The Supreme Court’s direction to the Special Investigation Team to investigate Ahesan Jafri’s complaint against the Gujarat Chief Minister and others has raised questions about the feasibility of prosecuting the head of a government for the pogrom. While a Chief Minister must be held vicariously liable for the failure of his Ministers and the officials to protect the lives and properties of citizens during mass violence, existence of additional evidence pointing to the Chief Minister’s connivance at or active encouragement to the indifference of officials could be considered as serious enough. This Frontline article written by Dionne Bunsha in 2006 on Ahsan Jafri’s original complaint throws light on certain facts. Her 2007 and 2008 articles follow up this story. Ahesan Jafri’s FIR can be read here.. Some crucial and pertinent issues raised by her can be read here. The SIT itself was set up in 2008 by the Supreme Court through this order, which explains its rationale and mandate. The Gujarat High Court’s judgment dismissing Ahesan’s petition in 2007 can be read here.
UPDATE1: Fali S.Nariman in his Tribune article today advises the Judiciary to defer hearing of cases with likely impact on voting trends till the elections are over. He suggests that the Supreme Court’s direction will influence voting in Gujarat. He says he has no problem if the direction came two months earlier to, or later to the polls. I respectfully disagree. It is simplistic to suggest that the voter has a tendency not to be influenced by events which are two months old, but will be motivated to vote in a particular manner in response to events which are less than two months old. The Court must stick to its calendar uninfluenced by political events.
UPDATE 2: There is an impression sought to be created in certain sections of the media that the Supreme Court referred this case to the SIT perhaps to satisfy the petitioner, as the Bench was of the view that the SIT had already probed all complaints in the carnage cases. Please read this order of the Court issued on March 3, 2008 during the first hearing of this case, which explains why the Court thought it necessary to admit the petition and probe it further. The SIT was constituted subsequently on March 26, 2008.
Written by
V.Venkatesan
There is an interesting op ed in the HT today suggesting that the SC should not have announced these judgments during the election
http://www.hindustantimes.com/StoryPage/StoryPage.aspx?sectionName=HomePage&id=47b7b32b-c112-4d01-9a9f-3f27f442d6d9&Headline=What+was+the+hurry%3f
Thank You for making available copy of FIR, order and other articles. We all wish that justice would be done and the people in Gujarat government, administration and the BJP punished for their horrendous sins.
Since when are Judges of the highest court of this country required to weigh the political consequences of their decisions and dispositions?
It would be absurd to expect them to release judgments so as to not coincide with elections to the Parliament or to some State Legislature.
Political parties in this country talk too much all the time and it would be a mistake to assume that they will suffer in silence should there be a real occasion for the Supreme Court to swing elections by its Judgments. After all, we have a noisy democracy here and come such occasion, you will see it for yourself.
I would like to differ from Dhananjay’s stance that it would be absurd.
There is clearly no urgency, nor is the judge going to retire tomorrow that such an order needs to given now. If inquiry did not happen for so long, it could well be stalled for another few weeks.
Judiciary in India, unlike in some countries, has clearly developed a new “political question doctrine” – and that itself entitles to use pragmatism.
The abuse of process jurisdiction exists only to guard judiciary from becoming a surrogate vehicle for advancement of intended or unintended goals. This is not to say that instant case was an abuse of process case, but I just cited this by way of an example of how judicial power inheres checks and balances.