The Supreme Court's September 12 order in the Zakia Ehsan Jafri case has set off wildly contradictory reactions, indicating an absence of legal literacy in political and media circles. The Bharatiya Janata Party celebrated the order as a victory for Narendra Modi, even as Ms Jafri, who wants Mr. Modi and 61 others to be prosecuted for the 2002 Gujarat riots, claimed to have been left depressed by it. There has been confusion over several issues: the status of the “accused”; the respective legal standing of the R.K. Raghavan-led Special Investigation Team and the amicus curiae, Raju Ramachandran, and so forth. In April 2009, the Supreme Court handed charge of Ms. Jafri's complaint to the SIT, which has since submitted three reports to the court, the last after factoring in points made in a separate note by the amicus curiae. On May 5, 2011, the Supreme Court directed the amicus to independently assess the SIT reports and give his comments. On September 12, the Supreme Court sent the case to the trial court, leading to doubts over what has been achieved. In this interview with Vidya Subrahmaniam, Mr. Ramachandran clears the air on the misunderstandings around the order, and explains its legal import.
The order of the Supreme Court in the Zakia Ehsan Jafri case has been interpreted in terms of victory and defeat, and there has been a lot of political drum-beating around it. On the other hand, Ms Jafri has expressed her deep disappointment with the order. How does the lay person cut through the hype and understand the legal import of the order?
As an amicus curiae, I will not react to how one side or the other describes the Order. I am, however, anxious that the court's final Order of 12th September is correctly understood and appreciated. It is necessary to keep the background in mind. The petitioner had filed a writ petition in the Gujarat High Court for a direction to register an FIR. She failed to persuade the High Court but the Supreme Court took serious note of her grievance. The court appointed an amicus curiae and also asked the SIT to “look into” the matter. The SIT, which started with a preliminary non-statutory enquiry, later conducted statutory investigations under the Criminal Procedure Code, 1973.
Though the SIT was a high-level investigating body, the court introduced an additional safeguard, which is not done as a matter of course, namely, that the amicus curiae would give his comments and independent assessment. This was done in respect of all the reports submitted by the SIT. In respect of the last report, the court even permitted the amicus curiae to interact with witnesses for the purpose of making his assessment. It is after all these exercises were conducted by the SIT and the amicus curiae that the court has set the regular law in motion, by directing that all the relevant material be placed before the appropriate court. Thus, starting from a situation where an FIR was not being registered, the case will now be in the hands of a criminal court.
What is the next sequence in the judicial process now?
If the SIT finds it fit to prosecute the persons named, the case proceeds further. If the SIT chooses not to proceed further (in respect of certain persons and/or allegations), it would then file a Closure Report, to which the complainant has a right to object by filing a protest petition. In such a situation, there is another view available in the form of the amicus curiae report which may either support or disagree with the SIT. If the amicus disagrees, the complainant could draw support from the view of the amicus. In the event of the SIT and the amicus both agreeing that a matter ought not to proceed further, the complainant still has the right in law to question the Closure Report.
Before the verdict, the expectation — at least in political and media circles — was that the court would give an indication of its own mind in this matter. It was expected that the court would respond one way or another to the complainants' prayer for an FIR to be registered against Mr. Modi. Since this did not happen, the immediate interpretation was that “the highest court has let Mr. Modi off.”
If the court had indicated its own mind in the matter, one way or the other, it would have irretrievably prejudiced either the complainant or the potential accused. Even a prima facie view by the court on the merits of the case would have caused such prejudice, and so, a wise court did not do so.
Also before the verdict, the court had made many oral observations. At one point, the judges suggested that there was a mismatch between the findings and conclusions of the SIT. The court also refused to hand over a copy of your (the amicus') report to the SIT, saying it would do so at the appropriate time. Against this background, the order came as a bit of an anti-climax.
It would not be correct to predict the final result of a case on the basis of oral observations at one hearing or the other. Similarly, the fact that the court declined to give a copy of my report to the SIT at a particular point of time did not mean that the court had lost faith in it.
The court in its order observed that it had a duty to ensure the investigation was fair. Does this mean that the trial court is bound to consider the contents of the SIT report and your own findings?
I would think that when the court has found it necessary to take the views of the amicus into account, the same consideration would apply to the lower court as well.
We are also confused by the court's use of the term “open to”: The court said it was “open to” the SIT to include the amicus curiae's findings when it sends its own final report to the trial court. Does this mean the SIT has a choice not to include the amicus' report?
I don't think the court has left discretion in the matter to the SIT. And, to be fair to the SIT and its distinguished Chairman, I don't think they themselves view the court's Order in that light.
Has the stage now been set for the trial of all the 62 “accused”, including the Chief Minister?
It would be premature to say that the stage has been set for a “trial”, as understood in law. It will be more accurate to say that the law has been set in motion, in respect of the complaint made by Ms Jafri, against the various persons named by her.
In this context, are the 62 people named in Zakia Jafri's complaint “accused” or “potential” accused?
The persons named in Zakia Jafri's complaint are not “accused” in the legal sense, even if they are in a colloquial sense. A person becomes an “accused” when the police file a chargesheet or a Magistrate takes cognizance and issues process.
What is the respective legal standing of the SIT report and your own report? In a conflict between the two, which one prevails?
Under the Criminal Procedure Code, 1973 it is the investigating agency which investigates and files a report in the Court. On the other hand, the Supreme Court — in exercise of its powers under Article 136 and 142 of the Constitution — has made the report of the amicus curiae a relevant factor to be taken into consideration. As I said, this is an additional safeguard which the court has found fit to introduce, which is not done as a matter of course. The SIT would be entitled in law to disagree with the amicus curiae, but as I have already indicated, the amicus report will also be before the court. If there is a conflict, it is the court which has the final word, after hearing the complainant.
There is an impression that your findings differ significantly from that of the SIT.
That is an “impression”. It is only when the Reports become public knowledge that the points of difference, if any, will emerge.