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V. Venkatesan

New Delhi: The Supreme Court’s directive to the Special Investigation Team (SIT) to probe the complaint against the Gujarat Chief Minister, Mr Narendra Modi, for his alleged involvement in the 2002 Gujarat pogrom and submit a report to it within three months, has led some observers to question its timing in view of its political implications.

It has been reported that Mr Modi and the Gujarat unit of the BJP sought to make political capital of the Court’s directive, by making it appear that Mr Modi’s arrest was imminent and that the Congress was behind the judicial intervention.

Some observers also suggested that the timing of the Court’s intervention was mysterious, and that the Court could have deferred the matter till the conclusion of the elections, as it has given Mr Modi and the BJP an issue on a platter.

Business Line’s investigation reveals that the complaint of Ms Jakia Nasim Ahesan, widow of Iqbal Ehsan Jaffri, who was killed in the 2002 pogrom, was first sent to the Director-General of Police, Gujarat, on June 8, 2006.

She sought to register a First Information Report against 63 accused, including Mr Modi. As the police did not register an FIR, she petitioned the Gujarat High Court in 2007 seeking a direction to the police to register the FIR. In her petition, she said that the role of the State’s police was always biased especially related to its own complicit role in the massacres of 2002. Therefore, she claimed that after registration of the FIR, the same was required to be handed over to an independent investigating agency. In her complaint, she furnished oral and documentary evidence on the nature and extent of involvement of the accused, and sought further investigation in relation to the offences she had alleged.

In his November 2, 2007 judgment, Mr Justice M. R. Shah of the Gujarat High Court rejected her petition saying her allegations were on the basis of some affidavits filed by third parties, before the Justice Nanavati and Shah Inquiry Commission, and that these affidavits had no evidentiary value. The High Court rejected her contention that her allegations extended beyond the jurisdiction of a magistrate or a police station.

Jakia Nasim Ahesan appealed to the Supreme court against the High Court order. Admitting the petition on March 3, 2008, Mr Justice Arijit Pasayat and Mr Justice P. Sathasivam held that the High Court’s order did not render the petitioner remedy-less.

But they noted that it raised various important aspects for consideration. The judges noted: “In a given case, a person who has knowledge of the commission of a crime may not be examined by the police. The question is, what is the remedy available to such a person?”

The Bench felt that the question was of critical importance in the administration of criminal justice.

Counsel for the petitioner, Mr Prashant Bhushan, who was appointed amicus curiae by the Court for this matter, told Business Line that the Supreme Court registry did not list the matter for a year. Thereafter, he ‘mentioned’ the matter before the Chief Justice, Mr Justice K. G. Balakrishnan and Mr Justice Pasayat, who ordered the registry to list the matter. It was thus listed as item No. 62 (SLP (Crl.No.1088/2008) before Court No 3 comprising Mr Justice Pasayat and Mr Justice Asok Kumar Ganguly on April 27.

Asked if the Court could have deferred the matter in view of elections in Gujarat, Mr Prashant Bhushan said: “Why should the Court wait? There are serious allegations in the complaint, and the Gujarat Government’s counsel too did not oppose hearing of the petition on the ground of elections. In fact, Mr Mukul Rohatgi, senior counsel for the Gujarat Government, readily accepted the Court’s order.”

According to Mr Prashant Bhushan, it would be improper for the Court to defer hearing of any matter or issue of directions on the ground of elections.

On the contrary, it is important that the electorate is aware of these serious allegations, and there are legal remedies against any attempt to polarise voters using the Supreme Court’s directive to the SIT, he said.

If the BJP or Mr Modi allege the Congress to be behind the Supreme Court’s intervention, it is not only gross contempt of court, but totally unfair, he said.

More Stories on : Politics | Politics | Courts/Legal Issues | Gujarat

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