NEW DELHI: The Narendra Modi government was rapped by the Supreme Court today for bypassing it on the appointment of new chairman of the monitoring authority which is looking into the investigations of 22 encounter killings between 2002 to 2006 in Gujarat, saying it was "complicating" the matter.
The apex court disapproved the manner in which the Gujarat government appointed former Bombay High Court Chief Justice K R Vayas in place of former apex court judge, Justice M B Shah, who quit as the head of the panel on personal and health grounds.
"We should also have been told about the proposal for the appointment of new chairman," a bench comprising Justices Aftab Alam and Ranjana Prakash Desai said.
"We shall not change the basic structure as to who will be the monitoring person," the bench said in an apparent reference to giving the slot to a former High Court judge instead of a former apex court judge.
Senior advocate Ranjit Kumar and Additional Advocate General of Gujarat, Tushar Mehta told the bench that the notification on appointment of Justice Vayas, former Chairman of Maharashtra Human Rights Commission, was issued yesterday as Justice Shah has refused to continue as chairman.
They said there was urgency on the appointment of new chairman as the apex court, by its January 25 order, had asked the monitoring authority to file its interim report in a time- bound manner.
However, the bench said that the appointment should have been made after consulting the court as it had passed the order.
"You (Gujarat government) have unnecessarily complicated the matter. You should have come to us. You should have waited," the bench observed.
"This concerns our order. You should have brought this fact to our notice," the bench said, adding, "there can be many considerations (for appointment) and some may be taken consciously or sub-consciously".
The court was of the view that since the counsel for Gujarat government has come to know on Monday that the matter was listed for today they should have told the court about the proposal for the appointment of Justice Vayas.
However, Kumar, who defended the appointment of Justice Vayas, said the notification by the Gujarat Government should not be seen as an attempt to pre-empt the court from taking its view on the issue and nor was it a question of fait accompli.
Mehta narrated the circumstances under which monitoring authority was appointed and said an attempt has been made to give a political colour to the entire issue.
"There is a political party which went to the extent of making aspersions against Justice Shah and now it is on Justice Vyas," he said.
However, the bench was not satisfied with the development, and questioned the government for making the appointment a day before the hearing in the apex court. "Why did you do that," the bench asked the Gujarat Government counsel.
The bench was hearing two PILs filed by veteran journalist B G Verghese and poet and lyricist Javed Akhtar, who had sought a direction for a probe by an independent agency or CBI so that the "truth may come out".
While the bench was expressing its anguish over the development, advocates Nitya Ramakrishnan and Prashant Bhushan, appearing for the scribe and film personality, said that the CBI should be asked to probe the cases under the monitoring authority headed by a former apex court judge.
Bhushan said the matter before the court was important as there were some allegations against the Chief Minister and his office.
The bench, which posted the matter for hearing on February 27, suggested that the state government should come up with names of judges on whom the petitioners have no objection.
Kumar said there were consultations with former apex court judges, J M Panchal and C K Thakker for heading the monitoring authority but there was no success.
At this point, Bhushan suggested the name of former apex court judge B Sudershan Reddy and former Chief Justice of Delhi High Court A P Shah for consideration.
However, Kumar said he cannot say anything without taking instructions from the Gujarat Government.
Mehta said a person knowing Gujarati would be the best suited person for the job as the 22 cases of alleged encounter killings have voluminous documents and records in Gujarati language.
The bench had on January 25 asked the monitoring authority to place before it a preliminary report within three months on the killings in alleged fake encounters between 2002 to 2006 in Gujarat purportedly showing a pattern that people from the minority community were targeted as terrorists.
Gujarat government had on April 7 and September 18, 2010, come out with the notifications for constituting the STF to investigate the cases of encounter killings and appointment of Justice (Retd) M B Shah as the chairman of the monitoring authority respectively.
The bench had said it will be open for the chairman of the monitoring authority to constitute an independent team either with officer from Gujarat Special Task Force (STF) or from outside "considering the sensitivity of the matter" as some senior officers of the state police force have been accused of killing people in fake encounters.
However, the bench clarified that the monitoring authority will not go into the cases which are being investigated by other agencies on orders of the apex court.
Verghese had said the pattern of killings showed there was a need for investigation and sought a direction to the Centre and Gujarat government to order an inquiry into the encounter killings and compensation to the next of the kin.
Akhtar, in his petition, had cited news reports and a sting operation done by a news magazine into the killing of an alleged criminal Sameer Khan in October 2002.
The bench in its order had noted his allegation that it was a fake encounter and that there was an attempt for its "cover up" by Gujarat government.
Khan, who was in police custody, was killed on the intervening night of October 21-22, 2002, when he snatched the revolver of a policeman who had accompanied him with a team to a spot where he had allegedly murdered a constable.
An FIR was registered alleging that Khan was involved in a conspiracy hatched by Pakistan's Inter Services Intelligence (ISI) and Jaish-e-Mohammed (JeM) to assassinate Gujarat Chief Minister Narender Modi and other leaders.
Akhtar, who jointly filed the petition along with social activist Shabnam Hashmi, had alleged it was the same team of Gujarat police which allegedly killed Sohrabuddin Sheikh in the fake encounter and later murdered his wife Kauser Bi.
Their petitions, filed through advocate Prashant Bhushan, had contended there were other media reports of alleged killings of innocent persons in fake encounters by the same team of Gujarat police and sought investigation by an SIT into the "cover-up".