The Supreme Court of India has taken several questionable decisions in recent years.

But its June 24 judgment dismissing Zakia Jafri’s appeal against the court-appointed Special Investigation Team’s exoneration of Narendra Modi from his share of the responsibility – as chief minister – for the 2002 Gujarat riots, and therefore of responsibility for her husband and their relatives’ death in the Gulberg society massacre, is the most questionable of them all.

Nor did the learned judges stop there, for in a key paragraph they virtually invited the government to prosecute these three on the grounds that it was they, not Modi’s Gujarat government, who had concocted ‘a larger conspiracy to keep the pot [of Modi’s culpability in the Gujarat riots] boiling”. And they did this when Bhatt and Sreekumar were not even petitioners in the case and Teesta’s own locus as a petitioner it refused to accept! This attack on members of civil society who were not even appearing before the court, could well be a precedent not only in Indian but global jurisprudence.

Also read: Supreme Court Judgment in Zakia Jafri Case Missed Both the Woods and the Trees

The learned judges’ intemperate recorded judgment is not the only worrying aspect of this case. For the judgment is 416 pages long, but the Gujarat Police arrived in Mumbai to arrest Setalvad within a day of its being given. The arrest of Sreekumar and the re-arrest of Sanjiv Bhatt, to discrediting whom the judges had also devoted more than 50 pages of their judgment, followed within hours.

On June 28 , three days after Teesta’s arrest, former Supreme Court Judge Madan Lokur asked in these columns, “Did the Supreme Court intend or suggest that Teesta Setalvad should be arrested?” If it did not then it was incumbent upon it to say so. But the court has remained silent till this day, thereby reinforcing the suspicion that this was indeed what the three judges on this bench had in mind. Through its silence, therefore, the court has made itself a party to the wholesale destruction of habeas corpus – the right of citizens to freedom until proven guilty of a crime punishable by imprisonment – that is the cornerstone of democracy and has been under especially heavy attack since the Sangh parivar came to power in 2014.

Why has the Supreme Court stooped so low? Ever since judges began accepting lucrative post retirement posts after giving judgments that were to this government’s liking, civil society has begun to suspect the worst. Justice P. Sathasivam, a highly respected chief justice of the Supreme Court with several benchmark judgments to his credit, had set the ball rolling when he accepted the governorship of Kerala 16 weeks after he stepped down from the court in 2014. In April 2013, Justice Sathasivam had quashed the FIR against Amit Shah in the Tulsiram Prajapati fake encounter case and ordered that it be treated as a supplementary chargesheet filed for the killing of Sohrabuddin and Kauser Bi. Since Shah was already on bail in the latter case, this was a major relief for him as it meant he could not be arrested again as the CBI had wanted to do. Did Sathasivam not realise that when he accepted the governorship of Kerala, he would be reinforcing civil society’s fear that Modi and Shah were intent upon suborning the highest court of the land?

Chief Justice Ranjan Gogoi strengthened this fear when he followed in Sathasivam’s footsteps and accepted nomination by the Modi government to the Rajya Sabha with equal celerity. Civil society’s suspicions hardened still further when former CBI director R.K Raghavan, who had been kept on as the head of a redundant SIT for another five years, was appointed India’s high commissioner to Cyprus within five months of resigning from it on ‘health grounds’ in April 2017. Raghavan had accepted these sinecures despite the fact that his own SIT had commented adversely on Modi keeping the three senior-most civil servants who had attended the controversial late night meeting at his home on February 27, 2002 in post-retirement posts through the entire period of the investigation, to shut their mouths.

Also read: Rest in Peace, Rule of Law — Especially When Muslims Are the Target

To understand this fear it is necessary to look at the case from the judges’ point of view. Zakia Jafri’s plea was not about the Gulberg massacre. The Supreme Court had monitored this, and eight other specific cases. The Gulberg trial had resulted in 24 convictions and 32 acquittals. Zakia Jafri’s first information report (FIR), which she had submitted first to the Gujarat police after the riots, and when it took no action, to the Gujarat High Court, had accused the decision makers in the government of Gujarat of actively conspiring to let the riots happen. The wording of the FIR was explicit:

“I beg to bring to your kind notice the deliberate and intentional failure of the State Government to protect the life and property of innocent denizens of this country through a well-executed and sinister criminal conspiracy amongst the accused above named, that resulted in the breakdown of Constitutional Governance in the State… since 2002, when a mass carnage was orchestrated by the most powerful in the State Executive using pressure and connivance of the State Administration and Law and Order Machinery there …..”

This role was not spelt out anywhere in the constitution, but had been created by the court itself as India’s democracy had matured and in some respects soured, in the decades that followed. The constitution had spelt out the original, appellate and advisory jurisdiction of the Supreme Court in Articles 132-134 and 143-144. Its appellate jurisdiction allowed it to entertain appeals in civil matters in cases that ‘involved a substantial question of law of general importance’, and in criminal matters if a high court had, on appeal, reversed the order of acquittal of an accused and sentenced him to death, or had withdrawn for trial before itself any case from a subordinate court.

These were highly restrictive clauses, but their severity was mitigated by a clause that allowed the Supreme Court to give ‘special leave to appeal’ if it was satisfied that a case warranted it. It was under this last, omnibus permission that it had assumed the role of protecting the rights of citizens as the shortcomings of Indian democracy began to surface. Its adjudication under this provision transformed the court from being the court of final appeal on points of law, usually affordable only to the rich and powerful, into the final guardian of the rights and freedoms that have been guaranteed to the people in the constitution.

In two memorable lectures given under the auspices of the Palkhivala Foundation in 2007 and 2017, Harish Salve, a former solicitor-general of India, traced the origins of judicial activism to what he labelled “the Krishna Iyerisation” of jurisprudence in India in 1970s. In Salve’s words, “before him the Supreme Court was the Supreme Court of India. Justice Krishna Iyer made it the Supreme Court for Indians”.

But Salve also did not hide his concern that ‘where the Court steps in too often, it builds up hopes that it will not be able to deliver’. ‘The court has neither the sword nor the purse’ he warned. ‘If popular will turns against it, the institution (will be) destroyed’. He placed the blame for this squarely upon the legislatures and the central and state administrations, accusing ‘those in power (who) cannot arrive at a consensus on (abiding by the spirit of the constitution and) keeping the judiciary above suspicion.’

Also read: Inconsistency in the Judiciary: A Tale of Two Judgments

With the BJP’s ascension to power at the helm of the Union, the abuse of citizens’ rights became normal so the chasm between the executive and the judiciary widened rapidly. Zakia Jafri’s appeal to the Supreme Court in 2017 made it unbridgeable because its principal accused was now the Prime Minister of India. This put the Supreme Court in an impossible position: Not entertaining her petition would have further eroded the confidence of the public in the judiciary’s guardianship of its rights. But reopening the case would create a constitutional crisis.

The open rancour that its judgement displays towards civil society activists reflects its extreme discomfort with the position in which it found itself. It could not ignore the fate that had befallen the victims of the Gujarat riots. It could not therefore deny Zakia Jafri another hearing of her case. But it also knew that if it conceded her request for a fresh inquiry, Modi was even less likely to step down for its duration than Indira Gandhi had been in 1975. The risk of another head on clash between the executive and the judiciary that could, this time, bring India’s democracy to a permanent end, was therefore immense.

This could be the reason why the Khanwilkar bench summarily dismissed Jafri’s appeal. It did this by concentrating upon the process, and not the content of the investigation, and finding no fault with it. It concluded, unsurprisingly, that due process had been followed: The Supreme Court had created the Raghavan SIT; the SIT had submitted a report; the report had been criticised by the court’s Amicus Curiae; the court had sent the report back to the SIT for revision in the light of his comments; the SIT had submitted a revised report indicting some more people but confirming Modi’s exoneration ‘for lack of prosecutable evidence’. This is what the bench finally upheld.

Judgments made in hindsight are seldom of any real value, but one needs to be made because crimes like the one committed in 2002, can occur again in our increasingly polarised communal society. The cause of justice would have been better served if Zakia Jafri had accused the Modi government not of criminal conspiracy, but dereliction of “chain of command responsibility”.

Command responsibility is one of the oldest precepts of law in the world, for its origins can be traced back to Sun Tzu’s 6th century BC masterpiece The Art of War. It entered into modern international law when it was codified in The Hague Convention of 1899 and updated in the convention of 1907.

The concept was refined to avoid misuse two years later in a celebrated American case labelled the High Command Case, where the US Supreme court decided that for a commander to be held criminally liable for the actions of his subordinates “there must be a personal dereliction” which “can only occur where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part based upon a wanton, immoral disregard of the action of his subordinates amounting to acquiescence.”

There is a tonne of evidence that the Vishwa Hindu Parishad intended to use the unfortunate Godhra train burning incident in which 59 Hindus perished to launch a pogrom of Muslims the next day, but the entire case of criminal conspiracy against Modi and his principal lieutenants rested upon the remark Modi was alleged to have made in his late night meeting with police chiefs on February 27, 2002, advising them not to prevent the inevitable Hindu backlash that would occur the next day. Whatever one may choose to believe about the motives of the participants in the meeting, legally this case became untenable when all the participants in it claimed that the principal whistle blowers, Sanjiv Bhat, R.B Sreekumar and Haren Pandya had not been present at the meeting.

So when the SIT exonerated chief minister Modi for lack of prosecutable evidence, Zakia Jafri would have been on much stronger ground if she had launched a fresh case against the Gujarat government based upon a precise enunciation of the chain of command responsibility doctrine. To prove this, all she would have needed to show was that, knowing full well the backlash that was bound to follow after the VHP had taken over the bodies of the deceased, and consciously allowing it to do so, the government had done nothing to prevent it.

That opportunity has been missed and will return only when Modi and the BJP are no longer in power.

Prem Shankar Jha is a veteran journalist.

The featured image is an illustration by Pariplab Chakraborty. To view more such illustrations, click here.