Hindustan Times report triggers response

Sibal’s comments came in the wake of a June 9 Hindustan Times report which revealed that the Supreme Court had initiated preparations for an in-house inquiry against Justice Yadav — who allegedly made communal and Islamophobic remarks at a Vishva Hindu Parishad (VHP) event in December 2023 — but dropped the plan after receiving a categorical communication from the Rajya Sabha Secretariat asserting exclusive jurisdiction over the matter. Sources cited in the report claimed that then CJI Sanjiv Khanna had begun preliminary steps based on an adverse report from the Chief Justice of the Allahabad High Court, but halted the process following a letter from the Secretariat claiming that the matter was already under parliamentary consideration.

Sibal: “This is discriminatory and constitutionally perverse”

Sibal minced no words in calling out what he viewed as an institutional derailment of accountability. “This is very unfortunate and smacks of discrimination,” Sibal said during the press conference. “The in-house procedure has nothing to do with the impeachment motion. It’s an internal judicial process initiated by the Chief Justice of India to assess whether allegations warrant further action. By informing the Supreme Court that the motion was pending in the Rajya Sabha — despite it not even being admitted — the Chairman effectively paralysed the judiciary’s internal scrutiny mechanism.”

He reminded the public that the impeachment motion was submitted on December 13, 2024, bearing 55 signatures — more than the required 50 under the Judges (Inquiry) Act. Yet, he noted, the Rajya Sabha Secretariat has still not completed signature verification, nearly six months later.

“How long does it take to verify 55 signatures?” he asked. “Why is this process being deliberately delayed? Is the government trying to protect Justice Yadav, who is set to retire in early 2026?”

On Justice Yadav’s speech and Supreme Court’s role

Justice Yadav’s speech, delivered on December 8, 2023, at a VHP event, stirred nationwide controversy. During the speech, Justice Yadav declared that “this is Hindustan” and that the country must run according to the majority, while endorsing the Uniform Civil Code and making derogatory comparisons between Hindu and Muslim personal laws. His statements were widely seen as communal in nature. (Detailed report may be read here and here.)

Sibal pointed out that the Supreme Court had taken note of the speech and sought an explanation from Justice Yadav. The Allahabad High Court Chief Justice reportedly submitted a negative report, further warranting an in-house investigation. However, Sibal noted that after Rajya Sabha Chairperson Dhankhar told Parliament on February 13, 2025, that the matter should be left to Parliament, the Supreme Court backed off.

“This subversion of the in-house procedure — which exists precisely to safeguard constitutional standards in the judiciary — is deeply concerning,” said Sibal. “It shows that the Government and Parliament are stifling independent judicial mechanisms.”

Impeachment panel may be formed

A June 10 Indian Express report suggested that Rajya Sabha Chairman may now be considering constituting a committee to examine the charges against Justice Yadav. The report confirms that the signature verification process is still ongoing, and that one signature was duplicated due to a clerical error — though Opposition sources, according to the report, insist that the requisite number remains intact.

Dhankhar had earlier stated in Parliament on March 21 that two rounds of emails were sent to MPs for signature verification. “One member denied having signed, and his name appears twice,” Dhankhar had said, implying that further scrutiny was needed.

Opposition sources. According to the IE report, explained that multiple sets of representation papers had been prepared and circulated for the motion, and the duplication was a result of confusion — not fraud. “Even if one signature is invalid, there are still more than 50 valid ones. The threshold is met,” a source said.

Sibal warns against using in-house procedure to remove Justice Yashwant Varma

In an important aside, Sibal also raised serious concerns about reports that the Government is trying to remove Delhi High Court judge Justice Yashwant Varma using the findings of an in-house committee report, without invoking the Judges (Inquiry) Act. “If that is true, it’s completely unconstitutional. The in-house report is meant only for the CJI, not for executive action or removal proceedings,” he warned.

“This sets a dangerous precedent. If judges can be removed on the basis of in-house reports alone, judicial independence is in grave peril. There’s a constitutional process under Article 124 and the Judges (Inquiry) Act. Skipping that is a clear overreach by the executive,” Sibal asserted.

Targeting judiciary, shielding allies?

Sibal also took aim at Vice President Dhankhar’s selective outrage, referring to his recent criticism of the Supreme Court’s use of Article 142 in the Tamil Nadu Governor-Bill Assent matter. Dhankhar had accused the Supreme Court of treating Article 142 like a “nuclear missile” and questioned whether timelines could be imposed on constitutional authorities like the President and Governors.

“Today, we are talking about the same thing,” Sibal retorted. “No Court can force the Chairman to admit an impeachment motion within a certain timeline — but equally, the Chairman cannot use that discretion to permanently stall a constitutional process. Six months have passed without even verifying signatures. Is this constitutional silence — or constitutional sabotage?”

Legal and constitutional context

Under Article 124(4) of the Constitution, a Supreme Court judge can be removed for “proved misbehavior or incapacity” following a parliamentary inquiry and approval by a two-thirds majority in both Houses. The same provision applies to High Court judges via Article 218.

The Judges (Inquiry) Act, 1968 sets out the procedure: at least 50 Rajya Sabha MPs or 100 Lok Sabha MPs must submit a notice for impeachment. Upon prima facie satisfaction, the Chairman/Speaker constitutes a three-member inquiry committee.

Sibal emphasised that the in-house mechanism developed by the Supreme Court is entirely independent of this process — it is an internal ethical accountability measure, not a substitute for impeachment, nor subordinate to Parliament.

Conclusion

Sibal’s remarks underscore deep concerns about political interference in judicial accountability mechanisms and what appears to be deliberate inertia in processing a serious impeachment motion. As Parliament prepares for the Monsoon Session on July 21, all eyes will be on whether Rajya Sabha Chairman Jagdeep Dhankhar finally takes forward the motion — or continues to allow what Sibal has described as a “dangerous constitutional standstill” to persist.

Related:

Does India have a lawfully established procedure on ‘deportation’, or are actions governed by Executive secrecy and overreach?

Justice Yadav, a sitting HC judge, and his speech at VHP event that was riddled with anti-Muslim rhetoric and majoritarian undertones

SC Collegium summons Allahabad HC Judge, Justice Shekhar Kumar Yadav over remarks on Muslims

Impeach the Judge, INDIA bloc set to move impeachment motion against HC judge who made communal hate-speeches

The post Kapil Sibal slams Rajya Sabha chairman for stalling impeachment motion against Justice Shekhar Yadav, calls it a blow to judicial accountability appeared first on SabrangIndia.

The said plea was mentioned before Chief Justice of India DY Chandrachud by Senior Advocate Kapil Sibal. Seeking urgent hearing of the matter, Sibal had mentioned the same when the Constitution Bench hearing the Article 370 case was about to break for lunch.

Advocate Sibal had submitted the following–

“There is a very serious thing that has happened in Gurugram, where there is a call along with policemen, to say that if you employ these people in shops, you will all be ‘gaddars’…We have filed an urgency petition. Lordship may look at lunch time,” as reported by LiveLaw.

It is essential to note that prior to the current plea, on August 2, another application had been moved to the Supreme Court in the Shaheen Abdullah case against the Vishwa Hindu Parishad-Bajrang Dal rallies being organised in Delhi-NCR. The plea had highlighted that there was strong apprehension that hate speech and violence might take place at the same rallied. It had been further provided that the rallies organised by the same organisations before in Bhiwani and Najafgarh, Haryana had contained provocative, violent and anti-Muslim statements.

Notably, the Supreme Court had passed an order in the aforementioned application directing the police authorities in Delhi, UP and Haryana to ensure that no hate speech or violence take place in the rallies organised by Vishwa Hindu Parishad and Bajrang Dal in the wake of Nuh communal clashes.

What did the plea entail?

Advocate Sibal in the current plea provided that despite the Supreme Court’s order, more than 27 rallies had been organised across various States where blatant hate speeches calling for the killing and social & economic boycott of Muslims were delivered openly.

To illustrate, the application also referred to a video that surfaced on social media on August 2, which allegedly showed a procession by the Samhast Hindu Samaj through a neighbourhood in Hisar, Haryana issuing warnings to residents/shopkeepers that if they continue to employ/keep any Muslims after 2 days, then their shops will be boycotted. The applicant further informed that the threat calls against the minority community was made in the presence of police officers.

As reported by LiveLaw, the application also alleged that open calls for violence and boycott of Muslims were given by VHP leader Kapil Swami in the presence of Police Officials in Sagar, Madhya Pradesh on August 4. The application also referred to a speech made by a Bajrang Dal leader in Fazilka in Punjab on August 6 where the murders of Nasir and Junaid, who were brutally beaten and burnt alive in February, 2023, were justified.

“It is submitted that such rallies that demonize communities and openly call for violence and killing of people are not limited in terms of their impact to just those areas that are presently dealing with communal tensions but will inevitably lead to communal disharmony and violence of an unfathomable scale across the country,” stated the application, as reported by LiveLaw.

The plea also sought action against police officers who participated in the said rallies and meetings for failure to prevent hate speeches. The applicant further seeks directions to the concerned State police to explain the action taken by them against hate speeches.

Videos, posters calling for boycott of Muslims going viral

1. Location: Chamba, Tehri Garhwal, Uttarakhand 

At a rally organised by the Bajrang Dal, the crowd could be heard raising slogans threatening Muslims to leave Chamba. Far-right leaders also gave speeches threatening Muslims to leave the town and asking locals to not rent them homes & shops. Muslims were repeatedly referred to as “Love jihadi” by the speakers. The video surfaced on August 7, 2023. 

The video can be viewed here:

Location: Chamba, Tehri Garhwal, Uttarakhand

At the Bajrang Dal rally, far-right leaders threatened Muslims to leave the town & asked locals not to rent them homes & shops.

The rally was organized to protest an alleged case of “love jihad.” pic.twitter.com/TwQsJdN22j

— HindutvaWatch (@HindutvaWatchIn) August 7, 2023

2. Location: Tighri, Haryana

At a Mahapanchayat organised in Tighri in support of those who were arrested for killing a deputy Imam at a Mosque in Gurugram, anti-Muslim and violent hate speeches were made. One of the speakers at the said event made open calls for boycott of Muslims and stated:

“Check aadhar cards of everyone. Don’t give your houses or lands to Muslims. Muslims from outside come here and earn and then fire at us.” 

The video surfaced on August 8, 2023. The video can be viewed here:

“Check aadhar cards of everyone. Don’t give your houses or lands to Muslims. Muslims from outside come here and earn and then fire at us.”

Open call for boycott of #Muslims at #Mahapanchayat in #Tighri in support of those arrested for killing Imam in #Gurugram Sector 57. pic.twitter.com/9w2QPLNJHQ

— Hate Detector (@HateDetectors) August 8, 2023

3. Location: Haryana

Open call for boycott of Muslims were made in an unknown district of Haryana. The speaker donning saffron can be heard saying “We are giving two days ultimatum to all the shops to fire their Muslim employees or we will boycott them.”

The video also shows genocidal and violent slogans being raised as well. The speaker can be heard saying “Jab Mulle kaate jayenge, Ram naam chillaenge”. The video also shows a number of police officials being present in the rally. 

The video surfaced on August 9, 2023. The video can be viewed here:

“We are giving two days ultimatum to all the shops to fire their Muslim employees or we will boycott them.”

Open call for boycott of Muslims in Haryana. “Mulle Kaate Jayenge” slogan raised.
All in POLICE PRESENCE. Anti-muslim hate is normalised everyday.pic.twitter.com/RLq837Ay3Q

— Kaushik Raj (@kaushikrj6) August 8, 2023

4. Location: Ashoknagar, Madhya Pradesh

Members of Dhora Gram Panchayat of Dhaturia village of Madhya Pradesh issued a resolution banning Muslims and Christian traders from entry to their village. They further provided that if any trader wants to enter their village, they need to show their aadhar card to prove their identity. 

The post surfaced on August 9, 2023. The post can be viewed here:

This is from #Ashoknagar, #MadhyaPradesh.

Entry of #Muslim and #Christian traders has been banned by villagers. pic.twitter.com/zqmKiougJ8

— Hate Detector (@HateDetectors) August 9, 2023

5. Location: Ghaziabad, Uttar Pradesh

Posters containing economic boycott of Muslims by Samast Hindu Samaj surfaced in Ghaziabad. The posters read “Buy goods from your brothers (Bhai) not bhaijaan (Muslim brother)”.

The post surfaced on August 8, 2023. The post can be viewed here:

This is from #Gaziabad, #UttarPradesh.

Economic Boycott calls by Samast Hindu Samaj Posters in Gaziabad reads “Buy goods from brother(Bhai) not bhaijaan(Muslim brother)”. pic.twitter.com/bsw0obDYml

— Hate Detector (@HateDetectors) August 8, 2023

Related:

Plea against VHP rallies in Delhi-NCR on Aug 2 had stated “rallies likely to fan communal fires, incite people”

Supreme Court: Authorities must ensure that no violence or hate speeches takes place during VHP rally in Delhi-NCR

‘Ethnic cleansing by State?’ HC stops Haryana’s Nuh & Gurugram demolitions

Bail not Jail for Bajrang Dal man, Bittu who posted a provocative video on day of Nuh clash

Lives lost in Nuh violence, a failure on the part of the Haryana police and government?

The post Growing calls for social and economic boycott of Muslims surfacing on social media, plea in the Supreme Court appeared first on SabrangIndia.

Though the collegium system is not perfect, this system is better than any government having sole control over the appointment of judges, said Senior Advocate and former Union Information & Technology Minister Kapil Sibal in an interview to Mirror Now channel.

Today, the present regime has control over all public offices and if it captures the judiciary as well by appointing “their own judges”, it will be dangerous for democracy, he opined.

“They (Govt) want their own people there (judiciary). They have their own people at universities now, the Vice chancellors are theirs, Governors in States are theirs– who sing their praises. Less said about the Election Commission is better. All public offices are controlled by them. They have their own people in the ED, they have their own people in the income tax, they have their own people in the CBI. They want their own judges too.”

Sibal stated also opined that the present government’s understanding of democracy was, that because they had an absolute majority, they could ride roughshod over procedures and do whatever they liked.

However, the former union minister also expressed his balanced views on the present collegium system for the appointment of judges. He stated that while the collegium system was not perfect, it was still preferable to having government appoint judges. Sibal said–

“I have a lot of concerns about the way that the collegium system works but I am more concerned about the fact that the government wants to capture the appointment of judges as well and have their own people there as well with their particular ideology. Between the two, any day I would prefer the collegium system.”

He also stated in the interview that the attempts of the Government to capture the judiciary must be resisted because “the last citadel of democracy is the Court, and if that falls, we have no hope left”. Expressing strong disapproval of the Law Minister Kiren Rijiju’s comments on the collegium system, Sibal said–

“It is inappropriate for anyone to make public statements of this nature. I think if anything needs to be done, the court should look at it on its own procedure. The government should, if it thinks that a new system is necessary for the appointment of judges, it should propose the new system through legislation. That is the only way to move forward. If they don’t accept the judgement in NJAC, they should ask for a review.“

Kapil Sibal said that the attacks on the judiciary were only one-sided attacks. In this context, he said–

“All statements made by Supreme Court are in the court and there is no public statement made by judges.“

While highlighting that the present collegium system was constitutional, he stated that previously, the appointment of judges was supposed to be in consultation with the Chief Justice of India. Thus–

“The court said that ‘in consultation’ meant that the Chief Justice knows better. Therefore, it is the judiciary that will decide. Because they know who are the lawyers and who are the judges or who need to be appointed. What is wrong with that? The government is consulted. The names are sent. If they have an issue they can send back the names.”

Sibal underlined that the government had no means to know which lawyer was good and which lawyer was bad. He added–

“Ministers these days…law ministers only have degrees. They don’t practice. How would they know sitting in their offices as to which lawyer is efficient and who is not efficient?

On concerns about the collegium system, Sibal said that it was non-transparent, there was a lot of “camaraderie” (he seemed to have been indicating that appointments often take place on the basis of personal relationships). He said–

“What is even worse is that High Court judges now look at Supreme Court judges for their appointments, and for their elevation to the Supreme Court. So this has impacted the independence of High Court judges as well. Because they constantly look at the Supreme Court and want to please the Supreme Court and show them that they’re the judges who should be appointed. That is not good.“

Nevertheless, he will prefer the collegium system over the government taking over the appointments.

Finally, Sibal said–

“Everything else is saffron. I don’t want the court to be saffron.“

Related:

Collegium System is Law of the Land, Must Be Followed: Supreme Court to Centre

Is the Centre overreaching itself in returning Collegium recommendations, again?

The post “All attacks on the Supreme Court are one-sided, coming from those holding public office, this is unbefitting a democracy”: Senior advocate Kapil Sibal appeared first on SabrangIndia.

On October 21, 2022, senior advocate Kapil Sibal criticized the current climate of fear prevailing in the country while speaking at a private event organised by lawyers to felicitate him for completing 50 years at the bar. Senior advocate Sibal bemoaned the way that particular judges are assigned cases that have an impact on the ruling administration, which results in favorable rulings for the government.

To support his claim, Advocate Sibal used the recent case of GN Saibaba as an example. “I have never heard of an acquittal being suspended on a special Saturday hearing; sentences (after conviction) are only suspended in the rarest of circumstances. It is unsettling that the institution must worry for itself,” he stated, as reported by the Bar&Bench.

On October 15, Saturday, a Supreme Court bench comprising of Justices MR Shah and Bela M. Trivedi suspended a decision by the Bombay High Court that acquitted GN Saibaba in a case involving alleged Maoist ties.

According to Sibal, the problem lies with the Chief Justice of India’s (CJI) master roster of case-allocation authority. “The issue is with master of roster. Most cases dealing with government go to a particular judge. That is not automatically assigned. So why is that happening,” he said, as reported by Bar & Bench.

He pointedly urged lawyers to organise a movement to oppose executive overreach and urged them not to be intimidated. “I will be a part of this mobilisation. If you go to conquer Mount Everest you fear but still you go. It is the love of our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail),” Sibal said, as reported by Bar&Bench.

He condemned the institutional breakdown that had allowed the administration to operate unfettered. “Prior to 2014, the situation was not that bad. But after 2014 no institution is willing to stand up. Look at the University system and position of vice chancellor.. see what is happening in the judiciary, police force, Election Commission; media is the worst,” he said, as reported by Bar&Bench.

In response to a query on legislation such as the Unlawful Activities Prevention Act (UAPA), the Prevention of Money Laundering Act (PMLA), and the Prevention of Terrorism Act (POTA), Sibal remarked that it is not the law itself that is important, but rather how the executive branch uses it. “Even under ordinary laws the machinery is probing with a polluting mind. The law does not matter, it is the agency which is dealing with the law and implementing the same. It is not just the stringency of the law,” he opined.

In this sense, he emphasised how the executive was enabled by the judiciary’s silence. “If you misuse the law and the judiciary is silent, then what do you to. Silence of the judiciary is the most vocal part of the Indian system. What to do,” he asked, as reported by Bar&Bench.

He also had a negative opinion of the Bar’s inactivity. “Lawyers are silent and they see the profession as a money making venture. Lawyers must stand up without fear,” he stated. He urged lawyers to bring about social mobilisation so as to secure justice. “I want to personally do something and tell the lawyers of the country that they have a role to play in social mobilisation of this country. We need a platform for insaaf and justice. Insaaf requires sacrifice and you cannot be sitting in an office,” he stated, as reported by Bar & Bench.

According to advocate Aparna Bhat, there is fear among advocates, and even if they want to speak out, there is a support gap and a lack of it. She inquired as to “how to bring them together.” To this, Kapil Sibal replied, “If you go to conquer Mount Everest you fear but still you go. It is the love for our country which will rid us of this fear. Ultimately toh sirf jail hi jana padega (At the most, you will have to go to jail).”

The audience then questioned, “Lekin agar UAPA lag gaya?”

“Fir thode din aur jail bus. Aur kya (then some extra days in jail). I will start a lawyers movement in Delhi. It will happen and it has to start somewhere,” he stated, as reported by Bar & Bench.

Through his speech, Senior Advocate Kapil Sibal has brought in focus the injustices perpetrated by executive overreach and the judiciary’s compliance. The recent judgments against GN Saibaba, Umar Khalid, and Jyoti Jagtap depict the arbitrary sense displayed in rulings by the judiciary. While the Supreme Court has been dealing with petitions filed against instances of hate speech, their continual ambivalence on the misuse of UAPA has cost grave loss of personal liberty of some of India’s finest activists and thinkers.  

While gang rape convicts in the Bilkis Bano case were recently granted bail due to their “good behavior”, a differently abled professor, suffering from ailments,  GN Saibaba, has been kept in an Anda cell (solitary confinement), with constant surveillance. Where has the sense of justice gone? How has it gotten limited to the majority section of our country? When agents of the law, lawyers and judges, themselves living in a state of fear of incarceration, who will carry the baton of justice for those wrongly incarcerated. Advocate Kapil Sibal has, questioned the flaws in judicial delivery.

Related:

Supreme Court suspends Bombay High Court order acquitting GN Saibaba and five others in Maoist links case, all to remain in jail
Bombay HC acquits Professor GN Saibaba & five others in Maolist link case, says ‘national security’ not above due process
Defence Committee for GN Saibaba Urges SC to Reconsider Case, Wife Says ‘Will Wait for Justice’
We are living in constant fear of State: Kapil Sibal

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‘Maybe EC Needs a Model Code’, Rajya Sabha MP, Kapil Sibal remarked on twitter, taking a dig at the Election Commission that recent stated that it was proposing a change in the model code of conduct to ask political parties to provide authentic information to voters on the financial viability of their poll promises, saying maybe the poll watchdog itself needs a model code of conduct

Going back on a sworn affidavit made before the Supreme Court of India months ago, the Election Commission (EC), in a letter to all recognised national and state parties, said empty poll promises have far-reaching ramifications, adding it cannot overlook the undesirable impact inadequate disclosures on election promises have on financial sustainability.

The EC has asked parties to submit their views on the proposals by October 19.Reacting to the development, Sibal said, “Election Commission: Does a u-turn after filing affidavit in Supreme Court that it will stay out on freebie debate. Would amount to overreach. Now wishes to include it in the Model Code of Conduct.”

“Maybe EC itself needs a Model Code of Conduct!” Kapil Sibal said on Twitter.

In its letter, the EC said, “The Commission notes that the consequences of inadequate disclosures by political parties get attenuated by the fact that elections are held frequently, providing opportunities for political parties to indulge in competitive electoral promises, particularly in multi-phase elections, without having to spell out their financial implications more particularly on committed expenditure.”

The poll panel said it is of the considered view that with adequate disclosures on the financial implications of the promises made, the Indian electorate will be able to exercise informed poll choices.

“Although implementation of election promises could have several ramifications, the Commission proposes to confine the disclosures to only the financial implications of the promises in terms of the financial resources required.”

Meanwhile, the left has called the EC move to regulate poll promises ‘unwarranted’. In a statement by the politbureau, the CPM pointed out that the Election Commission had in an affidavit to the Supreme Court in April stated that the Commission cannot regulate policy decisions of political parties and that it would be an overreach of powers.

Media reported that the Left parties on Wednesday said the Election Commission’s proposal to amend the Model Code of Conduct to guide political parties to disclose how they plan to finance promises made in their election manifestos and how this would impact the financial situation of the state governments concerned or the Central government was a “totally unwarranted move”.

Stating that it was strongly opposed to any effort to circumscribe or regulate the right of political parties to address people’s concerns and offer policy measures to ameliorate their problem, the CPM made its position clear. The CPI said the EC has no authority to take steps to regulate the policies of the political parties.

“The Constitution mandates the Election Commission to conduct free and fair elections. It is not the job of the Election Commission to regulate the policy pronouncements and welfare measures that political parties promise to the people. This is an area which is solely the prerogative of political parties in a democracy,” the CPM said in a statement.

Also pointing out that the Election Commission had, in an affidavit to the Supreme Court in April, stated that the Commission cannot regulate policy decisions of political parties and that it would be an overreach of powers, it said: “It is surprising that the Election Commission has now taken a contrary stand” and asked “is this due to pressure being exercised by the executive?”

Arguing that the Modi government is “showering freebies on corporates by writing off loans, selling national assets, and tax concessions”, CPI general secretary D Raja said “Directive Principles of our Constitution are in the nature of promises made to people. Will ECI question them or ask Dr Ambedkar to explain finances?”

“The Election Commission is in fact mandated by the Constitution of India to hold free-and-fair election. It has no authority to take steps to regulate the policies of the political parties. Hence, such moves are a violation of it’s mandate, disrespecting the Constitution and curbing the statutory rights of political parties,” the CPI leader said.

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Crisis of Democracy: Lessons from UP elections
UP: Multiple FIRs lodged against SP workers
EVM security: Whose responsibility is it anyway?
“Self-confession of 200 EVMS replaced,” ECI registers a case

The post ECI U-Turn on ‘freebies’, does the watchdog itself need a code of conduct now? appeared first on SabrangIndia.

New Delhi: Former Congress leader and senior lawyer Kapil Sibal on Friday made veiled attack at the Centre, alleging people have been living in the fear of investigating agencies, the State and the police.

Talking about the “use of religion as a weapon”, the Rajya Sabha MP said that even though it was happening all over the world, “India is an excessive example of the use of religion”.

“It’s happening all over the world. It was complete intolerance what happened in Leicester yesterday. We all know what happened there. So it’s being exported now. The real problem is, in India today those who are part of the hate speech are the collaborators of a particular ideology, the police are not willing to do anything,” Sibal said.

The former Cabinet minister was speaking at the launch of his book, “Reflections: In Rhyme and Rhythm”, published by Rupa Publications.

He added that those who give hate speeches are not prosecuted and hence, are “emboldened to give another speech of the nature”.

“Whole populations are afraid and they get mentally ghettoised. What do they do? So they are afraid. We are living in constant fear. We fear the ED, we fear the CBI, we fear the State, we fear the policemen, we fear everybody. We don’t have any trust in anybody anymore,” the politician-turned-poet said.

The 74-year-old senior advocate also criticised the judiciary, alleging the poor man cannot come to the court as he has “no money to pay the lawyers”.

“It is the fight between two corporate world in the court every day. Amazon vs Reliance, this vs that. And the poor man, he cannot come to the court. He doesn’t have the money to pay for lawyers. A guy from Kerala, from the Northeast, West Bengal, in the south, how is he going to come to the Supreme Court. He just doesn’t have the means,” he rued.

He added that people’s confidence in the justice system is waning.

“Then there is the issue of fairness. What is fair? Fair is when you have great confidence that you will get justice. Lot of us believe that that confidence is waning and the general public, people of India think. People who interact with me on a daily basis, will we get justice? I cannot assure them… there is no way to help. Because the system doesn’t help them,” Sibal said.

The book launch was also attended by Congress leader Shashi Tharoor and Jammu & Kashmir National Conference president Farooq Abdullah.

It’s the criminal justice system which is the much worse than the other. The real people get away, and the poor people get involved.

Courtesy: https://www.siasat.com

The post We are living in constant fear of State: Kapil Sibal appeared first on SabrangIndia.

It is a sign of the times when one of the nation’s most experienced and respected legal luminaries expresses lack of hope in the country’s highest court. Which is why when Senior Advocate Kapil Sibal expresses lack of faith in the Supreme Court, it should be a cause for concern.

Sibal was speaking at a People’s Tribunal organised by different civil rights groups in the Constitution Club of India, Delhi on Saturday, August 6, 2022. The Tribunal saw discussions on Judicial Rollback of Civil Liberties with special emphasis on Himanshu Kumar and Zakia Jafri Judgements of the Supreme Court.

The Tribunal’s jury comprised Justice AP Shah (Former Chief Justice, High Court of Delhi and former chairperson, Law Commission of India), Justice Anjana Prakash (Former Judge, Patna High Court), Justice Marlapalle (Former Judge, Bombay High Court), Professor Virginius Xaxa (Chair of the 2014 High Level Committee to Examine the Status of Scheduled Tribes) and Dr. Syeda Hameed (Former Member of the Planning Commission).

The final session of the tribunal was titled Judicial Assaults on Civil Liberties and the panel comprised Advocate Warisha Farasat (Supreme Court and Delhi High Court), Senior Advocate Nitya Ramakrishnan (Supreme Court of India), and Senior Advocate Kapil Sibal (Supreme Court of India). They spoke on different issues and judgements regarding how cases were dealt with on questions regarding liberty.

Senior Advocate Kapil Sibal spoke about why the Supreme Court, which should be protecting the individual rights, has been allegedly rendering judgements and orders that are antithetical to individual liberty.

“Iss saal mujhe pachaas saal ho jayenge Supreme Court mein vakalaat karte-aur pachaas saal ke baad mujhe aisa lagta hai ki mujhe iss samshta se koi umeed hai (Translation: This year, I will complete 50 years for my practice at the Supreme Court, and I think I don’t have any hope left in the institution.)” said Sibal, mincing no words.

“I have come to the conclusion that until society’s mindset changes, neither law nor society can be changed,” he added. He stated that when hate speeches were taken to the court, no material action was taken and they (the hate speeches) kept on continuing. He stated that in a society where ‘mai-baap’ culture is prevalent, no institution can be independent.

“Independence can only be there when we stand up and say that we want independence. We are not independent. This is the reality of India,” he said. He highlighted how the Special Investigation Team (SIT), which was constituted to investigate the cases of Gujarat Riots, went on to take the statements of accused on face value to close the investigation and how the Supreme Court has agreed to this kind of investigation. Sibal had represented Zakia Jafri in the Special Leave Petition (SLP) moved before the Supreme Court, which was dismissed by the court in June this year.

“Truth is that whenever sensitive matters go to court, they go before certain judges and we know the result of those cases even before the judgement comes out,” he alleged, referring to a case where a man was in jail under charges of Criminal Conspiracy (Section 120 B of the IPC), where bail was not given by the court, as he expected. “If the Supreme Court itself has given undue importance to PMLA act without recognising its penal nature,” he asked, “how will the lower courts go beyond the Supreme Court’s understanding?”

Warisha Farasat gave an overview of Supreme Court’s and different High Courts’ jurisprudence regarding civil rights and emphasised on the need to going back to the basics of constitutional rights, and the checks and balances the constitution envisaged for a smooth functioning of the state and democracy. “Political Opposition has been significantly diminished and voices of dissent from the civil society have been crushed. Naturally, in such a situation the only place where the citizen can look up to is the judiciary to uphold its rights,” she said, indicating the importance of the judiciary in the current political climate.

If courts are not cognisant of the reality of inequality power dynamic between an individual and the state, she said, justice cannot be served. “In many other judgements the Supreme Court has literally given the central government a walkover and arbitrary state action has been left unchecked,” she said. She highlighted the use of Unlawful Activities Prevention Act (UAPA) for any and every offence and the Delhi High Court’s remarks on how UAPA cannot be used in ordinary penal cases; delaying and keeping cases of constitutional importance pending like revocation of article 370, electoral bonds case, the challenged to CAA, the post 370 habeas corpus petitions – indicating that the Supreme Court seems to have taken a side.

“Again, we forget, needless to say that Habeas Corpus is the highest writ of the land and it is an important safeguard under the constitution which is given not only to citizens but also to non-citizens and to take it away and to do nothing, to delay these cases is in itself an act of omission,” said Adv. Farasat, adding, “Therefore, it appears that whenever a significant matter that truly bothers the central government is at issue, the Supreme Court seems to have done something or nothing but it seems to have caved in.”

Senior Advocate Nitya Ramakrishnan spoke about Supreme Court’s dichotomy regarding its judgements on personal liberty with changing times. “In fact, it will be seen that at times of crises, the court generally stood by the executive and other times it has been expansive about liberty and accountability,” she said. According to Adv Ramakrishnan, the law is not being applied, and courts are accepting the distortion of narratives and facts.

The jury of the people’s tribunal will release its report within a week’s time based on the arguments and documents presented during the day. The full session may be viewed here.

Related:

SIT was only ‘SIT’ting, not investigating: Kapil Sibal in Zakia Jafri SLP

Communal violence is like lava, leaving ground fertile for revenge: Kapil Sibal in Zakia Jafri SLP

The post Unless society’s mindset changes, neither law nor society can be changed: Kapil Sibal appeared first on SabrangIndia.

On November 10, the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar continued to hear the arguments made by Senior Advocate Mr. Kapil Sibal in connection with the  Special Leave Petition (SLP) filed by Zakia Jafri, the widow of slain Congress MP Ahsan Jafri, and Citizens for Justice and Peace (CJP). In his arguments today, Mr. Sibal submitted in detail how the SIT failed to appreciate crucial and pertinent evidence related to the case and how a national tragedy could have been averted had the police and administration taken timely action.

Clarifying confusion

A distinction was drawn during the hearing today between the Zakia Jafri case and the Gilberg massacre. While Ahsan Jafri was killed by a right wing mob while he was trying to shield members of Muslim community during the Gulberg society massage that took place during the Gujarat genocide of 2002, the Zakia Jafri case pertains to the complaint (dated June 8, 2006) filed regarding the larger conspiracy behind the Gujarat violence, especially the inaction of State actors and complicity of authorities. The SLP being heard by the Supreme Court was moved by Jafri and CJP to challenge the Closure Report of the Special Investigation Team (SIT) pertaining to the complaint of June 8, 2006, and the subsequent dismissal of their Protest Petition by the Magistrate and the Gujarat High Court. Therefore the SLP was not about any pending matter like the Gulberg trial, but in connection with the Zakia Jafri case where petitioners are demanding that a proper probe be conducted to fix responsibility on officials who permitted the violence across the state of Gujarat to continue unabated.

The hearing will continue tomorrow.

Arguments today

Advocate Sibal started with recapitulating how the complaint of Zakia Jafri about the Gujarat riots being a concerted conspiracy was not taken on as an FIR by the police which compelled her to approach the High Court and then the Supreme Court. The Supreme Court then directed that the complaint be looked at by the Special Investigation Team (SIT) without the registration of an FIR.

“I am going to demonstrate that the SIT did not do any investigation in respect of these matters,” Sibal said, beginning his arguments.

The bench began with the query that in which proceedings was the SIT directed by the Supreme Court in Jakia Nasim Ahesan & Anr vs State Of Gujarat & Ors 2011 12 SCC 302. While the SIT report was submitted to the Magistrate court ultimately, Sibal argued that it was not just in the matter of the Gulberg case which is commonly confused with the Zakia Jafri matter. He clarified that while the Gulberg case relates to one of the many incidents that took place in Gujarat during the riots, the Zakia Jafri complaint and eventually the petition relates to the larger conspiracy behind how state actors, authorities, allowed such a large scale communal violence to go on in the state with no proper law and order measures in place, allowing the perishing of thousands of innocent lives.

The SIT that was directed by the Supreme Court via an order passed in 2011 for investigation of the various cases which included the Zakia Jafri complaint of a larger conspiracy, of which the bench was eventually convinced. Sibal argued that the SIT filed a closure report before the Magistrate court without carrying out any real investigation; it did not appreciate the evidence put forth before them, they ignored the Tehelka sting operation tapes authenticated by the CBI. Even the actions and reports by two respected police officers Rahul Sharma and B Shreekumar fell on deaf ears, with the latter accused of being spiteful upon being denied a promotion.

The mandate of SIT

In the 2011 judgement of the Supreme Court, it had directed the SIT to submit a final report and deal with the matter “in accordance with law relating to the trial of the accused, named in the report/charge-sheet, including matters falling within the ambit and scope of Section 173(8) of the Code(CrPC)”. Section 173(8) of CrPC allows the investigating officer to obtain further evidence and submit an additional report, even after the final report/chargesheet has been filed.

It further said, “If for any stated reason the SIT opines in its report, to be submitted in terms of this order, that there is no sufficient evidence or reasonable grounds for proceeding against any person named in the complaint, dated 8th June 2006, before taking a final decision on such `closure’ report, the Court shall issue notice to the complainant and make available to her copies of the statements of the witnesses, other related documents and the investigation report strictly in accordance with law…”

Sibal contended that this clearly indicated that the SIT was to do an investigation in accordance with the law. “You (SIT) don’t record statements, you don’t arrest persons, you accept the statements of the accused and file a closure report. You don’t call for CDRs, you don’t seize any phones…never checked why records were destroyed, never checked by the police were standing by, never checked how the bombs were manufactured,” Sibal submitted.

Sibal was referring to statements made by a local Vishwa Hindu Parishad (VHP) leader about bombs being kept ready for furthering violence as exposed in the Tehalka sting operation titled Operation Kalank. 

Intelligence reports

Sibal pointed out that the State Intelligence Bureau (SIB) had given reports that swords and trishul were carried to Ayodhya and there was a lot of communal tension. There were even intelligence messages that after the Godhra incident, agitated speeches were given by various right-wing and even religious leaders. VHP, Bajrang Dal and Shiv Sena leaders had a meeting; kar sevkas were making speeches and vehicles were burnt and many such messages shared by intelligence agencies that were completely ignored during investigations.

The SIT failed to question why suitable action as per law was not taken by the police to prevent further exacerbation of these violent incidents. Were police officials specifically asked not to take action; is so then by whom? Or if they voluntarily decided not to take action, why were they not asked to explain that decision? Many basic questions that any investigation agency would ask, were left unasked!

The Tehelka Sting operation

Sibal argued that the sting operation which was carried out by Tehelka was authenticated by the CBI and was also used in the Naroda Patiya massacre case to convict the accused. But these tapes as evidence were not even looked at by the SIT. Sibal points out how Dhawal Jayantilal Patel who was recorded in the sting tapes, demonstrated how the bombs were made and supplied for the riots, he spoke about how they were supplied, role of the police and so on. There were many such statements in the tapes which were all collectively disregarded by the SIT as extra judicial statements.

Other arguments

Sibal also pointed out how Rashtriya Swayamsevak Sangh (RSS) workers in thousands had gathered around the Sola Civil Hospital in Ahmedabad after Jaydeep Patel, a VHP leader arrived there with dead bodies from Godhra. Even in the case of handing over dead bodies to a private person like Jaydeep Patel, SIT did not raise questions as to who in position power allowed the same in complete contravention of set procedure where bodies are only handed to family members. The Mamlatdar, a junior level employee, was held responsible for the same. Sibal asked, “Can you ever imagine Mamlatdaar taking this decision when a national tragedy has happened and he takes a call to give bodies to VHP? Impossible!” 

He also pointed out that in incidents of riots, the police register the FIR suo moto, however if a relative of the victim approaches the police to register FIR, they refuse since one FIR has already been registered and a second FIR in the same incident cannot be registered. He said that even if the victim’s relative is able to identify the accused, he is not named in the police’s FIR. In many cases the survivors knew their attackers well as they were from the same neighbourhood, but police shot down their claims saying it was dark, perhaps they misidentified the attackers. Sibal pointed out that this was a lacuna that needed to be corrected.

The bottomline of the arguments today was that the SIT was clearly mandated by the Supreme Court to carry out an investigation, however, it did not carry one out, and merely filed a Closure Report which was accepted by the Magistrate court. Also, that despite there being no dearth of evidence pointing towards inaction of authorities, the same was not appreciated by the SIT.

Having lost his grandparents to communal riots, Sibal said, “Communal violence is like lava erupting from a volcano and it’s an institutionalised problem, whenever the lava touches the ground on earth it scars it and it becomes a fertile ground for future revenge.”

Throughout the hearing, he kept reiterating that in such riots, the culprit is some other person and the victim is some other innocent person. “I am not (talking about) any high ranking person who gave instructions or not. You can take me on record. This is a bigger picture if rule of law can prevail or can muck be allowed to run its course,” he added. “This case is not just this case but it’s about the future,” he emphasised.

Referring to the Magistrate court accepting the closure report and refusing to direct further investigation, Sibal said, “No court with a conscience would ignore such evidence”.

The order may be read here:

Related:

SIT Investigation flawed, evidence of serious lapses by state functionaries ignored: Zakia Jafri & CJP argue in SC
Zakia Jafri case: All we want is an investigation, argues senior counsel Kapil Sibal
Zakia Jafri Case: Bringing the High and Mighty to Justice

The post Communal violence is like lava, leaving ground fertile for revenge: Kapil Sibal in Zakia Jafri SLP appeared first on SabrangIndia.

Senior counsel Kapil Sibal continued to argue the Zakia Jafri matter today, on October 27, before the Supreme Court bench of Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar. The court will now hear the matter on November 10. 

Zakia Jafri and Citizens for Justice and Peace, have challenged the closure report of the Special Investigation Team (SIT) pertaining to the complaint of June 8, 2006, and the subsequent dismissal of their protest petition by the Magistrate and the Gujarat high court with official evidence from the state intelligence bureau (SIB) and police control room records (PCR).

On June 8, 2006, Ms. Jafri along with CJP had filed a complaint addressed to the then DGP, Gujarat, PC Pande, wherein the complainants had categorically alleged that there was a wide-ranging conspiracy afoot that led to the collapse of the law-and-order situation in Gujarat after the Godhra train burning incident.

Mr. Sibal said that the main grievance is against the Magistrate’s inaction to take cognisance of the offences. He said, “It is undoubtedly true that before a Magistrate proceeds to accept the final report under section 173 of the CrPC and exonerate the accused, it is incumbent upon the Magistrate to apply his mind to the contents of the protest petition and arrive at a conclusion thereafter…the duties of the Magistrate are not limited to the final reports, it is incumbent upon him to look into all materials.”

Sibal argued, “This is the statement of the law,” which was ignored.

Inaction by State actors, yet no investigation

He further argued how the State agencies did very little to control the outbreak of mass violence all over the state in February 2002. “Record after record, I will show this court. There were phone calls made to the fire brigade from the police control rooms. No phone calls were answered. This is part of the SIT, part of official records, but no investigation happened, as to why it was not answered. Fire brigade officials were not questioned, neither were the police functionaries. Intelligence reports record that mobs were allowed to gather, provoke attacks, but no arrests were made under preventive detention. This was not looked at by the SIT or any other authority. These documents were  not analysed,” he said.

The court had interjected to ask whether any individual’s statement was recorded from the fire brigade room. Sibal said, “No My Lords, and that’s my grievance, no investigation happened, no questions were asked to the relevant authorities!”He added that in the closure report, the statement of potential accused persons was recorded and accepted, without thorough investigation. “Is this how investigations should be conducted?” Sibal asked rhetorically.

He further highlighted the obvious lapse in conduct by then DGP, PC Pande (2006) who was earlier Commissioner of Police, Ahmedabad in 2002. Pande had access to all the evidence but failed to hand these over to the SIT, investigating the matter till 2011 when further investigation was ordered. “Mr. Pande had the material with him right from the time of the violence in 2002. He gave the material only to the SIT in 2010. We had to come to this court [supreme court] to get all these aspects properly investigated. A petition had to be filed in court and these documents were handed over only in 2010. Nobody has investigated as to why he did not hand over the material sooner. He didn’t hand it over because clearly, he did not want the SIT to investigate these documents, a SIT appointed by the Supreme Court. There is no other explanation,” Sibal told the court.

Sibal reiterated that PC Pande was never questioned as to why he did not hand over any evidence, documents, to the Magistrate and the SIT in the beginning. He contended, “This shows complicity, he had all police records, all control room records…why didn’t he hand it over? Was he trying to protect someone, this needs to be open to investigation. This is a very serious matter. How can he withhold information? His explanations were accepted. Finally, when he handed over the documents, it was not analysed by the SIT and that is the basis of my protest petition [filed in 2013]”.

The court, at this point interjected and said, “Going backwards into the history of 2009 and 2010, may not help us. Closure report was submitted by the SIT, so let us see what was left out by the SIT in their closure report as mentioned in your [petitioners] protest petition. If we move backwards, we will be under the sea. There are so many volumes of documents.” Counsel Sibal quipped back, “We are already under the sea,” but proceeded to point out gross lacunae in the SIT’s closure report.

Kapil Sibal further referred to the Tehelka sting operation that exposes the government authorities’ laxity in management of the law and order situation in the state of Gujarat, which was also ignored by the SIT during the investigation. “The transcripts recorded in the Sting Operation (Operation Kalank, October 2007) have been authenticated by the CBI following an order of the NHRC. Still no investigation happened, these fellows [right wing members] have admitted how there was a build up, arms and bombs were distributed, how they massacred people, still the magistrate doesn’t consider it, the high court doesn’t consider it. The explanation of the accused who participated in the sting, is that they were given a script and they read out from it,” Mr. Sibal informed the court. The SIT, appointed by this court has merely accepted this explanation by potential accused and left it at that, he added.

He then pointed out that this sting was relied on by the Special Investigation Team (SIT) in the Naroda Patiya massacre case, which took place on February 28, 2002, allegedly killing close to 100 Muslims, but was completely ignored in the Zakia Jafri matter. Conspicuously, the same SIT –the prosecuting agency there—even called the person responsible for the Sting Operation as a witness; but here when it comes to wider conspiracy, they have let the matter lie.

He then referred to some witness statements that were not taken into account by the authorities but was never considered. The transcript from the meeting with one Anil Patel, who was the Vibhag Pramukh, Sabarkantha district of Vishwa Hindu Parishad (VHP), was referred to by Kapil Sibal. In his statements, Patel had said that maximum number of FIRs were filed in Sabarkantha, Gujarat, where not even one Muslim home was spared. On February 27, 2002, he said that he was asked to inform the families of the people who died in the Godhra train incident and that he was willing to take action against the Muslims. He had also stated that the VHP activists had decided that they would burn all Muslims (including children) in the district. “None of this was dealt with by anybody. So, houses were burnt in Dhansura district, 126 properties were destroyed. In the entire district there was only one village in which 75 percent of Muslims didn’t return. This is on record but nothing has been done about it,” said Kapil Sibal.

Mr. Sibal further highlighted the lapse by the police in Gujarat, allowing right-wing leaders to take charge of the situation that led to deterioration of public order in the State. He contended that the tragic Godhra killings were used to justify the pre-orchestrated mass carnage that enjoyed political sanction and that the proof of this was recorded by the Citizens Tribunal headed by Justices VR Krishna Iyer, PB Sawant and Hosbet Suresh.

Sibal argued, “My lord a private person was handed over the bodies of persons who were killed and burnt in the train incident. He was Jaydeep Patal, a VHP functionary. Patel had said that it was unanimously agreed that the bodies should be handed over to him. Somebody needs to be prosecuted for this. By the time the bodies reached Ahmedabad in a truck, 3,000 people had already gathered there. Section 144 curfew of the CrPC was still not in place. This calls for serious investigation. How were these bodies handed over to Jaydeep Patel? Under police escort the bodies were taken in trucks, why was this allowed? Contrary to law and procedure, how were dead bodies handed over to a private person like Patel in Godhra? How did people come to know that bodies were arriving in Ahmedabad? The police could have not informed me, I don’t know who did it!”

Sibal further alleged that SIT ignored the fact that I.K Jadeja and Ashok Bhatt, were present in the Police control room during the violence. “Even the local police would not investigate like this. One of them [I K Jadeja], an Urban development minister in the BJP government that time, told the SIT that he never did anything and that was accepted by the SIT,” he said, asking, “Is this was the fashion of investigation that was carried out, why didn’t the Magistrate take cognisance and not direct further inquiry? What is the use of an urban development minister in the police control room?” 

“We have faithfully investigated everything”- SIT

Former Attorney General Mukul Rohatgi, appearing for the SIT, interjected to say that the SIT investigated the matter faithfully without any lapses. He said, “The entire protest petition’s allegation is directed against the then Chief Minister of Gujarat. The allegation is that the then CM allowed the mayhem for 72 hours, Mr. Sibal doesn’t want to argue on this point, if he doesn’t want to argue on this, then they have no case!”

Sibal vehemently opposed this argument and said that there were “serious acts of violence, massacre, conspiracy and murders that have not been investigated”. He further said that he was not interested in individual acts and that he was only interested in the acts of the state and that, “the manner in which the SIT investigated the matter was far from established practices. Despite his [Mukul Rohatgi] persuasion, I will not travel into muddy waters.”

“SIT did not do anything”- Mr. Sibal

Senior counsel Sibal referred to the Convenience Compilations filed by the petitioners, and multiple volumes of documents to point out that at multiple locations calls were made for ambulances but they weren’t answered. He contended, “Who’s to investigate this? We’re in 2021, this happened in February, 2002. For 19 years, no one has asked this question. Which accused will say I gave instructions to do things. This has to be investigated. If you accept the accused’s story then might as well not investigate at all. What did the SIT do? Nothing! Nobody was arrested or interrogated.”

Mr. Sibal lastly argued that this is not a civil issue and that even though the SIT gathered information, it failed to apply regular standards of investigation to such a serious matter.  The Petitioners are expected to file four more Convenience Volumes of documents to establish the lapse on the part of the SIT after which arguments will resume on November 10.

The order may be read here:

Related:

Zakia Jafri case: All we want is an investigation, argues senior counsel Kapil Sibal

Modi’s Role in Gujarat Carnage Exposed Through Tehelka’s Sting Operation

Zakia Jafri Case: Bringing the High and Mighty to Justice

What is the Zakia Jafri Case?

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Genesis of the Zakia Jafri Case

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Evidence Unearthed in the Zakia Jafri Case

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The post Zakia Jafri case: Established standards of investigation not applied in the Gujarat 2002 carnage, argue petitioners appeared first on SabrangIndia.

On October 26, the Supreme Court began hearing a Special Leave Petition filed by Zakia Ahsan Jafri and Citizens for Justice and Peace. Zakia Jafri is the wife of slain congress leader Ahsan Jafri who was brutally murdered in the Gulberg massacre of 2002.

Senior Counsel Kapil Sibal, appearing for the petitioners highlighted the main grievance that arises from the closure report filed by the Special Investigation Team (SIT) that failed to take into account, the important evidence related to the case. Senior counsel Sibal said, “SIT was already in seizure of several facts which it did not look at all while filing its closure report…”

He further gave a background to the court that the petitioners had first filed an exhaustive complaint dated June 8, 2006 to the then Director General of Police, PC Pande. The complaint that ran into over 100 pages outlined the contours of a widespread conspiracy that, in the petitioners’ views contributed to the perpetrated violence that broke out in the state from February 27, 2002 onwards, the day of the tragic Godhra mass arson. The complaint has annexed 200 pages of evidence garnered from affidavits filed by serving officers of the state government. Evidence thereafter collated from 24,000 pages of the SIT Investigation records (in 2013) starkly corroborated this evidence.  

Senior counsel Kapil Sibal argued that the Magistrate and the revisional court (the High Court) were duty bound to take cognisance of the offence committed in the State, but they didn’t. He said, “The duty of the court…that’s the central question the lordships will have to decide…once the Magistrate receives information which according to us constitutes an offence, the Magistrate is duty bound to not only look at the information but also take cognisance of the offence.” Hence, the SIT’s decision whether an offence was committed or not is irrelevant, he argued.

He further stated that back on June 8, 2006, the complainant had filed a complaint addressed to the DGP, Gujarat wherein the complainants had categorically alleged that there was a wide-ranging conspiracy afoot that led to the collapse of the law-and-order situation in Gujarat after the Godhra train burning incident. In the said complaint, the petitioners stated that the political establishment and the bureaucracy were complicit in the carnage through overt acts and through omission of statutory duties.

He argued that the evidence in the matter that was part of official records was neither looked at by the SIT, nor the Magistrate and the Gujarat high court. “All we want is that our matter is looked at…if you don’t investigate, just file a closure report, where do we go?”, said senior counsel Sibal. ‘This Republic is too great to deny a person justice,” he stated.

The materials referred to by the counsel involve the records of the state intelligence bureau (SIB), the police exchanges and control rooms (PCR), documents, “If you don’t investigate, don’t look at this, file a closure report and that is accepted, where do we go?”, argued Mr. Sibal.

He further argued that the SIT also didn’t take into consideration the procedure and statements made before Justices (retd.) Hosbet Suresh, PB Sawant. Over the Court’s inquiry upon the reasoning given by the Magistrate to ignore this evidence on record, Sibal said, “The Magistrate stated that he’ll not look into anything else and will stick to the complaint filed by Zakia Jafri. His logic is simple, he is not concerned with any of this.”

Mr. Sibal added, “My lords, our case was that there was a larger conspiracy at play, where there was bureaucratic inaction, police complicity, hate speech and a conspired directed unleashing of violence. The Magistrate said I won’t look at it because the supreme court prevents me from doing that and only look at the Gulberg society case.”

He argued that the investigation, the SIT’s report was not only limited to the Gulberg society massacre but the entire state of Gujarat, including all complaints filed at that time. Sibal vehemently posed that if the purpose of the SIT was to investigate the reason behind the violence of 2002, they should have taken every evidence into consideration.  Reading out extensively from the first Inquiry Report filed by former CBI DIG, AK Malhotra before the Supreme Court (2010) and thereafter the closure report (2012) he detailed how the SIT itself had never restricted its inquiry/investigations only into Gulberg.

“I must have a remedy in law, what is that remedy? The magistrate doesn’t look at it, sessions court doesn’t look at it! The high court doesn’t look at it…Where will anyone go? I’m giving you official evidence and taking you through it. Because of police inaction, people were massacred.”

He pressed that the report of the SIT involved all kinds of crimes that were committed in Gujarat during the anti-minority violence and if this was not considered in its entirety, the rule of law will be threatened. He said, “If we limit it only to Gulberg, what happens to rule of law, what happens to all material? A Republic stands or falls on the basis of what the court does!”

The court will continue to hear the matter on October 27.

Background of the SLP

In 2018, CJP had filed the SLP seeking clarification of the gross anomalies in the judgements of both lower courts (Magistrate and Gujarat High Court) that are both legal and on the facts of this case.

In the present SLP, the petitioners have argued how, the order of the Gujarat HC records that the Magistrate has considered the Closure Report of the SIT and found no substance in the complaint of the Petitioner dated June 8, 2006. Thereafter the Court erroneously goes on to say that the Magistrate provided detailed grounds for not accepting the Protest Petition of Ms Jafri. This, in our submission, is factually incorrect.

It is our case that the Magistrate wrongly held that it was beyond the scope of his powers to direct further investigation. Besides, key and vital issues placed before the Magistrate, detailing our case and making out a sound and substantiated case of criminal conspiracy and abetment, we argue, have been not duly considered by the Magistrate or the High Court.

In the present case before the SC the petitioners (we) argue that it will be abundantly clear from a close perusal of the Protest Petition that the Ms Jafri has substantiated further acts of a larger conspiracy by detailing evidence about the prelude and build-up of a volatile atmosphere prior to February 27, 2002, the post mortems being conducted in the wide open in violation of statutory provisions, no preventive arrests and delayed implementation of curfew in Ahmedabad despite widespread violence from February 27, 2002 onwards, among other issues.

Besides, we argue that, an analysis of Police Control Room (PCR Records) shows Dereliction of Duty by First Responders. The conspiracy, as constructed in the Protest Petition also provides proof of:

• misreporting and misleading constitutional and statutory authorities
• destruction of records relating to Minutes of Meetings, Police Logbooks, Wireless Messages by those at the helm of power in 2002.

It is on these issues as also on the conscious and erroneous clubbing of the Zakia Jafri complaint with the single incident at Gulberg society (that took place on February 28, 2002 and according to us is just one of 300 incidents and one link In the wider conspiracy) that the lower courts have erred and we seek correction and remedy.

Brief Background of the Zakia Jafri case

Zakia Jafri is the widow of Congress MP Ahsan Jafri who was brutally murdered in the Gulberg Society massacre that took place on February 28, 2002 during the post-Godhra genocide in Gujarat. Zakia and Ahsan were sheltering their neighbours from a violent mob during the attack. Ehsan stepped out to plead with the mob for mercy for the people he was sheltering. He willingly sacrificed his own life in the process as the blood thirsty mob tortured and lynched Ahsan Jafri to death. Zakia Jafri, his widow, is no doubt a survivor of this individual incident of pre-meditated violence.

The Zakia Jafri case is a unique and unprecedented litigation that attempts to pin responsibility for the Gujarat 2002 carnage on the people who were in power at the time… people who failed to prevent the spread of violence, and may have done so deliberately. Often confused with the Gulberg Society case, mainly due to the persistence of powerful perpetrators to conflate the two, in a possible bid to derail justice, the Zakia Jafri case is a mammoth legal exercise aimed at holding accountable the architects of a vile and despicable conspiracy. While Zakia Jafri is the prime mover in the case, CJP through its Secretary Teesta Setalvad is the second petitioner. It was CJP that has, since the filing of the complaint in June 2006, assisted the first petitioner in galvanising the entire material that led up to the filing of the Protest Petition in 2013 and thereafter the Criminal Revision Application in 2015. From 2014, Setalvad and her partner Javed Anand became the target of the first attack by the newly elected regime at the Centre for their consistency in trying to bring survivors of the 2002 carnage to justice.

The Gulberg Society case is distinct from the Zakia Jafri case. While the former deals only with the massacre that took place at Gulberg Society, the latter seeks to pin criminal and administrative liability –as also trace command responsibility — for the approximately 300 incidents over 19 districts that made up the shocking genocidal carnage in Gujarat in 2002. 

First complaint (dated June 8, 2006)

On June 8, 2006 Zakia Jafri filed an FIR against 63 people for offences punishable u/s 302 r/w 120-B, of the Indian penal Code with sections 193 r/w 114 IPC, 186 & 153 A, 186, 187 of the Indian Penal Code and u/s Section 6 of the Commission of Inquiry Act; The Gujarat Police Act and The Protection of Human Rights Act [PHRA], 1991. The FIR filed by Zakia Jafri named not only the then Chief Minister of Gujarat and his close associate, who has since then gone on to hold powerful positions such as President of the political party that is in power at the center and Union Minister of Home Affairs, but also several other powerful people including top ministers, MLAs, leaders of right wing supremacist groups, top IAS and IPS officers, and other powerful office bearers in the state’s bureaucracy.

The entire complaint may be read here.

However, this complained did not get any response, forcing Zakia Jafri to file a petition in the Gujarat High Court praying that her complaint be treated as First Information Report (FIR) so that investigation into the wider conspiracy behind the Gujarat riots may begin. But the High Court dismissed this directing Zakia to file a private complaint, a tedious and complicated option.

SLP – 1088 of 2008

This is why Zakia Jafri moved Supreme Court via a Special Leave Petition (1088 of 2008) filed against the impugned judgement and order passed on November 2, 2007 by the Gujarat High Court. The SLP 1088 of 2008 may be read here. Following this the Special Investigation Team (SIT) constituted to look into the Gujarat Riots cases was also directed by Supreme Court to investigate the claims in this SLP via an order passed on April 27, 2009.

The Supreme Court first appointed noted legal luminary Prashant Bhushan as the Amicus Curiae, but he was later replaced with Raju Ramchandran. Ramachandran was tasked with ensuring that the SIT investigation into the matter was headed in the right direction and conducted in accordance with provisions of the law. The Amicus Curiae filed the following two reports:

Interim Report by Amicus Curiae

Final Report by Amicus Curiae

SIT Report

The SIT also filed its Preliminary Report dated May 12, 2010. The SIT Closure Report dated February 8, 2012 may be read here:

Volume 1

SIT Closure Report Volume 1 Page 1 to 100

SIT Closure Report Volume 1 Page 101 to 200

SIT Closure Report Volume 1 Page 201-270

Volume 2

SIT Volume 2 Page 271-370

SIT Volume 2 Page 371-458

SIT Volume 2 Page 459-541

The SIT Report in case of the killing of Ehsan Jafri was shocking to say the least. Not only did they state that the Call Data Records of Ehsan Jafri were not available, they also blamed Jafri for instigating the violence by discharging a fire arm, towing the Chief Minister’s “action causing reaction” line! There were several other instances of shoddy investigation and glaring lapses.

The SIT filed a Closure Report in 2012, without giving an audience to Ms Jafri as is her legal right. Thereafter she had to petition the Supreme Court again in a fresh SLP.

SLP – 8989 of 2012

This SLP was filed to acquire the full and complete investigation records, reports and documents. The SIT, that had been clearly directed by the Order of the Supreme Court to supply all documents and reports related to the Investigation, in effect resisted and delayed matters to such an extent that between February 8, 2012, when its final report was filed, and February 7, 2013, when the Supreme Court finally directed that all reports should be provided to the Complainant, a year had passed!

This led Zakia Jafri and CJP to file a Protest Petition on April 15, 2013. 

Protest Petition

In the petition Zakia prayed,

That in deciding the Protest Petition the Hon‘ble Court has to exercise its Independent mind on the Final Report submitted by the Investigating Agency. The Court is not bound by the conclusions drawn by the Investigating Agency. The Court has to look at the material to satisfy itself whether prima facie it is a case for taking cognizance of the offence. The material has to be looked at, not from the angle that it is sufficient for conviction but that the material is sufficient for proceeding with the case. The Court cannot adjudicate on the material to find out whether an offence is made out or not, which is the domain when the trial starts and evidence is led by the parties.”

The two parts of the Protest Petition may be read here:

Protest Petition PART I

Protest Petition PART II

It is only after that order of the SC in February 2013, that the CJP legal team analysed close to 23,000 pages of documents that became the basis of the detailed construct and narrative of the Protest Petition. It is through this Protest Petition that the Petitioner has drawn out the lacunae in SIT’s investigation and constructed a more comprehensive and prima facie case for large conspiracy, abetment, dereliction of duty by First Responders and Hate Speech, which in the Petitioner’s opinion, is squarely made from the documents on record.

This Protest Petition was heard over 18 hearings. However, the petition was dismissed on December 26, 2013, when Magistrate Ganatra accepted the SIT Report and rejected the relief sought by Zakia Jafri. 

Gujarat HC Judgement

On October 5, 2017, Hon’ble Justice Sonia Gokani delivered a judgement that once again set in motion Zakia Jafri’s quest for justice. In, her judgement Justice Gokani observed:

It is one thing to say that it is agreeable with the report of SIT and hence, chooses not to direct further investigation. But, to say that in the given circumstances, it does not possess such powers is caring under the awe of events that led the SIT to directly look into the complaint.

Learned Metropolitan Magistrate Court was directed to consider the final report by the Apex Court in its final order and determine whether the collection of evidence compiled with the report of SIT and the Protest Petition cull out a case of lodgment of an FIR, by even explicitly stating the powers to direct further investigation and hence, to that extent, the conclusion drawn is in contravention of established legal principles.”

The court ruled:

… this revision application deserves to be SUCCEEDED PARTLY and the order of the learned Metropolitan Magistrate dated 16.12.2013 deserves interference to the extent the trial Court held and selflimited itself of its not having powers of further investigation.”

The entire judgement may be read here.

More details about the Zakia Zafri case, concerns raised and legal points made, may be read here.

Related:

Zakia Jafri Case: Bringing the High and Mighty to Justice

What is the Zakia Jafri Case?

Gujarat Genocide: Mystery of the ‘Clean Chit’

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