Day of reck­on­ing

FrontLine - - ANTI-SIKH RIOTS - BY V. VENKATESAN

Even as the Delhi High Court sen­tences Congress leader Sa­j­jan Ku­mar

to life im­pris­on­ment for his role in the anti-sikh car­nage in 1984 ,it points to a se­ri­ous la­cuna in the law, which has al­lowed those guilty of sim­i­lar crimes in Mum­bai, Gu­jarat, Kand­hamal and Muzaffarnagar to

go scot-free.

FOR the crim­i­nal jus­tice sys­tem in In­dia, De­cem­ber 17 may in­deed mark a rare mo­ment. That day, a Delhi High Court bench con­sist­ing of Jus­tices S. Mu­ralid­har and Vinod Goel con­victed and sen­tenced Congress leader Sa­j­jan Ku­mar to im­pris­on­ment for the rest of his life for his role in the anti-sikh vi­o­lence in Delhi fol­low­ing the as­sas­si­na­tion of Prime Min­is­ter Indira Gandhi on Oc­to­ber 31, 1984, by her two Sikh body­guards. The com­mu­nal frenzy or­gan­ised with po­lit­i­cal pa­tron­age claimed the lives of 2,733 Sikhs in four days in the na­tional cap­i­tal; nearly 2,000 other Sikhs lost their lives in the rest of the coun­try.

The De­cem­ber 17 ver­dict is a re­minder that jus­tice may be de­layed but can­not be de­nied if the pros­e­cu­tion and the vic­tims re­main stead­fast in the face of threats and in­tim­i­da­tion from the ac­cused. That it took 38 years to se­cure the con­vic­tion of a po­lit­i­cally in­flu­en­tial per­son for a mass crime is in­deed a sad com­men­tary on the crim­i­nal jus­tice sys­tem.

It took as many as 10 com­mit­tees and com­mis­sions be­fore the in­ves­ti­ga­tion into the role of some of the ac­cused was en­trusted to the Cen­tral Bureau of In­ves­ti­ga­tion (CBI) in 2005. The case be­fore the Delhi High Court arose as a re­sult of CBI in­ves­ti­ga­tion into the killing of five Sikhs in Raj Na­gar Part I in Palam Colony in south-west Delhi on Novem­ber 1 and 2, 1984, and the burn­ing down of a gur­d­wara in Raj Na­gar Part II. Six ac­cused, in­clud­ing Sa­j­jan Ku­mar (A-1), a Congress Mem­ber of Par­lia­ment at the time, faced trial in 2010. Three years later, the trial court ac­quit­ted Sa­j­jan Ku­mar (A-1) of all of­fences while con­vict­ing five of the ac­cused: Bal­wan Khokhar (A-2), Ma­hen­dra Ya­dav (A-3), Cap­tain Bhag­mal (A-4), Gird­hari Lal (A-5) and Kr­is­han Khokhar (A-6). Three of them were con­victed for the of­fences of armed ri­ot­ing and mur­der, and two of them for armed ri­ot­ing. Bal­wan Khokhar, Cap­tain Bhag­mal

and Gird­hari Lal were sen­tenced to im­pris­on­ment for life. The other two were sen­tenced to three years’ rig­or­ous im­pris­on­ment. Bal­wan Khokhar, Cap­tain Bhag­mal and Gird­hari Lal are al­ready in cus­tody. Sa­j­jan Ku­mar, Ma­hen­dra Ya­dav and Kr­is­han Khokhar were di­rected to sur­ren­der be­fore De­cem­ber 31 to serve their sen­tence.

Sa­j­jan Ku­mar was charged with be­ing a prin­ci­pal of­fender who abet­ted and in­sti­gated the five co-ac­cused to com­mit the of­fences. He was charged with hav­ing de­liv­ered fiery/provoca­tive speeches to the mob gath­ered at Raj Na­gar on Novem­ber 1 and 2, 1984, and hav­ing in­sti­gated and pro­moted vi­o­lent en­mity against the Sikh com­mu­nity. He was ac­cused of dis­turb­ing har­mony be­tween the two re­li­gious groups/com­mu­ni­ties of the lo­cal­ity, thereby com­mit­ting the of­fence pun­ish­able un­der Sec­tions 500 and 153A of the In­dian Pe­nal Code (IPC).

The ac­cused were brought to jus­tice pri­mar­ily on ac­count of the courage and per­se­ver­ance of three eye­wit­nesses. Jagdish Kaur (pros­e­cu­tion wit­ness-1), whose hus­band, son and three cousins were among the killed; her cousin Jagsher Singh (PW-6); and Nir­preet Kaur (PW-10), who was only 16 years old when she saw the gur­d­wara be­ing burnt down and her fa­ther be­ing burnt alive by the rag­ing mob.

REA­SONS FOR DE­LAY

Jagdish Kaur sub­mit­ted an af­fi­davit on Sep­tem­ber 7, 1985, be­fore the Jus­tice Ran­ganath Misra Com­mis­sion, the first in­quiry com­mis­sion set up to probe the anti-sikh riots, stat­ing that her son and hus­band were killed by a mob on Novem­ber 1, 1984. She de­scribed the mob as be­ing wellor­gan­ised and named Bal­wan Khokhar as be­ing in­volved in the vi­o­lence. She also named Cap­tain Bhag­mal and Gird­hari Lal as be­ing part of the mob that was in­volved in the mur­ders of her three cousins.

The charge sheets in the case ended in ac­quit­tals of the ac­cused in 1986 it­self. In 1992, a com­mit­tee com­pris­ing Jus­tice J.D. Jain and D.K. Ag­gar­wal, which was set up in 1990, rec­om­mended fur­ther in­ves­ti­ga­tions into the cases. A sup­ple­men­tary charge sheet filed on Fe­bru­ary 26, 1993, against four ac­cused also re­sulted in ac­quit­tals in 1994.

In May 2000, the Jus­tice Nana­vati Com­mis­sion was con­sti­tuted to make a fresh in­quiry into the riots. Its re­port had this to say about Sa­j­jan Ku­mar’s role: “Many wit­nesses have stated about the in­volve­ment of Sa­j­jan Ku­mar, Bal­wan Khokhar, Pratap Singh, Maha Singh and Mo­hin­der Singh in the riots in ar­eas like Palam Colony, Ti­lak Vi­har, Raj Na­gar, etc. It was al­leged that the mobs in­dulging in riots were led by Sa­j­jan Ku­mar and Bal­wan Khokhar and other Congress lead­ers. Po­lice did not even record the com­plaints of the vic­tims/wit­nesses against them…. The Com­mis­sion is, there­fore, in­clined to take the view that there is cred­i­ble ma­te­rial against Sa­j­jan Ku­mar and Bal­wan Khokhar, and they were prob­a­bly in­volved [in the vi­o­lence] as al­leged by the wit­nesses.”

From the Nana­vati Com­mis­sion re­port, the trial court con­cluded that there were as many as 341 killings in the Delhi Can­ton­ment area and that five of them formed the sub­ject mat­ter of the present case. It also con­cluded that the po­lice had not recorded a sin­gle in­ci­dent of any killing or any prop­erty hav­ing been de­stroyed. The po­lice ap­peared to be privy to the in­ci­dent of ri­ot­ing and re­mained a silent spec­ta­tor, it held.

The po­lice ar­rived at the Raj Na­gar gur­d­wara and dis­armed the Sikhs of their kir­pans (knives car­ried by Sikhs as part of their re­li­gious prac­tice) and soon there­after the mob ar­rived. This re­flected a se­ri­ous lapse on the part of the po­lice en­trusted with the law en­force­ment duty, the trial court held.

The trial court con­cluded that Jagdish Kaur’s ev­i­dence had proved that Bal­wan Khokhar was part of the ri­ot­ing mob and had mur­dered her hus­band, Ke­har Singh, and son Gur­preet Singh. The court also found as be­liev­able her eye­wit­ness ac­count of the mur­der of her cousins, Naren­der Pal Singh, Raghu­vin­der Singh and Kuldeep Singh. She named Cap­tain Bhag­mal and Gird­hari Lal, along with oth­ers, as be­ing mem­bers of the mob that killed them. Her ev­i­dence that Naren­der Pal Singh was as­saulted and killed by the mob was cor­rob­o­rated by an­other pros­e­cu­tion wit­ness.

How­ever, the trial court held that the in­for­ma­tion con­cern­ing the role of Sa­j­jan Ku­mar was based on hearsay. The court took note of the fact that PW-6, Jagsher Singh, had named A-1, Sa­j­jan Ku­mar, for the first time, after 23 years. “There­fore, there was a se­ri­ous doubt as to the ve­rac­ity of PW-6 as re­gards A-1’s role,” the court held.

Nir­preet Kaur, too, named Sa­j­jan Ku­mar in her state­ment un­der Sec­tion 161 of the Code of Crim­i­nal Pro­ce­dure (CRPC), which was recorded some­time in 2007. When her state-

ment ini­tially was recorded in 1985, she had not named Sa­j­jan Ku­mar at all, the trial court noted. The trial court also noted that Jagdish Kaur had not men­tioned Sa­j­jan Ku­mar in any man­ner in her af­fi­davit be­fore the Jus­tice Ran­ganath Misra Com­mis­sion. “In the cir­cum­stances, her tes­ti­mony that she had heard and seen A-1 ad­dress­ing a gath­er­ing with provoca­tive and in­sti­gat­ing ut­ter­ances was not ac­cept­able and be­liev­able,” the trial court con­cluded.

Sep­a­rate cases were not reg­is­tered for each of the mur­ders. Un­der Sec­tion 157 of the CRPC, even if no per­son comes for­ward to give a com­plaint, the Sta­tion House Of­fi­cer in charge of the po­lice sta­tion will have to regis­ter a com­plaint him­self. Sec­tion157 (1) of the CRPC be­gins thus: “If, from in­for­ma­tion re­ceived or oth­er­wise, an of­fi­cer in charge of a po­lice sta­tion has rea­son to sus­pect the com­mis­sion of an of­fence….” There is a fur­ther obli­ga­tion upon that of­fi­cer to send a re­port to a ju­ris­dic­tional mag­is­trate.

Jagdish Kaur had no mo­tive to make a false im­pli­ca­tion and there was no pos­si­bil­ity of any mis­taken iden­tity, her coun­sel told the High Court. There was no ef­fec­tive chal­lenge to her sta­tus as an eye­wit­ness.

AS­SAULT ON THE CBI

In 1990, when the CBI reached Sa­j­jan Ku­mar’s res­i­dence to ar­rest him, the or­gan­i­sa­tion’s jeeps were burnt and its of­fi­cers held hostage in his house. The Delhi High Court’s judg­ment in 1991 threw light on the im­mense in­flu­ence, po­lit­i­cal clout and crim­i­nal mind­set of Sa­j­jan Ku­mar not only in mas­ter­mind­ing the bru­tal killings of 1984 but even in threat­en­ing and as­sault­ing law en­force­ment of­fi­cers years there­after.

In such cir­cum­stances, Jagdish Kaur’s coun­sel, H.S. Phoolka, ar­gued that it was un­fair to place the onus on the wit­nesses and vic­tims to come for­ward to speak against Sa­j­jan Ku­mar with­out af­ford­ing them any pro­tec­tion. At that time, the Congress was not in power, but Sa­j­jan Ku­mar was so in­flu­en­tial that no one dared to take him into cus­tody for ques­tion­ing.

In 2005, when the Jus­tice Nana­vati Com­mis­sion rec­om­mended regis­tra­tion of cases against Sa­j­jan Ku­mar and Jagdish Tytler, an­other Congress leader, the Cen­tre in­formed Par­lia­ment that it had re­jected the pro­posal. How­ever, after protests by the op­po­si­tion par­ties, the Cen­tre agreed to regis­ter a case.

When the wit­nesses were ap­proached for the first time in 2006, they con­fi­dently named Sa­j­jan Ku­mar.

It was sub­mit­ted be­fore the High Court, on the ba­sis of a Supreme Court judg­ment, that in such in­stances of crimes against hu­man­ity, where thou­sands were bru­tally mur­dered and where there was a com­plete break­down of the civil ad­min­is­tra­tion, the onus of pros­e­cut­ing an ac­cused had to be en­tirely on the state and not on the vic­tim (Din­ub­hai Bhoghab­hai Solanki vs State of Gu­jarat (2018)).

Phoolka re­ferred to the de­ci­sions of courts and tri­bunals in other coun­tries where state­ments made by wit­nesses had been be­lieved not­with­stand­ing their fail­ure to name the per­pe­tra­tors of such atroc­i­ties in ear­lier state­ments. He said that not a sin­gle non-vic­tim had come for­ward to speak even though the killings had taken place in broad day­light as they feared that by speak­ing the truth, they would put the lives of their fam­ily mem­bers and them­selves in im­mi­nent dan­ger.

WIT­NESSES TURN­ING HOS­TILE

At least five per­sons who shel­tered and res­cued the vic­tims dur­ing the vi­o­lence later turned hos­tile and were non-sup­port­ive of the pros­e­cu­tion’s case. Four of them de­posed as wit­nesses for the de­fence, il­lus­trat­ing the mag­ni­tude of the in­flu­ence and power ex­er­cised by the ac­cused. Baldev Khanna (DW-8) ap­peared to be a saviour but then ap­peared for the ac­cused as a wit­ness. Even Cha­jju Ram (DW-9), a for­mer con­sta­ble of the Delhi Po­lice, ap­par­ently de­posed in the man­ner tu­tored by the de­fence.

No ex­tent of lapse of time can ab­solve the state and the courts of their duty to­wards the vic­tims and to hu­man­ity, the High Court held.

The High Court noted that although a charge sheet had been pre­pared in the case in which Sa­j­jan Ku­mar had been named and reg­is­tered at Nan­gloi Po­lice Sta­tion in Delhi, it was kept in the file and not pre­sented to the court. In its or­der in 1991, the Delhi High Court made note of the ex­tra­or­di­nary power that he wielded as a politi­cian and as an MP. In that or­der the court con­firmed the an­tic­i­pa­tory bail granted to him in first in­for­ma­tion re­port (FIR) No.250/1984 reg­is­tered at Pun­jabi Bagh Po­lice Sta­tion which per­tained to an in­ci­dent that took place in Sul­tan­puri, Delhi.

The High Court noted that its op­ti­mism in grant­ing an­tic­i­pa­tory bail to Sa­j­jan Ku­mar in 1991 on the ba­sis of the be­lief that he would co­op­er­ate with the in­ves­ti­gat­ing agency was sub­se­quently be­lied. It was the Nana­vati Com­mis­sion that rec­om­mended regis­tra­tion of cases against him. And it was only after the CBI stepped in that wit­nesses found the courage to come for­ward with their ver­sions of the vi­o­lence, which formed the ba­sis of the charge sheet.

Un­til 2006, the vic­tims of the 1984 car­nage had every rea­son to be­lieve that they had been aban­doned. All the tri­als had ended in ac­quit­tals and the prospects in­deed looked

bleak. While in the 2002 Gu­jarat riots cases, the Supreme Court did set up a Spe­cial In­ves­ti­ga­tion Team (SIT) as per NHRC vs State of Gu­jarat (2009), no such SIT was con­sti­tuted to in­ves­ti­gate the 1984 riots un­til 2017.

IN­FIR­MI­TIES IN THE TRIAL COURT FIND­INGS

Noth­ing in the de­po­si­tion of Jagdish Kaur pointed to ei­ther un­truth­ful­ness or un­re­li­a­bil­ity, the High Court held. The court said her ev­i­dence de­served ac­cep­tance.

Nir­preet Kaur, who was 16 years old at the time of the car­nage, joined the Sikh Stu­dents Fed­er­a­tion. She was im­pli­cated in three false cases un­der the Ter­ror­ist and Dis­rup­tive Ac­tiv­i­ties (Pre­ven­tion) Act, or TADA, and re­mained in jail for many years. She was dis­charged in two cases and ac­quit­ted in the other. The trial court found her a truth­ful wit­ness as far as the in­volve­ment of Bal­wan Khokhar, Ma­hen­dra Ya­dav and Kr­is­han Khokhar in the riots was con­cerned, but found her un­truth­ful when it came to the in­volve­ment of Sa­j­jan Ku­mar. The trial court fal­tered in its anal­y­sis of her tes­ti­mony, the High Court held.

The High Court also found that the trial court had failed to prop­erly ad­dress the charge of con­spir­acy de­spite de­tailed ar­gu­ments sub­mit­ted by the CBI in that re­gard. The trial court had failed to re­turn the find­ings on the of­fences pun­ish­able un­der IPC Sec­tions 436 (mis­chief by fire qua a place of wor­ship), 153A (pro­mot­ing en­mity) and 295 (de­fil­ing a place of wor­ship), the court said. These heads of charges stood proven against the ac­cused com­pre­hen­sively from the ev­i­dence that had come on record, the High Court stated.

CRIMES AGAINST HU­MAN­ITY

Cases of the present kind are in­deed ex­tra­or­di­nary and re­quire courts to adopt a dif­fer­ent ap­proach. The term “crimes against hu­man­ity” was first used in a joint dec­la­ra­tion by the gov­ern­ments of Britain, Rus­sia and France on May 28, 1915, against the Gov­ern­ment of Turkey fol­low­ing the large-scale killing of Ar­me­ni­ans by the Kurds and Turks with the as­sis­tance and con­nivance of the Ot­toman ad­min­is­tra­tion. Ap­ply­ing the term in the cur­rent case, the High Court re­called that the dec­la­ra­tion had termed the killings of Ar­me­ni­ans as “crimes against hu­man­ity and civil­i­sa­tion for which all the mem­bers of the Turk­ish gov­ern­ment will be held re­spon­si­ble to­gether with its agents im­pli­cated in the mas­sacres”.

The High Court re­ferred to the def­i­ni­tion of “crimes against hu­man­ity” as adopted by the In­ter­na­tional Mil­i­tary Tri­bunal at Nurem­berg, after the con­clu­sion of the Sec­ond World War, to try Nazi crim­i­nals ac­cused of the ex­ter­mi­na­tion of Jews. The court re­lied on the def­i­ni­tion adopted in Ar­ti­cle 3 of the In­ter­na­tional Crim­i­nal Tri­bunal for Rwanda (ICTR) Statute which called such acts in­hu­mane as they were part of a sys­tem­atic or wide­spread at­tack against any civil­ian pop­u­la­tion on na­tional, po­lit­i­cal, eth­nic, racial or re­li­gious grounds.

The High Court re­ferred to Ar­ti­cle 7 of the Rome Statute for the In­ter­na­tional Crim­i­nal Court which, apart from the crim­i­nal el­e­ment of “mur­der”, “rape”, etc., in­cludes a con­tex­tual el­e­ment, that is, the per­pe­tra­tor must be aware that he is con­tribut­ing to a wide­spread or sys­tem­atic at­tack against civil­ians.

The High Court placed the 1984 car­nage in the se­ries of mass crimes since Par­ti­tion—mum­bai in 1993, Gu­jarat in 2002, Kand­hamal (Odisha) in 2008 and Muzaffarnagar (Ut­tar Pradesh) in 2013, to name a few. Com­mon to these mass crimes were the tar­get­ing of mi­nori­ties and the at­tacks were spear­headed by dom­i­nant po­lit­i­cal ac­tors fa­cil­i­tated by law en­force­ment agen­cies. The court noted that the crim­i­nals re­spon­si­ble for the mass crimes had en­joyed po­lit­i­cal pa­tron­age and man­aged to evade pros­e­cu­tion and pun­ish­ment.

The High Court held that nei­ther “crimes against hu­man­ity” nor “geno­cide” was part of In­dia’s do­mes­tic law of crime. This loop­hole needed to be ad­dressed ur­gently, it ob­served. Point­ing to the ap­peals in the 1984 cases, the court said that decades had passed by be­fore those guilty could be made an­swer­able.

It is a moot ques­tion, how­ever, whether the law­mak­ers will heed this ad­vice in the right spirit.

SA­J­JAN KU­MAR dur­ing his visit to the Hanu­man tem­ple at Con­naught Place in New Delhi on De­cem­ber 18, the day after the Delhi High Court sen­tenced him to life im­pris­on­ment in the anti-sikh riots case.

JAGDISH KAUR, one of the pros­e­cu­tion wit­nesses whose courage and per­se­ver­ance brought the ac­cused to book. Her hus­band, son and three cousins were among the killed.

A VIC­TIM of the anti-sikh riots in Delhi in Novem­ber 1984.

AT AN OVER­CROWDED CAMP riots in Delhi.at Sha­hadara in the af­ter­math of the

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