In a breather for Gujarat Chief Minister Narendra Modi, the Supreme Court on Monday refused to direct Nanavati Commission to summon him for his alleged role in the 2002 riot cases, saying it would amount to "judical overreach".
The apex court, which said that "the question of law should not be decided on the basis of the personality of a person" made it clear that it cannot monitor and interfere with the working of the commission which is a statutory body and yet to place its report before the assembly.
"How can we start monitoring the working of the commission appointed under the Commission of Inquiry Act. It is a statutory body. Can't it be an overeach by this court?"
"We hear so much of judicial overreach these days. This will be another," a bench of justices D K Jain and A K Dave said while declining the plea of NGO, Jan Sangarsh Manch to direct the Justice G T Nanavati Commission of inquiry which is going into the cases of riots for the last 10 years.
"The report has to be filed in the House and it is for the House to reject or accept it," the bench said.
At the outset, the bench wanted to know from the NGO's counsel and senior advocate Colin Gonsalves under which law the court can direct the Commission to summon a person.
When Gonsalves said he was unable to find a single judgement of the apex court on the issue, the bench said, "it is for the commission to decide whom to summon."
The bench said it would not be prudent for the court to interfere at every stage when the commission passes some orders as it would never lead to completion of any inquiry.
"Which inquiry will be completed if it moves in a piecemeal manner and if we start looking into every order passed by it," the bench said while noting that "there are instances where 15 years have passed and the commission has not filed its report."
The bench, which declined to pass any order to the two-member commission whose tenure is coming to end on March 31, however, said, "it is difficult to erase from our mind the cases which have arisen from the 2002 incidents".
The bench did not give credence to submission by Gonsalves that the commission's order refusing to summon the chief minister was arbitrary and for the proper probe his testimony was necessary.
After the bench declined to interefere with the Gujarat high court order dismissing the plea of the NGO, Gonsalves agreed to its suggestion to withdraw the petition.
The Nanavati Commission was formed in 2002 after the post-Godhra train carnage riots had examined around 400 witnesses. In 2004, the terms of reference of the commission had been expanded to include in its purview an examination of the chief minister's role in the riots.
In September 2009, the commission had rejected JSM's plea to summon Modi and five others for cross-examination with regard to the communal violence in which over 1,000 people were killed.
The Supreme Court-appointed Special Investigation Team had earlier questioned Modi on 2002 riots for over ten hours in 2010.
In November 2009, the NGO had moved the high court for quashing the order but a bench of Justice K S Jhaveri had dismissed its plea terming it as "premature".
In 2010, JSM filed an appeal before the high court's division bench against the single judge order. Mukul Sinha, counsel for JSM, had argued that summoning Modi and others was required for collecting evidence with regard to the Godhra train burning incident and the riots.
The state government had opposed JSM's plea contending that the NGO had no locus standi to seek summoning of Modi. It had submitted that the appeal is not maintainable as the Commission's Act does not allow any third party to demand questioning of any person.
It had said it is for the commission to decide whom it should call for questioning.
