It is, here, necessary to underline that the subject judgement of the Supreme Court has not one but three salient facets.
The first, and the central, one is too obvious. The SC has rejected outright the Special Leave Petition filed before it, which asked for a reinvestigation - by rejecting the findings by the SIT earlier constituted by it for that purpose, into the role of key members in the Gujarat administration under the watch of which the 2002 carnage had taken place. Unless one goes into specific merits of the case, that is quite par for the course. (The first article, provided below, does that quite in good detail.) The second one, which has attracted a lot of (unfavourable) attention, is that the judgement has pronounced that a co-petitioner and also two others - who were not even before the Court, " need to be in the dock and proceeded with in accordance with law." It is, on the face of it, quite unprecedented and it means that henceforth even seeking legal remedies for some (perceived) grave injustice done by the state may attract prosecution and punishment. (The second report below is primarily focussed on that.) It bears mentioning that capitalising on that, without wasting any time, next day afternoon - a Saturday, members of the Gujarat Anti-Terrorism Squad (ATS) barged into the said co-petitioner's Mumbai residence to bring her to Gujarat, without any warrant. It is worth mentioning that Justice Khanwilkar, who had headed the three-judge bench, has now given somewhat a repeat performance as the head of a two-judge bench in another case (ref.: < https://www.livelaw.in/top-stories/supreme-court-dismisses-plea-for-independent-probe-into-alleged-extra-judicial-killings-of-chhattisgarh-tribals-by-forces-with-rs-5-lakh-costs-203736 >). *There is, however, a third dimension too*. This has, though, largely gone under the radar. Not too long after the judgement delivered, the Union Home Minister - in an interview (ref.: < https://www.republicworld.com/india-news/politics/amit-shah-breaks-silence-on-2002-gujarat-riots-exposes-troika-over-lies-against-pm-modi-articleshow.html>) <https://www.republicworld.com/india-news/politics/amit-shah-breaks-silence-on-2002-gujarat-riots-exposes-troika-over-lies-against-pm-modi-articleshow.html> to the ANI that would be splashed all over by noon the following day, without batting an eyelid has - using the judgement as the necessary and sufficient prop, floated a bold narrative to trash all the charges against Modi - for inaction or even complicity, the then Gujarat Chief Minister and hold Teesta Setalvad primarily responsible for all the "lies" spread (ref.: < https://twitter.com/ANI/status/1540555262612107264 <https://twitter.com/ANI/status/1540555262612107264?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1540555262612107264%7Ctwgr%5E%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.republicworld.com%2Findia-news%2Fpolitics%2Famit-shah-breaks-silence-on-2002-gujarat-riots-exposes-troika-over-lies-against-pm-modi-articleshow.html>>). So, *at one stroke of the judgement, the loads of opprobrium heaped upon Modi by various entities - including the Supreme Court itself (that, inter alia, had equated him with the Emperor Nero), the then Prime Minister from his own party (who had publicly advised him to discharge his duties befitting his office), the NHRC, a number of other national and international bodies for human rights (that included a fact-finding report by a team headed by a former Supreme Court judge and with a former High Court judge as a member), foreign governments (the US had even cancelled* *Modi's visa), were just brushed aside - in fact, swept away*. This had, rather recently, been sort of prefigured by the dropping of the Gujarat riots from the NCERT history syllabus (ref.: < https://indianexpress.com/article/education/ncert-drops-content-on-gujarat-riots-from-class-12-textbook-7974329/ >). With the help of the over-obliging Indian media, this may soon become the dominant narrative. That deserves to be duly noted. *I/II*. <<On August 16, 2017, Justice A.M. Khanwilkar was part of a bench of the Supreme Court that, *33 years after the heart-wrenching events* [emphasis added], reopened 241 cases arising out of the 1984 anti-Sikh pogrom and appointed a Supervisory Commission to examine the closure reports filed in these cases by the Special Investigation Team (SIT). Despite the fact that multiple SITs, Commissions of Enquiry and individual trials in the matter including, incidentally, a commission of enquiry headed by Justice Nanawati and another earlier commission headed by the then sitting Chief Justice of India, Justice Ranganath Mishra, had already gone into the matter, the Supreme Court felt, and rightly so, that cases where the SIT had filed closure reports needed to be looked into again. Cut to June 24, 2022 and another bench headed by Justice Khanwilkar expressed its indignation at the attempt by a widow, whose husband, a former member of Parliament, had a burning tyre put around his neck, had his hands and legs dismembered, and was burned alive on a pyre by a rioting mob in the 2002 Gujarat riots, to “*keep the pot boiling*”. ... Finally, the court has returned findings on the actions, motivations and intentions of individuals involved without hearing them. For instance, the court finds that the testimony of Sanjiv Bhatt, R.B. Sreekumar and Haren Pandya (who was since murdered under mysterious circumstances) collectively described as “*disgruntled officials of the State of Gujarat*” was only to “*create sensation by making revelations which were false to their own knowledge*”. The court also refuses to entertain the petition at the instance of activist Teesta Setalvad on the basis of the attack mounted by the Solicitor General appearing for the State of Gujarat on her character and antecedents, all without even having to place these supposed ‘facts’ on affidavit. Subsequent events have shown that the damning of the role played by Setalvad, Sreekumar and Bhatt by the court in its judgement has had an immediate impact on the liberty of the individuals concerned as the court’s finding that they “*need to be in the dock and proceeded with in accordance with law*” has been acted upon with alacrity by the Gujarat Police, which moved to arrest Setalvad (from Mumbai) and Sreekumar (from Ahmedabad) the very next day, which happened to be a Saturday since the judgement happened to have been pronounced on a Friday. It is a fairly elementary rule of natural justice that no finding can be returned by a court about an individual without first giving them an opportunity of being heard. Setalvad, although before the court as a petitioner, was not called upon to defend her own conduct, and Sreekumar and Bhatt were not before the court at all. It is contrary to all known principles of natural justice for the court to have indicted them for their respective roles in the saga. In fact, it was specifically stated by Sibal that he did not wish to rely on the evidence of Bhatt as Bhatt’s evidence was disputed and he was arguing his case only on the basis of undisputed evidence that was before the SIT. Further, since Bhatt’s evidence related to the meeting on February 27, 2002, which itself was not being pressed, there was no occasion for the court to concern itself with his character and antecedents. The remit of the SIT, the magistrate in the protest petition, the high court in revision and now the Supreme Court was merely to look at the evidence available and decide whether a trial was necessitated to weigh the evidence and decide the truth of the allegations. At this stage, all that the court was required to do was to look at the body of evidence collected by intelligence agencies demonstrating the failure of the administration at every step, note the confessions that were part of the Tehelka tapes that had already been forensically verified and which made out a clear case that these failures of administration were deliberate and were, in fact, carefully organised and orchestrated, note the fact that the amicus curie appointed by the Supreme Court had disagreed with key findings of the SIT and felt that a trial was necessary, note that the SIT had recorded the denials by the accused and there were contradictory statements of witnesses such as Bhatt and Sreekumar all of which required cross examination and send the matter for trial. Instead, the SIT as well as each of the courts have conducted a mini trial where they have weighed evidence, discarded video recorded confessions on the basis of lack of corroboration, discarded corroborating evidence on the basis that it establishes the act but not the intention to commit a wrong, accepted inadmissible exculpatory statements made to police by the potential accused persons without any opportunity of cross examination, discredited witnesses on the basis of their supposed antecedents, explained away inconsistencies and returned findings of innocence, all of which can be done only during a trial. *In the end, all that remains to be done is for us, as historians of the Supreme Court, to read the judgement and explain to future generations of lawyers what the judgement leaves to be desired, until our audacity to criticise judgements of this court too is indicted and this privilege taken away* [emphasis added]. (Excerpted from: < https://thewire.in/law/supreme-court-judgment-in-zakia-jafri-case-missed-both-the-woods-and-the-trees >.) *II*. <<It is not just the dismissal of the appeal that has surprised people – an appeal may, after all, be allowed or dismissed by an appellate court; it is the gratuitous comments that the bench has pronounced on the appellants and the counsel and the supporters of the appellants. In the most astonishing comment, the Supreme Court has lauded the officials of the Special Investigation Team who have defended the State and has excoriated the appellants who have challenged the findings of the SIT. The Supreme Court says in Paragraph 88: “*While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. 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 law*.” “*Need to be in the dock* *…*”!! Has the Supreme Court now decided that appellants before it and their counsel should be proceeded against merely for being assiduous and persistent in their appeal? What about the NHRC reports and the report of amicus curiae, Raju Ramachandran, which had stated that investigation was required to probe the role of then chief minister Narendra Modi? These were weighty grounds to question the view taken by the SIT and therefore, they would confer sufficient heft to a petition that sought to challenge the SIT’s findings. Moreover, the Supreme Court’s own earlier observations clearly mention the laxity of the state government officials. On April 12, 2004, a bench of Justices Doraiswamy Raju and Arijit Pasayat while ordering a retrial in the Vadodara Best Bakery case, said: “*Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The modern day ‘Neros’ were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these wanton* *boys* ”. It went on to say: “*One gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed* *to justice. The role of the State Government also leaves much to be desired*.” The implications of the Zakia Jafri judgement are extremely serious. It has overturned a core precept that, we believe, ought to guide an apex court established under a liberal democratic Constitution: to safeguard the basic right to life and liberty against questionable actions of the state. The Court has come out with a doctrine which enjoins the state to arrest and prosecute persons who dare to question the findings of investigating agencies, if the Court decides that these findings are beyond reproach.>> (Excerpted from: < https://thewire.in/law/over-90-ex-bureaucrats-urge-supreme-court-to-withdraw-observations-in-zakia-jafri-judgment >.) -- You received this message because you are subscribed to the Google Groups "Green Youth Movement" group. 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