Citizens’ inquiries

Print edition : April 09, 2021

A school in North East Delhi’s Shivpuri, after a fire started by rioters in February 2020. Communal violence often tests the integrity of judges heading commissions of inquiry. Photo: Bibek Chettri

Notice giving names of members of the commission set up by the Punjab Sub-Committee of the All India Congress Committee to look into the events of April 1919 in Punjab.

The entire history of India’s freedom movement is studded with inquiries by citizens’ bodies. The exercise is voluntary and the noise it arouses is a testimony to its high credibility.

“CAN there be a parallel judicial system? I cannot have my own tribunal. If you have grievance go to the competent court. I cannot have my own fact-finding committee.” The remarks were made by Tushar Mehta, Solicitor-General, on February 23 before a Division Bench of the Delhi High Court comprising Chief Justice D.N. Patel and Justice Jyoti Singh. He was speaking on a petition which challenged five reports by private individuals and non-governmental organisations (NGOs) on the riots in North East Delhi last year.

The petition was filed by the head of a school management; the school had been set on fire during the riots. His plea was that the reports affected the cases registered by the police on the arson. The court rightly issued notices to the Delhi Police and the Government of India to file their response and declare their stand by March 26 (Indian Express, February 24, 2021).

It is only right that the issue is settled once and for all. The entire history of India’s freedom movement is studded with inquiries by citizens’ bodies. The tradition continued after independence and was followed in the Delhi case as a matter of course. There is no difference in law between reports of citizens’ inquiries and those of a public-spirited individual prepared to do the hard work or, for that matter, the press. After every major riot, newspapers carry detailed reports by their correspondents. This writer can recall one outstandingly able, honest and thorough report by Prem Shankar Jha, then Assistant Editor, The Times of India, at Bombay, into the Bhiwandi riots of May 1970. Having appeared as counsel before the Commission of Inquiry looking into the riots, comprising Justice D.P. Madon of the Bombay High Court who rose to be a judge of the Supreme Court, I can testify to the worth of Prem Shankar Jha’s excellent report.

Neither a press report nor the report of a citizens’ inquiry can prevent the state from instituting an inquiry with all the powers and sanctions under the Commissions of Inquiry Act, 1952. In both cases, the credibility of the report depends on the integrity and thoroughness of the effort. By itself, the report of a commission of inquiry has no legal force. In the last four decades, India has been treated to reports of commissions of inquiry headed by hand-picked judges of the Supreme Court which received no credibility.

V.P. Singh’s revelation

The frequency with which the talent of particular judges was tapped was less a testimony to their independence and ability and far more the apparent acceptability of the favourites to the Government of India. Vishwanath Pratap Singh, later Prime Minister of India, revealed in the Lok Sabha on December 14, 1987, during the debate on the report on the Fairfax scandal by Justices M.P. Thakkar and S. Natarajan of the Supreme Court, how these geniuses were hand-picked for the job at a meeting called by Prime Minister Rajiv Gandhi. It was attended by V.P. Singh as Defence Minister. He testified that Law Minister P. Shiv Shankar, the most despicable to have held the office until then, brought a list of judges among whom these two geniuses were preferred to the rest who were dubbed “hostile to the government” (Indian Express, December 15, 1987). For good measure, Chief Justice of India R.S. Pathak also selected them. To convey an impression of “judicial independence”, he assigned to them a room in the Supreme Court building in which they could conduct their nefarious exercise.

In the instant case of the Delhi riots, two busy lawyers gave their precious time to the noble effort, for free, in the discovery of the truth about the riots which the establishment and its “godi media”, as Ravish Kumar aptly calls it, carefully suppressed.

Also read: Aftermath of Delhi Riots: Scarred & scared

One of the reports was by the Citizens and Lawyers Initiative; senior Advocate Chander Uday Singh edited the report. The other report was by a statutory body, the Delhi Minorities Commission. Its fact-finding body was headed by M.R. Shamshad, Supreme Court Advocate-on-Record. He has won a deserved reputation for his integrity, professional competence and commitment to public causes. It is understandable that his report caused discomfiture in some quarters; for, it found a truth that did not please these quarters, which had tried to suppress it. The report concluded that the Bharatiya Janata Party (BJP) “leader” Kapil Mishra’s speech at Maujpur had triggered violence in several areas. “Police were also complicit and abetted the attacks,” it said, citing multiple testimonies. There are five reports in all. Shamshad’s report is available as a booklet.

Why did the Narendra Modi government not appoint a full-fledged commission of inquiry into the Delhi riots headed by judges who inspired confidence in all? The sad truth is that the commission of inquiry today is a totally discredited institution, thanks mostly, but not entirely, to Indira Gandhi and judges who betrayed the public trust and abandoned a glorious tradition. Justice M.C. Chagla’s report on the LIC-Mundhra scandal (1958) led to the resignation of a powerful Finance Minister, T.T. Krishnamachari, from the Union Cabinet against the wishes of Prime Minister Jawaharlal Nehru. He was also displeased at former Chief Justice of India S.R. Das’ report, which forced another Nehru’s favourite, Partap Singh Kairon, to resign (1960) as Chief Minister of Punjab. Justice B. Lentin’s judgment in the Bombay High Court forced Indira Gandhi’s favourite, A.R. Antulay, to resign as Chief Minister of Maharashtra. Neelam Sanjiva Reddy resigned as Chief Minister of Andhra Pradesh after the Supreme Court passed strictures on his conduct.

Judges on communal riots

Communal riots test judges. Justice Raghuvar Dayal, formerly a Supreme Court judge, performed badly as commission of inquiry into the Ranchi riots of August 1967. The procedure he adopted flouted the rules. Evidence was recorded in camera without sworn affidavits by witnesses. They were not cross-examined. He attributed the riots to the “distrust” created by “pro-Pakistani-Muslims” – a good revelation of his own outlook. In contrast are two outstanding instances of impartiality and thoroughness. The Ahmedabad Riots Inquiry Commission comprising a great Supreme Court judge, Justice P. Jaganmohan Reddy, and Justices A.S. Sarila and N.K. Vakil. The report is a masterpiece, as is the Madon report on the Bhiwandi riots.

As the political warfare intensified after the Congress split in 1969, pressure mounted on judges to reveal their “commitment”. The Janata Party government set a bad example by appointing Justice J.C. Shah on the commission of inquiry on the Emergency excesses. He had attacked the 42nd Amendment at a public meeting in the K.C. College Hall in Mumbai in 1976. He ran a coach and four through the rules during the inquiry.

With Indira Gandhi’s return to power in January 1980, vengeance had full play. Judges succumbed.

1. The Kudal Commission on Gandhi organisations (1982). Justice P.D. Kudal had a long record as a politician before he became a High Court judge. He stooped so low as to accuse a happily married woman of adultery, a charge as false as it was irrelevant. Justice K.K. Mathew was a favourite. In his report on the assassination of L.N. Mishra, he devoted a whole chapter on censuring Jayaprakash Narayan, in total irrelevance to his terms of reference. He was well rewarded.

2. K.K. Mathew was chosen as a judge to determine the territorial issue between Punjab and Haryana. He headed his Second Press Commission and the Law Commission. His award on the Punjab-Haryana dispute was withheld from the President Giani Zail Singh except in an expunged form. It wrecked the Punjab Accord. Thereafter, Justice E.S. Venkataramaiah was appointed on April 2, 1986. He had refused even to consider Ram Jethmalani’s habeas corpus for the release of Akali leaders. He was followed by Justice D.A. Desai on June 20, also of the Supreme Court, with a mandate to decide within 24 hours. He agreed – only to fail. These Supreme Court judges, primarily K.K. Mathew, contributed to the wreckage of the Punjab Accord.

Also read: How hate is brewed in Hindutva’s laboratory

For the Ranganatha Misra report on the Delhi massacres in 1984 following the assassination of Indira Gandhi, proceedings were held in camera. Cross-examination of witnesses was not allowed. A prime suspect, H.K.L. Bhagat, was “not likely to misbehave in the manner”, wrote this judge of the Supreme Court.

Justice M.P. Thakkar of the Supreme Court probed Indira Gandhi’s assassination as commission of inquiry. He found “needles of suspicion” pointing to her devoted aide, R.K. Dhawan. He was appointed to a commission of inquiry jointly with Justice S. Natarajan of the Madras High Court on the Fairfax scandal. Natarajan had showered fulsome praise on Indira Gandhi in a case on the immersion of her ashes in Madras.

The Jain Commission on Rajiv Gandhi’s assassination ranged far and wide; apparently at one time he thought of summoning Yasser Arafat and came close to wrecking the criminal trial of the conspirators in the case. Justice J.S. Verma of the Supreme Court cleverly kept the easier part of the matter, namely security, for his investigation and made a mess of it.

It is perhaps too early to pronounce the death of the statutory commission of inquiry. No one gives a hoot for Narendra Modi’s Nanavati Commission on the Gujarat pogrom in 2002.

Precedent set by Gandhi

But the citizens’ inquiry soldiers along, and not in India alone. It flourishes also in the United States and in the United Kingdom. Indians are following the precedent set by none other than M.K. Gandhi. On October 14, 1919, the Government of India appointed, by an executive order, a committee to inquire into the “disturbances” in Punjab, Delhi and Bombay. It comprised seven members, three of whom were Indians – Sir Chimanlal H. Setalvad, Sir Sultan Ahmed Khan and Pandit Jagat Narayan. The Punjab Sub-Committee of the All India Congress Committee appointed a commission to inquire into the events of April 1919 in the Punjab. Its members were “Mr. M. K. Gandhi, Barrister-at-Law”, C.R. Das, Abbas S. Tayabji and M.R. Jayakar, barrister; and its secretary was K. Santanam. In 1976, Desh Publication of New Delhi published the full texts of both reports with illustrations and annexures.

Jayakar records in his memoirs that Gandhi gave them a hard time with his strictness on the accuracy of statements of fact. Which report commands greater credibility today, a century later, the official or the private? The official report had a long minute of dissent by the Indian members written by Sir Chimanlal Setalvad. His brilliant cross-examinations thoroughly exposed Reginald Dyer, the main culprit. He had angry exchanges with Lord Hunter, the Chairman; independent India has yet to do honours to Sir Chimanlal.

The AICC next produced the Peshawar riots inquiry report. It was followed by a masterpiece – a report on the communal riots in Kanpur on March 24, 1931. The historic Karachi session of the Congress passed a resolution on March 30, 1931, “to discover the causes of the tension” and to heal the breach. It set up a committee of inquiry comprising Purshottam Das Tandon, Khwaja Abdul Majid, T.A.K. Sherwani, Zafar-ul-Mulk, Pandit Sunderlal. Dr Bhagwandas, as its Chairman, submitted the report of the inquiry committee to the president of the AICC, Vallabhbhai Patel, on October 4, 1931.

Also read: Why do riots erupt?

It is a massive document of abiding relevance. The British banned the report in 1933 because of its contents. They did not question the right to hold “a parallel inquiry” into the riots. The report was published in book form in 1976 (Roots of Communal Politics, edited by N.G. Barrier, Arnold-Heinemann, New Delhi, 485 pages). It goes to the very roots of the communal problem beginning from 636 AD. It provides a fitting answer to the Rashtriya Swayamsewak Sangh’s (RSS) ghar wapsi (return to Hindu fold) thesis.

These precedents were emulated in the wake of the anti-Sikh pogrom in New Delhi in November 1984 and the anti-Muslim pogrom in Gujarat in 2002. The Editors’ Guild sent a fact-finding mission to Gujarat comprising Aakar Patel, Dileep Padghaonkar and B.G. Verghese. Their excellent report entitled “Rights and Wrongs: Ordeal by Fire in the Killing Fields of Gujarat” was published on May 3, 2002. Its 254 pages document authentically inflammatory writings that were circulating in Gujarat amidst the killings.

To this tradition belongs the report of the concerned Citizens Tribunal – Gujarat 2002. Its members were Justices V.R. Krishna Iyer, Hosbet Suresh and P.B. Sawant, besides Aruna Roy, K.S. Subramanian, Prof. Ghanshyam Shah and Prof. Tanika Sarkar. It draws on authentic primary sources.

At page 79 of Volume II of the report, the Tribunal strongly censures Chief Minister Narendra Modi, “the Chief Author and Architect of all that happened in Gujarat after the arson of 27 February 2002”. Chief Justice of India V. M. Khare called him “Nero” in a judgment.

Pray, which report would you rely on? This one, or that of the bogus Nanavati Commission?

In the United States non-governmental reports on outrages on blacks carry greater weight.

Citizens set up probes only when the state is perceived to have failed or, as in Delhi, is openly partisan. The “notices” such inquiries send out to witnesses are requests. The entire exercise is voluntary. The noise it arouses is a testimony to its high credibility.

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