The petitioners in the cases and others, including senior advocates from the Supreme Court, deposed before a panel of retired judges and eminent persons on how the recent judgments rollback the constitutional protections of the people of this country and the jurisprudence on civil liberties
Team Clarion
NEW DELHI – Experts on the People’s Tribunal have expressed their disappointment over the judgments recently passed by the Supreme Court with regard to the 2002 Gujarat massacre and the killing of Adivasis in Chhattisgarh and criticised the apex court for the approach adopted by it towards the petitioners.
The People’s Tribunal was organised at the Constitution Club of India on Saturday on the “Judicial Rollback of Civil Liberties” by the Campaign for Judicial Accountability and Reforms (CJAR), People’s Union for Civil Liberties (PUCL) and the National Alliance of People’s movements (NAPM). The focus of the Tribunal was the 2022 Supreme Court Judgments on the Gujarat riots (2002) and Chhattisgarh massacre of adivasis (2009).
The petitioners in the cases and others, including senior advocates from the Supreme Court, deposed before a panel of retired judges and eminent persons on how the recent judgments rollback the constitutional protections of the people of this country and the jurisprudence on civil liberties.
The Tribunal members were Justice AP Shah (Former CJ, High Court of Delhi and former chairperson, Law Commission of India), Justice Anjana Prakash (Former Judge, Patna High Court), Justice Marlapalle (Former Judge, Bombay High Court), Professor Virginius Xaxa (Chair of the 2014 High Level Committee to Examine the Status of STs) and Dr. Syeda Hameed (Former Member of the Planning Commission).
Addressing the Tribunal, Justice AP Shah (Former CJ, High Court of Delhi and former chairperson, Law Commission of India) expressed his disappointment on the Supreme Court’s denial of independent investigation and imposition of fine on the petitioners.
He expressed shock over the approach adopted by the court in the case of Chhattisgarh killings. He said the occurrence of the massacre is not in dispute and even if the victim’s allegations that it was the police and security forces who assaulted them is not to be believed on its face value, the criminal jurisprudence mandates a fair and independent investigation.
He further emphasised that the Supreme Court completely overlooked the struggle through which the unfortunate adivasi victims managed to reach the court and instead of forming an SIT for investigation, it went on to impose an exemplary cost of 5 lakh on the Petitioner.
He asked what sort of criminal justice this was.
Expressing disappointment, Justice Shah said he being a judge himself had seen many such proceedings, but the tendency of denying independent investigation and imposing fine on the petitioners is not a healthy sign.
Justice Anjana Prakash (Former Judge, Patna High Court) Anjana Prakash, J. (Retd.), speaking for the entire panel, observed that the Supreme Court has, in fact, added to the injustice to victims through its two judgments.
She stated that whatever be the state of affairs, it was our obligation to resort to the Supreme Court for justice and the court does fulfill its duty in most of the cases. She stated that we do not live in a feudal setup and it was the taxpayers money that runs every institution and therefore, all the institutions are obliged to serve justice to the people.
She concluded with the observation that it is not the judges who are sacrosanct, but the very act of doing justice which is sacrosanct and therefore, it was the obligation of the people to continue to demand justice.
Addressing the tribunal, Virginius Xaxa (Chair of the 2014 High Level Committee to Examine the Status of STs) expressed his grief and shock over the victims’ conditions, as well as how his faith and belief in the justice system had been completely shaken. Highlighting the shock and fear these incidents caused to the adivasis, he emphasised that these are serious issues that must be addressed with extreme caution and focus.
In his opinion, all three issues raised during the Tribunal have one thing in common: the Supreme Court has intentionally or unintentionally encouraged the state by failing to address the concerns of its citizens. He added that decisions made by the judges sometimes lack rationality and fairness. They appear to encourage the State to have complete impunity. He said that he came from an adivasi background himself and knew how even in normal times adivasis are afraid of the police and are afraid to report cases.
He stated that adivasis and other people have been very shaken by the judgment of the Supreme Court.
Senior Advocate Kapil Sibal said that some of the good judgments of the Supreme Court have also not been implemented on the ground. He stated that not just our laws but our institutions are also colonial. He stated that no court where listing of cases is decided only by one man can be thought of as being independent.
In the cases of hate crimes for instance, the Supreme Court did nothing and Dharam Sansads are continuing to be organised across the country. In Zakia’s judgment the court did not consider several pieces of evidence that were presented before the court. He stated that a court that does not question the executive cannot be independent.
The first session focused on the Himanshu Kumar judgment, where the Supreme Court has not only dismissed the demand of the petitioners for an independent investigation into the killings of adivasis in Gachchanpalli and Gompad villages in 2009 but also levied costs of Rs. 5 lakhs on the petitioner Himanshu Kumar. In addition, the court has suggested that Himanshu Kumar be investigated under S. 211 of the IPC and has allowed the Union of India to investigate all those who have complained in any court of law against excesses by the security forces in anti-Maoist operations for criminal conspiracy.
On the basis of inconclusive evidence before a district judge in Tis Hazari in 2010, the Supreme Court said that their initial statements and petition blaming the security forces for the massacre were false and fabricated.
Four petitioners in the initial case deposed before the tribunal along with four other relatives of victims. They all reiterated that the killings had been carried out by the security forces and that they recognised them because they came from the nearby thana and visited the village often. They also testified that they had been in police custody when they had made the statements before the district judge and were too scared to say anything other than what they had been told by the police.
Addressing the session, Prof. Nandini Sundar pointed out that 886 cases of atrocities were submitted in direct complaints to the courts, NHRC and other official agencies and over two decades very few FIRs had been filed against the cases, pointing to the complete collapse of the criminal justice system in the Sukma, Bijapur and Dantewada Districts of Chhattisgarh.
The Supreme Court had itself repeatedly directed the state to register FIRs and carry out prosecutions. Under these circumstances, for the court accepting the police version that everything was fine with their investigation was unwarranted, she said.
She asked why the petitioners would blame the police when blaming the Naxalites would have got them compensation without the trouble of going through a petition before the Supreme Court.
Petitioner Kumar spoke of how he became involved in the case. He said a week after the Gompad killings, a fact-finding team was put together of several organisations. Their report became the basis of the FIRs that were presented to the SP, who refused to register cases.
The report was also sent to the legal services authority and the NHRC and presented at a public meeting in Delhi. When there was no investigation in this regard and not having any confidence in the High Court because of its recent hostile attitude towards Adivasis, they decided to approach the Supreme Court for relief. The Supreme Court took an objective view, questioning the state of Chhattisgarh, following which FIRs were lodged.
Colin Gonzalves, the counsel for the petitioners, lamented that all the evidence they had submitted before the court, including the testimonies of the victim’s relatives, were ignored by the court. They were never given copies of the Police FIRs. He stated that the courts are the last resort for seeking justice and if they shut their doors by going after petitioners who would bring forward cases especially of marginalised people, where would the aggrieved persons go?
Adivasi leader Soni Sori too expressed a similar feeling when she asked where the people would go if the courts betrayed them. She said this case would be used as a precedent for further human rights violation of adivasi and atrocities by security forces. The Supreme Court had rationalised a massacre of such a grave intensity which should be a shame for the entire country.
The next session was on the Zakia Jafri judgment in which the Supreme Court rejected Jafri’s plea challenging SIT’s clean chit to then chief minister and current Prime Minister Narendra Modi.
Addressing the session, Tanvir Jafri, son of slain congress MP Ehsaan Jafri, recounted the events of the Gulberga massacre carried out during 2002 Gujarat pogrom.
Tanvir Jafri said the Police Commissioners’ office was 5 minutes away from the Gulbarga society. Several calls were made to the police commissioner and the chief minister, but no help was sent. It was a complete blood bath for 8 hours. His mother Zakiya Jafri saw the carnage taking place in front of her eyes and felt that somebody needed to probe as to why, despite so many calls made to officials and top authorities, no relief was sent. Therefore the case came to be filed.
The Supreme Court judgment not only personally affected their family but also has been a setback for all Muslims in the State, said Tanvir.
Advocate Nizam Pasha pointed out the fallacies in the judgment of the Supreme Court in this case. He said that the judgment repeatedly questions the petitioner’s ‘audacity’ in questioning the integrity of high government functionaries in the State of Gujarat.
Prominent lawyer Mihir Desai countered the Supreme Court’s conclusion that the petitioners had kept the pot boiling by pointing out that it was the Supreme Court and the NHRC who had questioned the role of the Gujarat administration on several occasions between 2002 and 2012.
He said R B Sreekumar had blown the whistle on the role of the Gujarat government from 2002-2005 before multiple bodies, yet, the Supreme Court accepts the SIT claim that he spoke up only after he was denied promotion in 2005.
He also said that neither Sreekumar nor Teesta were given any notice by the Supreme Court before the judgment that went on to castigate them and which resulted in their arrest. He concluded by stating that in the name of investigating the conspiracy, we should be prepared for many more people being put in the dock. The jury wanted to understand the observation of the amicus curiae in the case before the Supreme Court. The lawyers pointed out that the amicus had considered the evidence that was also before the Supreme Court and recommended trial.
