In Re: Supreme Court Order Dated 12.09.2011; Zakia Jaffrey Has a Reason to Be Unhappy

First published on 12.09.2011

Zakia Jaffrey is the only person who, without knowing anything about law, is expressing the true sentiments wrt the SC order dt. 12.09.11 in Zakia Nasim Ahesan v. State of Gujarat.

In this case, the SIT investigated the matter on the directions of the Supreme Court. The SC also appointed an Amicus Curiae and directed him to file his report after an independent assessment of the statements of the witnesses who deposed before the SIT. The witnesses also included Sanjeev Bhatt. As per the media reports, the SIT rejected the statement of Sanjeev Bhatt and, in its report, gave a clean chit to Modi. Sanjeev Bhatt has filed an independent affidavit in the Supreme Court also. Vide order dt. 05.05.11, the Supreme Court didn’t take the affidavit of Sanjeev Bhatt on record and postponed the decision on the same after the report has been filed by the Amicus Curiae. I don’t know what is the independent assessment of the Amicus Curiae wrt the statement of Sanjeev Bhatt, but, whatever may be the assessment, the SIT is not bound to include the report filed by the Amicus Curiae as part of its report to be filed before the Trial Court. In the words of the Supreme Court: “Before submission of its report, it will be open to the SIT to obtain from the Amicus Curiae copies of his reports submitted to this Court.” And, of course, the Supreme Court has not taken the affidavit filed by Sanjeev Bhatt on record in its order dt. 12.09.11 either.

The most important conclusion emerging from the order dt. 12.09.11 of the Supreme Court is that the Supreme Court has not doubted the SIT and has given it the final responsibility to file the investigation report before the Trial Court, and that is probably because the independent assessment by the Amicus Curiae is in sync with the assessment of the SIT including the assessment of Sanjeev Bhatt’s statement (The Amicus Curiae was the most important person in this whole case).

However, the Supreme Court has directed the Trial Court to give an opportunity to the complainant to file its protest in case the SIT files a “closure report”. But, that would be of any value only if the Amicus Curiae has reached a different assessment wrt the statement of Sanjeev Bhatt (which I guess is not the case). So, it is a clear cut pro-Modi verdict.

Zakia Jaffrey: If the decision of the Supreme Court doesn’t satisfy you, there is no contempt of court in cursing the decision, so don’t change your position. That’s the only thing that can bring you closure now unless Sanjeev Bhatt goes out of the way to help you, which I doubt strongly.

If the assessment of the Amicus Curiae wrt the statement of the witnesses is in contrast to that of the SIT, Mr. Mukul Rohtagi must have argued really very well. But, that will not help Mr. Modi in becoming the PM, and I will have to agree with Mr Salman Khursheed when he quotes the Hamlet, “the lady protests too much.”
I am also unhappy with the SC order: It should have fixed a time line for the trial.
Though it is impossible, but if Modi becomes the PM, I will leave this country.

Comment dt. 13.09.2011
In the Vineet Narain case judgement dt. 30.01.1996, the Supreme Court observed:

However, if in respect of any such person the final report after full investigation is that no prima facie case is made out to proceed further, so that the case must be closed against him, that report must be promptly submitted to this Court for its satisfaction that the concerned authorities have not failed to perform their legal obligations and have reasonably come to such conclusion.

I am also unhappy because the Supreme Court has not finally decided the issue of “closure report” itself but left it for the Trial Court to decide it. Also, I have not understood the need for keeping the SIT report confidential.
BTW, not deciding the issue of “closure report” can also be a ground for review (Stare Decisis).

Comment dt. 10.04.2012
Till now I have commented on the basis of media speculations, but now it has become clear that the SIT did file a closure report in the Supreme Court. What Supreme Court has done in this case is nothing less than a monumental blunder: It has overlooked its own precedence of Vineet Narain case judgement dt. 30.01.1996 and failed to exercise its jurisdiction to reach a “satisfaction that the concerned authorities [i.e. the SIT] have not failed to perform thier legal obligations and have reasonably come to such conclusion [i.e. the conclusion to close the case]” and has left it to the trial court to reach a conclusion.

Comment dt. 08.05.2012
So, it is now clear that the Amicus Curiae reached a conclusion different from that of the SIT. I am surprised how the Supreme Court could pass such an order. It is a manifestly erroneous order. The Amicus Curiae was appointed by the Supreme Court to draw conclusions with respect to the evidence collected by the SIT. By leaving it to the SIT to file a closure report before the Trial Court with a liberty to draw conclusion distinct from that of the Amicus Curiae, the Supreme Court has basically made the whole exercise of appointing the Amicus Curiae infructuous and subjugated the independent position of the Amicus Curiae to the discretion of the SIT. This is not only erroneous but also an insult of the Bar. I am lost for words. Why has Mr. Raju Ramachandran been keeping silent?
Of course, the opinions reached by the Amicus Curiae have been overruled by the SIT in its closure report filed before the Trial Court, and those being opinions, not evidence, are not to be considered by the Trial Court. It is a different matter that the Trial Court may also reach the same opinions as those reached by the Amicus Curiae, but, if not, it would be an additional insult to the Amicus Curiae because his report has also been submitted by the SIT before the Trial Court, which again is a very foolish thing to do because the report has no relevance before the Trial Court; at the same time, the Trial Court can’t allow itself to be influenced by the opinions reached by the Amicus Curiae. So, now if the Trial Court reaches a conclusion different from the one reached by the Amicus Curiae, it will be an extreme insult to the position of the Amicus Curiae.
I think the Supreme Court has erred very badly in the order passed by it, and now the only way out is to suo moto review its reviews order and reach a decision with respect to the closure report filed by the SIT by juxtaposing the conclusions of the SIT against the conclusions of the Amicus Curiae. If not, it is an insult of the Bar.

Comment dt. 22.11.2012
I fail to understand why it is taking forever for the Trial Court to reach a decision? Who is causing delay? Why are the activists, including Sanjeev Bhatt, not active enough? Is everybody waiting for him to become the CM yet again (and then the PM)?

©2011-2012 Ankur Mutreja

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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