Too little, too late

Woefully inadequate: The Nanavati Commission Report on the anti-Sikh riots of 1984
and the UPA government’s response to its findings

One thing that the release of the Nanavati Commission’s Report on the 1984 anti-Sikh riots (tabled in Parliament in early August 2005) did was to once more lay bare before the nation not simply the gruesome happenings in the capital in the days following the assassination of a popular Prime Minister but also the gross impunity for violent crimes that those in power, position and authority have always enjoyed and continue to enjoy.

Another not so mean achievement was the subsequent resignation, howsoever reluctant, of Cabinet Minister Jagdish Tytler, following his clear indictment. Though compelled to resign due to rightful political pressure from the Left allies, mainstream Congress opinion still seeks to hide behind the ‘not indicted by a criminal court’ excuse.

The frivolous response of the Congress-led UPA government to the findings and recommendations of the Nanavati Commission that inquired into the massacre of over 3,000 Sikhs in the 1984 carnage are telling. The UPA government’s view that no action is possible against politicians on "mere suspicion" or against police officers and bureaucrats who have retired is not only totally unacceptable but reflects how and why the Congress (I) has earned a questionable reputation regarding its so-called commitment to secular politics.

Herein then, lies the rub. A major problem in the report authored by a senior and retired member of the Indian judiciary is the casualness with which it has dealt with the serious abuse of power by senior politicians and the criminal negligence of policemen on duty in a period when mass violence reigned unchecked.

The vague defence offered by senior echelons of the administration and police officers in overall charge of localities where murder and mayhem went unchallenged have also been accepted, more or less, by the judge. In this context, the complete exoneration of then Union Home Minister, PV Narasimha Rao and lieutenant governor of Delhi, PG Gavai, apart from a string of others down the line, does not set any healthy precedent in terms of overall responsibility and a chain of command, from the top man downwards, when manmade or natural disasters occur.

For establishing that those in charge and in power are responsible, both for the good and the bad that happens in their jurisdiction or during their tenure, the Nanavati Commission Report makes little headway. The Report does very little by way of establishing criminal culpability for mass crimes.

While over 3,000 Sikhs were massacred in Delhi alone, as against the over 2,000 First Information Reports (FIRs) registered with the police, there have been barely nine convictions. Corrupt and faulty investigations are responsible for failure in conviction. These include summary and arbitrary dropping of cases without charges being filed. Over 123 judgements and cases related to these crimes studied by lawyer Vrinda Grover establish that poor investigation and a failure to lead evidence is what contributed to the acquittals. The Commission’s report does little more than mention these facts.

Experience shows that police investigations at the best of times are tardy and ineffective. They are often held to conceal the facts rather than establish the foundation for subsequent investigation and effective prosecution. For reasons that are too many to enumerate here and which are pointers to the first faltering steps in major criminal prosecutions, the police often simply refuse to record the FIRs with accuracy. This is especially true in cases where the accused are powerful people, particularly politicians. When mass crimes such as the 1984 massacre of Sikhs occur, such perennial lapses on the part of the police assume sinister proportions. Justice Nanavati observes this in many sections of the Report but amazingly is generous to a fault with the erring officials.

So it is with the politicians who have been named by individuals on affidavit. Page 161 of the report observes that the police in New Delhi at the time were generally reflecting a broad consensus when they constantly told all witnesses/complainants who came to the police station ‘not to mention names of the assailants and only speak of the losses caused to them’.

One witness has specifically stated that when he gave Sajjan Kumar’s name while recording his police statement, the name was noted down by the police on duty. The judge observes in this connection that the acquittal of Sajjan Kumar and Balwan Khokhar cannot be given much importance given the fact that they were influential politicians. But he proceeds to take an indulgent view of the gross abuse of influence and subsequent investigations and records. He maintains that since those accused of actual acts of killing or looting have been acquitted (due to poor investigation) there is little cause to order action against guilty policemen who failed in their duty as departmental inquiries were also held. Incidentally, representatives of the Sikh community and citizens groups had pointed out to the Nanavati Commission that specific cases, especially FIR Nos. 250/84, 307/94, 347/91 (Sultanpuri); FIRs 325/93 and 178/84 (Mangolpuri), FIR 416/94 (Delhi Cant.), need to be re-examined.

Similarly, the incidents narrated in the Nanavati Report against Congressmen Dharam Das, HKL Bhagat and Virendra Singh leave the victims and any system interested in the rule of law sorely disappointed. Dealing with the evidence related to the ghastly massacres in Delhi’s East district, wherein affidavits were filed by Sardul Singh, Sajjan Singh and others who are residents of Trilokpuri, Justice Nanavati states clearly that on an overall consideration of the material before him, "the Commission is of the view that there is credible material against these Congress leaders and workers on the basis of which it can be said that very probably they were also involved in the anti-Sikh riots, but as they have been acquitted in criminal cases filed against them, the Commission does not recommend any further action against them, including HKL Bhagat in view of his physical and mental condition." (Bhagat’s son had filed an affidavit before the Commission saying that he suffers from dementia.)

DCP Sewa Dass, SHO Tyagi and SI Kapoor were accused of gross criminal negligence while the abovementioned politicians played havoc with the rule of law. The Commission finds their replies on affidavit before it to be vague, but again because departmental inquiries have been held against them it recommends no further action.

Justice Nanavati finds Tytler guilty of "having a hand in organising the attacks on Sikhs... the Commission therefore recommends to the government to look into this aspect and take further action as may be found to be necessary". What happens, we as citizens may well ask, if a not-so-inclined Congress does not see fit to take any action? There is nothing then to compel them to.

While officialdom, be it mainstream Congress opinion or the administration and the police, are touting their ‘acquittal’ by criminal courts and departmental inquiries as the main excuse, neither excuse bears any truth or moral weight. The Nanavati Report says as much, albeit casually. But it staunchly refuses to give its own finding on the ‘acquittals’. The report shies away from stating the obvious, that politicians were acquitted not on grounds of innocence but because of an abysmal failure of investigations by the police, as also a failure to lead proper evidence. It is also about time that departmental inquiries against public servants, especially for deviant roles, as in this instance abetting mass murder, come out of the veil of secrecy that the entire establishment affords them. Only when we know how these departmental inquiries are conducted can we in any way as responsible citizens accept the findings therein – not guilty or guilty?

Annexure IX to the report gives a list of the names of police officers against whom criminal cases were registered. The list has 22 names, from the ACP level downwards. Against 22 names listed here, the judge has most casually recorded the fact without any adverse comment that files regarding 14 criminal cases against 14 officers could not be traced. It is a matter of concern and conjecture why these files are not traceable and who is responsible for this lapse.

The report speaks of the fact that though policemen were posted in critical spots they did nothing to prevent the attacks on gurudwaras or innocent Sikhs seeking shelter inside e.g. the Gurudwara Rakab Ganj. But both sub-inspector Hoshiar Singh and additional commissioner of police, New Delhi range, Gautam Kaul, who must be held responsible for the lapse in this case, have been let off. The crowd surrounded the gurudwara from 11 a.m. until 3.30 p.m., targeting the Sikhs who had sought safety within. For four hours this assembly was not dispersed. Congress leaders Kamal Nath and others have been questioned about their role in being in the vicinity. Finally, due to police inaction the gurudwara was attacked and two Sikhs burnt alive in broad daylight.

Similarly, it is clear from the evidence before the Commission as also the affidavits filed by witnesses that there have been serious allegations made by residents of North district, New Delhi, against ACP RS Malik, SI Ram Singh, ASI Amar Nath, ASI Mange Ram, PI Bhagwan Malik, PI Durga Prasad and SI Sat Prakash. The police allegedly remained passive spectators to a series of gory killings of Sikhs. It is in this area that Jagdish Tytler was active. At about 2.45 p.m. on November 11, 1984, 20 taxis were burnt and two persons killed at the Inter-State Bus terminus. The exoneration of these persons in a departmental inquiry and in another incident the ‘acquittal’ of ASI Mange Ram in the sessions trial has been used by the Commission to let off these policemen. Never mind the fact that in a vast majority of anti-Sikh riot related criminal cases, the exoneration or acquittal by courts was simply due to poor investigation and lack of evidence.

The Nanavati Commission was not the first official body appointed to investigate the 1984 anti-Sikh pogrom. First, the then government of India appointed the Justice Ranganath Mishra Commission which submitted its Report in August 1986. It more or less exonerated the Congressmen accused for their role in the carnage. Thereafter, three committees were appointed. One was to investigate the conduct of the Delhi police in which Justice Kapoor and Ms. Mittal submitted separate reports in 1990 due to disagreements between them. Another was to examine cases related to riots (Justice Jain and AK Banerjee submitted their report). The third, the RK Ahuja Committee, was set up to look into the issue of payment of compensation.

Of the 97 officers against whom action was recommended by the first committee, 29 escaped any scrutiny for their action simply because they had either expired or retired. Some 25 criminal cases were instituted against 72 officials, most of which resulted in acquittals due to reasons given above.

It was with this background of reluctant or failed prosecutions that in 2000 the erstwhile NDA government re-constituted another Commission, the Nanavati Commission. This Commission’s report fails to make a breakthrough in any real sense, except in the limited sense of drawing attention to the unfinished agenda before us. The victims of the 1984 anti-Sikh pogrom still cry for justice.