Wake-up call

Justice B.N. Srikrishna, who submitted his report in 1998.-V. GANESAN

The Maharashtra government is forced to take another look at the Srikrishna report following a Supreme Court directive.

ALMOST a decade has passed since the Srikrishna Commission filed its report on the Mumbai riots of 1992-93. The Commissions recommendations were initially rejected. Some of them were later implemented, but grudgingly. The Maharashtra government has received much flak for ignoring the greater part of the recommendations.

It was only the persistence of several activist groups that helped the riot victims win some semblance of justice. The Action Committee for the Implementation of the Srikrishna Report, a group of human rights activists and Muslim groups, had petitioned the Supreme Court protesting against the Maharashtra governments inaction on the recommendations. Responding to this, on August 1, the Supreme Court asked the petitioners to file an affidavit detailing the governments lapses. A Bench headed by Chief Justice K.G. Balakrishnan gave the petitioners six weeks to furnish the number of cases filed, instances in which cases were not filed or the accused escaped punishment, and instances where public prosecutors did not act to bring a case to trial or prosecutors were not appointed.

The Chief Justice said: If there is complete failure of justice it will be certainly looked into but it has also to be seen that it was only an inquiry report and the action has to be taken by the government. It is not possible for this court to go meticulously into each case but a general direction can be issued for taking action where there were gross lapses

In response, Maharashtra Chief Minister Vilasrao Deshmukh said his government had decided to expedite the implementation of the reports recommendations by creating special fast-track courts to hear the 36-plus pending cases. He said his government was also considering setting up a Special Investigation Team (SIT) to reinvestigate key cases against politicians and police officials who had been indicted in the report.

Ever since it was tabled, it was clear that the Srikrishna report would be a hot potato that political parties would toss away. The Commission, headed by Justice B.N. Srikrishna, a sitting Judge of the High Court of Bombay, was formed in 1993 to inquire into the cause of the riots that shook Mumbai for over two months from December 1992 to January 1993; it also had to identify the perpetrators. The Commission was formed during the time of the Congress regime in the State. But the Shiv Sena-Bharatiya Janata Party combine, which came to power in 1995, disbanded the Commission in 1996. Strong public opinion against the action ensured that it was reconstituted the same year, this time with its terms of reference extended to include the Mumbai bomb blasts of March 1993. In 1998, after five years of painstaking cross-examinations and arguments, Justice Srikrishna presented his report to the Shiv Sena-BJP government.

The report indicted the Shiv Sena, holding it responsible for the bloodshed in the city. It also indicted several politicians belonging to the BJP and police officers. Despite this (or perhaps because of it), no action was taken. In fact, the government rejected the report and called it pro-Muslim and politically motivated. Copies of it were unavailable to the public. To a great extent, the government exploited the Commissions of Inquiry Act, which states that an Inquiry is not a court of law and any report filed has the status of a recommendation only and is not binding on the government.

Ever since the report was filed, various groups have pushed for the implementation of its recommendations. Though the State had previously filed three Action Taken Reports (ATR) in response to the Commissions report, none of them has been satisfactory. It has taken almost a decade of pressure from non-governmental groups for the State government to look at the report again.

The latest move to look into the recommendations is likely to be the most successful. The completion of the bomb blasts trial has given an unintentional impetus to the demand to reopen the Srikrishna report. There is a growing feeling that justice for the victims of the riots was ignored while justice for the victims of the blasts was pursued relentlessly. Since a greater percentage of riot victims were Muslims and the greater number of those convicted in the blasts case were also Muslims, it looks as if Muslims are being persecuted and denied justice. The Supreme Courts order has come at a particularly tricky time for the Vilasrao Deshmukh government. The relations between the Congress and the Shiv Sena were most cordial because of the latters support for Pratibha Patil as the presidential candidate. At the State level, this new friendship could have important ramifications because the Sena-BJP ties have always been tenuous and both the Congress and Sharad Pawars Nationalist Congress Party (NCP), have been on the lookout for an alliance with the Sena. With the Assembly elections scheduled for 2008-09, this would have been the ideal time to break the Sena-BJP partnership.

For the Chief Minister, this is a litmus test. Raking up the Srikrishna Commission will certainly not help any move to inch closer to the Sena. And yet, the brownie points to be gained by implementing the report is tempting the Muslim voters in the State could be won over and Deshmukhs own standing would rise within the party at the national level. Either way, the Chief Minister has a tough choice. The question is how successfully he will juggle political aspirations and moral obligations. Though the Congress has been in power in the State since 1999, it has ignored the report. This, despite a promise in the election manifesto to implement the recommendations.

There is no doubt that the riots were politically motivated and hence aspects of the report that suited political purposes were picked for redress. There are numerous examples of this. Milind Vaidya, a Sena corporator in 1993, had been identified as a key player in the riots by witnesses. Vaidya went on to become the Mayor of Mumbai. But Sanjay Gawande, a policeman who had also been identified by witnesses as having assisted Vaidya in rioting, was dismissed from service after he was indicted in the Commissions report. As a mere constable he was a disposable pawn, to show that the government was carrying out the reports recommendations. Another example is that of Sena Member of the Legislative Assembly (MLA) Madhukar Sarpotdar whose vehicle was stopped and searched during curfew hours then by an Army patrol. Unlicensed firearms and choppers were found in his vehicle. No action was taken against him.

Teesta Setalvad, rights activist and co-editor of Communalism Combat said: Several cases of the most grievous crimes have resulted in acquittals. These acquittals have also been shrouded in secrecy and very often it is the Ma harashtra governments own public prosecutors who advised the State government against appealing these cases.

This is true in the Madhukar Sarpotdar case and even in the R.D. Tyagi case. Similar evidence was documented in the case of other Sena and BJP leaders such as Bal Thackeray, Ram Naik and Gopinath Munde, but no arrests were made. The excuse given at that time was that the arrest of a popular politician would fuel more riots. But even after the riots, they were not brought to book.

Perhaps the most shocking aspect of the riots was the complicity of the police with rioters and political leaders who were instigating the communal attacks. The Commission has recorded hundreds of witness statements that give detailed descriptions of how the police aggressively participated in riots or stood mutely while Muslims were being killed.

The report had bluntly stated: The evidence before the Commission indicates that the police personnel were found actively participating in riots, communal incidents or incidents of looting, arson and so on. The Commission strongly recommends that Government take strict action against them. In spite of the Commission indicting 31 policemen, virtually no punishment has been meted out to them. In fact most of them continue to be in service. About five of them have even been promoted. Only one was dismissed. Several of them were exonerated.

Human rights groups and Muslim organisations have been demanding for some time now that the cases be re-examined and a fresh inquiry conducted. Why should innocent riot victims have cases pending against them when policemen found guilty of murder, loot and torture go scot-free? asks Shakeel Ahmed of the Nirbhay Bano Andolan, an organisation fighting for justice for the riot victims since 1993.

Activists and riot victims demand that the State set up SIT to reinvestigate the cases. It is crucial that this team be composed of members who have unimpeachable credentials, says a list of demands released by a group of organisations campaigning for the implementation of the report. They are also demanding the reopening of 1,300 Summary A cases (cases which are authentic but remain undetected).

Although the Chief Minister is unwilling to commit to the SIT demand, he has directed, under mounting pressure from the public, City Police Commissioner D.N. Jadhav to constitute a Mumbai Police Committee. The committee will look into the lapses in the action taken against police officials and politicians for their alleged role in the riots. Jadhav says once all claims are made, the committee will respond to them in a systematic and transparent manner. Wherever any lapse is found, we will address it immediately. Once our action is complete, we will submit the report to the court, he said. Jadhav has asked for three months to complete the task. Additionally, Jadhav says, he has set up a special cell that will report the exact position of the 894 cases for which the police had filed charge sheets. He said he would look into the question of reopening the Summary A cases.

Among the shameful tales of excesses committed by the police was the role of former Director-General of Police R.D. Tyagi. This case typifies the attitude of successive governments towards punishing the perpetrators of the riots. Tyagi, a Joint Commissioner of Police at that time, stormed into the Sulieman Usman Bakery on Mohammed Ali Road and shot nine Muslims in the back at point-blank range. During his trial, he defended himself by saying that he had information that Muslim rioters were hiding in the bakery. He and his team had decided to flush out these men. Witness accounts, however, say there were hardly any people in the bakery or around it as a curfew was on. Reportedly, there was enough evidence to incriminate Tyagi but he got off lightly. The State failed to appoint a senior prosecutor.

Tyagis case exemplifies the cosy police-politician relationship. He went on to become Commissioner of Mumbai Police in the Sena-BJP regime and retired as DGP. He then joined the Sena, and even fought (and lost) an election on the Sena ticket. Today he runs a successful security agency. In 2005, the State government said it would file an appeal in the Supreme Court to discharge the order on Tyagis case. Till date no appeal has been filed.

Another high-profile case is that of Nikhil Kapse, who is now an assistant inspector in the Economic Offences wing of the Mumbai Police. According to witness accounts, Kapse, a sub-inspector at the time of the riots, led policemen into the Hari Masjid on Mohammed Ali Road and fired upon a group of people doing namaz. Many were shot in the back. He later claimed they were shot outside the mosque. Kapse then took the men he had injured and some others to the police station and charge d them with rioting. The Commission categorically states: Kapse is not only guilty of unjustified, unprovoked firing but also of inhuman and brutal behaviour during the incident. Yet the government exonerated Kapse.

Farookh Mapkar, one of those who was shot at by Kapse and charged with causing tension, has spent the past 14 years trying to fight his case. Mapkar has repeatedly tried to file a First Information Report (FIR) on the Hari Masjid incident, but the police have blocked his efforts. The Bombay High Court is now hearing his case and many involved in the masjid incident are hoping Kapse will be brought to book by the higher court.

Despite the three ATRs, there is a prevailing feeling that justice has not been done. The ATRs have not addressed the main aspects of the report. There is also a distinct lack of transparency in the manner in which the State government dealt with the recommendations. For instance, it claims to have taken action against 46 policemen who were indicted but provides no details of their identity, their crime or punishment given. In an effort to widen the communal divide, subversive elements have tried to say that the 1992-93 riots and the 1993 bomb blasts were unrelated incidents, but it cannot be denied that the blasts were a reaction to the riots. Justice Srikrishna correctly wrote in his report: One common link between the riots and the bomb blasts appears to be that the former [seems] to have been a causative factor for the latter

Despite this, there has been a distinct difference in the manner in which the two have been handled. One reason for this is that the bomb blast cases were tried by a court of law while the riot cases were assigned to a Commission of Inquiry whose recommendations are not binding on the government. But even those riot cases that are being tried by a court of law have lagged behind shamefully.

The punishments awarded to those indicted in the bomb blast trial and those indicted by the Commission are poles apart in the matter of severity. In the recently concluded blasts trial, the Special Court gave 11 death sentences and 20 life sentences in a total of 138 cases. The seemingly mild involvement of keeping a bag of explosives won a 64-year-old woman five years of rigorous imprisonment. In comparison, here are statistics from the riots: 2,270 cases were registered during the riots. Charge sheets were filed in 650 cases. About 350 cases are still pending with the court. Justice would have been served to some extent if the Commissions recommendations were implemented.

Approximately 900 people lost their lives in the riots, of which 575 were Muslims. The blasts claimed 257 lives. The intention here is not to compare the two. It is merely to add the statistic to the body of evidence that exists but is not being applied in the quest for justice.