SIT’s Lawyer: Zakia Jafri’s Petition ‘Instigating’?

Times of India delivered this news, SIT terms Zakia Jafri’s petition ‘instigating’, to my desktop. News is brief, but since the unusual juxtaposing of *petition* with *instigation roused my curiosity, I read on carefully.
Briefly, Jafri’s husband, former Congress MP Ehsan Jafri, was murdered by a rioting mob of Hindus at the Gulberg society in 2002; an event part of statewide conflagration that happened after Hindu *कारसेवक (religious volunteers)* were charred to death at Godhra railway station in a fire allegedly set by a mob of Muslims. She had argued right up to the Supreme Court [SC] that Gujarat government, and in particular its Chief Minister Narendra Modi, were directly complicit in fanning the situation, which led to large scale communal riots in 2002 and the murder of her husband. SC had constituted a special investigation team (SIT) to probe whether her allegations merit consideration, and to file report of its finding before Ahmadabad metropolitan magistrate for further action. SIT after years of labour filed a *closure report* exonerating Modi and other senior functionaries of Gujarat government of any wrong doings. Jafri then filed a protest petition in magistrate court challenging the SIT’s conclusions. Modi in 2002, reacting to Zee TV news reporter’s query regarding Ehsan Jafri’s murder referred **to the reports that Jafri had first fired at the violent mob, which infuriated the crowd further and that the mob thereafter stormed the Housing Society and set it on fire. (SIT report page no.187)**; and added, क्रिया प्रतिक्रिया कि चेन चल रही है, हम चाहते है कि ना क्रिया हो और प्रतिक्रिया [A chain of action–reaction is going on. I wish that there should be neither action (Jafri’s firing on violent mob) nor reaction (killings and storming society to set it on fire)]. What was the real import of this statement by Modi turned into a lengthy acrimonious debate that is still raging. Determining Modi’s innocence or guilt can neither be the purpose of this post nor one has access to the voluminous evidence needed, if it exists, to judge. But, since Jafri’s ‘relentless pursuit’ has fueled an abiding and widespread vicious fight among pro-Modi and anti-Modi camps, especially in the social media, this post does try to narrowly focus on the true import of the depostion of SIT’s lawyer, R S Jamuar, before metropolitan magistrate B J Ganatra who is hearing the ‘protest’ petition filed by Jafri; and that too only the severely curtailed ‘version’ of it appearing in TOI.
First the ‘version‘. “If the protest petition is reproduced exactly as it has been filed in two volumes, I have apprehension that it may again create disturbances in the state…it is so biased and instigating,… I would also advice media not to publicize the content of this petition,… Three fourth of this petition has concentrated on Godhra incidence of February 27, Karsevaks in Ayodhya prior to that, post mortem of dead bodies in Godhra, procession to bring those bodies to Ahmedabad and affidavits of retired IPS officer R B Sreekumar before Godhra Panel. If these portions are taken out, then there is nothing in this petition but its a case of Gulbarg society massacre for which separate trial is going on. This is not a protest petition of Zakia Jafri, a complainant, but its of Teesta Setalvad, who has only one point agenda and that is to make Modi an accused,“.
  • If the *protest petition is reproduced exactly* was no more in the realm of ‘conjecture’ or ‘plausibility’, because it is freely available on the world wide web to anyone with even passing interest in the matter. See part-I and Part-II. I am sure that learned lawyer, Jamuar, or at least his client, SIT, are fully  cognisant of it. That her petition is freely available to anyone is therefore a fact. Jamuar therefore, most probably knowingly, ‘misled’ the court through this submission.
  •  His apprehension that *it may again create disturbances in the state* is also misplaced because clearly no such thing has happened. But then there is more to it. He doesn’t say *it may create disturbances in the state*, but says *again*. Again? The way it happened in 2002? This is clearly a veiled threat to the court to decide the ‘case’ on extraneous considerations other than merit.
  • Petitions or any cases in the courts are supposed to be decided on the basis of facts material to a case produced in the court, testimonies of the witnesses presented or summoned for the purpose, and laws of the land. Whether the process of trial itself or a judgment cause ‘disturbances’ in the society, or displeases one section or the other, are of no consideration whatsoever. However, courts function in a society, and have to remain sensitive to the repercussions of what happens ‘outside’ due to what happens ‘inside the court’, at least in extreme and extraordinary circumstances. On occasions courts have prohibited reporting of the court proceedings or reserved judgments for saner days to redress such situations. But never lawfully could it be suggested to the court to base its judgment on such extraneous factors, which in present case are purely imaginary is what we have already seen.
  • Jamuar further contended that *Three fourth of this petition* concerns itself  with *prior events*, and if this portion is disregarded, which he obviously feels is ‘irrelevant’ to challenge SIT’s closure report, then what remains is ‘purely’ the matter of Gulberg society murders and arson. If this  contention to ‘delink’ three-fourths and one-fourth parts the court were to accept, then Jafri’s protest petition becomes a non-starter; because as Jamuar has ‘carefully’ pointed out, there is already a *separate trial going on* to address the one-fourth portion. Can there be two separate trials in the same case? This is indeed a clever ploy -nor first or last that lawyers employ with great effect- to stymie Jafri’s petition. In doing that he has consciously ignored to face-off the three-fourths part on quality (rather lack of it) or veracity of the evidence or testimonies proffered. Nothing ‘wrong’ in it, because lawyerly skills precisely lie in highlighting what suits, ignore or belittle what doesn’t, and present the arguments in such a way as to obtain a favourable verdict.
  • Jafri’s lawyer, I would imagine, will have to prove that three-fourths [prior events] portion provides both necessary and sufficient conditions for what took place subsequently all over Gujarat including at Gulberg society. For that he will have to establish, the savage riots in Gujarat, which took place post ‘Godhra-Carnage’, were largely a direct fallout of Gujarat government’s various acts of commission and omission with Narendra Modi at the helms.
What happens ultimately in this seemingly interminable seesaw legal battle only time will tell. However, this case has already gone into the annals of Indian legal history as one of the most protracted fights waged by an individual or individuals against the government and its political head, who continued to yield power throughout this period.

Disclosure: Post is based on what Lawyer Jamuar has supposed to have said according to Times of India report.
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