‘No investigation, but an effort to protect the bureaucracy’: 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 was killed during the Gujarat riots of 2002. Zakia 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 riots.

The bench, comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar, heard detailed submissions made by Zakia’s counsel Kapil Sibal regarding the inefficacy of the police and public prosecutors during the riots. He also pulled up the SIT for “not reaching the spot where offences were committed, by destroying the records, and by not relying upon authenticated tapes”.

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

Picking up from where he had left off yesterday, Sibal today produced six “convenience volumes” of what was and what was not dealt with by the SIT or the magistrate court in the investigation.

“The SIT did not do their job. It was not an investigation but a collaborative exercise,” Sibal said. “I am not concerned with individuals, I am concerned with the process. This is an act of protection not a commitment to investigate.”

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 and she 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.

‘A mockery of an investigation’

Listing out the discrepancies during the course of the SIT’s investigation, Sibal said the job of an investigating officer is to investigate all facts and circumstances of a case.

“The investigation cannot be biased, cannot discriminate on the basis of religion or any ground,” he said. “You can't investigate one person and protect another for reasons best known to you. The umbilical cord which connects the Criminal Procedure Code to Article 21 is pure and unbiased investigation.”

He pointed out that the local police too, by refusing to lodge an FIR on the basis of Zakia’s complaint, “did not investigate properly”. The violence had begun on February 27, 2002, he said, but the SIT had concluded there was no violence. Similarly, the Ahmedabad police commissioner, PC Pandey, at the time had said funeral processions in the city were “peaceful”, despite “messages” to the contrary – yet these were not analysed by the SIT.

“RK Raghavan, the SIT head, could not understand Gujarati and the messages and communications were translated to him by the complainant,” Sibal said. “This should have been done by the SIT.”

He added, “There was no investigation but an effort to protect the bureaucracy, the VHP, the Bajrang Dal people.”

Returning to PC Pandey’s role in the investigation, Sibal said Pandey had been “sitting in his office all day long” during the riots and even had “three conversations with the accused”.

“This is scandalous,” the lawyer said. “What was the commissioner doing...He was sitting in his office all day long but he was not doing anything. The SIT has not investigated any of this.”

Sibal then moved on to Haresh Bhatt, a Bajrang Dal leader at the time who was later elected as an MLA from the Bharatiya Janata Party from the Godhra seat. Bhatt was one of the people interviewed during a “sting operation” of riots accused by Tehelka journalist Ashish Khetan in 2007.

Sibal reiterated his points made yesterday on the SIT ignoring details uncovered during a sting operation on the riots accused, despite the sting tapes being authenticated by the CBI and the Gujarat High Court in the Naroda Patiya case.

He noted that during the sting, it had been disclosed that the Vishva Hindu Parishad had played a lead role in the riots. During the sting, Bhatt had given statements to Khetan on making bombs using dynamite, Sibal said, and admitted he “killed 3-4 Muslims in Baroda”. Sibal quoted Bhatt as saying: “Police just stood by. They supported us.”

Sibal said the SIT had, without any judicial examination, accepted Bhatt’s statements.

“A normal prosecutor would have arrested the man on this statement and prosecuted him,” he said. “Instead of arresting the man, they accepted the statement.”

He argued, “He [Bhatt] admits to having killed people. The question to be asked is, what was the SIT doing? There was no investigation. There was only an effort to protect, to protect the VHP people, Bajrang Dal people, to protect the policemen, the bureaucracy.”

Sibal also referenced Bhatt’s statements on distributing trishuls to youth in Gujarat.

“Trident is a mentality,” Sibal quoted from Bhatt’s statement. He added, “Very philosophical man.”

Sibal added that the SIT had not taken statements from the National Human Rights Commission, the Citizens’ Tribunal, or any women organisations. “And all of them had indicted the police,” he said.

The hearing will continue on November 16.