The violence in the 2002 Gujarat riots was perpetrated through a “design” which emanates from the documents, Zakia Jafri Tuesday told the Supreme Court while arguing that the Republic is like a ship that will only be steady if the “majesty of the law prevails".
Zakia Jafri, the wife of slain Congress leader Ehsan Jafri who was killed at Gulberg Society in Ahmedabad on February 28, 2002, during the violence, has challenged the SIT's clean chit to 64 people including Narendra Modi, the then Gujarat chief minister during the riots.
Senior advocate Kapil Sibal, appearing for Zakia Jafri who has alleged larger conspiracy during the riots, told a bench headed by Justice A M Khanwilkar that this is a case where the majesty of the law has been “deeply injured”.
Terming the 2002 incidents of Godhra and subsequent riots as a “national tragedy of gargantuan proportions”, Sibal said the petitioner is concerned with how the majesty of the law will deal with such issues when men “behave like animals”.
“These are not matters of an individual case of murder or violence committed. It is violence which was perpetrated through design and the design emanates from the documents,” he told the bench, also comprising Justices Dinesh Maheshwari and C T Ravikumar while referring to the materials placed by Jafri.
Sibal said that these documents were part of the official record and the SIT had not investigated these aspects.
He said the petitioner is neither concerned with individuals nor pointing a finger or wish to prosecute A or B.
“The issue is much larger than the issue of prosecuting individuals. It deals with the polity of this country. It deals with the manner in which institutions are to act in a national emergency. This was a national emergency. What happened in Sabarmati (train) resulted in a national emergency,” Sibal said.
The S-6 coach of Sabarmati Express was burnt at Godhra, killing 59 people and triggering riots in Gujarat in 2002.
During the arguments, the senior advocate said what happened after the Sabarmati Express incident was equally a national tragedy.
“I am concerned with how the majesty of the law will deal with such issues when men behave like animals,” he said, adding, “Therefore, ultimately, I am looking at my own Constitution and saying to myself, can this be allowed under the rule of law in our system. And if it is going to be allowed, then who is going to protect us.”
Sibal said the Special Investigation Team had not probed several aspects and materials which were available on the record and the trial court had also not examined them.
He said one can seldom have direct evidence of conspiracy and it is based on circumstantial evidence which will come up only if there is an investigation.
“If you don't investigate, you will never find out the circumstances and you will never discover the conspiracy,” he said.
Referring to the materials available on the record, he said it prima facie showed that there was a conspiracy but who all were involved in this would be known only if there is an investigation on all the aspects.
“I am not here to establish conspiracy. That's not my job. That is the job of the SIT,” Sibal said, adding, “My grievance is that they have not investigated it.”
He said despite there being “actionable evidence on record”, the SIT or the magistrate did not take note of it.
Sibal said he had demonstrated during his arguments before the apex court about how there was police inaction, complicity, and failure of concerned authorities to take preventive action during that time.
“Your lordships have given us, I would say, my lords, a hearing that only suggests that this court gives the maximum leeway when issues of great magnitude come before this court and it is in that spirit that your lordships have heard me,” he said.
Sibal concluded the day's submissions by saying "the Republic is like a ship... That has to be made steady and the ship will only be steady if the majesty of law prevails."
The bench, after hearing Sibal's submissions, said it would hear senior advocate Mukul Rohatgi, who is appearing for the SIT, on Wednesday.
Sibal had earlier argued that Zakia Jafri's complaint of 2006 was that there was “a larger conspiracy where there was bureaucratic inaction, police complicity, hate speeches and unleashing of violence".
Rohatgi had earlier told the apex court that Zakia Jafri's complaint alleging larger conspiracy was thoroughly examined after which the SIT concluded that there was no material to take it forward.
Ehsan Jafri, the former MP, was among the 68 people killed in the violence, a day after the Godhra train incident.
On February 8, 2012, the SIT had filed a closure report giving a clean chit to Modi, now the Prime Minister, and 63 others including senior government officials, saying there was "no prosecutable evidence" against them.
Zakia Jafri had filed a petition in the apex court in 2018 challenging the Gujarat high court's October 5, 2017 order rejecting her plea against the SIT decision.
The high court in its October 2017 order had said the SIT probe was monitored by the Supreme Court.
However, it partly allowed Zakia Jafri's petition as far as its demand for a further investigation was concerned.