Lassnet

 

STATUTORY PREVARICATION

COMMISSION OR OMMISSION?

(Mukul Sinha)

Prologue:

Six months  back, when I was asked by Lassnet to send the summary of what I would be presenting in January, 2008, I had said that the Commission of Inquiries Act, as implemented in the present days, provided a convenient machinery for prevarication. I had even lamented that despite the passage of about half the period of Ramayan, the Nanavati Commission was still laboring to get to the truth of the Godhra and post Godhra incidents. Just a month or so thereafter, on 26th July, 2008, the devastating bomb blasts shook Ahmedabad killing several innocent citizens. Large number of SIMI activists and several masterminds including, Abu Bashar of Azamgad and Safdar Nagori of Madhya Pradesh were arrested. Soon thereafter, on 13th September, 2008, the serial bombing in Delhi left behind yet a large number of people dead or injured. Many more SIMI activists were arrested. The Sangh Parivar lost no time in spreading their favorite political line; the spectre “Islamic terrorism” endangering the security of the country.All spaces, be that in the print media or the electronic media, be it in a public placeor in a private drawing room, are fully occupied by this spectre; a sterile nation incapable of focussing on any other issue. A fertile ground for politics of deceit.

PART ONE REPORT OF NANAVATI COMMISSION:

This perhaps, was the ideal setting to release the report on “the facts, circumstances and course of events of the incidents that led to the setting on fire some of the coaches of Sabarmati Express train on 27.2.2002 near Godhra railway station” which was the first term of reference for inquiry that was referred  to the Inquiry Commission appointed by the Government of Gujarat in March, 2002! What other explanation can we find for this sudden haste to submit the report on the Godhra incident as a Part-1 report, when the Commission had not bothered to submit such a report in the last six and half years? Admittedly the issue of Godhra was not the only term of reference. The Government of Gujarat in March, 2002 had made a three point reference for inquiry:

1. the facts, circumstances and course of events of the incidents that led to the setting on fire some of the coaches of Sabarmati Express train on 27.2.2002 near Godhra railway station;
2. the facts, circumstances and course of events of the subsequent incidents of violence in the State in the aftermath of the Godhra incident; and
3. the adequacy of the administrative measures taken to prevent and deal with the disturbances in Godhra and subsequent disturbances in the State;

 

Apart from the aforesaid three point reference, the Government added few more terms to the original reference sometime in 2004. One such term was an inquiry in respect of the Chief Minister, other ministers etc. Admittedly, the Commission has not submitted any report on the subsequent incidents of violence in the aftermath of the Godhra incident or the other points of reference.

 

Was it not necessary to treat the victims of both the Godhra as well as the post Godhra violence equally, atleast in the matter of inquiry into their miseries? But alas! In this country, the minorities are slowly fading out from our constitution and made to reappear as the spectre to be hunted.  But before we deal with the Nanavati Commission report itself, a quick review of atleast one past report is necessary to understand the futility of the exercise under the Commission of Inquiries Act.

 

THE COMMISSON REPORTS ON THE VIOLENCE AGAINST THE SIKHS:

A very similar fate had befallen the hapless Sikhs of the country in 1984. After the death of Smt Indira Gandhi on 1st November, 1984, by five O’clock in the evening, the pogrom started and thousands were killed in the next few days. Since then, the victims have struggled for justice which has still eluded them.

The first commission that was appointed by the Government in the Sikh riot case was the Marwah Commission.This commission was appointed in November 1984. Ved Marwah, Additional Commissioner of Police, was assigned the job of enquiring into the role of the police during the carnage of November 1984. The next was theMisra Commission of EnquiryMisra commission was appointed in May 1985. Justice Rangnath Misra, was a sitting judge of the Supreme Court of India. Justice Misra submitted his report in August 1986 and the report was made public six months thereafter in February 1987. In his report, Justice Misra stated that it was not part of his terms of reference to identify any person and recommended the formation of three committees. There was only one term of reference to this commission, i.e. whether the violence was organised? The commission and its report has been heavily criticized as biased and a miscarriage of justice.

Next started the appointment of committes!Kapur Mittal Committee was appointed in February 1987 on the recommendation of the Misra Commission. No action was taken on its report.Potti Rosha Committeewas appointed in March 1990, by the V.P. Singh government, as a successor to the Jain Banerjee Committee.. Jain Aggarwal committee was appointed in December 1990 as a successor to the Potti Rosha Committee. Ahuja Committee was the third committee recommended by the Misra Commission to ascertain the total number of killings in Delhi.. Dhillon Committeeheaded by Mr Gurdial Singh Dhillon was appointed in 1985 to recommend measures for the rehabilitation of the victims. Narula Committeewas appointed in December 1993 by the Madan Lal Khurana government in Delhi.

The Nanavati Commission was appointed by the NDA Government in May 2000. This Commission submitted its report in February 2004! Interestingly Justice Nanavati did agree with many things said by Justice Ranganath Mishra about seventeen years back!One wonders why a new Commission was required to be appointed if it had to agree to the earlier one!

After 20 years therefore the victims of 1984 riots got no justice and the Commission of Inquiries Act gave the perfect shield to cover up the misdeeds.

THE DERAILED REPORT OF NANVATI COMMISSION:

As stated earlier, the Nanavati Commission, instead of giving the full report of both the Godhra as well as the post Godhra incidents, gave a part one report holding that the Muslims had, as a preplanned terrorist conspiracy, burnt down the S6 coach of the Sabarmati Express on 27th February, 2002 near the Godhra railway station killing 59 passengers many of whom were the karsevaks. The Commission also gave clean chit to Narendra Modi in just one paragraph! A brief glance at the past would help understanding the final findings:

 

1.              On 28th February 2002, the news dailies of Gujarat were carrying the screaming headlines of the gruesome death of 59 innocent Karsevaks. When the entire nation should have been solemnly sharing the sorrow of this tragedy, the politics was in the offing. What was most prominently reported was the declaration of Shri Narendra Modi made on the previous day at Godhra. The Chief Minister had alleged that-

 

              “The deaths were not the result of any communal conflict but               was               the result of a pre-planned terrorist attack on one community by another..” 

 

2. From that day onwards the tone was set and the conclusions of the Enquiry Commission headed by Justice Nanavati which was appointed by Shri Narendra Modi does not change the tune. What is of course shocking is that another term of reference made by the government on 20th July 2004 to look into the role and conduct of the  then Chief Minister and/or any other minister in his council of ministers, police officers (i) in dealing with political or political organizations which may be found to have been involved in any other event referred to hereinabove (ii) in the matter of providing protection, relief, rehabilitation of the victims of communal riots (iii) in the matter of recommendations and directions given by NHRC from time to time has also been disposed of in a single paragraph of the final report Part-I at para-229.

 

What are the evidence collected by the Commission to support the conspiracy theory?

1.              59 passengers including Karsevaks had died in the burning coach of S-6 of Sabarmati Express near the `A’ cabin of Godhra railway station on 27th February 2002. The Nanavati Commission holds that this burning of S-6 coach was a pre-planned conspiracy by certain `communal Muslims’ of Godhra!

2. What do the facts directly collected by the commission (those who had come and deposed before the Commission) reveal?

                 That the Sabarmati Express had reached Godhra on 27th February 2002 at 7.43 hours in                  the morning i.e. around five hours late than its schedule time which was 2.55 hours in                      the morning.

1.    As per the findings and conclusion of the Commission, there was indeed an altercation and quarrel between the passengers/Karsevaks with the local vendors who were Muslims.(Para-66).The collection of large crowd and the alleged stone throwing by this crowd had become central to the finding of the Commission to establish that the stone throwing and the collection of the crowd in the station as well as near `A’ cabin was a part of the conspiracy to stop the passengers from coming out of S-6 coach. A question is required to be asked if this was such an important ingredient of the conspiracy, where would this crowd come in case the train had arrived at the right time in the morning at 2.55 am? The report is totally silent on such important aspect. Next, why did the Commission reject the evidence of Mumtaz?
2.    The next question is assuming that some plan was made, where and how was the train supposed to be stopped for the purpose of burning S-6 coach? The real fact is that the chain pulling was done by the Karsevak themselves for permitting the Karsevaks to board the train and there is no other evidence on record to contradict the same. In fact, the Commission has not dealt with the first chain pulling incident in any other part of the report save and except in para-73 and has actually forgotten to decide as to who actually pulled the chain.
3.    Once again, eager to rely upon the evidence produced by Shri Noel Parmar to the effect that certain Muslim vendors including Anwar Abdul Sattar Kalandar had stopped the Sabarmati express near `A; cabin by turning the ACP `Disc’ from outside, the Commission even rejected the fact that the change in the design of the braking system of railway which was placed on record , had made it impossible for operating the ACP (Alarm Chain Pulling) by rotating the disc from outside .
4. So far as the burning of S-6 coach is concerned, it is the Commission’s own conclusion in para-170 as well as para-212 that the S-6coach was allegedly set on fire because  burning rags were thrown from outside to inside the coach and in para-208 the Commission has come to a specific conclusion that there was no evidence given by any eye witness or passenger to establish that any person had entered S-6 coach to pour or had poured any inflammable fluid. Yet, the Commission comes to the abrupt conclusion that the fire was caused by 60 liters of inflammable liquid being thrown into the S-6 coach by Muslims who had entered the coach by cutting the vestibule!
5. Shri Raju Bhargav has clearly stated that when he reached the S-6 coach, the passengers with burn injuries were still jumping out and all of them had injuries above their waist. He had also said that he had not smelt any petrol or inflammable liquid. The statements of all Karsevaks, passengers and specially Shri Hariprasad Joshi, an Incometax Officer, who had stated that there was no flame on the floor of the coach, were all ignored by the Commission. The peculiar burning pattern and the injury pattern of 70 passengers who had come out of the coach with minor injuries on their bodies above their waist, was also brushed aside since that did not fit into the burning theory of the Commission.
6. When 200 or so passengers were inside the coach it would be impossible not to have a single witness to notice three or four Muslim boys not only entering the S-6 coach but carrying six huge carboys of 140 liters of petrol! Lastly, it may be mentioned that none of the six so called black carboys have ever been found.

 

Paragraph 229 of the Commissions Report

 

(1)              In just a single  paragraph  (paragraph 229) containing 18 lines, the Commission dismissed the numerous allegations of not just lapses but the connivance of the Chief Minister, other Ministers and the Police officers with the rioters and of specific instances of denial of protection to the victims when they were being butchered on and after 28th February, 2002.. The Commission completely ignored the voluminous evidences which were on record while absolving the Chief Minister, other Ministers and even the Police officers of all their misconduct and it did so by using two magical words “no evidence”.

 

(2)              The record of affording relief, rehabilitation or compliance with the directions of the NHRC was so abysmal that the then Chairman of NHRC had to write to the Prime Minister himself by his letter dated 3rd January, 2003, seeking his personal intervention This is what the Chairman said to the Prime Minister, “ Regrettably, to date, in spite of the recommendations made by the Commission, not enough has been done to assure the victims, our country and the world at larger, that the instruments of the State are proceeding to with adequate integrity and diligence to remedy the wrongs that have occurred…. Nor, I am saddened to observe, has the appointment of the Justice Nanavati-Shah Commission by the State Government allayed fears in this respect…. I turn to you Mr. Prime Minister, both as Head of the Government and as a person of deep and abiding understanding of the issues at stake, to express my anguish in respect of this matter as I prepare to relinquish my office. I should be deeply grateful if you could kindly monitor the situation and issue directives to the competent authorities, both at State and Central levels, to ensure that justice is done along the lines outlined in this letter and set out in greater detail in the earlier recommendations of the Commission…”

 

(3) The deep anguish of the then Chairman of the NHRC, a constitutional body, Justice Shri J.S.Verma ,the retired Chief Justice of the Supreme Court expressed to the then Prime Minister Shri Atal Behari Bajpai, has remained an anguish in the wilderness. For Nanavati Commission ofcourse such anguish of the NHRC Chief, regretting that the State Government was not doing enough to remedy the wrongs committed during the post Godhra riots, are of no consequence.

 

(4)              We may now consider another piece of vital evidence to establish the fact that during the main phase of violence on  and after 28th February, 2002, the State Government failed to effectively deploy the  Army despite the President of the Country, Shri K.R. Narayanan exhorting the then Prime Minister to give effective powers to  the army to shoot and quell the violence that was assuming a genocidal proportions. This piece of evidence became public after Shri Narayanan had given an interview to a Congress MLA from Kerala, Shri P.T.Thomas after he had relinquished his office. On behalf of Jansangharsh Manch, an application was filed before the Justice Nanavati Commission for the production of the said communication between the President and the Prime Minister on the aforesaid issue.

 

(5) On the basis of the application of Jansangharsh Manch, under the directions of the Commission, the Registrar of the Commission Shri C.G. Patel wrote to Shri K.R. Narayanan seeking his view on the matter. This is what Shri Patel had written to Shri Narayanan: “Respected Sir…Print media also states that you “Sir stated to Mr. P.T. Thomas, Congress MLA as follows: I had asked military to be send to suppress the riots. The centre had constitutional responsibility and power to send the military if the state government asked to. The military was sent, but if the military was given power to shoot at the perpetrators of violence, recurrence of tragedies in Gujarat could have been avoided. However, both State and Central Government did not do so…”

Shri Narayanan sent his reply promptly on 8th April, 2005. This is what the ex-President had written to the Commission: “(1) I did give an interview to Mr. P.T.Thomas. (2) I did make statement more or less as quoted in your letter under reply,. I may mention that the statements reflect my impression of the events and situations in question. I have nothing further to add….. yours faithfully, Narayanan K.R.”

THE UNTOLD STORIES:

One such officer was Shri Rahul Sharma, the then District Superintendent of Police of Bhavnagar District during the violent period.

In his deposition before the Commission, Rahul Sharma has stated what the DGP had to say to him: “The DGP had told me that he would be able to give one SRP Company by next day morning and if possible he would make some Border Wing home Guards and army whenever they become available. He also told me not to look for more help as the bureaucracy had been completely neutralized…”

 

Thus stranded without any help from outside, in the evening of 2nd March, 2002, he faced the worst attack of that period. The attack was mounted in a systematic manner to demolish the Akvada   madrassa which was about 14 kilometers from Bhavnagar. Braving the burning logs and stone throwing mob, Shri Sharma could reach the madras with just a few policemen and thereafter bring in his strike force to evacuate and transfer the children to a safer place in the city. But what the home minister had to say on this courageous act of Shri Sharma? In his deposition before commission this is what the Home Minister is quoted to have said: “He had told me that while I had done a good job at Bhavnagar, the ratio of death of police firing was not proper. What I understood thereby was that he was complaining about more number of deaths of Hindus compared to Muslims as a result of police firing at Bhavanagar city. I had told him that would depend upon the situation of the mobs at which firing was resorted to.”

AVOIDING THE INCONVENIENT TRUTH:

It is equally pertinent to note here that the Central Review Committee constituted under the POTA Repeal Act had specifically reviewed the Godhra train burning case and had come to the specific conclusion that it was a case of unlawful assembly committing various offences under IPC and other special Act but certainly, not under the POTA and there was certainly no conspiracy as envisaged under POTA. The Supreme Court in a recent decision has come to the specific conclusion that the finding of the Central Review Committee was binding on the trial Court. Shockingly even though the order of the Central review Committee was placed on record of the Nanavati commission, the same has been totally ignored. What is also requires to be noted that the SIT appointed by the Supreme Court is yet to give its report on the reinvestigation of Godhra and six other major incidents of the riot period.

STATUTORY PREVARICATION:

The Nanavati Commission report is just another instance of the machinery under the Commission of Inquiries Act being made to sub-serve the objectives of the Government. The lacunae really lies in the manner in which the members of the Commission are appointed and also the veto power of the Government in implementing the recommendations of the Commission. Time has therefore come to change the law on these two issues and provide for a mechanism that allows the appointment of genuine neutral persons as members of the Commission and also provide for sufficient power to the legislature to enforce the recommendation after due debate.