Supreme Court draws a parallel between 2002 Gujarat pogrom and the COVID second wave to rule out criminal conspiracy

The three-judge bench of the Supreme Court has repeatedly observed that conspiracy cannot be readily inferred merely on the basis of inaction or failure of state administration.


THE 2002 Gujarat riots happened spontaneously, immediately after the Godhra train carnage that took place on February 27 that year, a three-judge division bench of the Supreme Court held earlier today.

Ruling out criminal conspiracy that led to the post-Godhra carnage against minorities in the state, the bench held that every act of commission and omission would not result in hatching criminal conspiracy unless the acts have been done deliberately and there is meeting of minds of all concerned.

Defending the state government’s role in the post-Godhra carnage, the bench held that “in light of [its] timely corrective measures … in right earnest and repeated public assurances given by the then Chief Minister [and now Prime Minister, Narendra Modi] that [those] guilty would be punished for their crime(s), and to maintain peace, it would be beyond comprehension of any person of ordinary prudence to bear suspicion about the meeting of minds of named offenders and hatching of conspiracy by the State at the highest level, as alleged, much less grave or strong suspicion as being the quintessence for sending the accused for trial for an offence of criminal conspiracy.”

The bench, consisting of Justices A.M. Khanwilkar, Dinesh Maheswari and C.T. Ravikumar, in Zakia Ahsan Jafri versus the State of Gujarat, dismissed the plea of the appellant, who had challenged the dismissal of her protest petition by the Magistrate court and then by the Gujarat High Court against the closure report of the Special Investigative Team (‘SIT’), set up by the Supreme Court, to inquire into the conspiracy angle.

Parallel with the second wave of COVID-19

What is likely to surprise most observers is an interesting observation of the bench that the overrunning of State administration is not an unknown phenomenon. “It has been witnessed all over the globe during the second wave of pandemic, where the countries with even best of medical facilities crumbled and their management skills were overrun under the pressure. Can it be said to be a case of hatching of criminal conspiracy?”, the bench asked, oblivious of the distinction between the two events separated almost by two decades. By drawing such a parallel, the bench also smacked of its ignorance of many complaints of negligence against the State during the COVID-19’s second wave.

“Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration. In the enquiry undertaken by the SIT, it had been found that the developments were in quick succession and had overrun the arrangements already in place or for that matter, additional support by calling Army on 28.2.2002 itself besides the curfew imposed in the most disturbed areas of the State”, the bench observed, defending the state administration during that turbulent period in 2002.

Background of the case

The appellant Zakia Jafri is the wife of Indian National Congress leader, and former Member of Parliament, Ehsan Jafri, who was pulled out of his house by the riotous mob and was gruesomely hacked to death during the post-Godhra carnage in Ahmedabad. His limbs were dismembered and mutilated, and his body was set on fire before his wife in Meghaninagar. He, along with 69 others, who had taken refuge in their house, were massacred. This is infamously known as the ‘Gulbarg Society massacre’.

Jafri had accused 63 persons, including the then Chief Minister, Narendra Modi, the then Ministers of the Gujarat government, high police officials, and other bureaucrats of a larger conspiracy and abetment of crime that resulted in the post-Godhra carnage. She had alleged deliberate and wilful dereliction of duty on the part of state officials in preventing the pogrom. She complained of bureaucratic inaction, police complicity, hate speech, and a ‘conspired unleashing of violence’.

In furtherance of these allegations, she had approached the Director-General of Police, Gujarat, to file a complaint in 2006, which was not taken into consideration. She then approached the Gujarat High Court in 2017, requesting that her complaint should be treated as an FIR (first information report). Her plea was dismissed. It was only in 2008, when the Supreme Court had set up an SIT to inquire into the matter, that her plea was considered. In 2009, the court ordered the SIT to look into her complaint.

closure report was filed before the Supreme Court by the SIT in 2012, after which the court permitted the SIT to place the report before the Magistrate who has taken the cognizance of the Gulbarg trial.

Against the closure report, Jafri filed a protest petition before the Metropolitan Magistrate, which was rejected in 2013 and the SIT’s final report was accepted. She then approached the Gujarat High Court through a Criminal Revision Application, which was yet again dismissed in 2017. However, the court did not leave her remediless. The court allowed her to agitate further investigation upon the availability of new evidence/information. That is how the case reached the Supreme Court through a Special Leave Petition. The judgment was reserved by the court on December 8, 2021.

Jafri’s contentions before the Supreme Court

Jafri pleaded two main issues before the Supreme Court. Her first grievance was that the SIT had jumped to a conclusion that no offence was made out: crucial material provided in the protest petition had not been considered, and no investigation of the larger conspiracy had taken place.

Second, she alleged failure of the Metropolitan Magistrate, Ahmedabad, in not taking cognizance of the offences by considering the protest petition as a complaint and not directing further investigation. She was also aggrieved that the Gujarat High Court erred in rejecting her Criminal Revision Petition. All this leads to a violation of Article 21 of the Constitution, which puts an obligation on the State to ensure a fair investigation.

The decision

The Supreme Court held all her contentions to be devoid of merits. The court said that the allegation of a larger conspiracy is unfounded, and that SIT has duly inquired about the allegations of a larger conspiracy. It observed, “The materials gathered by the SIT … would suggest that despite the corrective measures taken by the concerned officials in right earnest, the situation evolved in unpredictable and sporadic manner and the expanse of the activities were such that the State administration was completely overrun.

Inaction or failure of some officials of the state administration cannot be the basis to infer a pre-planned criminal conspiracy or state-sponsored crime against the minority community, the court further observed.

Lastly, the Supreme Court bench also stated that parts of the protest petition that are founded on affidavits filed by various persons are replete with falsehood.

The bench complimented the SIT report submitted on February 8, 2012 as being backed by firm logic, expositing an analytical mind and dealing with all aspects objectively for discarding the allegations regarding larger criminal conspiracy (at the highest level) for causing and precipitating mass violence across the state against the minority community.

The bench observed that to make out a case of larger criminal conspiracy, it was essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crimes, committed during the relevant period across the state, including the heart-rending episode that unfolded in Godhra on February 27, 2002, in which a large number of kar-sevaks were burnt alive in train bogies. “No such link is forthcoming, much less had been unravelled and established in any of the nine cases investigated by the same SIT under the directions of the Supreme Court. Accepting the argument of the appellant would require us to question the wisdom of this Court and to hold that even the incident at Godhra unfolded on February 27, 2002 was also the outcome of alleged larger criminal conspiracy. Such a view would be preposterous”, the bench held.

Forwarding of messages by the intelligence agencies including inaction or lack of effective measures taken by the concerned officials per se does not imply criminal conspiracy on the part of the state authorities in the absence of tangible material suggestive of a chain or any perceivable link or connection with the unfolding of mass violence across the State, the bench ruled.

“It is unfathomable as to how the SIT could have still recommended sending the alleged offenders for trial, much less would obligate the concerned Court to take cognizance on such unfounded allegations. There is no material forthcoming to indicate that there was failure on the part of intelligence to collect information and it was a deliberate act on the part of the State Government authorities”, the bench concluded, while ruling out the allegation that intelligence inputs were collected and disseminated to concerned authorities, but not acted upon by the concerned officials in right earnest.

“Needless to underscore that inaction of the duty holders to take those messages to its logical end, cannot be regarded as act of criminal conspiracy unless there is material to provide link regarding the meeting of minds and deliberate act to effectuate a plan to spread mass violence across the State”, the bench observed.

“The materials gathered by the SIT on the other hand, would suggest that despite the corrective measures taken by the concerned officials in right earnest, the situation evolved in unpredictable and sporadic manner and the expanse of the activities were such that the State administration was completely overrun”, the bench added.

Referring to the hate speeches, which were alleged to have instigated the carnage, the bench reasoned that the SIT, in connection with the complaint of appellant, was not expected to enquire into utterances made by different persons during the surcharged situation of riots. The remit of the SIT was to enquire into the allegation of larger criminal conspiracy at the highest level resulting in spreading of mass violence across the state during the relevant time, the bench pointed out.

At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat along with others was to create sensation by making revelations which were false to their own knowledge. The falsity of their claims had been fully exposed by the SIT after a thorough investigation. Intriguingly, the present proceedings have been pursued for last 16 years (from submission of complaint dated 8.6.2006 running into 67 pages and then by filing protest petition dated 15.4.2013 running into 514 pages) including with the audacity to question the integrity of every functionary involved in the process of exposing the devious stratagem adopted (to borrow the submission of learned counsel for the SIT), to keep the pot boiling, obviously, for ulterior design”, the bench concluded.

Click here to view the Supreme Court’s full judgment.

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