Zakia Jafri and constitutional conscience

on 24th June 2022 The Supreme Court of India gave a 452-page verdict In the case of Zakia Ahsan Jafri vs State of Gujaratwhich has far-reaching implications for our understanding of constitutional morality and the rule of law in a constitutional democracy. Arrest of human rights defender and co-petitioner Teesta Setalvad and former Gujarat police officer RB Sreekumar The decision was followed closely on the heels of questions such as to keep all those who had (to quote from the decision) ‘questioning the integrity of each worker involved in the process of uncovering the devious tricks adopted’. had the audacity (to borrow for submission) of learned counsel for the Special Investigation Team. [SIT]), to boil the pot, apparently for the inverted design … in the courtroom and proceeded as per law’ – Ms Setalvad, Mr Kumar and (another former IPS officer) Sanjeev Bhat (who is in custody) are sometimes used euphemistically to describe them, with terms such as ‘vengeance’, ‘tirade’, ‘oppression’ and ‘discontent’ – on this account the ‘afflicted party’ is the state.

The verdict elaborates the SIT’s claim. Two senior advocates appointed as amicus curiae, advocate Prashant Bhushan and advocate Rohinton Fali Nariman (as he was then), withdrew in immediate succession. Third, Advocate Raju Ramachandran submitted a separate report, parts of which are reproduced in the Appendix. This report (though no weight was given by the SIT after the suit with the Supreme Court) nevertheless gives us a window into how constitutional sensitivity can be deployed against the odds in such a case. In all this, Zakia Jafri is portrayed as a victim of satanic activists rather than a survivor of the mass murder, removing judicial outrage at Ms Setalvad, Srikumar and Mr Bhat.

a tough fight

complainant, Zakia Ehsan Jaffrey is Ehsan Jaffrey’s wife, a politician who was brutally murdered in the February-March 2002 violence against Muslims that broke out in Gujarat. As a man who, having made an uncompromising claim to justice under the Constitution of India, has suffered grave losses over 20 years and fought resolutely for its redress, knowing every moment that the fight against them was unequal and Loaded up, and yet steadfast to her cause, she is a role model for the women of India. And no court, no judge, no politician, no public can snatch it. Their courage is an indelible mark in the history of the struggle of human rights defenders in this country and indeed the world. The loss of a case does not negate his experience or his testimony. It is a fact that Ehsan Jafri was killed by a murderous mob because he was a Muslim.

Jaffrey was not alone. The Gulberg Society, where he lived and died, witnessed one of the most gruesome mass murders in February-March 2002. The Supreme Court has not denied this in its decision. Take the Court’s statement of facts of the case: ‘A violent mob attacked the residents of Gulbarg Society, Meghaninagar, killing 69 people including the appellant’s husband – Zakia Ehsan Jafri, who unsuccessfully tried to stop the mob was’ (PG 6).

Based on her experience, Ms Jafri filed a complaint naming 63 people, including the then chief minister of Gujarat, a conspiracy to mass murder Muslims in the state. Bringing on record the fact that there was an administrative lapse resulting in uncontrolled violence and death of Muslims in the state – ‘The failure of the state machinery to prevent and control the extent of widespread violence, including arresting all criminals’ was. Commit a crime and conduct a fair investigation’ – The Supreme Court categorically rejected the argument that there was a larger conspiracy that fueled this administrative inaction recommending a ‘doc’ for this ‘misadventure’.

What is important to our purposes as human rights defenders, however, is that the violence remains on record, as does Ms. Jafri’s acknowledgment of the complaint, which linked her personal tragedy to the political circumstances in which it was embedded. . We are free to differ from the court in the conclusions we draw from these events. And we can continue to hope audaciously to persuade the court to remember the Constitution in the ‘struggle of memory against forgetting’, to quote Milan Kundera.

When people are victims of state violence in the form of encounters, custodial torture, custodial death, custodial rape, lack of due diligence in the prevention of targeted violence, incitement to violence, and when they are strangled to state impunity It is the human rights defenders (lawyers, activists, journalists) whose support ensures constitutional redress and claims of rights under Article 21. Courts would have no opportunity to dissent (in the ADM Jabalpur case) for Justice HR Khanna, if the human rights defenders had not put everything at stake to provide legal representation, survivor support and witness protection.

A court that praises Justice Khanna (as this court did in 2017) cannot afford to criminalize human rights defenders. For yourself. And if the Constitution of India is to be saved, the line between arbitrarily initiating state action and enforcing the rule of law within the ambit of the Constitution must always remain very bright at all costs. Questions about the ulterior motives of human rights defenders can never adequately answer the questions they raise about the state’s arbitrary practice. It is by now a well-worn custom for the state to habitually attack the credibility of the defenders by taking easy recourse to labelling.

Element

As it happened on the eve of the anniversary of the Emergency, from the same court that had, less than five years ago, revived the right of citizens to be free from protest, dissent, state surveillance and arbitrary arrest, this Twist The Constitution of India is nothing less than a sad event. It was the same court which declared that Justice Khanna’s dissent ( ADM Jabalpur) ‘to be acknowledged for the power of his thoughts and the courage of his beliefs, and to be acknowledged in honour’ ( Justice KS Puttaswamy (Retd.) Vs Union of India, 2017, para 120).

Read also | Former CBI Director welcomes Supreme Court’s order on Zakia Jafri’s plea

Here the words of the Court are worth recalling and dictate this brief view: ‘A constitutional democracy can survive when citizens have an unquestionable assurance that the rule of law will protect their rights and liberties against any invasion by the state’. When a citizen has been deprived of these most precious rights, be available to ask investigative questions and expect answers’ (ibid). It is the judiciary, but in its role as a watchdog qui vive, which should provide them constitutional assistance. Because, we have seen repeating cycles in which the state forever leans towards arbitrariness, illegal practices and authoritarianism; Each new system rediscovers the means and reinforces the ends of injustice.

Then in the struggle against impunity, citizens with a strong ‘constitutional conscience’ must turn to the Constitution and the judiciary. The question put forward in the case of Zakia Jafri is not that of the state – it is within the bounds of already established facts. It is about recovery of land lost by constitutional courts. Because the Constitution belongs equally, if not more, to the people. This is a shared commons. And ‘we the people’ will not be so easily evicted from our constitution.

Kalpana Kannabiran is Distinguished Professor of Social Development Council