SC order on Zakia Jafri's appeal 'illegal, unconstitutional and violates every tenet of law'

Calling the Supreme Court order on Zakia Jafri's petition a "wonderful piece of literature", senior SC lawyer Kamini Jaiswal on Tuesday said the judgment is "completely illegal, unconstitutional and violates every tenet of law and fundamental rights".

Jaiswal said this during a discussion on "the implications that the judgment of Supreme Court entails for the likes of those being persecuted, the victimology jurisprudence developed over time that it eradicates the various implications and the way forward to put in dock what actually needs to be." The talk was held at Gujarat high court advocate Anand Yagnik's office which was attended by over 50 people including activists, academicians, lawyers, among others.

"It was a clear and simple case of an appeal against an order of the Gujarat High Court which rejected the revision petition filed by widow (Zakia) of Ahsan jafri. We knew what was going to happen during the hearing. We knew what would happen. What would have gone unnoticed and nobody would have said anything had they just rejected the appeal saying there was no merit in it and HC order was right and the Supreme Court would not exercise its jurisdiction under article-136 and rejected the appeal. No, they wouldn't do that," Jaiswal said.

"What is underpardenable, completely illegal, unconstitutional and violates every tenet of law and fundamental right is para-88 (of the judgement)," she said.

In this particular paragraph, three judges bench of the Supreme Court has noted, "While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law. "

During the discussion she raised that Teesta Setalvad, former DGP R B Sreekumar and former IPS officer Sanjiv Bhatt were not the parties in this petition. She said that the apex court never issued them notices and yet passed such a judgement in "violation of their fundamental right" and it "demonised" a widow (Zakia). The observations, she said, are just "sermons" which have resulted in arrests.

Jaiswal claimed that "what the Supreme Court has done is beyond CRPC (code of criminal procedure) and its jurisdiction." She said that since the observations have come from the apex court, "we require a gutsy magistrate or a sessions judge to take some position." She said that Setalvad, Sreekumar and Bhatt may not get relief easily since the case is based on observations of the apex court.

The Supreme Court lawyer also recalled how Atal Bihari Vajpayee government had persuaded the retired chief justice of India to become chairperson of National Human Rights Commission and sent him to find out what was happening in Gujarat. She said NHRC had made several reports on the riots, many of which, she claimed, have gone missing from its website. NHRC had also filed several petitions in the Supreme Court against the atrocities on Muslims and high handedness of local police and other authorities in handling the cases.

Jaiswal said the Supreme Court bench ignored NHRC reports and the report of amicus curiae, Raju Ramchandran, who had stated that investigation was required to probe the role of then chief minister Narendra Modi.

Gujarat High Court lawyer, Anand Yagnik also criticised the judgement and added, "...Supreme Court has started a new chapter of castigating those who are espousing the cause for justice and those who are fighting for human rights now are made accused in spite of the fact that Sanjiv Bhatt and Sreekumar were not there before the court."

On June 25, a day after the Supreme court passed the judgement dismissing Zakia Jafri's petition for investigation into 2002 riots, Ahmedabad crime branch filed an FIR against Setalvad, Bhatt and Sreekumar. Sreekumar was arrested on the same day while a team of Gujarat Anti-Terror Squad (ATS) picked up Setalvad from her Mumbai house. On June 26, she was arrested and was sent to police custody along with Sreekumar till July 2.