18, Nov 2018 | Teesta Setalvad

On Monday, the Supreme Court will consider her appeal against the closure report of the SIT – which ignored all evidence to the contrary and decided the large-scale violence in the state was not the product of a criminal conspiracy.

“Somewhere between the bottom of the climb and the summit
is the answer to the mystery why we climb”

These words ring true in the ongoing Zakia Jafri case. When her criminal complaint into the Gujarat killings of 2002 was filed on June 8, 2006 – accompanied by 2,000 pages of evidence, provided by serving police officers and administrators  – we were aware of the uphill nature of the ask. What we did not anticipate, however, was the resistance, across persuasions, to probing the critical issues raised fairly and transparently.

In this battle for acknowledgment, justice and accountability behind the well-orchestrated, state directed and executed crimes of 2002 in Gujarat, the system today stands subverted by the very process put in place to assess and correct the wrongs.

Sixteen years after an estimated 300 incidents racked Gujarat, described by the Concerned Citizens Tribunal, Crimes Against Humanity, as an “organised crime perpetuated by the state’s chief minister and his government” and a dozen years after the criminal complaint was filed, Zakia Jafri’s case comes up for hearing before the Supreme Court on November 19. Once again, we will seek to get back to the very basis of the charges raised in the original complaint.

The reason for this travesty is the betrayal of the mandate granted to the Supreme Court-appointed Special Investigation Team (SIT) by the officers who manned it. A former CBI director, now appointed ambassador to Cyprus by the regime whose powerful men he was investigating, and his hand-picked men (assisted over time by officers from the Gujarat cadre who have since been promoted) worked to obfuscate and nullify the original charges of criminal conspiracy, abetment, murder, hate speech, destruction of records and subversion of statutory authorities. These charges had first been outlined in the June 2006 complaint and thereafter substantiated in the protest petition filed by Zakia Jafri before the magistrate’s court on April 15, 2013.

Dilution of conspiracy charges

The irony is that the SIT’s own preliminary investigation report dated May 10, 2010 – and the chairman’s comments dated May 12, 2010 – outline its own investigation in the several charges of conspiracy (sub-divided into 32 allegations). This is also the subject matter of the final closure report dated February 8, 2012.

The SIT has dishonestly – despite the wider gamut of the Zakia Jafri complaint – consistently misled the lower courts and insisted on self-limiting the case to only the Gulberg society carnage. In doing so, they have helped the organisation to whom the perpetrators belonged, to parrot the idea of an illusory ‘clean chit’ that has, in fact never been given to either the chief accused or his fellow perpetrators.

The Gulberg carnage was a case of brute violence that marred Gujarat’s landscape in 2002. It took place in broad daylight on February 28, 2002. The FIR lodged therein is specific to that incident, the accused different from those named in the Zakia Jafri complaint.

That case has been charged, heard and 22 persons convicted, and yet the SIT has consistently sought to betray its own mandate and mislead the courts by collapsing the Zakia Jafri criminal complaint and protest petition with ‘merely the Gulberg society carnage.’

How and why the magistrate’s court and thereafter the Gujarat high court failed to see through this obvious subversion by the SIT is what will now have to be determined by the Supreme Court.

The Zakia Jafri criminal complaint first, and the protest petition filed seven years thereafter, carves out a substantial case of criminal conspiracy planned and executed by the state’s chief executive who was also its home minister, based on first-hand documentary contemporaneous evidence. This evidence includes the entire investigation papers with relation to the SIT investigation into the Zakia Jafri complaint.

These only eventually came to the possession of the petitioner when she had to once again approach the Supreme Court after the SIT filed a closure report on February 8, 2012 since the agency refused to give her the papers – a statutory legal right of a complainant in law.

These voluminous records running into 23,000 pages contain State Intelligence Bureau (SIB) records, Police Control Room (PCR) records, phone call records, maps, 161 statements, NHRC, CEC, Women’s Parliamentary Committee Reports, hate speeches, videos, home department records, among others.

Gross lacunae in the SIT investigation

The case for conspiracy has been drawn squarely from this record and the protest petition outlines this and points to the gross lacunae in the SIT’ s investigation. The nuggets of the conspiracy include

(i) a sinister prelude and systemic build up of communal mobilisation and inaction by state agencies and actors before the Godhra train burning on February 27, 2002;
(ii) phone calls made between powerful perpetrators bypassing the police and administration;
(iii) postmortems conducted in public view contrary to law;
(iv) no preventive action, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread Violence from February 27, 2002 onwards;
(v) delayed deployment of the army;
(vi) analysis of police control room records shows dereliction of duty by first responders;
(vii) the lacunae in monitoring and check on hate speech, hate writing, pamphleteering which are offences in criminal law;
(viii) the false reporting and misleading of constitutional and statutory authorities;
(ix) destruction of records relating to minutes of meetings, police logbooks, wireless messages.

SIT integral to subversion

Subversion of the entire constitutional machinery has been core to all the offences perpetrated by several of the first responders in Gujarat in 2002. This subversion marks the journey of the Zakia Jafri case too, with the SIT, appointed by the Supreme Court itself, also becoming integral to this continued subversion.

Appointed at the behest of the survivors, who wanted the apex court to transfer the investigation away from the Gujarat police, the SIT today functions as an adjunct of the Gujarat government, using power and pelf to ensure that substantiated charges of criminal conspiracy are not brought to trial.

The magistrate’s court, through over 20 sessions in 2013, and the Gujarat high court from 2015-2017 have both – in their bulky verdicts – accepted that the gamut of the charges here are wider than those raised in an individual incident of the carnage. But having done so, they have stopped short of faulting an investigation that has simply failed to look at what was meticulously provided in the protest petition and thereafter the criminal revision application.

Standing somewhere between the bottom of the climb and the summit, we still hope, that India’s Supreme Court, will unravel how an agency that it set up ended up becoming a party to a subversive cover-up of the most incredulous and sinister kind.

Disclosure: The writer is secretary, Citizens for Justice and Peace, second petitioner in the present case; CJP has been providing legal assistance to the survivors of the Gujarat carnage.

The original piece may be read here.