Lie of the Truth Commissions: How the Indian Government Hijacked the Justice Process for the Victims of the 1984 Anti-Sikh Pogroms

8/14/2019 Lie of the Truth Commissions: How the Indian Government Hijacked the Justice Process for the Victims of the 1984

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The Lie of the Truth Commissions

Sundeep Singh Gill

2006


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Various truth commissions have been created in India to uncover the

facts behind the 1984 Delhi Riots in which thousands of innocent Sikhs were

attacked, tortured, and killed by mobs. The apparently spontaneous mob

backlash after the assassination of Prime Minister Indira Gandhi was actually a

conspiracy devised by top-level politicians. During these pogroms mobs

rampaged for three days in many large Indian cities without any police or military

check to prevent the massacres. Ten judicial commissions in twenty years have

lead to zero convictions. There is a need for an independent truth commission

lead by persons of integrity to inquire into the pogroms and deliver justice so that

that both the victims and India itself may begin healing from the worst episode of

partisan violence in modern Indias history.

The eighties was a turbulent time in India. The Sikh minority had been

successfully conducting non-violent agitations for increased rights that a large

segment of their population supported. Fearful of losing voter confidence due to

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an imminent protest in which Sikh groups planned on stopping grain, water, and

electricity exports from Punjab province, Prime Minister Indira Gandhi

commenced the final step of a calculated plan of action known as Operation

Bluestar1. On the pretense that the army was ousting militants from the Golden

Temple, the most important shrine of the Sikhs, the Indian army attacked it on

June 3, 1984. That very morning the government had lifted a curfew placed upon

the city, and pilgrims had poured in to celebrate a holy day. The attack on the

Golden Temple left 8-10,000 people dead, 500 buildings destroyed, and 30,000

people homeless2. The Indian government simultaneously attacked forty-one

other Sikh shrines in an effort to crush the spirit of the Sikh community3.

Six months later, on October 31, 1984, two of her Sikh bodyguards

assassinated Prime Minister Indira Gandhi4. Some sporadic, isolated incidents of

violence occurred afterward. About one day later, the machinery of the ruling

Congress party initiated an organised massacre that claimed close to 10,000

lives across India, and over 4,000 in the capital city of Delhi5. The property

1 A.R. Darshi, The Gallant Defender, 2d ed. (Ludhiana: Darshi, 2001). A.R. Darshi is theformer Joint Secretary to the Punjab Government.2Guardian (26 June 1984) 6, online: Witness 84 .3 Ensaaf, Context, 4, online: Ensaaf .4 Khuswant Singh, 1984 Sikh Massacres: Victory to the Mob Outlook (22 August 2005) 4, online: Sikh Times .5 Singh,supra note 2 3.

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masterminded them10. No deaths occurred on October 31, the day of Prime

Minister Indira Gandhis assassination. The killings began one day later11. Fifth,

Hindu neighbors often sheltered Sikhs and in some cases helped organize a

collective defence12. These facts prove that the riots were not a spontaneous

reaction to the prime ministers death. Sixth, after the riots, due to considerable

anti-Sikh propaganda, voters overwhelmingly voted in favour of the Congress

party despite allegations of its involvement. Seventh, the death toll was higher

than in any communal riot in free Indias history13.

In his first public speech after the massacre, Prime Minister Rajiv Gandhi,

Indira Gandhis son, dismissed calls for an inquiry to explain the deaths by saying

[w]hen a big tree falls, the earth beneath it is bound to shake

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. Citizens

organizations, lead by Dr. Rajni Kothari and retired Justice V.M. Tarkunde issued

a report entitled Who are the Guilty?15. This report named prominent Congress

party M.P.s as leaders of the mobs. A non-official commission was created

10 PUCL & PUDR, Who are the Guilty? (November 1984) 2, online: Peoples Union forCivil Liberties .11 Phoolka,supra note 7 12.12 Phoolka,supra note 7 20.13 Phoolka,supra note 7 2.14 Singh,supra note 2 7.15 Singh,supra note 2 7.

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under a retired chief justice of the Supreme Court named S.M. Sikri16. This

commission also consisted of retired ambassadors, governors, and senior civil

servants. It severely criticised the government for its role in the massacre.

Circumstances forced the prime minister to order an inquiry, despite his

attempts to avoid it17. Rajiv Gandhi had made an election promise to settle the

uprising in Punjab. To achieve this goal he required participation of the Akali

political party that represented most Sikhs. However, the Akalis threatened to

commence a non-violent agitation and boycott dialogue until a new inquiry was

ordered. Two days before the proposed agitation the Prime Minister agreed to

this demand.

There have been 10 official inquiries, with most focusing on the

shortcomings of the police18. The first, called the Marwah Commission, was

appointed in November of 198419. Justice Marwah was unable to complete his

task of inquiring into the role of the police during the riots on the pretext that the

16 Singh,supra note 2 10.17 H.S. Phoolka, Commissions and Committees, 17, online: Carnage 84 [Phoolka, Introduction].18 H.S. Phoolka, Frequently Asked Questions, 1, online: Carnage 84[Phoolka, Commissions].19 Phoolka, Commissions,supra note 17 1.

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second commission had begun. The records of the Marwah Commission, minus

Justice Marwahs important handwritten notes, were transferred to the second

commission.

The Mishra Commission (1985) was charged with discovering if the riots

were organised20. However, it only diverted blame from those in power to the

lower levels of the police. This commission involved no cross-examinations of

leaders. Additionally, false affidavits had been filed claiming Congress party

members had aided Sikhs. These outnumbered the victims affidavits by nearly

four times. All of these affidavits followed similar patterns and were bereft of

detail or corroboration. After one witness, who was called to corroborate an

affidavit purported to be his, stated that that it was a forgery Justice Mishra

banned press reports21. The Citizens Justice Committee (CJC), created by an

advocate named H.S. Phoolka to represent the victims, withdrew from the

proceedings in protest when the Mishra Commission excluded the CJC from

cross-examining important public officials22. This committee, composed of judges

and notable lawyers and headed by a former chief justice of India, accused

20 Phoolka, Introduction,supra note 16 24.21 Josy Joseph & Naresh Taneja, Judges have been Party to a Cover-up Times of India(2004) 18, online: Times of India .22 Phoolka, Introduction,supra note 16 27.

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Supreme Court Justice Mishra of shielding the culprits and suppressing the

truth23.

Justice Mishra earned substantial rewards for shielding the perpetrators.

Mishra had absolved P.V. Narasimha Rao of any wrongdoing for three days of an

administrative vacuum24. Rao, as home minister, was responsible for

administration of Delhi. After Rao became prime minister, Rao awarded Mishra

with leadership of the National Human Rights Commission. Currently, Mishra is a

Congress party M.P.

The Kapur Mittal Committee (1987) identified 72 police officers it

considered guilty of connivance or gross negligence and recommended dismissal

of 3025. Since, each officer has received two or three promotions each. One is

now the Special Commissioner of Police in Delhi and another is Joint

Commissioner of Police. Eventually, some officers were punished, but these

punishments were light compared to the gravity of their crimes. The Ahuja

Committee (1987) was to determine the number of fatalities26

. It conservatively

23 Phoolka, Introduction,supra note 16 28.24 Phoolka, Introduction,supra note 16 29.25 Phoolka, Commissions,supra note 17 4.26 Phoolka, Commissions,supra note 17 8.

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estimated the number in Delhi to be 2733, despite the submission of a head

count of 3,87027.

The Jain Banerjee Committee (1987) was charged with recommending

registration of cases28. However, the government registered none and those

under investigation blocked the committee using a court order. The Potti Rosha

Committee (1990), successor to the Jain Banerjee Committee, recommended the

registration of cases against prominent Congress party members as well. The

judges disbanded it after intimidation from Congress party thugs29. Similar

recommendations from the Jain Aggarwal Committee (1990) were also

disregarded30. The Dhillon Committee (1985) was appointed to recommend

measures for rehabilitation of the victims

31

. It recommended awarding victims

with compensation from insurance companies. The government rejected this

measure. Consequently, insurance companies throughout India rejected claims,

leaving victims uncompensated. The Narula Committee (1993) was also ignored

27 Joseph,supra note 20 31.28 Phoolka, Commissions,supra note 17 5.29 V. Sundaram, A Panoply of Orchestrated Fraud (12 November 2006) 26, Online:Bolo Ji .30 Phoolka, Commissions,supra note 17 8.31 Phoolka, Commissions,supra note 17 9.

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when it recommended the registration of cases32.

The tenth and final inquiry, the Nanavati Commission, began with an

exhaustive mandate to inquire into the causes and course of violence against the

Sikh community, the sequence of events leading up to the rioting as well as all

the facts surrounding it, and whether the riots could have been prevented33. Was

the cause a mere dereliction of duty, or was it something more sinister? The

Commission was also to recommend measures to meet the ends of justice. Its

first sitting was on October 3, 2000. Repeated extensions led to a closure date of

January 31, 2005, although its mandate was to have expired on April 2, 2001.

The Commission received 2, 557 affidavits naming Congress leaders for inciting

and leading mobs in Delhi during the riots34

. It recorded interviews with 89 persons,

including journalists, army officers, police officers, and eminent persons who had

witnessed either the violence or the governments inaction. Hundreds cooperated with

the Commission hoping for justice35. Fresh evidence was heard against senior members

of the Congress party. It became clear that senior officers had ordered police to not

interfere with the mobs and to disarm and arrest Sikhs for defending themselves.

32 Phoolka, Commissions,supra note 17 10.33 Report on 1984 Anti-Sikh Riots Submitted The Hindu (10 February 2005), online: TheHindu .34Seema Mustafa, 1984 Sikh Massacres: Mother of all Cover-upsAsian Age (9 August2005), online: Sikh Times .35 Phoolka, Introduction,supra note 16 33.

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The Nanavati Commission also contradicted some findings from previous

Commissions. For example, the Mishra Commissions finding that violence had

escalated due to police failure to inform senior officers about the situations gravity was

proven false. Justice Nanavati felt that the violence was organised and involved the

backing and help of influential and resourceful persons36.

Justice Nanavati named Jagdish Tytler, Sajjan Kumar, Dharam Das Shastri, and

H.K.L. Bhagat as the M.P.s who very probably led the murderous mobs37. All were

close to the Prime Minister. He found credible evidence that Dharam Das Shastri had

led a mob of 3,000 to secure the release of imprisoned looters from a police station38. A

senior police officer confirmed eyewitness reports claiming Shastri threatened officers

with dire consequences if they interfered with looters. Numerous eyewitnesses saw

Jagdish Tytler urge a mob to burn down a Sikh temple and kill Sikhs39. Another witness

heard Tytler rebuke a group of people by saying that it would be difficult for him to

stake a claim in the future as only nominal killings had been carried out contrary to his

promise of a large-scale massacre. The evidence against Sajjan Kumar and H.K.L.

Bhagat is also strong. Both had incited mobs to burn Sikhs. Many witnesses recorded

how Bhagat pressured them to not name him. Furthermore, numerous witnesses

issued complaints to the police about Bhagat, but the officers did not record his name.

It is strange that despite the overwhelming evidence against these four, the judge was

36 Siddharth Varadarajan, "Moral Indifference as the Form of Modern Evil" (12 August2005) The Hindu 3 (Lexis).37 The Farce of Inquiry Commissions (18 August 2005) Statesman 2 (Lexis).38 Ravindra Kumar, Ashes to Ashes II: Damning Evidence of a Very Probable Massacre(11 August 2005) 2 (Lexis) [Kumar, Ashes II].39 Kumar, Ashes II,supra note 37 2.

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not clear in his statement regarding the extent of their involvement.

Ultimately, Justice Nanavati created excuses to allow prominent politicians to

escape justice. He declared that Bhagat ought not to face action due to poor health40

.

He also decided against investigating Shastri, claiming there had been a previous

investigation into incidents involving Shastri41. Actually, Shastri had never been

charged or investigated for instigating attacks. On whether Tytler should be

prosecuted, Nanavati claimed that a person could not be prosecuted based on

probability in criminal cases. Actually, criminal cases can be prosecuted on the basis of

probability, and the vast majority in India are, it is conviction that requires evidence

beyond a reasonable doubt. Justice Nanavati contradicted himself by stating that

violence was not systematically organised by the Congress party, and that the Congress

party members were only involved for personal reasons42. Once again, blame shifted to

the police and administration.

Justice Nanavati found that officers posted in numerous districts either watched

the massacre, or actively incited mobs43. There was a systematic pattern of officers

disarming Sikhs while allowing rioters to roam free with weapons44. In an interview,

Nanavati maintained that this practice was an acceptable pre-emptive measure. The

CJC contended that disarming victims would have been acceptable only if rioters had

been disarmed as well. Nanavati, ignoring the facts, challenged the CJC to provide40 Kumar, Ashes I,supra note 8 1.41 Singh,supra note 2 2.42 Mustafa,supra note 33 7.43 Singh,supra note 2 2.44 Manoj Mitta, An Encounter with a Judge (12 June 2003) Indian Express 5, online:Counter Currents .

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evidence that the rioters were armed.

Nanavati decided against taking action to investigate most officers either

because police department inquiries had exonerated them in the past, or because

officers had improperly filed reports making investigation too difficult45. His final

reason for inaction was that many officers were retired, and so no action could be

initiated against them46. Interestingly, an officer in charge of one of the worst affected

areas now occupies the second most important position in the Delhi police while his

counterpart from another area was charged. The former was not charged because a

departmental inquiry had exonerated him, but his counterpart, who had also been

exonerated by a departmental inquiry, was charged because Justice Nanavati clamed his

commission had a much wider scope for inquiry than a departmental inquiry47. The

Lieutenant Governor and former Police Commissioner were found guilty for dereliction

of duty, but they could have acted in this way only with the connivance of superiors48.

It appears that charges were laid only against low ranking officers or those who had

fallen out of favour.

Ultimately, there are three key facts to be learned from the Nanavati

Commission49. First, that dozens of Congress leaders and followers had instigated and

participated in the riots. Second, there was a race among the Congress M.P.s to show

45

Justice G.T. Nanavati, Part of Nanavati Report: Part IV Assessment of Evidence andRecommendations for Action 4, Online: Carnage 84 .46 Mustafa,supra note 33.47 Manoj Mitta, Nanavati Let Off all Police Officers from Worst Massacre Site (20August 2005) 2 (Lexis).48 Singh,supra note 2 12.49 Kumar, Ashes II,supra note 37 2.

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how many Sikhs they could kill. Third, after the massacre, there was a collaborative

effort by the party machinery and police to weaken cases, delete names of accused

persons, and to collect affidavits under pressure. Unfortunately, Justice Nanavati did

not suggest the need for any further investigation to determine whether the massacre

was a collaborative effort or to determine how far the conspiracy extended.

After numerous commissions and prosecutions, the upper echelons of the ranks

of the guilty remain free. Although public outcry has forced Kumar and Tytler to resign

their posts under pressure, it is far from true justice50. Dozens of prosecutions launched

ended inconclusively. Several Commissions resulted in whitewashes. Participating

eyewitnesses often recanted under pressure, or withdrew when they realised they were

participating in a farce. There is a need for a final commission to end the matter.

Justice Nanavati has asked many witnesses about the viability of a commission

similar to the Truth and Reconciliation Commission created by South Africa51. South

Africas commission allowed people to confess their crimes in return for immunity from

prosecution. The aim was to heal a scarred society and to move forward. While a lofty

idea, Sikhs are not willing to accept this52. The main body representing Sikhs is keen on

punishing the culprits, as are the majority of Sikhs. If Sikhs were willing to accept a

similar commission, it is likely the main culprits would continue concealing their

crimes as they have little to gain through honesty.

50 Kumar, Ashes I,supra note 8 4.51 Kuldip Nayar, Fresh Light On 1984 Riots (20 February 2005) TheDawn 11, Online:Counter Currents .52 Nayar,supra note 50 9.

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Any future commission must overcome numerous challenges to be successful.

These issues include corruption, credibility, transparency, dulled memories, deaths of

witnesses and suspects, and the destruction of documents. Moreover, a workable

commission needs the capability to create change.

A viable commission requires a government that is willing to appoint it. The

Congress government will never do so. Appropriate pressure can compel a different

government to create an effective commission. Unfortunately, appointing commissions

is a political game. The BJP, who appointed the Nanavati Commission, are accused of

masterminding the massacre of Muslims in Gujarat53. Past Commissions often have not

been properly tended to. When nearing conclusion a less favorably disposed party may

refuse requests for increased funding or time. Granting adequate time and a package of

funding under the inquirys control can prevent this potential problem. The above

suggestions, combined with a broad, independent mandate, will protect the

commissions integrity if those on the commission were honest.

Appointing eminent persons such as former Supreme Court Chief Justice S.M.

Sikri and other eminent judges and lawyers helps to address the need for credibility. It

would enhance the commissions credibility to be lead by highly ranked judges

experienced with the 1984 issue. A panel of judges grants greater credibility and

further decreases chances of corruption more than a lone judge can. The chance of

corruption derailing the process is minimised by including only those with proven good

character. To ensure that appropriate persons are appointed, all political parties should

have votes regarding which judge is appointed. Additionally, the main organisation

53 Phoolka,supra note 7 2.

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representing the affected community should have a veto in case a corrupt or

undesirable individual is appointed. Strict time limits to vote for the appointments

would prevent stalling by politicians.

Transparency ensures authenticity. Representatives from the Sikh community

and the legal community should be appointed in an oversight committee to monitor

the Commissions activities. This helps prevent the communitys interest in the

commissions findings from being derailed by politics. Such Sikhs should be persons

deemed by the ordinary Sikh community to be of good character, and may be appointed

by various organisations representing the Sikh community. All members of the legal

community must also be in good standing, with no serious allegations against their

character.

The oversight committees powers will be limited to observing all aspects of the

investigation and reporting them to the public. It will not be able to order most types

of inquiries or control the direction of ongoing inquiries. This will dampen potential

allegations that members of the Sikh community are influencing the commission to

gain vengeance on those politicians who they feel have wronged their community.

There is a need to hold judges accountable. The oversight committee needs the

power to initiate inquiries into the action of a judge for deviant behavior. A judge

would appear before a panel of peers if this situation were deemed to have occurred,

not in front of the oversight committee. If the judges behavior were deviant, than that

judge would be immediately dismissed from the commission.

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The effects of dulled memories and the death of many witnesses and suspects

cannot be completely overcome. These effects they can be mitigated by using the

collected works of the CJC and CJC-II (Carnage Justice Committee), which was created to

represent victims before the Nanavati Commission54. These factors highlight the urgent

need for a fresh inquiry to be appointed immediately.

Any future commission must have power to succeed. An honest inquiry counts

for little if it cannot place charges against the prime suspects of the massacre. It must

be able to order new investigations and compel cooperation from anyone. Additionally,

it needs the authority to order the presentation of any documents it deems relevant.

Finally, the commission should have the additional power to create judicial orders and

the right to pass down any sentence deemed fit under the law.

To prevent a repetition of such massacres, and to prevent another subversion of

a democracy ruled by law and order, the perpetrators of the pogrom must be found and

punished. If a class of people can behave with impunity for human rights, such events

will reoccur. This truth has been shown in Gujarat where over 800 Muslims have been

killed in rioting planned by the governing party55. Such evil can still arise only because

people choose to forget previous massacres that provide the basis for future

occurrences.

54 Phoolka,supra note 7 18.55 Phoolka,supra note 7 2.

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Documents

Lie of the Truth Commissions: How the Indian Government Hijacked the Justice Process for the Victims of the 1984 Anti-Sikh Pogroms