Thread by @barandbench

#SupremeCourt to resume hearing plea filed by Zakia Jafri, widow of slain Congress Member of Parliament Ehsan Jafri, challenging the Special Investigation Team’s (SIT) clean chit to then Gujarat Chief Minister Narendra Modi in the 2002 Godhra riots #gujaratriots @narendramodi

Hearing commences. Senior Advocate Kapil Sibal making arguments.

#zakiajafri #SupremeCourt

Sibal referring to certain charts. I am going to demonstrate there was contemporaneous evidence in 2002 itself.

#GujaratRiots #SupremeCourt

The name investigators became collaborators.

The level of collaboration varied. It is not as if entire police force or bureaucracy collaborated. But key people became collaborators.

The VHP, RSS, Bajrang Dal all involved.

Court: We can understand if you say local police collaborated.

But how can you say SIT collaborated. Is it your argument SIT collaborated?

#zakiajafri #SupremeCourt

Sibal: I am sorry my lord. But that is my argument.

SC: Are you saying SIT had motives? We can understand if you say there was some omission on part of SIT. But can you say SIT collaborated?

#zakiajafri #gujaratriots

Sibal: That is what appears. Why did SIT not take statements of people in Tehelka tapes.

SC: That alone cannot be basis for motives. The SIT might have explanation.

#zakiajafri #SupremeCourt

Ok, let me pitch it lower. SIT did not examine people who it should have. It was prosecuting some but also did not prosecute some whom it should have for reasons best known to it: Sibal

SC: Maybe SIT has offered some explanation but you might have missed it in the huge pile of papers

Sibal: (Laughs). Posible because I don't claim that I know each and every page of 23,000 pages.

#zakiajafri #gujaratriots #SupremeCourt

SIT never took statements of any members of the Commission. Why my lord: Sibal reading out NHRC report.

Sibal reading out NHRC recommendations in which it said certain critical cases should be entrusted to CBI.

The state did not accept it and eventually it was entrusted to SIT: Sibal

#zakiajafri #gujaratriots #SupremeCourt

It also said officers who performed duties well should be commended while those who did not should be prosecuted.

But what happened was other way round. Those officers who collaborated were rewarded: Sibal

#zakiajafri #gujaratriots

No mention was made by SIT to this confidential report of NHRC. It was not dealt with by SIT. Why? Why did they not ask for these documents: Sibal.

#SupremeCourt #zakiajafri #gujaratriots

SIT has never examined anyone from the human rights commission. Now i will demonstrate the failure of the SIT.. I will give you a list of cases : Sibal #gujaratriots #supremecourt

Sibal: There was a major failure of intelligence and the state govt is unable to rebut that.

#gujratriots #zakiajafri

Sibal: Armed with mobile phones. No mobiles were seized. What would an ordinary investigator do? They would have seized the mobile phones.
#gujratriots #zakiajafri

Sibal: Report states 2700 arrests were made but it doesn't tell us how many were preventive and made in the first 72 hours.
When and where were the arrest made? How long were they kept in custody.
Most were bailed out immediately.
#gujaratriots #supremecourt

SC: If they were bailed, how can you blame the SIT?

Sibal: I am not blaming the courts. I am saying the the public prosecutor did not even object. This is a collaboration with violence.

#gujratriots #zakiajafri

Sibal: Widespread lack of integrity in the investigation proceedings. I am not saying this, a statutory authority is saying it. Protest petition we say investigate all this, none of this was investigated.
#gujratriots #zakiajafri

Sibal: The SIT took the statement of Jadeja who was at the Police Station. You record the statement of the accused,accept it and close the matter. What does it mean?
You should have checked the call logs. Whether if he was talking to a police personnel,what was said?
#gujratriots

Sibal: The accused persons are shown as unknown. It seems to be the pattern. If you want to save somebody you yourself register the FIR and call them unknown. If someone else comes, the police says there's already an FIR, I'll investigate that.
#gujratriots #zakiajafri

Sibal: Mr Namputhri adds this is a general pattern seen all over the state. It is seen that the names of offenders are not included. So the names will never be known and there will be no arrests made. What does it show about the machinery of the state?
#gujratriots #zakiajafri

Sibal: Copy of the FIR hasn't been given. Till Namputhri's report in 2014, people were having a hard time having their FIR registered.
#gujratriots #zakiajafri

Sibal: This is an indictment, based on evidence that existed with the commission. Yet the SIT never recorded it. Will that be called negligence, oversight or collaboration, that's for you to decide.

SC: This SIT is not responsible for this evidence.

Sibal: All I'm saying is this evidence was available with NHRC but SIT did not record it.

SC: That we have noted.
It was taken into account by the SC that's why SIT. Collaboration is not by SIT..

Sibal: Here I'm talking about collaboration by officers. All I saying it SIT should have delved into it.

#gujragriots #supremecourt

Sibal: This is a letter Justice Davecha wrote on 23rd of March- There were people on bikes around our building with petrol bombs etc. They dispersed after seeing police vehicle. Happened again, people threw stones at our building. They had swords and spears, broke cars.

Sibal: I again requested public pleader Ojha. Later in the evening I was told my flat was set on fire.

Devacha statement never recorded. Qadri's statement never recorded. Fire brigade'a statement never recorded

#gujratriots #zakiajafri

Sibal: Despite the fact that he was a retired High Court judge, no protection was given to him.
Ashok Bhat helped him and ultimately he was shifted out.

#gujratriots

Sibal: They recommended CBI should be involved. It was rejected. Commission also considered these with utmost care- we do not believe the statements were in any way a propaganda against the police. Those against whom the investigation is made shouldn't be investigating.

SC: These are all recommendations.

Sibal: These are recommendations based on their own investigation. It was not accepted that's another matter.

#gujratriots #zakiajafri

Sibal: The commission has drawn special attention to provocative statements made to media. These should be examined and acted upon. The state said they will but did not provide any details as to what criminal code they'll be charged with or any other information.
#gujratriots

Sibal: The SIT or the local police didn't not seek to prosecute anyone for hate speech in form of leaflets and electronic media. There were channels that were propagating which had nothing to do with the truth.

#gujratriots #zakiajafri

Sibal: The commission referred to the circulars and guidelines issued by the gujrat govt itself for promotion of communal harmony along with the home dept of the central govt.

#gujratriots

Sibal: The Vishwa Hindu Parishad gave call for bandh after the Godhra incident. State govt backed it. No efforts were made to control the unlawful crowd as they were building up. Police was merely silent spectators as the crowd began to swell
#gujratriots

Sibal: This material was available even when the SIT was appointed by this court. There was a complete disregard for all rules and regulations by the local police. This evidence was available in 2002 itself. Why did the SIT not act on it without even a complaint made by Zakia?

Sibal: In the protest petition we mentioned that this should be looked at. It was disregarded. The question is why did the SIT disregarded. What Zakia said is nothing new, it was already a part of the record and yet the SIT did not record it.
#gujratriots #zakiajafri

Sibal: Amary Singh Chaudhary sought help for Ehsaan Jafri from the police. Why was he not examined? Police commissioner ensured him police enforcement will reach. Jafri told him that the few personnel there aren't doing anything to control the mob.

#gujratriots #zakiajafri

Sibal: Police ignored the calls for help from victims of mob attacks. Allegedly, mobs were led by VHP, Bajrang Dal, BJP. They were equipped with gas cylinders for torching, mobile phones etc. They were seen carrying lists of Muslim houses.

#gujratriots #zakiajafri

Sibal: All these names and individuals concerned were a part of the record of NHRC. SIT should have accessed these records.

#gujratriots #zakiajafri #SupremeCourt

Sibal: A lot of details on Vadodra are also given. Godhra is dealt with.
This is all part of NHRC record, this is a part of their statutory obligation. This is not an individual's report. The state govt should have given it the kind of credence it deserved and should have acted.

Sibal: But they chose not to do it. Especially the commissioner of police. The SIT also did not access these reports. That is our grievance.

#gujratriots #zakiajafri

Sibal: If you look at Section 12- the commission can look into anything suo moto. It's an action under S 12(a). Just so the statutory favour is in your lordship's knowledge.
It was an exercise under S12a. They are also entitled to give recommendations.
#gujratriots

Sibal: This commenced from March 1 right through. In the meantime there was an election commission issue also. Another constitutional authority had to go to Gujrat to see if elections are possible. That authority too made some observations.

Sibal: Significantly, additional DGP stated 151 towns and 993 villages were effected by the riots. This gives you the scale of the extent of the disturbances.
The electoral rolls did not take account of displaced electors who still haven't returned even till August 2002.

Sibal: State govt made a presentation to EC that normalcy had returned and environment was conducive for free and fair election. Reduced crime rate but increase in rioting to the tune of 13.6%. There were still instances of rioting in August.

Sibal: Everywhere there were complaints of perpetrators of violence roaming scot free. Some were even prominent politicians. They threatened the complainants to withdraw complaints. They had blocked routes for the victims to return home. This is August.

Sibal: Again it's a part of the record. You don't act on this or our protest petition then what did the SIT do?

#gujratriots

Sibal: Many politicians accused to abetting crimes were not even booked.
I'm not saying this, a constitutional authority is calling them abettors.

#gujratriots

Sibal: There was a general lack of faith in state armed forces. Those police officers who did good work were transferred. It was said that it was a punishment for them acting impartially.
#gujratriots

Sibal: The commission said that the situation is far from normal.
Elections were postponed.

#gujratriots

Sibal: Committee on Empowerment of Women- report laid before the Rajya Sabha in August 2002. It's a parliamentary body.

#gujratriots

Sibal: You'll notice this too is a part of the record. Again nobody examined from the SIT. They'd have all the material- who made allegations against whom, statements etc.

#gujratriots

Sibal: Minority Commission's Report, Independent Commission for Eminent Persons' report, committee for Empowerment of Women's report and the reports of NGOs who visited Gujrat are also available, a part of the record. They were not looked at.

#gujratriots

Sibal: 181 cases registered for violence against women. 100 were from Ahmedabad itself.
There were complaints that police was not amicable to registering FIRs by women. They were threatened to take back their complaints.

#Gujaratriots

Sibal: Committee stated hate speech material should be seized. That did not happen. I'm sorry to say neither the Magistrate nor the High Court look at it. Everybody ignored the hate crimes the police, the magistrate, the HC, the SIT, everybody.

#gujratriots

Sibal: Nobody had to really rely upon a complaint. The complaint was filed because nothing was happen. When contemporaneous evidence is available by statutory and parliamentary committees, why was it not accessed by the SIT?

#gujratriots #supremecourt

Sibal: There's a Mad HC judgement.

SC: What is the purpose of this?

Sibal: This is to show effects of NHRC recommendations.

#Gujratriots

SC: Full bench?

Sibal: Yes, full bench of Madras HC.
"S18 is a self contained provision. The distinguishing aspects of recommendation of S12 and S18 of the act hasn't been brought up in any court. We don't have any precedents to see differences between recommendations there..

Sibal: "...we are of the view that the concerned authority is supposed to inform the commission of the acts done to illustrate their recommendations or that they're going to challenge the recommendations."

SC: Why does this question arise for our consideration?

Sibal: Just that NHRC recommendations was not followed and that it is mandatory. It is under appeal.

#gujratriots

Sibal: No comment by Magistrate or HC about movement of arms before the Godhara incident. Not dealt with. No order of further investigation. Not commented upon.
#gujratriots #zakiajafri

Sibal: Jan Morcha Report of Faizabad- not dealt with both by the Magistrate and the High Court.
Build up of arms and ammunition before Godhra incident- does not deal with Haresh Bhat, Dhaval and Anil Patel, Babu Bajrangi sting operation. Peripherally refers to blasts.

Sibal: The Magistrate should have dealt with it.There is no reference to the Tehelka tape at all. Closure report refers to it. The SIT had it. The Magistrate deals with extra judicial statements made but not the tape.
#gujratriots #SupremeCourt

Sibal: "Extra judicial confession could be an attempt to manipulate and use emotions to express remorse. Efforts should be made to ensure that the statements were exact. It cannot be sole ground for conviction. It cannot be relied upon until corroborated. The judge is saying that

Sibal:...it has to come out of the witness." Why will it come out of the witness's mouth, it will come from the accused's mouth. What they are referring to is a regular statement.

Again question arises why did SIT not investigate? Why did they accept Babu Bajrangi's statement?

Sibal: Why did they not investigate the others on the tape?

SC: We'll continue after lunch.

Sibal: Very well.

#gujratriots

Bench resumes hearing #GujaratRiots #SupremeCourt

Sibal: Gujarat HC, Judge in Naroda Patiya case had ensured that the Tehelka tapes were authentic through CBI then why did not SIT make Ashish Khaitan a prosecution witness? Judge says these statements were not included in the complaint..

#GujaratRiots #SupremeCourt

Sibal: the main purpose is to find the truth. There was a role played by Bajrang dal, police officers and some agencies who did not allow truth to come to light and be placed before the SIT #GujaratRiots #SupremeCourt

Sibal: Why should the agency show lethargy in examining witnesses? what has happened should not be forgotten just because of lapse of time
#gujaratriots #supremecourt

Sibal: it was i 2013 that we got the full material, We did not get any material till then and many documents prior to this was based on NHRC probe

Sibal: Lots of Desi bombs were made and sent. why were these bombs made and sent to the Hindu areas . police just stoody by and supported.. statements just stated how after arsoning the police just pikced up 20-30 Muslims and left

Justice Khanwilkar: you have made a point that this script has not been perused by the magistrate for the closure report? you dont have to read this whole thing like this.. the other side has to respond to this. every witness examined by Tehelka not examined is your grievance

Justice Dinesh Maheshwari: Why are you showing your two cell phones to us?

Rohatgi: I was being shown a message on juniors phone by another junior. I dont have another phone

SC: This is too complicated for us

Sibal: He is multi-dexterous person

SC: This is a new term for us

Sibal: this is farce of an investigation and this is no investigation. what was the sit doing? NHRC said the same thing.

Sibal: this was farce of a prosecution. when i said collaborative it wad collaborative in this sense.
#supremecourt

Sibal: we are living with a system which continues to flout all basic ingredients which helps us stand as a nation. We forgive and forget. Dilip Trivedi was changed as a public prosecutor ultimately, we made complaints in the HC ..SIT was very happy with him
#gujaratriots

Matter to continue tomorrow
#SupremeCourt