ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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The Error of ‘Judgment’

The disillusionment with the true nature of the Indian judiciary is appalling.

Alok Prasanna Kumar writes:

The Supreme Court of India’s judgment in Zakia Ahsan Jafri v State of Gujarat (2022) runs into over 450 pages, with 150 pages of “annexures” alone. Without the full context, one might imagine it to be a judgment of acquittal coming after a full trial of the then chief minister of Gujarat and the current Prime Minister Narendra Modi and the present home minister in the central government Amit Shah. Unfortunately, it is not. It is, perversely, marshalling all the facts and evidence to show why these two political leaders in question need not stand trial for any offences. It is the same exercise that the Court undertook in dismissing the need to investigate the circumstances of the death of Judge Brijgopal Harkishan Loya (Tehseen Poonawalla v Union of India [2018]). The petition, in the Loya case, as also in Jafri’s case, was to initiate the investigation rather than deliver a finding of guilt. Instead, the Court felt the need, in both cases, to go out and make a case for the innocence of the potential accused.

In both instances, the Court has gone beyond the call of duty, but in Jafri’s case, it has also gone above and beyond the call of duty. While starting-off the judgment with the disclaimer that it is only going to concern itself with the facts of the case and not focus on the motives of the activists supporting the petitioner (Teesta Setalvad and others), the Court nonetheless goes on to accuse them of adopting a “devious stratagem” to “keep the pot boiling” for 16 years. It accuses them of “falsity” and states, “as a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with (the) law.”

This was the cue that the Gujarat police needed to continue their persecution of Setalvad, R B Sreekumar, and others who had relentlessly sought justice for Jafri. More criminal cases have been filed citing, bizarrely, the observations of the Supreme Court in the judgment. While sections of civil society believe that the police have “misinterpreted” the Court’s observations, they assume that the Court was acting in an independent and fair-minded manner in this case; a proper reading of the judgment shows that it was not.

The point of the petition was to question why the special investigation team (SIT) had not properly investigated several aspects of the involvement of the Gujarat state machinery in the riots. One aspect was the seeming instigation of the riots by the Hindutva groups at the behest of the state machinery; another was the call records and materials which suggested that the instructions had been given from the higher authorities to the police officers not to intervene in the violence. The petition pointed out several omissions in the way the SIT conducted itself, failing to ask key questions to witnesses, not collecting key evidence in the matter, and choosing not to even summon certain witnesses.

In the regular course of events, such failures would have prompted a rebuke from the Court—suggesting that the investigating authorities are not intent on doing their jobs or had done a half-hearted job of it. In this case, however, the Court goes to great lengths to cover up for the SIT’s many failings by looking through the material itself to find ways to justify its many omissions. It accepts, without question, the narrative of the SIT and the respondents in slamming the door firmly shut on investigating key claims that remain unanswered.

In doing so, the Court has taken up the brief of an inquisitor. It subjected the claims of the petitioners to the kind of scrutiny that it was unwilling to put the SIT or the respondents’ claims to. It has looked for holes in the petitioners’ version of events, forgetting entirely that these holes were supposed to have been investigated by the SIT, and presents a picture of events that paints the petitioners—the victims of a terrible crime—as the real conspirators of the case. It is unfortunate that the very Court which had first ensured a modicum of justice in the Gujarat riots case, on the intervention of the petitioners and the activists, is now reduced to hounding the very same petitioners and activists at the behest of a vengeful government machinery.

Even as judges of the Court continue to insist at the public fora that the judiciary in India is extremely independent and “civil” rights-conscious, the saga of the Gujarat riots shows that it is not the case at all. Over the years, it has been quietly co-opted by the political executive at the centre and uses its pretence of independence to give legitimacy to the unlawful and unconstitutional behaviour of the executive. The Zakia Jafri judgment should leave us with no illusions about the true nature of the Indian judiciary.

 

 

 

Updated On : 27th Jul, 2022
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