Supreme Court verdict is a relief to the BJP: Advani

As news of the Supreme Court's order in the Zakia Ahsan Jafri case broke, the Bharatiya Janata Party speed-read the verdict and sounded the victory bugle: Forget directing the trial court to prosecute Mr. Modi, the judges did not even pass mild strictures on the Gujarat Chief Minister. (Had the Supreme Court directed an FIR to be registered against Mr. Modi, his position could have become morally and politically untenable).

Party foot soldiers organised celebrations, gave full-throated sound-bytes, and asserted that Mr. Modi, placed in the dock over his role in the 2002 anti-Muslim pogrom in Gujarat, had been exonerated by the highest court: “The court has given a crushing reply to all those who vilified and maligned Mr. Modi for almost 10 long years.” Party veteran Lal Krishna Advani joined the cheer-leaders, saying he could not think of another politician who had been maligned as much as Mr. Modi: “The Supreme Court verdict is a relief to the BJP and to all those who believe in good governance.”

The sound effects and drum-beating almost drowned the protests by the (original) petitioners, Ms. Jafri (whose husband and Congress MP Ahsan Jafri was brutally killed in Gulberg Society) and the Teesta Setalvad-led Citizens for Justice and Peace (CJP). Ms. Setalvad argued that Ms. Jafri and the CJP had won a monumental battle against near insurmountable odds. She said that while they had prayed for the registration of an FIR against Mr. Modi and 61 others and the transfer of the case to the CBI, the order of the Court went beyond this and paved the way for the chargesheeting of all the accused.

Petitioners' counsel Sanjay Parikh said the impression in political circles, notwithstanding — “the court cannot give political judgments” — the fact was that the petitioners had won a significant victory. “Now the trial will start against all 62 accused, including the Chief Minister. Moreover, we have been given the right to be heard if any name is dropped or a closure filed.”

Legal opinion

Legal opinion seems largely supportive of the petitioners' point of view. Had the trial of the 62 accused started in 2006 when Ms. Jafri first petitioned the Gujarat High Court, the trial court would have been much less constrained in deciding the case. Now it has to consider the contents of two voluminous investigative reports — one by the R.K. Raghavan-led Special Investigation Team (SIT) and the other by the amicus curiae Raju Ramachandran, who was given a virtual carte blanche by the Supreme Court: the court asked Mr. Ramachandran to independently investigate Ms. Jafri's complaint, allowing him a free hand to examine documents and witnesses. There have been other developments in the five years since, including the dramatic testimony of now suspended IPS officer Sanjiv Bhatt. In an affidavit filed before the Supreme Court, Mr. Bhatt said he was present at the February 27, 2002 meeting held at the residence of Mr. Modi where the latter gave specific instructions to the police to let the anti-Muslim rioters vent their anger.

Politically, the order is without any doubt a reprieve for Mr. Modi, who faces another Assembly election in 2012. By the time, the wheels of justice grind in Gujarat, the election would have been fought — and probably won. It is a fair bet that the BJP will use the September 12, 2011 order to the fullest in the campaign, projecting it as a “clean chit” to the Chief Minister.

For the petitioners in the case, it has been a long and hard journey from the Director-General of Police to the High Court, the Supreme Court and now the trial court. At each step hope has alternated with despair.

The story goes back to June 8, 2006 when Ms. Jafri filed a 119-page complaint with the Director-General of Police, Gujarat, making out a case of criminal conspiracy against 62 accused, among them the Chief Minister.

In the complaint, which she wanted to be registered as an FIR, she alleged conspiracy to commit mass murder, destruction of evidence, intimidation and subversion of the criminal justice system. With the Gujarat police turning down her plea, she and the CJP moved the High Court which dismissed their writ petition.

Upon this, Ms. Jafri and CJP went to the Supreme Court. (In its September 12 order, the Supreme Court describes Ms. Jafri as “one of the hapless victims of the abominable and woeful events which took place in the State of Gujarat between February 2002 and May 2002 after the abhorrent Godhra incident of on 27th February, 2002”).

Ms. Jafri's explanation for the delay in filing the case was that in the interim she had come upon material evidence that suggested the pogrom was aided and abetted by responsible people in power who were in turn helped by the State administration, including the police.

The Supreme Court appointed an amicus curiae to assist it and in April 2009, handed charge of the complaint to the SIT which at that point was already investigating nine riots-related cases, including the Gulberg Society case.

The SIT investigation took a sensational turn when it issued summons to Mr. Modi, who appeared before it on March 27, 2010. The SIT submitted the first of its reports on November 17, 2010. It was around this time that Mr. Ramachandran took over as the new amicus curiae.

On January 20, 2011, Mr. Ramachandran submitted a preliminary note wherein he expressed some doubts over the direction of the SIT investigation and suggested a divergence between the SIT's conclusions and its findings. (In February 2011, Tehelka magazine scooped the SIT report and alleged that its devastating findings were not matched by its conclusions).

The Supreme Court asked SIT to submit its final report, factoring in the points raised by Mr. Ramachandran. The SIT, which conducted further investigation — in the Gulberg society case — submitted its final report on April 24, 2011.

On May 5, 2011, the Supreme Court directed the SIT chairman to hand over his report, along with all the documents to Mr. Ramachandran. The Court gave the amicus curiae a sweeping, all-encompassing brief, allowing him access to all documents and witnesses, including those previously examined by SIT.