On Tuesday, the Supreme Court dismissed a petition filed by Sanjiv Bhatt, the former Indian Police Service officer from Gujarat, asking for two police cases against him to be transferred out of Gujarat and investigated by an independent agency. Bhatt said he feared the state was trying to falsely implicate him since he had given testimony against Narendra Modi, then chief minister of Gujarat.

One of those two cases pertained to a complaint filed by Tushar Mehta, then Additional Advocate General of Gujarat, alleging that Bhatt had hacked into his email account.

Although Bhatt denied hacking into Mehta’s account, as part of his petition in the Supreme Court, he submitted a series of emails which he claimed to have accessed from Mehta’s account while on vacation with him. According to Bhatt, they were close friends at that time.

These emails, Bhatt’s lawyers claim, show collusion between the State of Gujarat and the riot accused.

The day after the Supreme Court rejected Bhatt’s petition, senior lawyer Prashant Bhushan put out a series of tweets:

Guj AGs emails show that Modi’s govt was in conspiracy with the riot accused.Yet SC says that Guj police will inquire if AGs account hacked!

— Prashant Bhushan (@pbhushan1) October 13, 2015

None denied the Guj AGs mails showing affidavits of Guj being written by accused and vice versa, yet SC says Guj was seeking indep opinion!

— Prashant Bhushan (@pbhushan1) October 13, 2015

In an interview to Scroll, Bhushan explained why these emails should not have been so easily dismissed by the Supreme Court.

You tweeted the above after the Supreme Court judgement which on Tuesday dismissed the charge that “there was a criminal nexus between the then AAG with lawyers of the accused, Ministers and non-State actors to undermine the administration of justice”. Which of the emails that Sanjiv Bhatt submitted to the Supreme Court show the conspiracy you talk about?
Well, let me begin by saying that in the tweets above, “Guj AG” should be read as “Gujarat AAG”. Now, there are several emails exchanged between Tushar Mehta [who was then Additional Advocate General of Gujarat] and Gurumurthy [Gurumurthy Swaminathan, generally known as S Gurumurthy, Rashtriya Swayamsevak Sangh ideologue and a well-known chartered accountant sympathetic to the Bharatiya Janata Party] which show that Gurumurthy was basically acting as an advisor to the accused persons [in various 2002 Gujarat riots cases].

But the court went on not only to dismiss the charge of a nexus but also explicitly to say the following:

‘It was submitted that certain replies etc. which were to be filed in court were shown to Mr G Swaminathan who was completely outsider to the litigation. In our opinion merely taking somebody’s opinion who is outsider to litigation before filing the reply in the court would not undermine the administration of justice in any way and is not indicative of criminal conspiracy. There are knowledgeable incumbents who can always be consulted and their opinion obtained. There is nothing improper in it. If some reply/petition was to be filed in Gujarat court and the same was shown to the said gentleman for his opinion it would not subvert the course of justice in any manner. When certain pleading is to be filed in court there is no legal bar on consultation with the appropriate persons of confidence or having requisite knowledge.’

He is clearly not an outsider because from his email, and the persons to whom the emails are marked, it is crystal clear that he is acting as an advisor to the accused persons. If you see, the email is marked not just to Tushar Mehta but also to Mahesh Jethamalani, Ram Jethmalani, Amit Shah [the current BJP President, former home minister of Gujarat]. Gurumurthy sends emails to Jethmalani. Quite apart from who he is, the very emails themselves show that he is acting as an agent of the accused, while Jethmalani is the lawyer of the accused.

Now if you see the exchange of emails between Tushar Mehta and Gurumurthy, Gurumurthy marks his responses to Jethamalani, who was the lawyer for some of the accused persons, including Maya Kodnani [a minister since sentenced to 28 years in prison for planning the attack on Naroda Patiya that left 90 people dead], and he not only gives his comments in track change mode, but also asks for the opinion or comments of Jethmalani to be taken before the affidavit of the State of Gujarat is to be finalised.

The above shows unequivocally, without any shadow of doubt that Gurumurthy, apart from being a known advisor to the BJP and the Sangh Parivar, was in this case clearly acting as an advisor for the accused. That’s why he sends his emails to the counsel for the accused, Jethamalani, and seeks his opinion and comments.

It is absurd for the court to say there is nothing improper for the state to be consulting Gurumurthy for their affidavits. It is a completely ridiculous proposition. It is clear that Gurumurthy was acting as an advisor to the accused.

But the court is dismissive and goes on to say:

“It was submitted by the petitioner that certain affidavit was sent to the said person in which he has suggested certain paragraphs to be incorporated but the learned Solicitor General has shown actual affidavit filed in the case in which alterations suggested by the said person were not actually inserted.”

What is one to infer from it? Is the court saying that if the alterations suggested by the said person were actually inserted, it would be different?
That is irrelevant.

Right, but is the judgement not also suggesting that if the same affidavit had been used, it would have been worth taking note of?
This paragraph in the judgement shows a complete innocence about conspiracies and collusion. A conspiracy and collusion is clear when there is a meeting of minds between two people in order to subvert the course of justice. The fact that the affidavits of the State of Gujarat were being sent for vetting [to the lawyers of the accused] is reason enough. Even if they were merely being shown to the accused persons, that itself would be evidence of collusion and conspiracy.

And we do not even know what else was exchanged because this just happened to come out of some emails that the petitioner – somehow – managed to access...
Exactly, this required an investigation [into] how many affidavits were vetted, and in how many affidavits were changes made.

Therefore, the court after being confronted with these emails that were not denied by either Tushar Mehta or the State should have... their conscience should have been shaken by such a conspiracy and collusion which was the very reason for setting up an SIT [Special Investigation Team].

How can the question of authenticity of the emails be settled? How do we or the court or anyone else know whether these emails were actually exchanged for the charge against Bhatt by Mehta is not only of hacking but also of tampering. The court pointed out the charge against him:

Mr. L.Nageshwara Rao, learned senior counsel appearing on behalf of the then AAG in W.P. (Crl.) No.204/2011 has submitted that wholly unwarranted allegations have been made... He [Bhatt] had not only hacked e-mail account but also tampered with the e-mails for which report has been lodged.

Though his [Tushar Mehta’s] FIR mentions tampering also, neither on affidavit nor in the oral arguments have either Tushar Mehta or the State of Gujarat suggested that these emails are not authentic. In any case, at the very minimum, this required and requires an investigation.

Into the authenticity of the emails...?
Not just authenticity, into how many emails, what was the extent of collusion.

How unusual is it for an Additional Advocate General to be marking emails to defence lawyers or people known to be sympathetic to the accused? Have you ever come across anything like this before?
Nothing so blatant has ever come to the court by means of proper documentation and affidavits with proper emails. The fact that he has sent it to S Gurumurthy along with Amit Shah, along with Ram Jethmalani and Mahesh Jethmalani and this was a matter in which Supreme Court had appointed a Special Investigation Team or SIT. Jethmalanis were representing Maya Kodnani and some of the accused persons. Throughout they were representing.

Not only that, this fellow Tushar Mehta was appearing for State of Gujarat in Supreme Court. Tushar Mehta who was the counsel for State of Gujarat in Supreme Court is getting the affidavits of State of Gujarat settled and finalised by the advisor and counsel of accused. If this is not conspiracy, what is?

In the SIT case, State of Gujarat is not the prosecutor...
Yeah, the SIT had been set up to examine the conspiracy between the actors of the state and these persons. [In March 2008, the Supreme Court ordered the establishment of a Special Investigative Team to probe the Gujarat riot cases. The SIT submitted its final report in 2012. According to the submissions made by Bhatt, Mehta was exchanging emails with Gurumurthy, the Jethmalanis and others in 2009 and 2010.] This clearly shows that at the stage when these matters were being investigated by the SIT, there was clear conspiracy between the state and the accused, which clearly is strong evidence to at least consider if there was conspiracy even during the riots, else why are these top-level people involved in exchanging these emails? What do they want to hide?

But while dismissing the documents, the court adds:

We are not impressed by aforesaid submissions. It cannot be said that the petitioner has come to this Court with clean hands.

What is unclean hands about his coming to court? There is nothing unclean about him coming to court. Let us assume he [Sanjiv Bhatt] is an undesirable person. Is he not entitled to a fair investigation? Why had he come to court? He said that Gujarat police cannot be expected to do a fair investigation in these cases because these are cases in which Modi and Amit Shah are deeply involved. Therefore how do you expect the Gujarat police to do a fair investigation into these cases?

The judgement is dismissive and says:

“When he made such sensational disclosures after nine years, what prevented him from not disclosing the e-mails and keeping quiet is inexplicable conduct.”

Is the court saying that if these emails had been disclosed when he first approached it in 2011, they would have lent more credence to these emails?
But that’s only about his presence in the 2002 meeting. That’s not the issue here. [Bhatt has claimed he attended a meeting in February 2002 where Gujarat Chief Minister Narendra Modi instructed the police to go soft on rioters and allow them to vent their anger against Muslims.] In fact they [the Supreme Court judges] shouldn’t be commenting on his presence in that meeting because that would prejudice his trial, it would prejudice the Zakia Jafri case. [Zakia Jafri’s husband Ehsan Jafri, a former Member of Parliament, was killed along with at least 35 others when a mob attacked his home in Ahmedabad’s Gulbarg Society. Zakia Jafri filed a complaint in 2006 alleging the complicity of Modi and other senior functionaries of the Gujarat government in the attacks on Muslims in 2002.]
Bhatt saw the emails in September 2009. Two months later he deposed to the SIT. Should he not have mentioned these emails to the SIT?
He was a close friend of Tushar Mehta, that’s how he got access to the emails...
But once he gets access, and gets to know about the conspiracy, after that he still goes on another holiday with him in 2010...?
Maybe. So his explanation is that he tried to persuade him [Mehta] to stop doing this [colluding with the accused] but he failed. He said Tushar Mehta’s daughter got so annoyed with her own father because of this that she left her house and came to Sanjiv Bhatt’s house to stay with him for one year.
Agar aap court mein koi petition file karte hai jis mein false statement hai tab unclean hand ki baat hoti hai [The question of unclean hands arises if you file a false statement in court]. But here they [the Supreme Court judges] are saying because you did not disclose this earlier about these emails, because you did not disclose about your presence in the meeting...

The point is that if they are saying there is something in his background that makes him an undesirable person, that is irrelevant to the questions before the court. There were only two questions before the court. One, whether Sanjiv Bhatt can be expected to be fairly investigated by Gujarat police in these two cases. Second, the question which arose because of these emails: don’t these emails show collusion and conspiracy between the accused and the state?

But wasn’t the second question about the hacking…?
No, the question also became this...Sanjiv Bhatt filed an application saying you should conduct an investigation into this, this amounts to criminal contempt of court, subversion of justice. So these were the two questions. Now you can’t dismiss the entire petition and refuse to order an independent investigation merely because you think he is an undesirable person. This is not his trial that is going on. They have in fact prejudiced his trial by all these remarks they have made against him. Not only have they prejudiced his trial, they have prejudiced the Zakia Jafri case by saying he was not present at that meeting.

Are they clearly saying that?
Kind of…

So it seems to comes down to this: The evidence seems to be getting dismissed because the case that came up before the court was about the two cases against Sanjiv Bhatt and not about the Gujarat riots cases or the conspiracy as such?  Because the court is very categorical:

‘...it does not appear that the e-mail exchange between the then AAG and other functionaries tantamounts to causing prejudice or amounts to substantial interference in any other manner in due course of justice. It is not the case of scandalizing the court or in any manner affecting fair decision of the court or undermining the majesty of the Court/people’s confidence in the administration of justice or bringing or tending to bring the court into disrepute or disrespect which tantamount to criminal contempt under section 2(c)(iii) of the Contempt of Courts Act.’

Do you think the problem was because of Bhatt and the reputation he carries? Had it not been a Sanjiv Bhatt matter, had these emails come to light as evidence in front of Supreme Court otherwise, whether or not accompanied by charges of hacking, do you think the court would have been forced to take cognisance?
That’s what I had argued. I said that it is a matter of chance that the case of Sanjiv Bhatt is before you. Even if he is an undesirable person, once this kind of information and evidence comes before you, your conscience should be shocked by such blatant subversion of justice and collusion and conspiracy between the state and the accused.

I had earlier tweeted these emails are the smoking gun. They show that Modi’s Gujarat government was hand in glove with the riot accused. They were drafting each others’ affidavits for court.

Because if there is conspiracy and collusion at this stage there is enough ground to at least look deeper to see if there was also conspiracy and collusion during the riots. In fact, this required that a new SIT be constituted to investigate the collusion and conspiracy evident in these emails.

When you find SIT reports are being given to the accused persons, which are not meant for the accused persons, they are only meant for the court and the state of Gujarat but they are being passed by the state of Gujarat to accused persons...
There is the email trail in which the enclosures are ‘report of SIT in 9 major cases’...

On this, regardless of the authenticity of the emails, the judgement actually has a very clear and explicit observation and is dismissive about the charge that copies of the SIT reports were also shared by Mehta:

‘In the reports which had been placed on record by petitioner only the action taken by SIT was mentioned and the stage of investigation or need for conducting further investigation. These reports did not contain material/finding for or against any accused person hence no advantage could be derived therefrom by any accused person. They did not contain such material disclosure of which may subvert the course of justice. No case is made out of criminal conspiracy and criminal contempt or otherwise. It cannot be culled out how the course of justice has been subverted by the aforesaid disclosure of SIT reports. Thus charge of criminal contempt cannot be said to be taken home successfully. Petitioner has not been able to substantiate that the aforesaid actions interfered or obstructed in the administration of justice in any manner. Petitioner was not able to establish how the reports could be of any help to anybody so as to subvert the course of justice or action otherwise amounts to interference with administration of justice. The petitioner has himself obtained these SIT reports, as per the then AAG allegedly in illegal manner whereas as per petitioner by sharing the e-mails of the then AAG. If they were meant to be confidential petitioner has also used them and even sent e-mail particulars of the then AAG to media channels. Therefore the submission advanced does not lie in his mouth. Overall exchange has to be considered in the light of sweeping accusations against the State and its large number of functionaries. The conduct of the then AAG in the circumstances he was placed, has been unnecessarily adversely commented upon, the accusation of criminal contempt is not at all made out.’

This issue as to whether the SIT reports contained material which could help the accused or not was not even before the court. It was not argued by anybody. The reports were not read by the court. The SIT reports were even denied to Zakia Jafri.

But the court itself seems to be saying the it is already with the state authorities:

‘These reports were submitted by SIT on 11.2.2009 in this Court and copies thereof were ordered to be handed over to the State of Gujarat on 2.3.2009. On 6.3.2009 the reports were made available to the counsel appearing for the State of Gujarat. They were in turn forwarded to the State authorities. This Court has passed an order on 1.5.2009 in National Human Rights Commission’s case (supra) vacating the stay on commencement of trial.’

Yes, but there are two questions. First, are the state authorities allowed to share it with others?  Second, whether it could have helped the accused or not. The answer to both is very clear. Even if they were not helping the accused, why were they passed on? The court had prohibited this. In the Coalgate case, one minister had to resign because of this. The court got a minister to resign. The court hauled up CBI [Central Bureau of Investigation] for having passed on the status reports. And here we have an SIT set up by the court – its reports are only meant for you, you are not giving them to the counsel for the petitioners and yet when you find that the state is handing them over to the accused person, you just wink at it, and this is not argued at all as to whether or not the emails contained information which could be used.

Tushar Mehta also sends an email to Gaurav Goel.

Gulbarg Society case mein jo accused hai uske lawyer ko bhej raha hai [He is sending it to the lawyer of the accused in the Gulbarg Society case] and he is drafting the affidavit to be filed. In this case, Tushar Mehta is literally on the other side of the people he is exchanging mails with because he is representing the State of Gujarat.

These fellows [the judges] aren’t bothered at all when such evidence of such monumental significance has been brought before them which shows unequivocally that at least at the stage when the cases were going on in Supreme Court there was clear collusion between the state, Modi and Amit Shah and the accused persons, and you don’t bother.

Two minor things, one is about how unusual was it for SIT to go into background of Sanjiv Bhatt? 
Very, very unusual. Not just unusual, they would have not have had any access to this information unless it was provided by the Gujarat government. And the affidavit purported to be filed by SIT was not sworn by anyone at all. It does not mention anyone’s name.

Is that not a mere technicality? Could they not explain it?
They can explain it, but it is a tell-tale sign....

How? And how unusual is it?
It is not only unusual – it is more than that. It is a tell-tale sign that this affidavit has been drafted by the State of Gujarat because if it had been drafted by the state they would not know who would be swearing on behalf of SIT. Just as the State of Gujarat was getting its own affidavits from the accused and getting their affidavits drafted by the accused, this is a tell-tale sign they were drafting the affidavit on behalf of the SIT and the second circumstance is that it contains information that only the state could have access to and not the SIT, because SIT has no occasion, no business to be investigating the background of Sanjiv Bhatt. It has been set up to investigate the Gujarat riot cases and not Sanjiv Bhatt.

But if he is a crucial witness…
Even then not. This investigation was not done by them at that time, it is not part of their report.

The Supreme Court has relied on an SIT affidavit which was shown to be totally inadmissible because it was not sworn by anybody. Not only inadmissible, no reliance can be placed on such an affidavit. It shows collusion between State of Gujarat and SIT because it has information which only the State could have known. It was not their business.

The court even found it unusual how Bhatt responded to the FIR against him for hacking by noting the following:

‘...he has also mentioned in the rejoinder affidavit that he has filed complaint with the DIG (Police), Economic Offences Wing, Delhi Police regarding unauthorized hacking of his e-mail account. It is not understandable a senior officer of Police like petitioner has filed complaint to Economic Offences Wing which is not at all concerned with offences like hacking of e-mails.’

Pehli baat [the first thing is], the court heavily relies on emails of Sanjiv Bhatt which clearly the Gujarat government could have gained access to only in an unauthorised manner whether by hacking or tapping and does not deal at any length with the emails of Tushar Mehta which Sanjiv Bhatt has got access because of his friendship...

How does Gujarat government explain how they got access to Sanjiv Bhatt’s emails?
They are not explaining.

These are the email-trails submitted in the Supreme Court.

Email correspondence on affidavit to be submitted by Gujarat government.

Email correspondence on affidavit to be submitted by Gujarat government. Palak Shah (email: shail1shah@yahoo.com) was the personal assistant of Amit Shah.

Email correspondence with attachments on nine riot cases investigated by the SIT. Vijay Badheka was then under secretary in the home department of Gujarat. GC Murmu (email: gcm1@rediffmail.com) was then the additional principal secretary to Modi and is currently part of the Prime Minister’s Office.

Email correspondence between Tushar Mehta and Gaurav Goel with an attachment of the draft petition of Bipin Ambalal Patel, who was an accused in the Gulbarg Society case. Goel was Patel’s lawyer.

Email with nine attachments related to the Sohrabuddin encounter case in which Amit Shah was implicated.

Email with an attachment of a note for a court hearing in the Gujarat riot cases.

Email correspondence on affidavit to be submitted by Gujarat government.

Email correspondence with attachment of draft affidavit to be submitted by the State of Gujarat in the Zakia Jafri Vs State of Gujarat case.

Email correspondence on Amit Shah’s defence in the Sohrabuddin encounter case. The Supreme Court pointed out that this case had nothing to do with 2002 Gujarat riots, but Bhushan points out that these exchanges show how closely this group seemed to work together as a unit.

Email correspondence on the CBI case against Amit Shah.

Email with note attached for Nitin Gadkari, the BJP president at the time.