Zakia Jafri Case: Can Rule of Law Survive if We Crush Those Fighting for It?

The vehemence of the court in saying that persons assisting the widow should be ‘put in the dock’ is inexplicable.

The FIR against Teesta Setalvad and her detention came within twenty-four hours of the Supreme Court judgment.

(Image altered by The Quint)

“It is necessary for us all, the citizens of the world, to work tirelessly to sustain and further the liberty, freedom and democracy our forefathers have fought for.”

– Chief Justice NV Ramana at Independence Hall, Philadelphia, summer of 2022.

Justice Ramana is set to retire shortly. His exhortation to citizens to dedicate themselves to the cause of liberty ironically comes at a time when persons perceived by a large section of civil society to be doing exactly what is asked of citizens by the Chief Justice – defending “liberty, freedom and democracy” – have faced judicial strictures and sudden arrests.

Ehsan Jafri, a former legislator, was burnt to death during the Gujarat riots of 2002 as his pleas for state assistance fell on deaf ears. A three-judge bench of the Supreme Court, in Zakia Ahsan Jafri v State of Gujarat, while turning down the demand for an investigation by his widow, Zakia Jafri, made observations to the effect that persons who were alleged whistleblowers of the complicity of the highest decision-makers in the state government and those who were advocating action against such persons and assisting Jafri in her quest to seek justice for her husband were, in fact, “involved” in “abuse of process” and needed to be “in the dock and proceeded with in accordance with law”.

• The indisputable fact is that a widow lost her husband. The widow had moved the court system seeking an investigation into the role of persons who were charged with the protection of her husband’s life and liberty.

• The vehemence of the court in concluding, as it did in paragraph 88 of its judgment, that persons assisting the widow should be ‘put in the dock’, is inexplicable.

• If citizens are to be motivated to fight for freedom and liberty, as the Chief Justice has desired, then it is imperative that the judiciary is never perceived as being inimical to those who actually dare to “speak truth to power”.

When the Cost of Defending Democracy is Punishment

Within hours of the judgment, which finally placed a judicial imprimatur on the ‘clean chit’ given to the then-head of the state government, the Gujarat police, with astonishing efficiency, lodged a detailed First Information Report (FIR) against the activists and alleged whistleblowers in the administration, referring to the court’s observations on putting them “in the dock” and proceeded to arrest them.

Interestingly, the complainant is not any of the persons against whom allegedly the widow, activists or the alleged whistleblowers had, in the words of the top court, kept the “pot boiling” – it is the Crime Branch Police Inspector of Ahmedabad city.

One must appreciate the efficiency of the chap to have distilled the 450-page court decision within hours and to have reduced it into an FIR running into 10 pages lodged and actioned upon with a team landing up at Teesta Setalvad’s Mumbai residence, to arrest her even before the ink had dried on the judgment signed by three justices, whose authorship remains undisclosed.

I write not in support of these figures. They have able advocates for their causes. Their sudden perceived victimisation has aroused a passionate defence by civil society. What is of concern though is the impact such synchronicity has on the already battered image of India’s judiciary and the chilling effect it would have on people taking up Justice Ramana’s plea to serve as defenders of “liberty, freedom and democracy”.

The Chilling Effect of the Court's Actions

The Zakia Jafri case arose in the context of requiring a criminal investigation into the alleged complicity of high state functionaries in the Gujarat riots of 2002. The Supreme Court had constituted a Special Investigation Team (SIT), which had concluded that no complicity could be established. Its “closure” report had been accepted by the magistrate. The same was challenged unsuccessfully all the way to the top court.

The judgment refers to the “gumption” of the widow and the other disgruntled lot (para 79) and their “audacity” (para 88) to level allegations that were found to be false by the SIT after thoroughly examining them. I personally am aghast to find the inclusion of such terms in the lexicon of a constitutional court committed to safeguarding the rule of law in a democracy.

The indisputable fact is that a widow lost her husband. The widow had moved the court system seeking an investigation into the role of persons who were charged with the protection of her husband’s life and liberty. In the process, she had been aided and assisted by an ‘activist’. The suggestion of the state of Gujarat to the top court was that she was “influenced” by Setalvad into demanding an investigation.

The Supreme Court was examining whether the criminal court was justified in accepting the “closure” report of the SIT. Till the court gave its decision, no complaint had been filed against the complainant or those who were assisting her, charging them with forgery or any of the wrongdoings that now find a mention in the FIR.

The incidents, as the Supreme Court itself has observed, happened over a decade back. In such circumstances, the vehemence of the court in concluding, as it did in paragraph 88 of its judgment, that persons assisting the widow should be ‘put in the dock’, is inexplicable. The action of the executive in arresting and imprisoning within hours of the judgment those who were ‘assisting’ the widow only fortifies the fear of many that the approach of the court shall have a “chilling effect” on persons accessing the justice system to remedy what they perceive as injustice.

An Example from Matrimonial Law

Conceded that persons must be discouraged from levelling false allegations, more so when the persons concerned occupy high constitutional offices. However, a greater public interest would have been served if the court had restrained itself from giving unsolicited advice to the executive on acting against citizens. After all, it was only examining an investigation report, and that, too, which had already been actioned upon by the concerned court. The magistrate, who had the same report before him, had not felt the need to put those assisting the widow “in the dock”.

Having practised matrimonial law for years, let me explain this using a metaphor from this domain.

Many women who file criminal cases of cruelty against their husbands ultimately either abandon them or such cases end in acquittal. This has led to a widespread belief – at times even judges have voiced this in judgments – that women “abuse” or “misuse” the system.

However, the reality is that there are many reasons why women abandon or lose such criminal proceedings. The backbreaking nature of the justice system, the unequal economic power of the spouses and the social pressure to settle and move on are some of the reasons behind the phenomenon. Now, if a court were to say that such a woman should be “put in the dock” for having the audacity to have preferred a criminal charge against her husband, which on investigation and/or trial has been found not substantiated, it would deter women from coming forward to access the law. They would choose to silently suffer abuse and domestic violence.

The Legacy of Chief Justice Sikri

Politicians in public life have broad shoulders. They have all the resources and the might to fight allegations against them legally as well as politically. The last thing they need is for courts to serve as their cheerleaders.

On the other hand, citizens are vulnerable. If they have to be motivated to serve as soldiers in the battle to protect freedom and liberty, as the Chief Justice has desired, then it is imperative that the judiciary is never perceived as being inimical to those who actually dare to “speak truth to power”.

It is time for judges to walk the talk from the seminar room to the courtroom. The time has come for the Court to instil “gumption” in every citizen to have the “audacity” to be that little boy who called out the Emperor for wearing no clothes. If to secure this end the court has to err on the side of restraint and leave it to the executive and politicians to fight their own battles, then so be it! Condemning an activist, howsoever tainted he/she may be, and calling for action against him/her is to silence thousands of others who might actually be fighting the good fight.

This judgment and its call to action has done irreparable damage to the idea of “citizen warriors” so wonderfully propounded by the Chief Justice!

I started by quoting this sage wisdom shared by Justice Ramana on his latest foreign tour. Most retiring Chief Justices wind up their tenures by attending to those pending foreign tour invites. This tradition goes way back in time. Even Sarva Mitra Sikri, the Chief Justice who presided over the Keshavananda Bharati Case, was stressed as he had to steer 13 judges to a verdict in between his pending foreign tour and impending retirement. The verdict, which gave India her Basic Structure Doctrine, was delivered on the day the Chief Justice demitted office. Chief Justice Sikri is remembered to this day for that. So, Justice Ramana, how would you wish posterity to remember you?

(The author is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)