September  2000
Special Report

Mockery of Justice

It is clear from the Maharashtra government’s latest affidavit to the Supreme Court that it, too, is not sincere about acting on Justice Srikrishna’s recommendations

By Teesta Setalvad

Events have turned a full circle. If any among those who have fought doggedly for the implementation of the Justice BN Srikrishna Commission report and punishment of those guilty for the Mumbai riots 1992–’93 — premised on the belief that justice is a necessary precursor to reconciliation — needed to be reminded that it was a Congress regime in power while Bombay burned, the affidavit submitted by the Democratic Front to the Supreme Court on September 5, 2000 leaves no space for doubt.

On all four major counts that Justice Srikrishna had recommended firm action — criminal prosecution of politicians responsible for criminal actions, the criminal prosecution of 31 police officials found guilty of dereliction of duty, the re–opening of 1,148 cases illegally closed by the police, and a complete overhaul of the police system and its orientation in tackling communal violence — the action taken by the state government amounts to a mere mockery of the judicial recommendations.

A careful reading of the affidavit, that was literally coerced out of the state government by the apex court — Chief Justice AS Anand, on September 21, 2000, passed strong strictures against the Maharashtra government for its failure to come clean on steps taken for implementation of the report — reveals that the Congress–NCP government that rules Maharashtra today and that was returned to power in 1999 on the promise of ‘implementing the report in full’ echoes, word for word and sentiment for sentiment, the stance of the SS–BJP combine in the Action Taken Report (ATR) it tabled in the state assembly in August 1998 rejecting most of the judge’s findings.

First and foremost, the DF government has accepted the findings of a bureaucrat’s committee appointed by the SS–BJP government in October 1998 over and above the clear-cut conclusions of Justice Srikrishna, a sitting, independent judge of the Mumbai High Court. Secondly, the findings of the Srikrishna Commission substantially confirmed the earlier findings of two retired judges of the Bombay High Court, Justices Hosbet Suresh and SM Daud (The People’s Verdict, a citizen’s report, 1993). Overruling the studied recommendations of three members of the higher judiciary, the state government has decided to go with the findings of bureaucrats and policemen!

Accepting the recommendations of the bureaucrats’ committee, the DF government has rejected action against nine policemen that was specifically recommended by the Judge. Instead of criminal prosecutions in full public gaze, following FIRs, investigations and charge sheets filed on the basis of the Judge’s findings, most policemen guilty of gross and biased conduct will now be subject only to departmental inquiries.

No action is proposed to be taken by the government against politicians indicted belonging to the SS-BJP (and Congress) who were clearly implicated by Justice Srikrishna. Even action against Bal Thackeray is mired in doubt and controversy.

Though the bureaucrats’ committee had recommended action against 18 of the 31 police personnel named by the commission, the state government affidavit mentions that action will be taken only against 15 of them. In case of two others who have since retired (Sahebrao Hari Jadhav in May 15, 1996 and Gopichand Sitaram Borse in May 31, 1999), there is a limitation under the Maharashtra Civil Service rules that bars action related to any incident that took place more than four years before retirement.

In other words, policemen found guilty of gross dereliction of duty, of acts of commission and omission that violate the principles of equity and justice enshrined in the Indian Constitution, will escape criminal prosecution simply because civil service rules protect them!

Nine of the 31 policemen indicted for serious misconduct by Justice Srikrishna were actually promoted in the period between February 16, 1998, when Justice Srikrishna submitted his report to the state government and August 6, 1998, when the government tabled the report in the state assembly. Another indication that the earlier state government has already functioned in utter contempt of and in blatant defiance of the Judge’s findings!

One policeman, More, was actually promoted after both the submission and tabling of the Commission’s Report, despite indictment of his conduct. The previous state government excused it’s own lapse saying that "since a charge–sheet had not been filed", the Maharashtra Service Rules demand that a promotion cannot be withheld!

Once again, we see a mockery of the Indian Constitution and of the recommendations of a sitting Judge of the Bombay High Court. The Maharashtra Civil Service Rules seem to be of greater import than the charge of dereliction of duty for which the police officer was deemed guilty.

What was More’s offence? Sub–inspector Vasant Madhukar More along with assistant police inspector, Sahebrao Hari Jadhav, constable Suresh Pandurang Ithape, Shivaji Govindrao Kashid, Hanumanth Pandurang Chavan and head constable, Gopichand Shaitram Borse were responsible for allowing a violent mob to hack to death one Abdul Razak, alias Aba Kalshekar (CR no 13 of 1993). More was promoted instead of being punished for this action!

The committee has recommended criminal prosecution against only two police personnel, Pandarinath Sakharam Wahule and Ulhas Vilas Patankar (guilty of shielding miscreant in CR no 591 of 1992 of the Byculla Police Station).

The affidavit states that in the course of investigating the role of policemen in illegally closing down cases under the ‘A’ category, the committee found that there were lapses on the part of the concerned investigating officers. Hence, 63 such cases involving 45 police officers have been forwarded to the CP, Mumbai, for appropriate action against the police personnel concerned.

On the question of ‘Missing Persons’, the affidavit says: "Out of 173 missing persons, inquiries have been completed in 79 cases and compensation paid in 37 cases. 25 cases have been found not to be connected with riots or blasts. Seven cases are pending for consideration of payment of compensation. In 70 cases, heirs could not be traced in spite of efforts and also due to the facts that the addresses are not available".

The committee of IAS and IPS officers, set up by the previous government has found only 112 cases out of the 1,148 recommended by the Judge worthy of being re–opened after being illegally closed in the ‘A’ category (closed for lack of evidence).

Despite being bound by a commitment to the Supreme Court made earlier this year, to grant sanction for the re–investigation into an incident (CR number 718/92 under the Dharavi Police Station), the DF combine has delayed sanction for prosecution of the guilty in this case. According to the affidavit, the file has now been cleared and a charge–sheet will be filed in court.

This is a critical case that had been illegally closed by earlier governments. It is clear why neither the SS–BJP nor the Congress would like this incident and the conduct of the police therein re–examined and criminal prosecution launched.

The incident in question that took place at 2 p.m. on December 6, 1992 is the first communal incident of December 1992–1993. It was "a celebratory cycle rally organised by the Shiv Sena (and allowed by the police) intended to provoke Muslims by heaping insult upon injury" caused by the Babri Masjid demolition.

The Commission’s report has observed: "The significance of this procession/cycle rally becomes clear when we look at the background against which the rally was taken out and what transpired in the procession and the meeting held at the end. The entire country was gripped by the apprehensions as to what would happen to the Babri Masjid at the time of kar seva on December 6, 1992…Elaborate precautionary measures were put in force by the police in the city of Bombay in view of the explosive potential of the situation. In the teeth of these, granting permission to hold such a cycle rally or procession which was ostensibly to celebrate the demolition of the Babri Masjid would be utter irresponsibility on the part of the police. It is to cover up their Himalayan blunder that the police have concocted the story that an application to hold the cycle rally had been made by the SS and rejected by the police…This cycle rally was nothing but an attempt by the Shiv Sena to provoke Muslims by rubbing salt on their wounds by openly gloating over what was, from the point of view of the Muslims, an unfortunate and tragic event…Processionists shouted slogans like ‘Talwar Nikala Myanse, Mandir Banayenge Shanse’, ‘Hath Mein Lungi, Muha Mein paan, Bhago Laandya Pakistan’. When the rally was passing in front of Anjuman Kadria Masjid, at the time when Muslims were offering namaaz, a stone was thrown that fell inside the masjid premises. Though the procession was accompanied by several police officers and police constables, no steps were taken to prevent the shouting of provocative slogans or the incident of stone throwing."

Barely five weeks ago, the present DF government had kept the city in a state of high tension over the intended arrest of Shiv Sena chief, Bal Thackeray, for his role as the main agent provocateur during the December 1992–January 1993 communal riots in Bombay. The action, forestalled by a magistrate was, at least in retrospect nothing but a crude attempt at gaining political mileage. That there was no desire to send a firm message down the line by punishing all those guilty, is evident from the fact that the affidavit is utterly silent on criminal actions against over three dozen more or less prominent politicians from the SS-BJP combine (some Congress politicians have also been named by the Judge) who led mobs to kill, to commit arson and loot.

Besides, the affidavit is extremely dismissive of the far–reaching and substantive administrative changes that the Judge had recommended drawing heavily upon the findings of the Justice Madon commission (Bhiwandi riots 1990) that had been ignored by the Congress and other governments for 25 years.

At its most basic, the affidavit is a reflection of the dogged denial of the SS–BJP earlier and the Congress–NCP now in accepting the gravity of the breakdown of state and civil society that December 1992–January 1993 epitomised, a breakdown that was possible only because of the complete abdication of responsibility of the executive, the administration and the police.

The single most sinister reason behind this breakdown was that the actions and judgements of the then chief minister, Sudhakarrao Naik, the police commissioner, Shrikant Bapat and many other officers and policemen down the line were distinctly coloured by communal bias.

Both the DF government and the previous SS–BJP combine have resisted this fundamental conclusion, borne out by painstaking examination and the exhaustive details provided by the Judge in his report. The DF government’s affidavit filed by RS Negi, principal secretary, department of home, Maharashtra government, repudiates the Judge’s observations on the blatant bias witnessed in police conduct by stating:

"I say and submit that State Government feels that barring some stray exceptions, the police force is by and large secular, impartial and free from bias. The impartial way in which the Mumbai police handled the communal riots for many years have proved their secular and impartial character." This statement is, word for word, the same as what the SS–BJP combine had stated in the ATR rejecting Justice Srikrishna’s report prepared in 1998.

That perhaps is not surprising. The events that erupted in brutal incidents of communal violence all over India on and after December 6, 1992, had been carefully orchestrated by the parties and organisations that participated in the movement for building a temple for Lord Ram at Ayodhya, a campaign that implicitly carried the message for demolition of a mosque situated on the same site. In Bombay, the urbs prima of the country, the systematic violence was accompanied by well-orchestrated rumours of impending attacks by Muslims and/or the ISI, rumours that have been effectively dispelled by the scrupulous documentation of events and police evidence in Justice Srikrishna’s report.

The historic value of the Srikrishna Commission’s report lies in its meticulous sequencing of events that preserve for posterity where the provocations came from and who drove them. For ten days in December and a fortnight in January 1993, Bombay simmered, and innocent citizens trembled in terror and that resulted in the chilling serial bomb blasts on March 12, 1993.

Through this entire period, rumours and the ravings of rabid men raised the heat in Bombay’s streets, unchecked by the law; the rumours helped fuel passions about the ‘the ISI hand behind the riots’, drawing in more and more persons to loot, burn and kill innocent people; the state administration and the police stood exposed for their refusal and failure to stop communal mobilisations of parties like the SS-BJP–RSS–VHP in Bombay and elsewhere; the administration turned a blind eye to politically motivated programmes like the Mahaartis begun on December 26, 1992 that were used to launch attacks on Muslim bastis, homes and shops. Srikant Bapat, in his testimony before Justice Srikrishna, even refused to dub the Shiv Sena as a communal party!

Former chief minister Sudhakarrao Naik’s reluctance to act against Bal Thackeray and his men who were openly inciting mobs, and police commissioner Bapat’s empathetic treatment of the Sena sent the required message down the line…Bombay was allowed to burn and thousands of it’s residents were seared in the flames that were deliberately not doused. Police conduct was influenced by abusive messages on the wireless allegedly from the control room, instructing policemen to exclude ‘laandyas’ (abusive term for Muslims) from protection and relief; a reluctance to record complaints and in some cases, open participation in the violence.

It was the Congress party that watched this drama of death and destruction in 1992–1993 and the same party is called to account now. For the present state government to accept the Judge’s findings about 1992–1993 in toto would mean having to claim public responsibility for playing the fiddle while Bombay burned.



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