Seeking legal redress

Print edition : August 29, 1998
R. PADMANABHAN in Mumbai

WITH the prospect of a serious political agitation against the Maharashtra Government's rejection of the Justice B.N. Srikrishna Commission Report having receded, those who wish to see justice rendered to the victims of the 1992-93 communal riots in Mumbai are turning to the courts.

A number of political parties, including the Congress(I), as well as non-governmental organisations and civil rights groups, are working on legal strategies to force the prosecution of those whom Justice Srikrishna has indicted for their role in the riots. On August 13, a writ petition was filed in the Bombay High Court by Samajwadi Party functionary Tushar Gandhi, who is Mahatma Gandhi's great grandson.

Tushar Gandhi's petition sought a direction to the State of Maharashtra and the Director-General of Police (DGP) to initiate criminal proceedings against those whom the Commission has identified and mentioned by name as "the people responsible for various crimes committed during December 1992 and January 1993." The petition notes that the Srikrishna Commission Report has detailed the offences committed by "Shiv Sainiks within the jurisdictions of different police stations in Mumbai" and "identified and named the culprits, including policemen who have committed, aided or abetted or instigated serious offences."

The Srikrishna Commission Report, Tushar Gandhi's petition points out, also expressed "displeasure over either non-registration of cognizable offences against such offenders or non-pursuance of the investigation in these cases in accordance with the law."

The petition submits that the DGP "is bound to take cognizance of the evidence collected and the findings given by the Commission with the recommendations in the report" and that he "is expected to act under the Code of Criminal Procedure against all those against whom there is evidence collected by the Commission." It therefore seeks action under the provisions of Sections 154, 156 and 157 of the Code of Criminal Procedure. Section 154 deals with information to the police in cognizable cases, those cases in which a police officer may arrest the accused without a warrant. Section 156 reads: "Any officer-in-charge of a police station may, without the order of a magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try." Subsection (1) of Section 157 states that if "an officer-in-charge of a police station has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate, he shall forthwith send a report of the same to a magistrate empowered to take cognizance of such offence upon a police report" and shall proceed "to investigate the facts and circumstances of the case, and if necessary take measures for the discovery and arrest of the offender."

The fundamental intention behind Tushar Gandhi's writ petition is to impress on the court that since under the Code of Criminal Procedure it is obligatory for the officer-in-charge of every police station within whose jurisdiction the Srikrishna Commission found that riot-related crimes were committed to investigate the offences, there is a corresponding obligation cast on the DGP. Although the State Government has rejected the core of the Srikrishna Commission Report, its Memorandum of Action to be Taken on the report promises that all "the lapses/inadequacies as observed by the Commission will be brought to the notice of the Director-General and Inspector-General of Police, Maharashtra State, Mumbai and others concerned. They will be directed to take necessary action." The significance of this paragraph and the question of what bearing, if any, it would have on the fate of the writ petition are a subject of speculation in legal circles.

The petition submitted that there was no provision in the Commissions of Inquiry Act, 1952 to support the contention that the Srikrishna Commission Report was not binding on the Government. "The fact that the Act contemplates that the Government is bound to file Action Taken Report presupposes that the report is binding," the petition argues. The petition further says that there is "no just, reasonable or equity-based ground" that the Government has stated for not prosecuting those indicted by Justice Srikrishna. "The Chief Minister appears to be under tremendous political constraint not to act in a just and fair manner in the matter of arrest and prosecution of his party chief and other leaders and workers indicted by the report," the petition notes.

Experience of efforts to bring about court interventions in such cases has been mixed. Several Commissions of Inquiry set up to investigate the anti-Sikh riots of November 1984 in Delhi, for example, proved infructuous because of inaction by successive governments. Subsequent initiatives in the courts, however, succeeded in ensuring the prosecution of key Congress(I) politicians who allegedly played an important role in engineering trouble. But such legal strategies have proved time-consuming, and their concrete results in terms of convictions are still limited. Significantly, despite considerable evidence of the Shiv Sena's involvement in criminality in the past, police investigation and legal intervention have both been conspicuous by their absence. In the absence of a political will to ensure action against those responsible for the riots, justice for the victims may prove elusive.

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