Setting standards

THE popular perception of judicial commissions of inquiry is that they are a sop to placate agitated citizens; that they take years and their reports are never read, let alone implemented; and that their only beneficiaries are the retired judges appointed to head them.

I have tried to counter this ever since I spent a year attending the second phase of the proceedings of the Justice B.N. Srikrishna Commission of Inquiry into the Bombay riots of December 1992-January 1993. (After three years of proceedings, the commission was wound up by the Shiv Sena-Bharatiya Janata Party (BJP) government in January 1996. It was reinstated in May 1996 and it completed its hearings in July 1997.)

If any judicial commission does what the Srikrishna Commission did, it has justified its existence. This, despite the fact that this commission’s report is yet to be implemented.

Justice Srikrishna was a sitting judge of the Bombay High Court when he was appointed a one-man commission in 1993. He remained a judge when he submitted his report five years later. He was appointed by the Congress government, but when the commission’s report was ready, the Shiv Sena-BJP coalition was in power.

Indicting Bal Thackeray

The one politician held responsible by Justice Srikrishna for the riots (the January 1993 phase) was Shiv Sena chief Bal Thackeray. The commission indicted Thackeray when the latter was at the peak of his political power as the self-styled “remote control” of Maharashtra. The commission also held BJP leader L.K. Advani responsible for vitiating the atmosphere in the country with his 1990 rath yatra. This indictment came when Advani was the Deputy Prime Minister.

These findings only confirmed what participants in the commission’s hearings had sensed: the pleasant, soft-spoken judge was not one to be cowed down by power. Persistent efforts by the Shiv Sena counsel could not prevent the State’s chief executive from stepping into the witness box like a commoner. Disallowing his two counsel from examining the Chief Minister (leading to the resignation of one of them), Justice Srikrishna did the job himself. A pleased-as-punch Manohar Joshi found himself justifying to the judge the use of the abusive term “landya” (circumcised) for Muslims.

Earlier, Shiv Sena MLA Madhukar Sarpotdar had, in a cross-examination taken over by the judge, explained that the theory that he had just articulated to Yusuf Muchhala, senior counsel for the victims, namely that “retaliation was a justified defence against attacks”, held good for his party too. The commission asked him: “Do you think that an attack on innocent people in a remote area like Colaba would be justified because some innocent people were killed in Jogeshwari?” Sarpotdar’s reply: “If the entire background... is analysed, the retaliation even in the remote area was justified. It was just natural.”

In the first phase of the commission’s hearings, Sarpotdar (who would, in 2008, become the only senior Shiv Sena leader to be convicted for hate speech during the riots) had avoided entering the witness box for four months. Just when his cross-examination by counsel for the victims was about to begin, his party’s government wound up the commission.

The theory of ‘retaliation’

Getting Sarpotdar to enunciate the theory of “retaliation” was important because that was how the Shiv Sena, the police and even the then Congress government of Sharad Pawar described the targeting of Muslims in January 1993. The Chief Minister elaborated on Sarpotdar’s explanation while being examined by the commission. “Retaliation”, he explained, could be understood as “a spontaneous and natural reaction, not intended to be destructive, but for the purpose of self-defence, and therefore, constructive”. After a series of questions put to him by the Commission in a most congenial manner, the man in charge of the State finally accepted that the retaliation had not “been done in a constitutional manner within the framework of law”.

But a sitting judge’s courage and skill is not the only reason this commission has set a standard for all judicial commissions. Justice Srikrishna’s contribution to those worst affected by the riots is immeasurable. He restored to them the dignity snatched away from them through no fault of their own. The victims who testified before him were largely lower middle class and uneducated. They had seen their loved ones savagely killed; their pleas to the police had been met with contempt. Many had been viciously targeted by the police despite having done nothing wrong.

Brought to court by members of the one organisation active throughout the riots, the Bombay Aman Committee, the victims would sit quietly at the back, unable to understand the proceedings which were conducted in English. Around them were suited lawyers and, sometimes, the policemen who had tormented them.

But once called to the witness box, they would be treated with such gentle compassion by both the commission and his counsel that they could, in front of a courtroom full of intimidating sahebs, not just recount their ordeal but also stick to their account in the face of cross-examination by a battery of hostile lawyers representing the police, the government, the Shiv Sena and, sometimes, the BJP.

The commission would sometimes object mildly that the questions being asked were irrelevant or that the cross-examination was unnecessary. But he would not stop the cross-examination however long it took. The reason for this would become obvious in the observation he often dictated after the questions ended: “In the face of efforts by counsel to discredit him/her, [the] witness sticks to his/her testimony.”

Among the poorest victims was Himmat Ali. This street vendor from the sprawling Muslim ghetto of Cheetah Camp told the commission, somewhat inarticulately, how he had been made to raise his hands and say “Jai Shri Ram” by the policemen who had pulled down his pants and then shot him in the back. Try as he could, the counsel for the police could not explain why Himmat Ali had been shot because he was listed neither as a riot accused nor as one injured in police firing.

Himmat Ali told this reporter that he had wanted to wear the bullet extracted from his spine as a taweez (amulet) round his neck to his grave, as a mark of having survived a near-death experience. Ultimately, he handed it over to the commission.

Himmat Ali’s testimony made it to the commission’s report as a case where “the police went berserk”. Under pressure from the Supreme Court (where the then Congress worker Naseem Arif Khan had filed a petition urging that the report be implemented), the police filed a case against “unknown policemen” for this incident. Expectedly, nothing came of it.

Many riot victims, especially those targeted by the police, had not bothered to file affidavits for the commission, wanting to just get on with their lives after their nightmarish experiences. But the commission thought it fit to summon some of them. Two such victims were Sugra Bi and Zulekha Sheikh of BIT Chawl, Memonwada, who described—in the chambers—how the State Reserve Police (SRP) men who had raided their chawl had beaten them and made crude sexual remarks. But though some SRP men were paraded before them, they could not identify the culprit.

The Usman Bakery case

Another victim was Noor ul Huda. This madrasa teacher carried the scars of the assault by rifle butts that he had been subjected to by the “commandos” who had raided his madrasa adjacent to Suleman Usman Bakery. Along with 77 others, he, too, had been made an accused in the incident. He had not wanted to get involved, but when summoned to testify, the crusty maulana gave it back to the police’s counsel. His testimony was among those that helped the commission expose the police’s version of the incident—that AK-47-wielding terrorists had been firing on the police from the bakery—as false and indict former Police Commissioner Ram Deo Tyagi for the “excessive and unnecessary firing resulting in the death of nine Muslims in the Suleman Usman Bakery incident”.

The Supreme Court, hearing a petition to implement the report, forced a reluctant government (by then, the “secular” Congress-NCP was in power) to take action against Tyagi, the senior-most officer indicted by the commission. In 2001, Tyagi and 17 other policemen were charged with murder.

When Tyagi was discharged by the trial court two years later, Noor ul Huda became the only person to challenge the discharge—the government did not. Noor ul Huda, a heart patient who had initially wanted to be left alone and avoid the stress involved in pursuing justice, demanded: “Was all that the commission said worthless?” Even after the High Court upheld the discharge, Noor ul Huda did not give up. “I want to show that we are not powerless, we too have guts. History will record that there were people who fought,” he told this reporter. Alas! Even the Supreme Court let him down in 2011. He passed away a year later.

Once a week, Justice Srikrishna would come to court with a tilak on his forehead. It was on one such day that Abdul Haq Ansari, whose Mazgaon workshop was looted and burnt by rioters as the police looked on, testified. Ansari described how he had been assaulted by Inspector Wahule and dragged to the police station after he complained. His wrist was fractured in the assault.

The commission’s report spent more than a page on Ansari and recommended strict action against the three policemen who had dealt with him. “And here I was afraid that this tilakdhari judge wouldn’t believe me!” said a delighted and incredulous Ansari. The finding drove him for years to pursue the indicted policemen, in vain.

The tilak sent an important message not just to the victims but to the entire Muslim community. All through the riots, they had read the police’s version in the press; their own experience had been reported only in bits and pieces. The commission’s report vindicated their word, disbelieved until then. And it did so not just by listening to them but by corroborating their stories with official documents and cross-examination of the police. That a sitting High Court judge had restored their honour was vindication enough; the icing on the cake was that this judge was a practising, Sanskrit-spouting Hindu. “Give me some copies [of the report],” Bombay Aman Committee head Fazal Sha’d told this writer (since the government had printed only a limited number to distribute in the Assembly, a colleague and I printed more). “I want to send them to those Pakistanis who keep taunting me about being a Muslim in India. This report will silence them.”

While reporting on the 1984 Bombay-Bhiwandi-Thane riots and other communal incidents, I had seen the police’s prejudice against Muslims. But the commission’s hearings provided an invaluable insight into how this prejudice worked from the topmost level downwards.

When the riots began in December 1992, inspectors in charge of police stations and even Assistant Commisioners of Police simply ignored Police Commissioner Shreekant Bapat’s orders, issued on December 8 (the eve of a Bharat Bandh called by the BJP-Shiv Sena), to arrest “communal goondas and activists of the Shiv Sena, Vishwa Hindu Parishad and Bajrang Dal and influential goondas of the Shiv Sena” in their jurisdiction. “We had not found a single person answering this description” and “they were not troublemakers” were among the explanations these policemen gave the commission for their dereliction of duty. They were not punished for this by their seniors. Indeed, one of them told the commission he had asked his duty officer to carry out the instructions, but even that junior had not bothered to do so.

In January 1993, a second round of violence was expected. While every policeman was briefed about incidents that had taken place in the first week of January where Muslims were the aggressors, it emerged during cross-examination that senior officers did not brief those on the ground about serious incidents occurring at the same time wherein Hindus were the aggressors.

Then there were the police affidavits. Invariably, describing incidents where police had had to open fire, these affidavits mentioned only the presence of violent Muslim mobs. Yet, their own statistics of those incidents, i.e. the names of persons killed in police firing and in mob violence, the list of property damaged and the public complaints relating to the incident, proved the presence of Hindu rioters there.

The most enjoyable sight during the hearings was that of complacent and indifferent men in uniform literally breaking into a sweat at the relentless cross- examination by counsel for the commission and the victims and often by Justice Srikrishna himself. More than one senior inspector who initially claimed that the violence in his jurisdiction both in December 1992 and in January 1993 had been started by Muslims was forced to admit, on the basis of records provided by his own police station, that Hindus had been the aggressors in half, if not most, of the violent incidents.

Most of the top brass of the police revealed the same mindset. Shreekant Bapat, who was Commissioner during the riots, was sharply questioned by the judge as to why his 172-page affidavit had no mention of the Shiv Sena. “You’re not a politician. Policemen and judges are supposed to name names,” the commission told him. Bapat had even cut out from his affidavit his own directive to police stations to arrest “activists and influential goondas of the Shiv Sena”. “This is a politician’s affidavit,” remarked the judge angrily. “Why this censorship?”

Bapat stuck to his guns: “There was no material available to me to say that any particular party was responsible for the riots.” When he was shown documents prepared by his own men that showed Shiv Sena involvement, he conceded that there was evidence “against Shiv Sainiks, not the Sena as a party”. Yet, this same man, in his deposition, linked Pakistan’s ISI to the riots, even while admitting that he had no “direct evidence” for this claim.

Then there was Ram Deo Tyagi, who breezed through his cross-examination on the Suleman Usman Bakery incident and, while stepping down from the witness box, made a genial remark to the Shiv Sena counsel about his own performance as a witness. Tyagi briefly joined the Shiv Sena after retirement; it was he, as Police Commissioner, who gave the sanction for withdrawal of riot-related cases against Bal Thackeray, a year after the Sena-BJP government came to power. On January 11, 1996, he wrote: “The sovereign power for withdrawal of prosecution is of the Government alone; and in case such power is exercised by [it] for the consideration of public peace, public justice, social harmony, political interest, etc, the courts do not interfere. Considering the changed situation at present, the Government can take appropriate decision for withdrawal of the prosecution, with the permission of the court.”

Where else could a journalist have seen such evidence of police attitudes and functioning? That is why attending the commission’s hearings was no chore but an exciting professional experience. The most important lesson for me as a journalist was the way the commission exposed the myths of the 1992-93 riots that even we in the media believed, about heavily armed Muslims as aggressors; a police force demoralised into inaction in January 1993 by criticism of its excessive firing in December 1992; and hence a “spontaneous Hindu backlash” in January. The commission stood these findings on their head.

Yet, such is the nature of our state and our media that the myths continue to prevail.

Jyoti Punwani is a Mumbai-based journalist who has been reporting on Hindu-Muslim issues since 1976. When the Shiv Sena-BJP government showed no signs of tabling the Srikrishna Commission Report, she brought out a booklet titled “Witnesses Speak”,a compilation of testimonies before the commission.