Kapil Sibal says court-appointed SIT did not consider Tehelka tapes and reports on the 2002 Gujarat riots by the NHRC and other panels.

The Supreme Court on Tuesday objected to the accusation that the court-appointed special investigation team had collaborated with the accused in granting a clean chit to 64 persons, including then Gujarat chief minister Narendra Modi, in connection with the communal violence that swept through the state in 2002.

“We understand the collaboration with the police at ground level, and we would look into it, but how can you say that about the SIT appointed by the court,” the court asked advocate Kapil Sibal, who was representing Zakia Jafri, the widow of Congress MLA Ehsan Jafri who was killed during the riots. Zakia had filed a petition challenging the SIT report.

The bench, comprising Justices A M Khanwilkar, Dinesh Maheshwari and C T Ravikumar, heard detailed submissions made by Sibal, who argued that there was “contemporaneous evidence” in the 2002 riots.

Picking up from where he had left in the last hearing, Sibal on Tuesday accused the SIT again of “collaborating” with the accused. “There was glaring evidence of collaboration,” Sibal argued.

“The political class became collaborators... investigators became collaborators. The VHP, RSS, Bajrang Dal, all were involved,” he said. However, he clarified that it was not the entire police force or bureaucracy which collaborated but that “key people became collaborators”.

During the previous hearing on November 11, Sibal had listed the inefficacy of the police and public prosecutors and also criticised the SIT for “not reaching the spot where offences were committed, by destroying the records, and by not relying upon authenticated tapes”.

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

Sibal’s allegations, however, were objected to by the court. “Are you saying SIT had motives? You are attacking the manner of investigation done by SIT? Collaboration is a strong term for an SIT constituted by the court. We can understand if you say there was some omission on part of SIT. But can you say SIT collaborated?”

Sibal then said, “I am afraid, that is my argument.”

“I will explain to you through an example,” he said. “The SIT had knowledge of the Tehelka tapes. They knew about the judgment of the Gujarat high court that authenticated the tapes. But why did the SIT not question the accused as was revealed from the tapes? Why was the defence accepted by the SIT? What does it show? Was the SIT collaborating and saving some people? I don’t know.”

However, the court said this alone cannot be a basis for attributing motives, and that the SIT might have an explanation, which Sibal might have missed in the record of the cases.

“Okay I will pitch it lower,” Sibal said. “The SIT did not examine people who it should have. It was prosecuting some but also did not prosecute some whom it should have for reasons best known to it.”

Ehsan Jafri 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.

When 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 court dismissed her prayer after which she approached the Supreme Court.

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. She again approached the apex court through a special leave petition challenging the SIT report.

Since then, her case has been adjourned five times.

'SIT did not consider NHRC recommendations'

Senior counsel Kapil Sibal argued before the court that the SIT did not follow the recommendations made by the NHRC in its confidential report in 2014.

In its proceedings of April 1, 2002, the National Human Rights Commission had made its preliminary comments and recommendations on the human rights situation in Gujarat pertaining to the Godhra tragedy. The commission had observed that “a serious failure of intelligence and action by the state government marked the events leading to the Godhra tragedy and the subsequent deaths and destruction”.

The NHRC also claimed that there was a “widespread lack of integrity in the investigation proceedings”.

Sibal said that under section12 (A) of the IPC, the commission can look into anything suo motu, and is also entitled to give recommendations, but he claimed that the SIT never recorded statements of any members of the Commission. “SIT has never examined anyone from the human rights commission,” he said.

Citing recommendations of the NHRC, which, in its confidential report based on its investigation, had mentioned that certain critical cases such as this should be entrusted to the CBI, Sibal said that the state did not accept it and the SIT was eventually given the case.

“No mention was made by SIT to this confidential report of NHRC. It was not dealt with by SIT. Why? Why did they not ask for these documents,” Sibal said.

Sibal said that there was a major intelligence failure and the state government was unable to rebut that. He said that as per the Gujarat government’s report, 2,700 arrests were made, but the report does not clarify how many of these were preventive and were made in the first 72 hours. He also claimed that most of them who were arrested were bailed out immediately.

“If they were bailed, how can you blame the SIT,” the court asked. “I am not blaming the courts,” the lawyer said. “I am saying that the public prosecutor did not even object. This is a collaboration with violence.”

Sibal said the SIT just recorded the statement of the accused, accepted it and closed the matter, without checking the call logs.

The advocate also cited discrepancies in the police probe. He said the accused are mentioned as “unknown” in the FIRs. “It seems to be the pattern,” he said. “If you want to save somebody, you yourself register the FIR and call them unknown. If someone else comes, the police say there's already an FIR, I'll investigate that.”

Citing the 2014 report of former Gujarat DGP PGJ Nampoothari, who was emissary of the NHRC and monitored the aftermath of the tragedy, Sibal said that it is seen that the names of offenders are not included in the FIRs. He said that according to Nampoothari’s report, copies of the FIR had not been given in many cases.

Sibal noted that this is an “indictment”, based on evidence that existed with the commission, but the SIT never recorded it. “Will that be called negligence, oversight or collaboration, that's for you to decide,” he said.

But the bench said that the SIT is not responsible for this evidence. “It was taken into account by the Supreme Court, hence it asked the SIT to overlook the case. Collaboration is not by SIT,” the court asserted.

Sibal noted that the NHRC had made records of individuals who were a part of the mob led by BJP, VHP, Bajrang Dal workers, who were equipped with gas cylinders to torch Muslim houses, and that the SIT should have accessed these records.

“It is all part of NHRC record, and this is a part of their statutory obligation. The state govt should have given it the kind of credence it deserved,” he argued.

Sibal explained that the commission had drawn special attention to “provocative” statements made to the media, and these should have been examined and acted upon. “There were channels that were propagating which had nothing to do with the truth. The SIT or the local police didn't not seek to prosecute anyone for hate speech in the form of leaflets and electronic media,” he said.

Sibal said many politicians accused of abetting crimes were not even booked, according to the NHRC report. “In August, everywhere there were complaints of perpetrators of violence roaming scot free. Some were even prominent politicians. They threatened the complainants to withdraw complaints,” he argued.

The NHRC committee stated that hate speech material should be seized but it did not happen, Sibal said. “Everybody ignored the hate crimes: the police, the magistrate, the HC, the SIT, everybody...When contemporaneous evidence is available by statutory and parliamentary committees, why was it not accessed by the SIT?”

He also listed out other reports that were overlooked by the SIT: report by committee on empowerment of women before the Rajya Sabha in August 2002; Minority Commission's report, independent commission for eminent persons' report, committee for empowerment of women’s report and the reports of NGOs who visited Gujarat.

Sibal also stated that there was a general lack of faith in state armed forces, and the police officers who did “good work” were transferred.

The hearing will continue on Wednesday.