More than 450 pages of “annexures” are included in the Supreme Court of India’s ruling in Zakia Ahsan Jafri v State of Gujarat (2022). For those who don’t know what they’re looking at, it would appear like Narendra Modi and Amit Shah were acquitted after a lengthy trial in which they were charged with crimes against humanity. It’s not, unfortunately. It is, ironically, putting together all the facts and evidence to prove that these two political leaders do not need to face any criminal charges.
When the Court dismissed the necessity to look into the circumstances behind Judge Brijgopal Harkishan Loya’s death, it used the same manoeuvre (Tehseen Poonawalla v Union of India [2018]). In both the Loya and Jafri cases, the petition was to begin an inquiry rather than to reach a conclusion on guilt. Courts felt the need to go out and create a case for innocence in each of these cases, instead of relying on evidence to convict.
In both cases, the Court went above and beyond the call of duty, but in the case of Jafri, it went even beyond. “Devious strategy” to “keep the kettle boiling” for 16 years despite a statement that it is only going to focus on facts, and not the motivations of the activists supporting the petitioner (Teesta Setalvad and others), the Court goes on to accuse them of. According to the complaint, they are guilty of “falsity” and should be prosecuted “in accordance with (the) law” because of their involvement in “abuse of process.”
Setalvad, R B Sreekumar, and others who had tirelessly pursued justice for Jafri were given the go-ahead by the Gujarat police to continue their prosecution. There have been a slew of new criminal prosecutions brought forward that inexplicably cite the Supreme Court’s findings in the verdict. A correct reading of the verdict demonstrates that the Court was not functioning in an impartial and fair-minded way in this matter, notwithstanding the belief of some elements of civil society that the police “misinterpreted” the Court’s conclusions.
To find out why the Gujarat state apparatus was involved in the riots, the appeal asked why the special investigation team (SIT) had not done so adequately. Hindutva organisations appeared to have instigated the riots at the request of the state apparatus, and call records and other data revealed that police personnel had been given orders not to intervene in the carnage. Petitioners pointed out that the SIT failed to ask critical questions of witnesses and failed to collect critical evidence in the case. They also chose not to invite some witnesses to testify.
As is customary, the Court would have rebuked the investigating authorities for their inability or unwillingness to execute their tasks, which would have suggested a lack of commitment or a sloppy approach. It appears that the Court in this instance is going to considerable efforts to defend the SIT’s numerous omissions while also covering up for its many mistakes. As a result, important allegations that have remained unresolved have been firmly kept out of consideration by the court.
Court has adopted the role of an inquisitor with this decision. It scrutinised the petitioners’ assertions in the same way it refused to do so with the SIT or the respondents’ arguments. Forgetting that these gaps were intended to be examined by the SIT, it has sought for flaws in the petitioners’ account of events, and casts the petitioners as the true conspirators of the case. It’s a shame that the same court that, thanks to petitioners and activists, was able to restore some justice in the Gujarat riots case is now forced to pursue the same petitioners and activists as a spiteful government apparatus.
According to Indian judges at public forums, India’s court is exceptionally autonomous and “human rights-conscious,” yet the riots in Gujarat prove otherwise. Throughout the years, the political executive at the centre has silently co-opted it, using its pretence of independence to provide legitimacy to the illegitimate and unconstitutional conduct of the executive. In light of the Zakia Jafri decision, we should have no more illusions about the genuine character of the courts in India.
