“My concern is really for the future. Let me put it in colourful terms. Communal violence is like lava erupting from volcano, be it by any community. It is institutionalized violence. Wherever the lava touches the ground, it scars it and leaves the earth fertile for future revenge,” senior advocate and former union minister Kapil Sibal told India’s top court on Wednesday.
Sibal was appearing for Zakia Jafri, the widow of Congress leader and former MP Ehsan Jafri who got killed by Hindu nationalists in the 2002 Gujarat Muslim genocide, in her petition challenging the clean chit given by the Special Investigation Team to the then Gujarat Chief Minister Narendra Modi and other high functionaries in the “larger conspiracy” behind the killing of hundreds of Muslims.
On 28 February in 2002, Jafri was hacked to death and burnt by a Hindutva mob who stormed the Gulbarg Society, a residential complex housing Muslim families in Ahmedabad, Gujarat’s largest city.
Zakia is fighting a legal battle demanding that prime minister Narendra Modi and others be held responsible for failing to stop the genocide.
Previous investigations into the Gujarat genocide commissioned by Gujarat’s BJP government have absolved the state police and government of collusion or intentionally failing to stop the anti-Muslim violence.
The genocide has long dogged Modi who was chief minister of Gujarat in 2002 and is still accused by survivors of genocide, Opposition parties, Muslim organisations, and several rights groups of tacitly supporting the Hindutva rioters.
On February 8, 2012, the SIT had filed a closure report giving a clean chit to Modi and 63 others, including senior government officials, saying there was “no prosecutable evidence” against them.
Zakia Jafri had filed a petition in the top court in 2018 challenging the Gujarat High Court’s October 5, 2017 order rejecting her plea against the decision of the SIT.
Sibal told a Supreme Court of India bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar that the SIT submitted a closure report in the case by ignoring several crucial evidences and without doing a proper probe, Live Law reported.
“I lost my maternal parents…in Pakistan… I am a victim of the same”, Sibal got emotional talking about the dangers of communal violence.
“A message must be sent to the world that this cannot be tolerated,” while challenging SIT’s clean chit to PM Modi, others in Supreme Court, Sibal said.
Sibal told the apex court that the investigation agency did not arrest any accused persons, record their statements, seize their phones, or conduct spot visits.
The SIT ignored the tapes of the sting operation done by Tehalka magazine, in which many workers and local leaders of Hindu nationalist parties including Vishva Hindu Parishad had given open statements about their participation in the anti-Muslim violence and accumulation of weapons and bombs.
Sibal pointed out that the SIT ignored the Tehalka tapes in Zakia Jafri’s complaint although the same tapes were used for conviction in the Naroda Patya case and the Gujarat High Court had endorsed the authenticity of the tapes.
“In Naroda Patya case, the man was convicted on the basis of these sting tapes. But qua other cases, these tapes are not considered”, Live Law quotes Sibal as saying. It was a “disturbing and disconcerting” omission by the SIT, according to the senior lawyer.
Sibal who read out portions from the transcripts of Tehalka report to contend that they showed the conspiracy by members of Bajrang Dal, VHP and Sangh Parivar to stockpile weapons, to make diesel and pipe bombs and to import ammunitions from other states prior to February 27, 2002, told the apex court that the tapes suggested conspiracy to smuggle dynamite bombs to Ahmedabad from quarry operated by a VHP worker.
“In case of conspiracy, there won’t be direct evidence. It can only be inferred from circumstances, for which you have to investigate, gather evidence, visit spot, record statements. None of these done by the SIT”, Sibal on behalf of Zakia argued.
“There has to be an investigation. That is all our case about. If there is no investigation, what was the purpose of the Supreme Court constituting the SIT?”, asks Sibal.
Sibal argued before court that the SIT discarded the testimony of the then Gujarat additional director general of police RB Sreekumar IPS on the ground that he was making the statement due to a denial of promotion.
“His (Sreekumar) testimony was corroborated by other officers and hence it could not have been rejected..”, Sibal said to the top court.
“Curfew was declared immediately in Godhra..but in Ahmedabad, curfew was not declared until 12. And thousands of people had gathered by 7 morning. Any police officer would have immediately declared a curfew so that violence could be avoided”, Sibal said the complicity of the Gujarat police and the Gujarat administration were ignored by the SIT.
The state intelligence reports regarding the Kar Sevaks returning armed with Trishuls and presence of communal tension were ignored, the legal website Live Law quotes Sibal as arguing before the Supreme Court of India.