Friday, September 16, 2011

'The Case Has Gone from No FIR to Being Heard in a Criminal Court'

Opinion » Interview

September 16, 2011

The Supreme Court's September 12 order in the Zakia Ehsan Jafri case has set off wildly contradictory reactions, indicating an absence of legal literacy in political and media circles. The Bharatiya Janata Party celebrated the order as a victory for Narendra Modi, even as Ms Jafri, who wants Mr. Modi and 61 others to be prosecuted for the 2002 Gujarat riots, claimed to have been left depressed by it. There has been confusion over several issues: the status of the “accused”; the respective legal standing of the R.K. Raghavan-led Special Investigation Team and the amicus curiae, Raju Ramachandran, and so forth. In April 2009, the Supreme Court handed charge of Ms. Jafri's complaint to the SIT, which has since submitted three reports to the court, the last after factoring in points made in a separate note by the amicus curiae. On May 5, 2011, the Supreme Court directed the amicus to independently assess the SIT reports and give his comments. On September 12, the Supreme Court sent the case to the trial court, leading to doubts over what has been achieved. In this interview with Vidya Subrahmaniam, Mr. Ramachandran clears the air on the misunderstandings around the order, and explains its legal import.

The order of the Supreme Court in the Zakia Ehsan Jafri case has been interpreted in terms of victory and defeat, and there has been a lot of political drum-beating around it. On the other hand, Ms Jafri has expressed her deep disappointment with the order. How does the lay person cut through the hype and understand the legal import of the order?

As an amicus curiae, I will not react to how one side or the other describes the Order. I am, however, anxious that the court's final Order of 12th September is correctly understood and appreciated. It is necessary to keep the background in mind. The petitioner had filed a writ petition in the Gujarat High Court for a direction to register an FIR. She failed to persuade the High Court but the Supreme Court took serious note of her grievance. The court appointed an amicus curiae and also asked the SIT to “look into” the matter. The SIT, which started with a preliminary non-statutory enquiry, later conducted statutory investigations under the Criminal Procedure Code, 1973.

Though the SIT was a high-level investigating body, the court introduced an additional safeguard, which is not done as a matter of course, namely, that the amicus curiae would give his comments and independent assessment. This was done in respect of all the reports submitted by the SIT. In respect of the last report, the court even permitted the amicus curiae to interact with witnesses for the purpose of making his assessment. It is after all these exercises were conducted by the SIT and the amicus curiae that the court has set the regular law in motion, by directing that all the relevant material be placed before the appropriate court. Thus, starting from a situation where an FIR was not being registered, the case will now be in the hands of a criminal court.

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