Every time there is a law and order outrage, there is inevitably a demand for a judicial inquiry. That is, an inquiry in addition to the regular police investigation.  Those who demand such an inquiry feel the police cannot be trusted to do a proper investigation either because they are very much a part of the administration or because their own role is under question. The Government often has its own motive for acceding to the inquiry demand: To defuse the tension and avert further problems. Thus, there have been hundreds of judicial inquiries around the country especially since a law was enacted for that purpose way back in 1952. 

The subjects of inquiry have been varied. They have ranged from police brutalities and Emergency excesses to political assassinations and communal riots. Each of such issues has been deemed to be a “definite matter of public importance,” the sole criterion laid down by the Commissions of Inquiry Act, 1952.  But in terms of sheer intensity of violence, the number of people murdered, none of those matters can compare with the massacre of some 4,000 Sikhs in Delhi over three days in 1984. The official death toll announced three years after the massacre was 2,733. Since the Partition riots of 1947, there has not been a single carnage anywhere in India on the scale seen in 1984, ironically right in its Capital. 

Therefore, it would seem, there has been no fitter case for inquiry than the Delhi massacre. Yet, it took a long time for the Government to accede to the inquiry demand. Almost six months. Though the massacre took place in the first three days of November 1984, the inquiry was appointed only on April 26, 1985.  The Government was however prompt in ordering an inquiry into Indira Gandhi’s assassination, which had triggered the massacre.  It took just four days to announce a judicial inquiry into the assassination. Why did the Government not show the same kind of urgency about the massacre of 4,000 Sikhs? Why the distinction at the same time between the murder of one and the murder of many? Was there not enough pressure on the Government to hold an inquiry into the massacre as well? No, the victims, Opposition parties, Sikh organisations, newspapers and human rights groups did clamour for an inquiry again and again.  

But then the problem for the newly formed Rajiv Gandhi Government was that a lot of those very people were equally vehement in alleging that the massacre had been organised by leaders of the ruling Congress party. On November 9, Atal Behari Vajpayee, who was then the president of the Bharatiya Janata Party, which is the main rival to Congress in the local politics of Delhi, said that the disturbances were “in the main engineered violence and the Congressmen are squarely responsible for this.” Deploring the Government’s failure to accede to the “near unanimous demand” for a judicial inquiry, he said he regarded it as  “the Government’s guilty conscience and an eagerness to shove its own sins beneath the carpet.”  

While the Government ignored Vajpayee’s charge, the Congress party counter-attacked by saying, “Who is not aware of the anti-minority bias of parties like the BJP? No right thinking person can be taken in by their false and misleading propaganda.” Given such protestations of innocence, one would have expected Rajiv to seize the opportunity of a judicial inquiry to clear, if nothing else, the name of his party and government. If he did no such thing, was it because Rajiv actually had so much to hide that he would rather bear the stigma of suspicion than risk a judicial inquiry, while the wounds were still so fresh and the evidence so much easier to find? Or, was it simply that he was pandering to the wrath of those Hindus who saw the massacre as a richly deserved lesson to the Sikhs. 

Whatever his motive, Rajiv could at that stage disregard the allegations of political complicity because they were yet to be supported by details such as the names of the leaders and the nature of their alleged involvement. The only name that came out in the press initially was of a Congress MP from Delhi, Dharam Das Shastri, who was reported to have led a mob to a police station on November 5 and berated the officers for arresting some rioters. Shastri’s gratuitous concern for the miscreants fitted in, on the face of it, with the allegation that Congress leaders had organised the violence. A delegation of Opposition leaders highlighted Shastri’s indiscretion the next day in their joint memorandum to Rajiv, who refused however to see it as anything but an isolated incident of political involvement. 

An overall account of the role played by politicians came out for the first time on November 15 when two human rights organisations, People’s Union for Democratic Rights (PUDR) and People’s Union for Civil Liberties (PUCL), published a joint report entitled, Who are the guilty? More significantly, it named the Congress leaders who had apparently been identified by victims and witnesses as organisers of the riots. The report created a sensation alright but only momentarily. That’s because the Government had by then called the Lok Sabha elections, drowning out the commotion over the inquiry demand. 

The poll was fixed for December 27, a fortnight ahead of the due date. The election announcement made on November 13 put paid to any chances of an inquiry being ordered till at least the electoral process was completed. But, in the run-up to the elections, Rajiv had to explain his stand on the massacre and the inquiry demand on more than one occasion. Except that he kept taking varying and often conflicting positions. 

First, he provided a rationale to the massacre which made the inquiry demand  sound rather misplaced. It was that famous comparison he made of the massacre with the impact of a big tree falling on the earth. The official translation of his Hindi speech on Indira Gandhi’s birth anniversary says:  “Some riots took place in the country following the murder of Indiraji. We know the people were very angry and for a few days it seemed that India had been shaken. But, when a mighty tree falls, it is only natural that the earth around it does shake a little.” In other words, he was plugging the line that the three-day massacre in Delhi of 4,000 Sikhs was entirely a spontaneous reaction of the mourners. 

But in the course of his election campaigning, Rajiv gave another spin to the massacre. He repeatedly said that the motive behind Indira’s assassination was to provoke widespread communal violence as part of a grand design to break up the country. The implication being that the perpetrators of the communal violence were themselves victims of a conspiracy as much as the Sikhs they massacred were. Though Rajiv was in effect attributing the assassination and the consequent massacre to a common conspiracy, the terms of reference of the Justice M.P. Thakkar commission set up by him to unravel the conspiracy behind the assassination made no reference whatsoever to the massacre. 

In his interaction with the press during the electioneering, Rajiv took yet another position whenever he was asked about the inquiry demanded into the alleged involvement of his party leaders in the Delhi massacre. Recalling the meeting he had with the Opposition leaders on November 6, he said they could name only one leader and he took action on that basis. The leader Rajiv was referring to was none other than Dharam Das Shastri and the action taken against him was that he was not renominated as a Congress candidate in the election. The implication of Rajiv’s reply to the press was: since he had denied the Congress ticket to Shastri, there was no more any need for a judicial inquiry into the massacre. 

However untenable and inconsistent his reasoning might have been, Rajiv’s evasion of the inquiry turned out to be in tune with the popular mood in the election, held as it was under the shadow of Indira Gandhi’s assassination and the massacre of Sikhs. Thanks to the overwhelming mandate he received from the electorate (more than 90 per cent of the seats in the Lok Sabha), Rajiv’s insensitivity to the riot victims seemed to have turned into contempt for them. The customary condolence motions passed by the new Lok Sabha  referred to Indira Gandhi and even the victims of the Bhopal industrial disaster that took place in December 1984. But those killed in the massacre that followed Indira’s assassination were conspicuously overlooked. It was as though Rajiv wanted to avoid any gesture that might have been construed to legitimise the inquiry demand. 

In an interview to India Today in January 1985, he said the inquiry would not help as it would only rake up “issues that are really dead.”  That was a singularly unkind metaphor. He had never before been so derisive of the inquiry demand nor so dismissive of the value of an independent probe into the massacre.  As if that was not bad enough, Rajiv went on to give a sinister twist to the inquiry demand in an interview to Sunday magazine around the same time.  He said an inquiry was not being instituted as “it would do more damage to the Sikhs, it would do more damage to the country by specifically opening this whole thing up again.” It sounded as though he was giving a veiled threat to the victims that they could get into worse trouble if they pressed for an inquiry. 

For all the vehemence with which he ruled out the inquiry, Rajiv soon had to eat his words due to his administrative compulsion. He had won the election positioning himself as the best bet to save the country from being consumed by the raging Punjab militancy. As a natural corollary, he declared right after the election that his “top priority” was to settle the Punjab problem at the earliest. The key to that problem lay in opening a dialogue with the Akali Dal leaders who had been in detention since the crackdown that followed Operation Bluestar in June 1984. The Government released them from detention but found that they were  unwilling to deal with it. The Akali leaders refused to talk with the Government until it proved its bona fides by setting up a judicial inquiry into the 1984 massacre. 

Rajiv no doubt found it difficult to consider that pre-condition because of his avowed policy of shunning the inquiry. Besides, the no-inquiry policy was an important part of the winning formula in the December 1984 Lok Sabha election. He was under pressure to leave that formula undisturbed for the assembly elections in several states barely three months later. It was after all vital for the new Prime Minister to show that his maiden triumph was no fluke and that he still commanded popular support. 

Thus, only after he tided over the assembly elections in March 1985, did Rajiv allow his administrative exigency to take precedence over his political posture. The first indication came when he sent a Cabinet panel at that stage to Punjab where his home minister, S.B. Chavan, declared that the inquiry could well be considered as part of a package settlement. But as the Akalis maintained that the inquiry would have to be appointed before the talks on the Punjab problem, Rajiv petulantly asked in an interview to Frontline in April 1985: “Well, there is something basically wrong here, because isn’t that what we are going to talk about? If it’s already done before we talk, then what are we talking about?” He was eager to talk about the inquiry with the Akali leaders because, as he put it then to the British publication Observer, “we would like them to come forward and say exactly what they want now.” 

The politician in Rajiv had dismissed the inquiry demand outright just a few weeks earlier saying it would only rake up dead issues and do more damage to the Sikhs and the country. The administrator in him was now trying to use the inquiry issue as a bargaining counter in the negotiations he proposed to have with the Akali leaders for an accord on Punjab. There was however a stalemate as the Akalis refused to talk until the inquiry was appointed. They sought to exert pressure on the Government by threatening to launch a major agitation on April 13, the anniversary of the Jallianwala Bagh massacre. The Government gave in just two days before the threatened agitation when Chavan announced in Parliament a package of measures to “restore normalcy in Punjab.” One was the release of some more Sikh detainees and another was the lifting of the ban on a militant Sikh student organisation. The third and the most important measure announced in that context was the decision to hold a judicial inquiry into the Delhi massacre. 

Thus, the Rajiv Gandhi Government made no bones about the fact that the inquiry demand was finally conceded merely to clear the way to an accord on Punjab with the Akali Dal. There was no pretence whatsoever that it had suddenly found the inquiry demand to be just. But then, strictly speaking, the Government’s attitude should not matter any longer once an inquiry commission is appointed. The inquiry takes its own course regardless of what anybody feels. Its job is to find facts and make recommendations. The commission enjoys as much independence from the executive as the court does. The Government can have its way only after the commission is done with the inquiry. The Government has the discretion to accept or reject the commission’s findings and recommendations. Given the moral weight of a report written by a judge after due inquiry, the Government is generally hard pressed to justify any disagreement with the Commission.  

 The Rajiv Gandhi Government did not however face any such embarrassment on account of the inquiry report on the 1984 massacre. Although it found that “a number of people belonging to the Congress (I) party at the lower level had participated in the riots,” the report absolved the party leaders of the allegation of organising the massacre. The Commission headed by a serving Supreme Court judge, Ranganath Misra, did however confirm some other serious allegations: that for three whole days the mobs had a free run of the place murdering, looting and raping hundreds of Sikhs; that the administration in the Capital had all but collapsed; that the police either looked the other side or joined the mobs; that there was an undue delay in imposing the curfew as well as in calling the army; that the pattern of violence indicated that it was organised; that the police either refused to entertain the complaints of the victims or registered them only after deleting the names of  influential people; that the police and the rioters harassed the victims even during the inquiry to prevent them from deposing before it. Yet, the Misra Commission held that the culprits in the Congress party behind the massacre were only workers and not leaders. 

How did the Commission come up with such a finding in the face of all those facts suggesting otherwise? How did it reconcile the blanket exoneration of the Congress leaders with, say, the controversy over Congress MP Dharam Das Shastri who allegedly stormed a police station with a mob to secure the release of other rioters? What could the Congress party have deposed in its defence which made the Commission dissociate the leaders from the workers? What was that strong evidence which convinced Misra that the party workers were more likely to have acted on their own, without any instigation or organisation from their leaders? What exactly did the leaders and the workers say about each other during their cross-examination? What action did the party show to have taken against the delinquent workers and did it assume moral responsibility for their crimes? 

The answers to these questions should logically have figured in the inquiry report on “the allegations in regard to the incidents of organised violence.” Equally obvious, no such inquiry could have been completed without the participation of the very people who were alleged to have organised the violence. Namely, the Congress leaders and workers identified by the victims in their affidavits before the Commission. The leaders included H.K.L. Bhagat, who was a minister in the Rajiv Gandhi Government, and Sajjan Kumar and Dharam Das Shastri, former Congress MPs, and several Delhi legislators. But, as it happened, Misra did not throughout the inquiry call any of those Congress members nor for that matter any representative of the party. 

Misra’s failure to put a single political leader through the wringer of cross examination contrasts with the conduct of other inquiries held into similar issues. Take the case of the B.N. Srikrishna Commission which inquired into the Bombay riots of 1992-93 in the wake of the Babri Masjid demolition. The Srikrishna Commission on its own initiative put in the witness box Shiv Sena leader Manohar Joshi, who had by then become chief minister of Maharashtra, and Congress leaders, Sudhakar Naik and Sharad Pawar, who were at the time of the riots Maharashtra chief minister and Union defence minister, respectively. 

Far from asserting his power to call anybody as a witness, Misra went out of his way to keep the Congress members out of the proceedings even at the cost of violating the law.  Section 8-B of the Commissions of Inquiry Act stipulates that the Commission cannot probe the conduct of any person without giving him an opportunity to be heard and to defend himself. The allegations made by the victims were very much about the conduct of the Congress members. Misra should therefore have given them an opportunity to defend themselves by issuing Section 8-B notices to them. None of the Congress members however objected to his failure to do so. The fact that they forsook their right to defend themselves implied two things. One, they feared they would only be exposed further when cross examined by the lawyers of the victims. Two, they had the confidence or foreknowledge that Misra would somehow vindicate them even in the absence of their defence. 

Thus, by shielding the Congress members from his own proceedings, Misra has clearly engaged in a fix-it inquiry. Nevertheless, he had to find some other way of countering all those nasty affidavits from the victims. He did so in his own freewheeling manner with the testimony of a third party. Namely, those who filed, as Misra himself put it, “affidavits against the victims.”  It was odd enough that any affidavit should have been filed at all against the Sikhs in the context of their own massacre. Not only were such affidavits filed but they also outnumbered those in support of the victims by as many as four times.  

All the anti-victim affidavits had the same stereotyped contents asserting that the local MP and other Congressmen had helped the Sikhs. None of them went into specific details of how the Congress leaders had helped the Sikhs during the carnage. But even if their credibility was found acceptable, the anti-victims affidavits could at best have been used to corroborate the defence of the Congress leaders. Misra instead used the anti-victim affidavits as a substitute for the non-existent defence of the Congress leaders, thereby sparing them the risk of facing the cross examination. 

Another notable aspect of Misra’s fix-it inquiry was, he conducted it throughout in the secrecy of in camera proceedings. Generally, whether it is a court of law or commission of inquiry, the power of holding in camera proceedings is sparingly used so as to maintain the credibility of the proceedings. But, just as the Congress leaders could not risk facing the lawyers of the victims, Misra could not afford to let the press attend his proceedings lest they caught on to his cover-up attempts. When a few reports came out initially despite his ban on the entry of the press, Misra passed an unprecedented order threatening to take action against the newspapers that continue to report the Commission’s proceedings. 

Later, when he was to examine some public officials in the course of the inquiry, he turned all the more secretive and kept in the dark even the lawyers of the victims. That was the last straw for the Citizens Justice Committee (CJC), the main representative of the victims.  It withdrew from the proceedings half-way through the inquiry, causing embarrassment to Misra. Not the least because the CJC could not be dismissed as a bunch of hot-headed activists since it consisted of highly respected establishment figures such as S.M. Sikri, former chief justice of India, V.M. Tarkunde and R.S. Narula, former high court judges, Soli Sorabjee, senior advocate in the Supreme Court, Rajni Kothari, political scientist, Lt Gen J.S. Aurora, the Bangladesh war hero, and Khushwant Singh, author and columnist. 

The CJC was formed under the chairmanship of Sikri with the express object of helping the Commission arrive at the truth. But Misra’s machinations forced it to walk out saying his unusual procedure only served the purpose of “shielding the culprits and suppressing the truth.” In other words, a group headed by a former chief justice of India accused a serving Supreme Court judge of subverting an inquiry by lying and colluding with the powers-that-be. The charge sounds all the more serious considering that the inquiry was into a massacre of 4,000 citizens right in the Capital. 

On the eve of the massacre, P.V. Narasimha Rao, who as home minister was responsible for what was then the Union territory of Delhi, assured the press that everything would be under control within a couple of hours. Misra absolved him of any responsibility for the administrative collapse during the three-day massacre. Years later, after Rao became Prime Minister and Misra retired as chief justice of India, Rao made Misra the first chairman of, of all the things, the National Human Rights Commission. Misra has since joined Congress and become its member in the Rajya Sabha. 

In April 1989, emboldened by Misra’s clean chit to him, Prime Minister Rajiv Gandhi declared in Parliament: “The terrible bloodbath of November 1984 was a carnage which will rest for ever on the conscience of all decent Indians.” The material put together in this CD shows that the Misra inquiry and the subsequent motions of follow up action were no less a matter that should rest for ever on the conscience of all decent Indians. 

For the record, the Misra Commission recommended a committee to look into allegations that many cases were either not registered or not properly investigated. The first proposal the committee made in 1987 was for registration of a murder case against former Congress MP Sajjan Kumar. The police did not act on the committee’s instruction. Instead, an associate of Sajjan Kumar obtained a stay from the Delhi high court on the very functioning of the committee. In October 1989, the high court quashed the very appointment of the committee. About five months later, the V.P. Singh Government appointed a fresh committee minus the defect pointed out by the high court. Subsequently, many cases came to be taken up by the police but because of the delay and cursory investigation less than five per cent of those have resulted in convictions. Most of the convictions were for minor offences like rioting and violation of curfew orders. Needless to add, no political leader has so far been convicted for his complicity in the 1984 massacre. 

Meanwhile, there was another committee, again recommended by the Misra Commission, to identify delinquent police officials. A report submitted by one of the two committee members recommended various degrees of punishment to 72 police officials, including six IPS officers. But due to some reason or the other, the Government has so far not taken action against any of the officials. 

It was against this dismal background of legal deception and unfulfilled expectations that the Vajpayee Government took the momentous decision in December 1999 to accept the demand for a fresh judicial inquiry into the whole issue of the 1984 carnage. In Parliament, members of all the parties, including the Congress party, passed a resolution supporting the Government’s decision in this regard. The subsequent appointment of the Justice G.T. Nanavati Commission is nevertheless an unprecedented development. The Misra Commission earned the dubious distinction of giving such a report that the Government was prompted to order an inquiry into the matter all over again. 

Fortunately, despite a lapse of more than 16 years since the carnage, the decision to hold a fresh judicial inquiry has paid off. Hundreds of victims and witnesses responded enthusiastically by filing affidavits and adducing evidence in public hearings before the Nanavati Commission. Though it apparently took a while to locate the old records, the Vajpayee Government has been more forthcoming in disclosing documents related to the decisions taken by authorities during and after the carnage. In the process, a whole lot of new evidence has come to light thanks to the ongoing proceedings of the Nanavati Commission. 

For instance, many eminent persons have for the first time been able to put on record how home minister P.V. Narasimha Rao and lt governor of Delhi P.G. Gavai dithered the carnage when asked to take prompt action and call in the Army. Several depositions before the Nanavati Commission have also come up with fresh evidence against Congress leaders H.K.L. Bhagat and Sajjan Kumar for their role in the violence. As for the complicity of the police, one very significant pattern of evidence that has now emerged is that the first priority of top officers throughout Delhi, from the commissioner downwards, seems to have been to disarm Sikhs and arrest them. The Nanavati Commission’s proceedings also yielded documentary evidence (mainly in the form of Kusum Lata Mittal’s report) giving the lie to the Misra Commission’s finding that the violence escalated because police stations had failed to keep their seniors informed about the gravity of the situation. 

A lot of such tell-tale evidence that has come up before the Nanavati Commission as well as official and non-official reports given over the years in connection with the 1984 carnage have been painstakingly put together in this CD. It is hoped that the CD will, at the very least, serve as a record for the posterity and provide insights into how a state that prides itself on being secular and democratic was complicit in a massacre of members of a minority community. It is also hoped that the Nanavati Commission, conscious of its position in history, will undo the mischief of its predecessor and help the victims secure justice, howsoever belatedly. 

Every citizen concerned about the health of our democracy has a vital stake in helping establish the principle that no political party should be allowed to use mass killings to reap a political harvest. The Congress party did it in 1984 victimising Sikhs. The BJP tried to do it in 2002 victimising Muslims. Since he has been appointed to head the inquiry into the Gujarat riots as well, Justice Nanavati has been conferred, in the eyes of history, a special responsibility to unravel this kind of cynical exploitation of baser instincts. No matter what the outcome of Justice Nanavati’s exertions, this CD is offered as a humble and heart-felt tribute to the thousands of unknown men, women and children who for no fault of theirs were killed, raped, widowed, orphaned or rendered homeless in India’s Capital in those fateful days of 1984.


COMPENSATION TO VICTIMS

While the courts have by and large failed to secure justice to carnage victims, they have been able to make headway on the issue of compensation. But for judicial intervention, the Government would have got away with a meagre compensation. Initially, it gave a compensation of only Rs 10,000 for each death and up to Rs 1,000 to each injured person. As for damage to property, the compensation ranged from Rs 1,000 to Rs 10,000.  Not surprisingly, many victims saw these meagre amounts as a further affront. Some victims even refused to accept the compensation.

In 1986, on the insistence of the Citizens Justice Committee, the Misra Commission asked the Government to enhance the compensation amounts. The Government gave another Rs 10,000 in death cases.

Subsequently, the courts made up to some extent for the Government’s apathy. In 1992, the Supreme Court directed that the interest on the loans advanced to riot victims should be reduced to one per cent between 1984 and 1992. And then in 1996, one compassionate judge of the Delhi high court, Justice Anil Dev Singh, directed compensation of Rs 3.50 lakh for each person killed in the 1984 carnage. The then BJP Government in Delhi accepted this judgment and decided not to file an appeal against it. The enhanced compensation of Rs 3.50 lakh was paid in about 80 per cent of the cases in 1998-99. Some claims are still pending for various reasons.