Gujarat Riots - Mere Failure Or Inaction Of State Administration No Basis To Infer Conspiracy : Supreme Court In Zakia Jafri's Plea

Dismissing the appeal filed by Zakia Jafri challenging the clean chit given by the SIT to Narendra Modi and 63 other state functionaries in the Gujarat riots case, the Supreme Court observed that conspiracy cannot be inferred on the basis of mere failure or inaction of the state administration.

"Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration", the Court stated. It added that "inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre- planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community".

The Court observed that the Special Investigation Team had noted that inaction and negligence of the erring officials has been taken note of at the appropriate level including by initiating departmental action against them.

"Such inaction or negligence cannot pass the muster of hatching of a criminal conspiracy, for which the degree of participation in the planning of commission of an offence of this magnitude must come to the fore in some way. The SIT was not there to enquire into the failures of the State administration, but the remit given to it by this Court was to enquire into the allegations of larger criminal conspiracy (at the highest level)", the judgment delivered by a bench comprising Justices AM Khanwilkar, Dinesh Maheshwari and CT Ravikumar.

The bench was addresing the arguments raised by Senior Advocate Kapil Sibal for Jafri that there was failure of the state administration and police machinery in taking appropirate action to control the rioters and that the intelligence inputs regarding communal build-up were ignored.

The bench observed that "to make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crime(s), committed during the relevant period across the State". It added that "no such link is forthcoming, much less had been unraveled and established in any of the nine (9) cases investigated by the same SIT under the directions of this Court".

The bench reiterated that the 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. The failure to act upon messages of intelligence agencies "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 Court said that the events after the Godhra train carnage took place in "quick succession" and that on the very next day, February 28, 2002, additional support of Army had been called for and curfew was imposed in distrubed areas. The Court added that the then Chief Minister Narendra Modi had given repeated pulblic assurances that guilty will be punished.

"In light of such timely corrective measures taken by the State Government in right earnest and repeated public assurances given by the then Chief Minister that guilty will 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 judgment stated.

"The protagonists of quest for justice sitting in a comfortable environment in their air-conditioned office may succeed in connecting failures of the State administration at different levels during such horrendous situation, little knowing or even referring to the ground realities and the continual effort put in by the duty holders in controlling the spontaneous evolving situation unfolding aftermath mass violence across the State", the judgment further said.

Misgovernence for a brief period may not be a case of breakdown of constitutional machinery

The Court said that collapsing of state administration in times of emergency is not an unknown phenomenon and cited the examples of governments with the best of the facilities crumbling under pressure during COVID pandemic.

"Can it be said to be a case of hatching of criminal conspiracy?", the Court asked.

"Breakdown of law-and-order situation if for short duration,cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution. There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation", the Court stated.

Discards allegations of Sanjiv Bhat, Haren Pandya and RB Sreekumar

The Court discarded that the alllegations made by Sanjiv Bhat IPS, then Gujarat Minister Haren Pandya, then ADGP RB Sreekumar regarding a meeting chaired by the then Chief Minister on February 27.

"We find force in the argument of the respondent-State that the testimony of Mr. Sanjiv Bhatt, Mr. Haren Pandya and also of Mr. R.B. Sreekumar was only to sensationalize and politicize the matters in issue, although, replete with falsehood. For, persons not privy to the stated meeting, where utterances were allegedly made by the then Chief Minister, falsely claimed themselves to be eye-witnesses and after thorough investigation by the SIT, it has become clear that their claim of being present in the meeting was itself false to their knowledge. On such false claim, the structure of larger criminal conspiracy at the highest level has been erected. The same stands collapsed like a house of cards, aftermath thorough investigation by the SIT", the Court said.

Lauds SIT probe; says those who abused process to "keep pot boiling" must be put in dock

As concluding remarks, the Court said :

"While parting, we express our appreciation for the indefatigable work done by the team of SIT officials in the challenging circumstances they had to face and yet, we find that they have come out with flying colours unscathed. At the end of the day, it appears to us that a coalesced effort of the disgruntled officials of the State of Gujarat alongwith 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. As a matter of fact, all those involved in such abuse of process, need to be in the dock and proceeded with in accordance with law".

Jafri, the widow of Congress MP Ehsan Jafri who got killed in the Gulberg Society massacre during the 2002 Gujarat riots, filed the special leave petition in the Supreme Court challenging the October 2017 judgment of the Gujarat High Court which accepted the closure report filed by the SIT regarding larger conpiracy allegations against the state administration. However, the High Court granted liberty to Jafri to seek further investigation.

The Supreme Court held that there is no material for further investigtaion as well and that the SIT's closure report should be accepted as it is, without anything more.

"The question of further investigation would have arisen only on the availability of new material/information in connection with the allegation of larger conspiracy at the highest level, which is not forthcoming in this case. Hence, the final report, as submitted by the SIT, ought to be accepted as it is, without doing anything more", it said.

Case Title : Zakia Ahsan Jafri and another versus State of Gujarat and another | Diary No.34207/2018

Citation : 2022 LiveLaw (SC) 558

Gujarat Riots 2002 - Plea for probe into alleged larger conspiracy by high state functionaries dismissed- Upholds SIT's closure report exonerating Narendra Modi and 63 other high officials -Held, Conspiracy cannot be readily inferred merely on the basis of the inaction or failure of the State administration -inaction or failure of some officials of one section of the State administration cannot be the basis to infer a pre- planned criminal conspiracy by the authorities of the State Government or to term it as a State sponsored crime (violence) against the minority community (Paragraph 44 - 47)

Constitution of India- Article 356- Breakdown of Constitutional machinery - Law & Order - Gujarat Riots case - Breakdown of law-and-order situation if for short duration,cannot partake the colour of breakdown of rule of law or constitutional crisis. To put it differently, misgovernance or failure to maintain law-and-order during a brief period may not be a case of failure of constitutional machinery in the context of tenets embodied in Article 356 of the Constitution-There must be credible evidence regarding State sponsored breakdown of law-and-order situation; not spontaneous or isolated instances or events of failure of State administration to control the situation (Paragraph 45)

Indian Penal Code 1860 - Section 120B - Criminal Conspiracy - To make out a case of larger criminal conspiracy, it is essential to establish a link indicative of meeting of minds of the concerned persons for commission of the crime(s) - Para 44

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