'Victims of 1984 Sikh Killings Left Disappointed by Modi Government'

Lawyer H.S. Phoolka, who has fought for justice for the past 34 years, tells The Wire how the Modi-appointed SIT ordered the closure of 241 cases, and found only 12 worthy of re-investigation.

New Delhi: In every election manifesto, the Bharatiya Janata Party has promised justice for the victims of the 1984 Sikh massacre. So when the Narendra Modi government came to power in 2014, victims’ families had hope that cases would be swiftly and firmly prosecuted. They remain disappointed, however, on at least two counts.

First, the Central Bureau of Investigation (CBI) issued a new clean chit to former Congress minister, Jagdish Tytler, despite courts having rejected two earlier clean chits. Second, the Special Investigation Team (SIT) constituted in 2015 found only 12 cases worth reinvestigating – 241 others, it said, needed to be closed.

Earlier this year, the Supreme Court formed a new SIT under former Delhi high court judge S.N. Dhingra, giving another glimmer of hope to a community that has waited for closure for 34 years.

Senior advocate H.S. Phoolka, who not only survived the 1984 riots, but has since fought the cases of the victims, told The Wire about how successive governments tried to scuttle any fair investigation, as intelligence agencies and senior political leaders were themselves involved in the pogrom.

“Police personnel themselves wrote the witness accounts,” Phoolka said. “They did not write what the witnesses said. Through all these actions they just wanted to kill the cases altogether.”

`Rajiv Gandhi’s statement sent a message to the state machinery’

On November 19, 1984, when Rajiv Gandhi made the statement that “when a big tree falls, the earth shakes”,  it was first time that the prime minister was addressing the nation after the massacre. “But instead of saying that it was very sad that so many people have been killed and assuring that the guilty will be punished, he made this statement which justified the macabre incidents and sent a straight message to the state machinery that the tree has fallen, 7000-8000 Sikhs died because of it, so just let it be.”

Also read: If Rahul Gandhi is Asked About the 1984 Killings Again, This is What He Should Say

Thereafter, “be it the administration, police or even the judiciary, everyone adopted the approach of just ending these cases. The entire state machinery got involved in saving the culprits when it is the duty of the state to get the accused punished.”

`Marwah Commission closest to the truth, but not allowed to present its report’

The first of the commissions that looked into the massacre, Phoolka said, was the Marwah Commission headed by former Delhi police commissioner Ved Marwah. “In 1985 when the evidence was absolutely fresh, the Commission prepared its report on the basis of the real depositions of the police personnel. Marwah had even prepared notes about where the instructions came for the massacre and who all said that Sikhs are not to be saved but killed.”

He charged that “when the Rajiv Gandhi government felt that this report would go against it, it instructed Marwah not to submit the report, to end the enquiry and to hand over all the documents to the Mishra Commission (headed by Justice Ranganath Mishra).”

“But the notes of the Marwah Commission, which had all the details, never reached the Mishra Commission and were deliberately misappropriated. Over two years later in 1987, Justice Mishra said I do not have any terms of reference, I do not have to identify anyone, this is not my job. Then why was the Marwah Commission wound up?” he asked.

`One committee found 76 police officers involved in killings, no action was taken’

As lawyers pursued these cases, “commissions after commissions were appointed” but no action was taken on their recommendations.

“One commission was appointed to enquire into the role of the police. That Kapoor-Mittal Committee said 76 police officers had played a role in killing the Sikhs. It recommended that 36 of them be dismissed summarily without enquiry because these police personnel were involved in direct killings. But nothing happened, let alone being dismissed, there was no action against them.”

The last of these commissions, the Justice Nanavati Commission, recommended reopening of only four of 241 cases closed by police. When the BJP came to power in 2014, Phoolka wrote an open letter to law minister Ravi Shankar Prasad demanding that an SIT be constituted to probe the 1984 riot cases.

Subsequently, just before the Delhi assembly polls, the Modi government set up a committee to examine the possibility of constituting an SIT. In 2015, a three-member SIT, headed by IPS officer Pramod Asthana, was appointed to examine the evidence and, if need be, reopen cases that the Delhi police had not investigated or had closed for lack of evidence.

Modi’s SIT, CBI disappointed Sikhs

“Why did people, especially the 1984 victims and Sikhs, develop new-found hope when the BJP government came to power under Narendra Modi in 2014?” Phoolka asked. “It was because since 1984, one of the promises of the BJP in all its election manifestos was that they would punish those behind the killings. So when this government came, hope arose that it would fulfil its promise.”

“But the SIT did not start work for over six months, later it said there was sufficient evidence for trial in just 12 cases and closed 186 cases compelling the Supreme Court to constitute a new one to re-investigate these cases.”

Another very sad thing that happened during this BJP government, Phoolka said, was that for the third time the Central Bureau of Investigation gave a clean chit to former Congress MP and Union minister Jagdish Tytler. “Earlier, on two occasions, when a similar clean chit was given in 2007 and 2009, the court had rejected it. This time we were hopeful that a chargesheet would be filed against Tytler, against whom there is a case of killing three Sikhs. But in December 2014, for the third time the CBI issued a clean chit to him. We again fought for a year and a court rejected this clean chit as well.”

Thereafter, in December 2015, he said, the court ordered that this case be re-investigated and the probe be completed in two months. “But nearly three years have passed and the investigation has not been completed.”

No scarcity of evidence

The lawyer said there was enough evidence for more convictions. A case re-investigated by the CBI resulted in the conviction of five of the six accused, including an MLA and a councillor. “Former Congress MP Sajjan Kumar was also an accused in that case, but the sessions court acquitted him. We had filed an appeal against that order and two days ago, the arguments have been completed in that case and now the judgment is reserved. We expect an order in this case by the year-end.”

Averring that “1984 became the biggest mission of my life even though I had never thought it would”, Phoolka said “it was because of this Sajjan Kumar case that I gave up the post of leader of opposition in the Punjab assembly, since the Bar Council objected to my appearing as lawyer while holding the post.”

Also read: Not Just Kanhaiya, Even JNU Historians Went Soft on Congress for 1984 Violence

He claimed that Kumar’s case was important because his stature had not diminished even when other parties were in power. “Even in 1990 when the V.P. Singh government was there, a case was registered against Sajjan Kumar. But when the CBI reached his residence and arrested him, a mob surrounded it, burnt its jeeps and threatened the officers. The Delhi police, which was present, did not act. The high court in that case issued anticipatory bail after Kumar had been arrested. Because these people were above the law,” he recalled. “We want people to know that rule of law prevails in this country.”

`Giving up LoP post sent message that Sikh community has not forgotten 1984’

Another reason for his decision to take a step back from politics, Phoolka said, was that “these cases were in the last stages” and his demitting an office equivalent to that of a cabinet minister sent a clear message to the judiciary and others that “these cases still meant a lot to the entire Sikh community and justice will have to be done. The new SIT was constituted thereafter.”

Apart from Kumar and Tytler, he said, H.K.L. Bhagat and Dharamdas Shastri (both of whom have passed away) were the other prominent Congress leaders who were accused in the 1984 riots. “Former Union minister Kamal Nath’s name was also linked for being present at Gurdwara Rakab Ganj right opposite parliament when a mob attacked it but no FIR was registered against him. We tried very hard to get a case registered, but it was never filed. The Gurdwara Committee was to file the case but it did not.”

Hope remains with SC constituting another SIT

The Supreme Court appointed a supervisory panel of two retired Supreme Court judges in August 2017 to examine whether the SIT’s decision to close the cases “was correct or not”. On going through the panel’s report, the court noted that “the SIT has not done further investigation in respect of 186 cases” and thus “a fresh SIT should be constituted for carrying on the further investigation.”

Subsequently, in January 2018, the Supreme Court ordered a new investigation into the massacre by a three-member SIT headed by Justice Dhingra, who had as a lower court judge sent Bhagat to jail and sentenced Kishori Lal, the “butcher of Trilok Puri”, to death in a 1984 case.

The constitution of the new SIT, however, was delayed as former IPS officer Rajdeep Singh refused to be a member. The Centre thereafter suggested the name of the director general of Bureau of Police Research and Development, N.R. Wasan, for the post. Phoolka said, “The application for the replacement suggested by the Centre is pending before the Supreme Court.”

`200 convicted so far; number of accused much more in cases going for re-investigation’

Already, he said, as far as compensation is concerned, an additional amount of Rs 5 lakh was announced for the families of all the deceased by the Centre, which was to be distributed through the state governments. Unofficially, he said, the figure of those killed is over 7,000, but as per government data, only 2,733 Sikhs were killed in Delhi.

Phoolka said about 200 people have been convicted in massacre-related cases so far, of which 30 have been accused in murder cases. “In the cases under trial, there would be about 25-30 accused, but the number of accused is very large in cases which are now to be re-investigated.” He hopes to soon see the closure of these cases too.

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