A stalling game

The Maharashtra Government's responses to demands for the publication of the Srikrishna Commission report appear to reflect an intent to suppress its contents.

WHEN will the Maharashtra Government make public the report of the commission of inquiry that probed the communal riots in Mumbai in December 1992 and January 1993 and the serial bomb explosions that devastated parts of the city on March 12, 1993? If the Government's track record before and after the Justice B.N. Srikrishna Commission submitted the 700-page report on February 16 is any guide, the Government is likely to defer the matter for as long as it finds it legally and/or politically feasible to do so. One cannot even rule out an attempt, through resort to case law, to avoid publication altogether.

The Srikrishna Commission was set up on January 23, 1993, when the Congress(I) was in power in the State, to inquire into the communal riots. The Shiv Sena, which by its own admission took an active part in the riots, was not well disposed towards the inquiry.

Ten weeks after the Shiv Sena-Bharatiya Janata Party alliance assumed power in the State on March 14, 1995, the Commission's terms of reference were expanded to include investigation of the bomb explosions and the possibility of a link between the riots and the explosions. This was seen by critics as a move to dilute the Commission's eventual findings and prolong the inquiry. The Commission was prematurely wound up by the State Government on January 23, 1996, but it was reinstated in May that year, purportedly at the request of the 13-day A.B. Vajpayee Government at the Centre.

The inquiry report was submitted to the Government towards the end of the period of campaigning for the recent Lok Sabha elections - six days before the start of polling in the State, to be precise.

Perhaps the demand voiced by Muslims and other groups for immediate publication of the report was unrealistic. A writ petition in pursuit of the demand was also filed in the Bombay High Court on February 23 by the Mumbai Aman Committee and others. (February 28 was polling day in Mumbai.) But the Government, which had announced on February 26 that the report would be published before the start of the legislature session on March 16, declined even as late as on April 8 to commit itself regarding the tabling of the report in the Assembly before the end of the session on April 24.

This dilly-dallying seems to lend credence to a news report, attributed to government sources, to the effect that the Srikrishna Commission has recommended action against Shiv Sena president Bal Thackeray, Shiv Sena Ministers Liladhar Dhake and Gajanan Kirtikar, Sanjay Raut and Sanjay Nirupam, the executive editors of the Marathi and Hindi versions of the Shiv Sena mouthpiece Saamna, and a large number of Shiv Sena shakha pramukhs (area branch chiefs).

The Government seems to have decided to adopt a legalistic approach to the publication of the report while at the same time giving false promises. During the hearing of the writ petition on March 10 a Division Bench of the High Court admonished the Government: "Before us, you file an affidavit stating that the Government has got six months because the Srikrishna report is a confidential report. And then you tell the people it will be published within a week."

THE law pertaining to the presentation of the report of a commission of inquiry to Parliament or a State legislature, as the case may be, is spelt out in Section 3(4) of the Commissions of Inquiry Act, 1952. In the present case, this Section would require the State Government to lay the report before each House of the legislature, "together with a memorandum of the action taken thereon," within six months of its submission - that is, by August 16.

The Act itself would not bar publication of the report before it is presented to the legislature. According to an affidavit that the Government filed in the High Court on April 3 in reply to the writ petition, however, rules of the legislature provide that reports that have to be laid before the legislature may be disclosed to the public only after they are so laid. Disclosure to the public before such tabling may be "tantamount to a breach of privilege" of the legislature, says the affidavit.

Perhaps Deputy Chief Minister Gopinath Munde was unaware of the rule when he announced at a press conference on February 26, two days before the polling in Mumbai, that the report would be published before the start of the legislature session. Three days earlier, a leading English newspaper had quoted Chief Secretary P. Subrahmanyan as having said that the report would not be made public until it was placed before the legislature.

The Government's first statement on the question of publishing the report was made by Chief Minister Manohar Joshi on February 20. Addressing newspersons in Pune, Joshi ruled out immediate publication. But ever since Munde committed himself to a deadline six days later, the Government has been blowing hot and cold, all the time declaring that it has no intention of concealing the contents of the report.

On March 4, Joshi told newspersons in Mumbai that on legal advice the Cabinet had decided that the report would be tabled before the legislature and that the Government was considering whether to table it without any comments or together with an action-taken report (ATR).

On March 10, Joshi told newspersons that while the practice was to present the report of an inquiry commission along with an ATR, in this case the Government may table only the Commission's report in case the ATR was not ready at the relevant time.

On March 15, on the eve of the session, Joshi and Munde told newspersons that in deference to the wishes of the Opposition, the Government had decided to table the Commission report during the second week of the six-week session and that a discussion on the matter was likely to be held during the final week.

On March 24, the second day of the second week of the session, Joshi admitted in the Assembly that he had promised to table the report during the week but added that the opinion of the Advocate-General (C.J. Sawant) had been sought on whether the Government could table the report unaccompanied by an ATR. He did not respond to a member's statement speculating on the possibility of a crisis within the Shiv Sena (which erupted three days earlier (Frontline, April 24)), affecting the tabling of the report.

On March 25, the Government told the High Court that "if possible" it would place the Commission report, a (Marathi) translation of it and the ATR before both Houses during the current session.

On March 26, Joshi told the Assembly that while he was prepared to table the Commission report "tomorrow" if the law permitted it, he would not buckle under any Opposition onslaught in this regard. He reiterated that the Advocate-General's opinion had been sought on whether the tabling of the ATR together with the report was mandatory.

The next day, Joshi told the Assembly that the Advocate-General's opinion was that the Government was bound to present the Commission report and the ATR simultaneously. He announced the appointment of a seven-member committee of officials headed by the Chief Secretary to consider the report and prepare a memorandum of action to be taken. Joshi said that the committee had informed him that the work would take four or five months, but that he had asked it to submit its findings before April 20. He said the Commission report and the memorandum would be tabled even before April 20 if possible, after the Cabinet had considered them.

(Incidentally, the Government's affidavit filed before the High Court on April 3 gave the date of the GR (government resolution) constituting the committee as March 23. Observers ask why Joshi did not inform the Assembly about it on March 24 and 26.)

On March 30, the Chief Minister informed the Legislative Council that the committee had been asked to submit its findings as soon as possible and that it had been apprised of the Cabinet's plan to discuss follow-up measures on April 20. However, Joshi did not commit himself to a date for the tabling of the Commission report. N.S. Pharande, Deputy Chairman of the House, allowed Congress(I) Leader of the Opposition Chhagan Bhujbal to ask one question. But when Bhujbal sought to know whether the Commission report would be presented to the House by the end of the Budget session on April 24, Pharande announced the next item on the agenda.

On April 4, Joshi told newspersons in New Delhi in the context of the tabling of the Commission report that the preparation of an ATR, with a Marathi translation, would take time.

On April 8, at a press conference in Nagpur, Joshi said that the Commission report could be tabled during the current session only if the committee submitted the ATR by April 24.

IN view of such stonewalling by the Government, one cannot dismiss news reports to the effect that Joshi and Munde called on Prime Minister and BJP leader A.B. Vajpayee in New Delhi on April 4 and pressed for the promulgation of an ordinance (presumably to amend the Commissions of Inquiry Act) which would have the effect of facilitating the non-publication of the Srikrishna Commission report. The Chief Minister said the news reports were "baseless".

The Government has sustained the stonewalling in the face of a determined campaign by the Opposition, in the legislature and outside, for the publication of the Commission report.. It has not been deterred by the flak it has faced from civil rights organisations and from the High Court.

The Government has placed much emphasis on the law governing the tabling of inquiry commission reports before the legislature, specifically Section 3(4) of the Commissions of Inquiry Act. It has highlighted the question of whether the Section mandates the placing of an ATR before Parliament or a State legislature simultaneously with the inquiry report. What has not been highlighted is the question of whether it even mandates the tabling of the inquiry report itself. The word "shall" does not always have a mandatory connotation in law.

Asked whether any High Court had given a ruling on whether under Section 3(4) the tabling of the inquiry report was mandatory, Advocate-General Sawant told Frontline that there was no ruling of any High Court on Section 3(4) of the Commissions of Inquiry Act. But such a ruling does exist. It was given by a full Bench of the Andhra Pradesh High Court in its judgment on writ petition No. 9457 of 1986 (AIR 1987 Andhra Pradesh 53). The relevant part of the judgment reads: "This brings in the question whether Section 3(4) is mandatory or directory. On a consideration of the arguments pressed upon us by both sides, we are inclined to hold that the provision is not mandatory. There is no other provision in the Act which provides for the consequence that flows from non-observance of the requirements of sub-section (4)..."

The Bombay High Court is not bound by a ruling given by another High Court. But that need not prevent the Maharashtra Government from attempting to use the Andhra Pradesh High Court's ruling for the purpose of suppressing the contents of the Srikrishna Commission report. Given the recent manifestations of the Government's attitude to the principle of transparency, it would not come as a surprise if it were to do so.