A tale of two ATRs

Print edition : January 16, 1999

The existence of two Action Taken Reports on the Justice S.S. Dani Commission of Inquiry Report on the death of 104 members of the Gowari tribe in Nagpur in 1994 raises questions about the Shiv Sena-Bharatiya Janata Party Government's motives in the matter.

FOR the Shiv Sena-Bharatiya Janata Party Government in Maharashtra, it would appear, Action Taken Reports (ATR) on judicial inquiries are not necessarily studied responses to facts and recommendations. Instead, they are platforms from which political polemic may be delivered, scores settled, and votes won.

The revelation that there exist two published ATRs on the report of the Justice S.S. Dani Commission of Inquiry into the death of 104 members of the Gowari tribe in Nagpur in 1994 would seem to underline the alliance Government's disregard for facts. The first ATR was scrapped to accommodate gratuitous attacks on Congress(I) leaders. This was done, among other things, to shield the Government from the political fallout of a second inquiry, by Justice S.D. Gundewar, into state violence against Dalits in Mumbai. This chicane, Frontline's investigation found, had its roots in the manipulation of the ATR on the Justice B.N. Srikrishna Report to suit the Shiv Sena's communal agenda (Frontline, September 11, 1998).

Congress(I) Legislature Party leader Chhagan Bhujbal dramatically announced on the floor of the Assembly the existence of two ATRs on the Dani Commission Report. The draft ATR produced by Bhujbal had gained Cabinet approval and had been sent to the Government Press in Mumbai. Copies bearing the marking H-2103 were printed for distribution in the Assembly during its session in Nagpur. Then, suddenly, the printed copies were ordered scrapped. Fifteen paragraphs were inserted and the ATR was printed again, possibly in a hurry at a private press; this time the document bore no official government press markings.

The scene of the November 1994 stampede in Nagpur following a police lathicharge on workers of the Adivasi Gowari Samaj Sanghatan. The workers were marching towards the Maharashtra Legislature building to press for Scheduled Tribe status. The BJP-Shiv Sena Government's handling of the report of the Dani Commission, which went into the incident, betrays its attempt to derive political mileage from the tragedy.-

Few people paid serious attention to Bhujbal's statement, but the 15 new paragraphs render the Shiv Sena's objectives transparent. The Dani Commission's terms of reference, the reworked paragraph 8 of the final ATR points out, had been pared down by the Shiv Sena-BJP Government on February 23, 1996. Two key points, to "fix the responsibility of agencies or individuals responsible for the incident" and to determine whether there were "any external agencies that provoked the incident", were deleted.

Paragraph 8.3, introduced in the reworked ATR, rails at what it claims is the Dani Commission's decision to ignore the deletion of these points in the terms of reference. "The Commission," it asserts, "went beyond its terms of reference (and) has made observations about the responsibilities of the Chief Minister and other Ministers." This the Government found to be "incomprehensible", particularly since the Commission "has absolved everybody whose inadequacy brought about the event". "Hence," the paragraph concludes, "it has become necessary for the State Government to take note of the Commission's observations and also to express opinions on them."

Those opinions throw up questions about the purpose of a Commission of Inquiry in the first place. Although the Dani Commission found that the then Chief Minister, Sharad Pawar, was not aware of the demonstration in Nagpur by members of the Gowari tribe, as he had been away in Mumbai when the incident took place and was not briefed about it, the State Government inserted a new clause to say that it believed otherwise. Paragraph 8.8 asserts that had "the Chief Minister found time to go to the morcha or asked one of his senior Ministers to go to the morcha or meet the delegation, then the tragic death of innocent persons including women and children could have been avoided."

The reworked ATR was similarly emphatic with regard to Pawar's Tribal Development Minister Madhukarrao Pichad. The Dani Commission found no reason to accept the allegation that Pichad had deliberately avoided meeting the protesters by saying that he had urgent work in the House or had asked Social Welfare Minister Surup Singh Naik or his Minister of State Maruthrao Kowase, to meet the delegation. But in paragraph 8.10, the Government differs with this view. Even if Pichad had responsibilities in the Legislature, it said, he should have "taken into account the sensitivities of the Gowari question." Options such as asking the Speaker for a recess, the ATR says, were open to him.

The last of the inserts to the final ATR, paragraph 8.15, ends with what can only be compared to an election speech. "This Government," it concludes, "has always opined that the then-Government was indifferent while handling morchas by the backward classes, the downtrodden and the neglected sections of society." "This Government's view should be seen against the background of the then-Government's bearers of high office. The Commission has gone beyond its terms of reference to absolve the then-Chief Minister and other Ministers of responsibility for this avoidable tragedy."

But what provoked the Shiv Sena-BJP Government to insert 15 paragraphs which its own Cabinet had just weeks earlier seen no need for? Sources told Frontline that the decision was made when it became clear that the Nagpur session would see an assault on the Government's record in office. The first proposal put forward by the Shiv Sena was for a fresh judicial inquiry after a summary rejection of Justice Dani's work. This was shot down by BJP leader and Deputy Chief Minister Gopinath Munde, who pointed out that the Mumbai High Court was unlikely to depute a judge for the express task of rebutting the findings of a brother judge.

Shiv Sena leaders, however, remained insistent. Allegations of Sharad Pawar's apathy had paid the party rich dividends, leading among other things to Pichad's resignation on moral grounds. Should Dani's report go unchallenged, it would prove deeply embarrassing. The 15 paragraphs were pushed in, leading to the current embarrassment of the Government. Curiously, reliable sources told Frontline that a top Shiv Sena leader had telephoned Sharad Pawar to inform him of the insertions, claiming that the move was the handiwork of Munde. This was evidently a move to avoid any reprisals if and when the Congress(I) takes power.

The Shiv Sena-BJP had reasons other than the obvious to rework its Dani Commission ATR. For one, the release of the Justice Gundewar Commission of Inquiry Report into the police firing at Ramabai Ambedkar Colony in Mumbai had destroyed the pro-Dalit credentials that the Government had sought to acquire through its pursuit of the Gowari deaths. The firings on July 11, 1997 had led to the death of 10 unarmed Dalit protesters who were incensed at the garlanding with chappals of a statue of Dr. B.R. Ambedkar in the slum.

Justice Gundewar was unable to discover just who had executed the garlanding, but the Commission succeeded in debunking two key government claims. The first, put forward by Chief Minister Manohar Joshi himself, was that the police firing was in response to an effort by protesters to set on fire a truck carrying liquefied petroleum gas. The second is to tear apart a Shiv Sena-authored smear campaign which claimed that Bhujbal had engineered the garlanding in order to embarrass the Government.

Paragraph 8.40 of the Gundewar Report, which severely indicts Sub-Inspector M.Y. Kadam for his decision to open fire, asserts that "oral evidence leads to the inevitable inference that the police did not use any force before resorting to the firing, that there was no provocation for firing, that it was not in self-defence, that it was not for saving further damage by the alleged apprehension of blast of gas tankers, that it was neither justified nor warranted, and it was on the other hand indiscriminate." Kadam, Justice Gundewar concluded, acted with "wanton disregard to the legal provisions".

The Gundewar Commission's exposure as fiction of a self-defence theory which had the endorsement of the Chief Minister has obvious implications. As serious is the Commission's discovery that the Shiv Sena's claim that Bhujbal had engineered the trouble was untrue. The Shiv Sena had produced Rajendra 'Gupta' Agarwal, a Shiv Sena corporator elected from the Shahada Municipality in 1991, at press conferences in Mumbai as a witness to the supposed plot and published his story in Saamna, the party's mouthpiece. Agarwal told the Commission that Bhujbal, with whom he had a passing acquaintance, had asked him on the evening of July 8, 1997, to defile the statue.

This account was rejected by the Gundewar Commission. Agarwal's testimony, the Commission's Report records in paragraph 5.14, "does not inspire confidence for more than one reason". Aside from discrepancies in the dates cited by Agarwal, the report points to the small-time politician's police record and his failure to share what Bhujbal supposedly told him with anyone until 10 days after the firing. "The above being the quality of evidence of the witness," Justice Gundewar concluded, "it would be risky and hazardous to hold merely on the basis of his testimony that Shri Bhujbal had told him to desecrate the statue."

While the Shiv Sena-BJP Government has announced Kadam's suspension, this in itself is unlikely to win back Dalit support for it. Bhujbal, for one, is separately pursuing libel actions against both Agarwal and Shiv Sena president Bal Thackeray. Both cases are scheduled for hearing shortly. Then, Dalit groupings except the poet-turned-politician Namdeo Dhasal's Dalit Panther faction have reacted to the Government's handling of the Commission's findings with outrage.

Read in the light of the Gundewar Commission's findings, the alliance Government's motives for launching an attack on the Justice Dani Commission are only too evident. In important senses, the Shiv Sena's gross political manipulation of the ATR on the Dani Commission Report illustrates the fact that it is becoming something of a persistent recidivist in the matter of ignoring judicial critique. Just as Justice B.N. Srikrishna's inquiry into the Shiv Sena-engineered communal violence of 1992- 1993 was subjected to accusations of bias, so the Dani Commission was attacked for essentially political ends.

THE similarities are deeper than are evident at first sight. Consider the changes made in the draft ATR on the Srikrishna Commission Report, as prepared by Gopinath Munde and circulated by the Home Department a fortnight before discussions on its findings were scheduled to begin on August 6 last year. Copies of the draft ATR obtained by Frontline show that it was almost entirely silent on observations against Bal Thackeray and the Shiv Sena, notably the first four of the Commission's conclusions. No response was made to Srikrishna's criticism of the Shiv Sena's pre-riot mobilisation programme either.

Meetings that followed saw the insertion of a Shiv Sena addition at the end of Munde's draft. This expressed regret that the Srikrishna Commission had not arrived at the whole truth about the riots. Instead, it said, from "the Commission's analysis it is seen that the Commission while making its recommendations or while coming to its conclusions has not considered all aspects of the riots and all sections responsible for them." "It has favoured one community and has held the other totally responsible for the riots. The Government has accepted the recommendations for improving the police administration and effective control of riots. But the Commission's dual-standard of taking the side of one community between the two is not acceptable to the Government."

This half-page insertion was to acquire monumental proportions in the final ATR. To the Commission's supposed communal bias, finally published in a marginally modified form, was added the claim that the Commission failed to understand "the difficulties of the police, the exceptional mental stress and physical strain which the entire force underwent over the prolonged period of three months, braving brutal and violent attack." The Government, the final ATR recorded, "is of the view that some of the conclusions are one-sided, biased and arrived at with a view to indict a particular person or community." "Therefore, the Government rightly fears that after five years, the wounds instead of being healed will be reopened again and may start festering."

The purpose of this additional polemic, followed by a paragraph full of claims that the Shiv Sena-BJP Government was committed to communal peace, was clearly political. Such use of ATRs and judicial commissions of inquiry is becoming sadly commonplace. The BJP-led Union Government, for example, had attempted to use Justice M.C. Jain's alleged findings to attack emerging political rivals, notably Subramaniam Swamy. Of the Maharashtra Government, Bhujbal says, "They have played this game because slander is the only tool still available to them." The real casualty of such strategies, however, is not politicians but the truth.

Where official documents were not immediately available in English, translations of Marathi texts have been relied on here. There may be minor variations in some cases, therefore, between the official documents in English and quotes used in this article.

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