The Supreme Court of India has taken several questionable decisions in recent years. But its June 24
judgement dismissing Zakia Jafri’s appeal against the Court-appointed Special Investigation Team’s
exoneration of chief Minister Narendra Modi yet again from his share of the responsibility for the
Gujarat riots of 2002, and therefore of responsibility for her husband and their relatives’ death in the
Gulberg society massacre, is the most questionable of them all.
Questionable may well be an understatement: a better word could be ‘destructive’. For with this
judgement the Supreme Court has destroyed whatever faith civil society had retained in the fairness of
Indian jurisprudence. For not only did Justice Khanwilkar and fellow judges dismiss Mrs. Jafri’s
petition with two contemptuous words, “without merit”, and a taunting question: “ why did she take 16
years to file this appeal”, but they devoted a significant amount of its judgement, close to a third of its
416 pages, to vilifying Teesta Setalvad, the founder of Citizens for Justice and Peace and Mrs Jafri’s
adviser since 2006, and Sanjiv Bhatt and R.B. Sreekumar, two officials of the State Intelligence Bureau
whose testimony Mrs Jafri had been relying upon in her quest for justice.
Nor did the learned judges stop there, for in paragraph after paragraph, they virtually invited the
government to prosecute these three on the grounds that it was they , not Modi’s Gujarat government,
who had concocted ‘a larger conspiracy to keep the pot (of Modi’s culpability in the Gujarat riots)
boiling”. And they did this when none of the three were petitioners in the case! This attack on members of civil society who were not even appearing before the court, could well be a precedent not only in Indian but global jurisprudence.
The doubts about the learned judges’ motives aroused by their intemperate recorded judgement do not
end there. For the judgement is 416 pages long, but the Gujarat police arrived in Mumbai to arrest
Setalvad within a day of its being given. The arrest of Sreekumar and re-arrest of Sanjiv Bhatt , to
discrediting whom the Judges had also devoted more than fifty pages of their judgement followed within
hours.
Did the Gujarat police have speed readers in its service, or was it, perchance, given a copy of the
judgement before it was pronounced? However improbable this is, the mere fact that the suspicion exists
, and is being voiced, highlights the depths of the distrust that has now developed between the highest
court and ‘l’etat civile’—civil society – that, has been protecting individual rights and constitutional
freedoms in other democracies since their inception, and has been doing so with increasing vigour in
India as the danger toit from Modi-ism has developed over the past eight years.
On June 28 , three days after Teesta’s arrest, former Supreme Court Judge Madan Lokur asked , in these
columns, “ Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested?” If it did
not then it was incumbent upon it to say so. But the Court has remained silent till this day, thereby re-in
forcing the suspicion this was indeed what the three judges on this bench had had in mind. Through its
silence, therefore, the Court has made itself a party to the wholesale destruction of habeas corpus– the
right of citizens to freedom until proven guilty of a crime punishable by imprisonment that is the cornerstone of democracy, and has been under especially heavy attack since the Sangh Parivar came to
power in 2014.
Why has the Supreme Court stooped so low? Ever since judges began accepting lucrative post retirement posts after giving judgements that were to this government’s liking, Civil Society has begun to suspect the worst of motives. Former chief justice K Sathasivan, a highly respected chief Justice with several benchmark judgements to his credit, had set the ball rolling when he accepted the Governorship of Kerala only weeks after he stepped down from the Court in 2014. Sathasivan had been a member of the three-judge bench headed by justice D.K Jain that had accepted the Gujarat government’s plea to stop monitoring the Zakia Jafri case and hand it back to the Gujarat judiciary, after the SIT presented its
preliminary report exonerating Modi of any ‘prosecutable’ offences . This had enabled the Modi
government in Gujarat to fill vacancies in the SIT with its nominees and turned the SIT’s 2012 closure
report into a farce. Did he not realise that when he accepted the governorship of Kerala, he would be
reinforcing civil society’s fear that Modi was intent upon corrupting the highest court of the land?
Chief Justice Ranjan Gogoi strengthened this fear when he followed in Sathasivan’s footsteps and
accepted nomination by the Modi government to the Rajya Sabha with equal celerity. Civil society’s
suspicions hardened still further when former CBI director R.K Raghavan, who had been kept on as the
head of a redundant SIT for another five years, was appointed India’s ambassador to Cyprus within five
months of resigning from it. Raghavan had accepted these sinecures despite the fact that his own SIT had commented adversely on Modi’s keeping the three senior-most civil servants who had attended the late night meeting at his home on february27, 2002 in post-retirement posts through the entire period of the investigation, to shut their mouths.
The suspicions aroused all over the world by the Supreme Courts latest dismissal of Zakia Jafri’s petition
are therefore understandable. But assuming the worst about the Khanwilkar bench’s judgement will serve
no purpose because it will only hasten the catastrophe that civil society fears the most. This is the
collapse of the last pillar upon which the battered remnants of our democracy still rests.
To understand this fear it is necessary to look at the case from the judges point of view. Zakia Jafri’s plea
was not about the Gulberg massacre. The Supreme Court had monitored this , and eight other specific
cases. The Gulberg trial had resulted in 24 convictions and 32 acquittals. Zakia Jafri’s FIR ,which she
had submitted first to the Gujarat police after the riots, and when it took no action, to the Gujarat High
Court, had accused the decision makers in the government of Gujarat of actively conspiring to let the
riots happen. The wording of the FIR was explicit:
“I beg to bring to your kind notice the deliberate and intentional failure of the State
Government to protect the life and property of innocent denizens of this country
through a well-executed and sinister criminal conspiracy amongst the accused above
named, that resulted in the breakdown of Constitutional Governance in the State… since
2002, when a mass carnage was orchestrated by the most powerful in the State
Executive using pressure and connivance of the State Administration and Law and
Order Machinery there …..”
Heading the list of 62 conspirators was Narendra Modi, in 2006 the chief minister of Gujarat, and since
2014 the prime minister of India. This petition created a serious problem for the Supreme Court – how to avoid a truly serious “judicial overreach” that would destroy the position the Court had built as the final
guardian of citizens’ rights when these were threatened by actions of the executive or enactments by the
legislature.
This role was not spelt out anywhere in the Constitution, but had been created by the Court itself as
India’s democracy had matured and in some respects soured, in the decades that followed. . The
constitution had spelt out the original, appellate and advisory jurisdiction of the Supreme Court in in
articles 132-134 and 143-144. Its appellate jurisdiction allowed it to entertain appeals in Civil matters in
cases that ‘involved a substantial question of law of general importance’, and in Criminal matters if a
High court had, on appeal, reversed the order of acquittal of an accused and sentenced him to death, or
had withdrawn for trial before itself any case from a subordinate court’.
These were highly restrictive clauses, but their severity was mitigated by a clause that allowed the
Supreme Court to give ‘special leave to appeal’ if it was satisfied that a case did not involve any question
of law. It was under this last, omnibus permission that it had assumed the role of protecting the rights of
citizens as the shortcomings of Indian democracy began to surface. It’s adjudication under this last
transformed the Court from being the court of final appeal on points of law, usually affordable only to the
rich and powerful, into the final guardian of the rights and freedoms that have been guaranteed to the
people in the Constitution.
In two memorable lectures given under the auspices of the Palkhivala foundation in 2007 and 2017,Harish Salve, a former solicitor-general of India, traced the origins of judicial activism to what he labelled “the Krishna Iyerisation “of Jurisprudence in India in 1970s. In Salve’s words, “before him the Supreme Court was the Supreme Court of India. Justice Krishna Iyer made it the Supreme Court for Indians”.
In his 2007 lecture Salve highlighted four pivotal issues on which the Supreme Court did this. A decade
later he identified three more. But in 2007, and again much more forcefully in 2017, Salve also warned
that judicial activism could create its own perils. Chief of these was that the more citizens came to rely
upon it to enforce the rule of law and ensure justice and equity in governance, the greater would become
the risk of popular disillusionment if it failed. But Salve also did not hide his concern that ‘where the
Court steps in too often, it builds up hopes that it will not be able to deliver’. ‘The court has neither the
sword nor the purse’ he warned. ‘If popular will turns against it, the institution (will be) destroyed’. He
placed the blame for this squarely upon the legislatures and the central and state administrations, accusing ‘those in power (who) cannot arrive at a consensus on (abiding by the spirit of the constitution and) keeping the judiciary above suspicion.’
With the BJP’s ascension to power at the Centre, the abuse of citizens’ rights became normal so the chasm between the executive and the judiciary widened rapidly. Zakia Jafri’s appeal to the Supreme Court in 2017 made it unbridgeable because its principal accused was now the Prime Minister of India. This put the Supreme Court in an impossible position: Not entertaining her petition would have further eroded the confidence of the public in the Judiciary’s guardianship of its rights. But reopening the case would create a constitutional crisis.
The open rancour that its judgement displays towards civil society activists reflects it’s extreme
discomfort with the position in which it found itself . It could not ignore the fate that had befallen the
victims of the Gujarat riots. It could not therefore deny Mrs Jafri another hearing of her case. But it also knew that if it conceded her request for a fresh inquiry, Narendra Modi was even less likely to stepdown
for its duration than Mrs Indira Gandhi had been in 1975. The risk of another head on clash between the
executive and the judiciary that could, this time, bring India’s democracy to a permanent end, was
therefore immense.
This could be the reason why the Khanwilkar bench summarily dismissed Mrs. Jafri’s appeal. It did this
by concentrating upon the process , and not the content of the investigation, and finding no fault with it.
It concluded, unsurprisingly, that due process had been followed: The Supreme Court had created the
Raghavan SIT; the SIT had submitted a report ; the report had been criticised by the Court’s Amicus
Curiae; the court had sent the report back to the SIT for revision in the light of his comments; the SIT had
submitted a revised report indicting some more people but confirming Modi’s exoneration ‘for lack of
prosecutable evidence’. When the Sathasivan bench accepted this ‘closure’ report, ended its monitoring of the SIT and handed the case back for further action to the Gujarat government, ignoring the fact that it was headed by the person who was principal accused in the petition, it closed the door for any further
pursuit of justice in Gujarat. Judgements made in hindsight are seldom of any real value, but one needs to be made because crimes like the one committed in 2002, can occur again in our increasingly polarised communal society. The cause of justice would have been better served if Mrs. Jafri had accused the Modi government not of a criminal conspiracy, but a dereliction of “Chain of Command Responsibility”.
Command Responsibility is one of the oldest precepts of law in the world, for its origins can be traced
back to Sun Tzu’s 6th century BC masterpiece The Art of War. It entered into modern international law
when it was codified in The Hague convention of 1899 and updated in the convention of 1907.
While conspiracy requires proof of commission, establishing Chain of Command Responsibility requires
only proof of deliberate omission , i.e a conscious failure to act in accordance with the law . It was used in
1946 after the Second World War, to indict General Yamashita, who was the Japanese governor of the
Philippines, because his soldiers committed innumerable atrocities against civilians and prisoners of war.
The concept was refined to avoid misuse two years later in a celebrated American case labelled the High
Command Case, where the US Supreme court decided that for a commander to be held criminally liable
for the actions of his subordinates “there must be a personal dereliction” which “can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes
criminal negligence on his part based upon a wanton, immoral disregard of the action of his subordinates
amounting to acquiescence.”[1]
There is a tonne of evidence that the Vishwa Hindu Parishad intended to use the Godhra train burning to
launch a pogrom o Muslims the next day, but the entire case of criminal conspiracy against Modi and his
principal lieutenants rested upon the remark Modi was alleged to have made in his late night meeting with police chiefs on February 27, advising them not to prevent the inevitable Hindu backlash that would occur the next day. Whatever one may choose to believe about the motives of the participants in the meeting, legally this case became untenable when all the participants in it claimed that the principal whistle blowers, Sanjiv Bhat, R.B Sreekumar and Haren Pandya had not even been present at the meeting.
So when the SIT exonerated chief minister Modi for lack of prosecutable evidence Mrs Jafri would have
been on much stronger ground if she had launched a fresh case against the Gujarat government based
upon a precise enunciation of the Chain Of Command Responsibility doctrine. To prove this all she
would have needed to show was that, knowing fully well the backlash that was bound to follow after the
VHP had taken over the bodies of the deceased, and consciously allowing it to do so, the government had done nothing to prevent it.
Such a case would have been difficult to disprove because in 2010 Citizens for Justice and Peace, the
organisation founded by Teesta Setalvad and her husband Javed Anand, had unearthed cell-phone
records which showed that “Ahmedabad police commissioner P C Pande had spoken to joint
commissioner of police M K Tandon six times during the period when the latter was present at Gulberg
Society and the mob was growing restive. Though Tandon was accompanied by “striking force” equipped to disperse a riotous mob, he left Gulbarg Society without taking any corrective action and his departure led to the massacre …”[2]
.
That opportunity has been missed and will return only when Modi and the BJP are no longer in power.
[1] Command Responsibility and Superior Orders in the Twentieth Century – A Century of Evolution:
http://www.murdoch.edu.au/elaw/issues/v10n1/hendin101_text.html
[2] Mitta, Manoj (25 April 2010). “Post-Godhra riots: Teesta digs up call records”. The Times of India.
