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Meaning of Supreme Court Order on Jafri Petition

The TV channels and newspapers were quick to announce that the Supreme Court has, in its final pronouncement on Zakia Jafri's petition on the Gulberg Society massacre, washed its hands off the Gujarat riots and given a clean chit to Narendra Modi. Nothing could be further from the truth.

COMMENTARY

Meaning of Supreme Court Order on Jafri Petition

Rahul Kripalani

appropriate to oversee the investigations of certain sensitive cases by appointing what are known as “Special Investigation Teams” (popularly known as SITs).4 In Zakia Jafri’s case the Supreme Court was concerned with the writ remedies sought by her and refused by the high court. It

The TV channels and newspapers were quick to announce that the Supreme Court has, in its final pronouncement on Zakia Jafri’s petition on the Gulberg Society massacre, washed its hands off the Gujarat riots and given a clean chit to Narendra Modi. Nothing could be further from the truth.

Rahul Kripalani (rahulkripalani@gmail.com) is an advocate based in New Delhi.

T
here is confusion, much of whichis deliberatelycreated, regarding the final order passed by the Supreme Court on 12 September 2011 in Zakia Jafri’s petition.1 It has sparked off television headlines parroting misconceived pro clamations of a clean chit to Narendra Modi, open letters, fasts2 and what seems to be a perfectly timed release of WikiLeaks cables extolling Gujarat Chief Minister Narendra Modi’s credentials for becoming a prime minister.

To appreciate the order, it is necessary to bear in mind that in criminal matters, the Supreme Court operates in two mutually exclusive domains. Firstly, in the primary/traditional domain, it functions as the Court of final appeal. When doing so, it has before it the entire evidence as also the judgment of the trial court and of the high court which sat in appeal over the trial court. The Supreme Court then decides whether the views taken by the courts below are correct, and if the answer to that is in the negative, it may reverse the decision or remand the matter back to the lower court to decide afresh in light of its directives. This is not the relevant domain under discussion at present, because it is not as a criminal appellate court that Zakia Jafri approached the Supreme Court.

The second domain arises out of the writ jurisdiction that the Constitution has bestowed upon the Supreme Court and the high courts as the vanguard of citizens’ rights against the tyranny of the Executive. In the exercise of powers in this domain, these courts have taken wideranging actions, one of which is the overseeing of criminal investigations. Investigation is a crucial stage of the criminal law machinery, which, in normal circumstances, would be the responsibility of the Executive.3 Over the years, the Supreme Court and the high courts have felt it

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is in that context that the order must be understood.

When overseeing an investigation, the Supreme Court cannot and does not act as a trial court to frame charges, record evidence or pronounce a verdict of guilt/ innocence. These are roles reserved for the criminal courts, and if defects in the manner in which these tasks are carried out are found, the law provides an appellate or revisionary procedure and a hierarchy of courts to deal with them.

Various newspapers have carried headlines suggesting that the Supreme Court has, in a final pronouncement, washed its hands off the Gujarat riots and is unwilling to look into these matters henceforth. Nothing could be further from the truth.

Jafri’s Petition

The truth is as follows. The petitioner, Zakia Jafri5 sought to file a private complaint dated 8 June 2006, with Gujarat’s director general of police (DGP) regarding the involvement of Narendra Modi and 61 other persons in the communal riots that occurred between 28 February and 10 March 2002. Againstthe Gujarat Police’s refusal to register her complaint, five years to the date of the Gulberg Society massacre, in which her husband and onetime Congress MP Ehsan Jafri and others were butchered, she approached the Gujarat High Court praying for a direction to register her private complaint as an FIR and direct investigation by an independent agency. The high court declined her relief, and she moved the Supreme Court against the order of the Gujarat High Court.

The apex court, on the first day her petition was taken up for hearing, observed that,

In a given case, a person who has knowledge of the commission of a crime may not be examined by the police. The question is what is the remedy available to such person?

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The Supreme Court thus took serious note of her grievances and, through the course of 11 hearings spread over three years, took the matter beyond her original prayer. The Court has indeed extended itself, given an earlier ruling that, “neither the accused nor the complainant or informant are entitled to choose their own investigating agency to investigate a crime in which they may be interested”.6 Zakia Jafri has obtained an apex courtmonitored investigation which will be presented before the sessions judge, along with the report of an amicus, and directions from the apex court to look into the report and proceed with the matterin accordance with law – exactly what she had hitherto been unable to achieve.

Going back, the Court constituted an SITand through its order dated27 April 2009, asked the SIT to “look into” the matter. The SIT filed its first report on 12 May 2010, stating that there was a case for further investigation, which it was then directed to undertake. The SIT returned with its report of further investigation on 17 December 2010. While the above SIT reports were being prepared and the matter was being heard, the Supreme Court was also preparing the ground for an independent evaluation by an amicus7 of the task carried out by the SIT, albeit one that it had itself constituted. Soon after their appointment, the amicus presented a preliminary note in January 2010 to the Court. By this time, the SIT had already submitted two reports before the apex court. On15 March 2011,the Court directed the SIT to further probe the case onthe basis of the note prepared by the amicus. Accordingly, the SIT submitted yet another report on24 April 2011. On5 May 2011, the Supreme Court, in an unusual if not unprecedented move, directedthe amicus to make an independent assessment of the SIT probe. For good measure, it added the following direction, which is a good indicator of the seriousness of the apex court’s intention to arrive at the truth,

If the learned Amicus Curiae forms an opinion that on the basis of the material on record, any offence is made out against any person, he shall mention the same in his report.

The amicus was therefore given full authority by the Court to find flaws in the investigation undertaken by the Courtappointed investigator. The Court went as far as allowing theamicustointeract with any witness examined by the SIT, including the police officers. In July 2011, the amicus submitted his final report to the Court.

Statutory Investigations

Thus, the SIT, which started as a preliminary non-statutory enquiry, later conducted statutory investigations under the Criminal Procedure Code, 1973.If the SIT finds it fit to prosecute the persons named, the case proceeds further, and the persons named in the petition would become “accused persons”. If the SIT chooses not to proceed further (in respect of certain persons and/or allegations), it would then file a closure report, to which the complainant has a right to object by filing a protest petition. Independently of the complainant’s rights under the law as confirmed by the order of the Supreme Court, the sessions court is already vested with powers to summon as accused persons even those whom the police report may have left out, both at the initial stage8 and at a later stage,9 when it finds evidence of the involvement of such persons in the offence. The SIT report in the present case operates as a police report.

Amicus Report

What is perhaps contentious about the Supreme Court’s last order is the issue of making the report of the amicus public. There are three possibilities arising from the amicus opinion of the SIT investigation report. The amicus may have substantially concurred with the SIT’s findings, totally disagreed with the SIT findings and, lastly, partially disagreed with the SIT findings.

In the first case, there is no problem and the sessions court can adopt the course of action set out in the preceding paragraph.

Regarding the second possibility, it may have simplified matters if the Supreme Court had taken a call on which report to rely on and lend its weight to, or altered the composition of the SIT or sought to improve its functioning by any other method deemed appropriate.

Regarding the third possibility, in the case of partial disagreement between the two reports, the apex court could have reconciled the differences in the amicus and SIT report and adopted the stand of one or the other in relation to the specific allegations made by Zakia Jafri, on the basis of evidence on the record. In the second and third possibility, it has left this task to the sessions court, somewhat leaving the future ambiguous. However, as said before Zakia Jafri’s allegations are in no way closed, for the complainant will still have a say and the sessions court is fully empowered to summon all those against whom material emerges. Thus, it is equipped by law to fulfil the responsibility cast upon it by the Supreme Court.

Doubts whether the SIT will forward the amicus report to the sessions court in Ahmedabad seem misplaced. In fact, the chairman of the SIT has suggested that he will forward the amicus report.10 Anyhow, powers under Section 165 of the Indian Evidence Act, 1872, empower every court to order the production of any document, in order to discover proper proof of relevant facts, and in this case, it could summon the report of the amicus.11

The trial court is now to “begin” where the Supreme Court has left off and proceed against persons against whom, in its opinion, sufficient material has been

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found. If there are errors in the session court’s view of the matter, the matter will ultimately be agitated before the Supreme Court, which then, will be functioning under what was previously referred to as the “primary domain”, and will have at its disposal the wide powers of an appellate court. The Court at this stage has not made any observations regarding the involvement of those implicated by Zakia Jafri. This judicial restraint must be respected and celebrated; more so by those in whose favour it has been exercised. It must not be maligned into exoneration.

Certain sections have expressed disappointment with the order, anticipating that the Supreme Court would have done more. But the Supreme Court has, in the past, come down heavily12 on the high courts for what it has called a pre-trial of a criminal trial, by courts exercising the writ jurisdiction.

In this regard, justice Krishna Iyer has decried the lack of objective standards in judicial determination. Quoting from a bookbyAlan Barth (Prophets with Honour), he accepted the standards for judicial discipline mentioned there and set out the following passage,13

A Court which yields to the popular will thereby licenses itself to practice despotism, for there can be no assurance that it will not on another occasion indulge its own will. Courts can fulfil their responsibility in a democratic society only to the extent that they succeed in shaping their judgments by rational standards, and rational standards are both impersonal and communicable.

Statements suggesting or openly proclaiming that the Supreme Court’s order is an exoneration of anyone implicated by Jafri are false. In fact, they are false to the knowledge of those making them, and that could be the reason why those statements are being made with such zeal. The whole exercise has in fact been likened toGoebbelsian propaganda,14 and that certainly appears to be the case.

Strangely, in December 2010, when the SIT had not even completed its report, news channels carried stories that the SIT had exonerated Narendra Modi. Jubilant, L K Advani wrote in his blog that Narendra Modi had been “consistently, sustainedly and viciously maligned by opponents”, and added, “The country is eagerly awaiting the full text of the SIT report to the Supreme Court”.That the country awaits the report of the SIT holds true even today. We also await the presentation of the amicus report before the sessions court in Ahmedabad, and the action that the sessions court will initiate on the basis of the report. Only then shall we know whether the jubilation was warranted.

Notes

1 Special Leave Petition (Criminal) No 1088/2008, subsequently converted to Criminal Appeal No. 1765/2011

2 Increasingly, the orders of the apex court have become the subject of frenzied, wide-ranging and virulent discussion the evening after the order is pronounced, and the next day, everyone wakes up and goes about their business as if nothing ever happened. Interestingly, courtroom conversation is given the colour of an “order”. This has led to some corrective mechanisms from the Supreme Court, which, ill understood, were much criticised by sections of the mainstream media.

3 King Emperor vs Nazir Ahmed, AIR 1945 PC 18, West Bengal vs S N Basak, AIR 1963 SC 447, Jehan Singh vs Delhi Administration, AIR 1974 SC 1146.

4 Granted in Ram Jethmalani vs Union of India (Black money case), 2011(6) SCALE691; NHRC vs State of Gujarat (2009), 6SCC342; T N Godavarman (Forest bench case; to check poaching in Sariska); and refused in Centre for PIL vs UOI (2011), 1SCC560, Sanjiv Kumar vs Om Prakash Chautala (2005), 5SCC510.

5 The other petitioner in the matter is, “Citizens for Justice and Peace”. 6 Divine Retreat Centre vs State of Kerala (2008), 3SCC542.

7 Prashant Bhushan was initially assisting the Court asamicusfrom the time the petitioners moved the Court in 2008. He recused himself when, in 2010, the Gujarat government made allegations of bias against him. Rohinton Fali Nariman, the present solicitor general was approached with the task but he expressed his inability to assist the Court. Therefore, Raju Ramachandran and Gaurav Aggarwal were appointedamicusby the Supreme Court, vide a chamber order dated 23 November 2010.

8 Under Sec 190 1(b), CrPC, cognisance of an offence is taken by the Court upon a police report of such facts. The SIT report will constitute “the police report of such facts” in the present case.

9 Under Sec 319, CrPC, action can be taken against the persons named in the SIT report who appear to be guilty of the offence, who have till present not been arrayed as an “accused”. Section 319 CrPC would be required to be invoked because the trial is now in an advanced stage.

10 “I Will Not Allow the Victims To Be Let Down”, interview in The Hindu, 16 September 2011, accessible at: http://www.thehindu.com/opinion/ interview/article2456313.ece

11 165. Judge’s power to put questions or order production – The judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, The Orient Tavern crossexamine any witness upon any answer given in reply to any such question. Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved.

Provided also that this section shall not authorise a judge to compel any witness to answer any question or produce any document which such witness would be entitled to refuse to answer or produce under Sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the judge ask any question which it would be improper for any other person to ask under Section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases herein before excepted.

12 In State of Bihar Anr vs P P Sharma Anr, AIR 1991 SC 1260, the Apex Court held as follows: “... considering the matter on merit on the guise of prima facie evidence to stand an accused for trial amounts to pre-trial of a criminal trial under Articles 226 or 227 even before the competent Magistrate or the Sessions Court takes cognizance of the offence”.

13 These remarks were made in the celebrated judgment of Mohinder SinghGill vs Election Commisison, (1978) 1 SCC 477.

14 The term used by Sanjiv Bhatt, suspended IPS officer in his open letter to Narendra Modi, accessed from Hindustan Times, Ahmedabad, 15 September 2011, http://www.hindustantimes. com/IPS-officer-Sanjiv-Bhatt-s-open-letter-toModi/Article1-746032.aspx. It refers to a nontruthful statement gradually believed by people to be true, due to constant repetition. It was the theory propounded and practised by Paul Joseph Goebbels, one of Adolf Hitler’s closest associate and Reich Minister of Propaganda in Nazi Germany.

THE VERDICT ON AYODHYA

December 11, 2010

Dissecting the Ayodhya Judgment – Anupam Gupta Secularism and the Indian Judiciary – P A Sebastian Idols in Law – Gautam Patel Issues of Faith – Kumkum Roy Was There a Temple under the Babri Masjid?

Reading the Archaeological ‘Evidence’ – Supriya Varma, Jaya Menon

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