specifically said that while Sreekumar's allegations about verbal instructions from the then chief minister, Narendra Modi, couldn't be proved, they couldn't be said to be motivated:
While the amicus' recommendations, including the one that the CM might have committed offences under, inter alia, Section 153A of the IPC, were not adopted by the Supreme Court per se, it did not deprecate or reject them either.
This makes the decision to criticise those who have consistently argued that the Gujarat administration was lacking in its response to the riots, a very strange one indeed.
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