The scars within

If this is not travesty of justice, what is?” asks Harvinder Singh Phoolka, a senior advocate, about the seemingly never-ending battle for justice by the victims of the 1984 anti-Sikh riots. For 25 years, Phoolka and the Citizen’s Justice Committee (CJC) — of which he is the founder — have spearheaded the campaign to get justice for the riot victims. His disenchantment with the investigation system and the judiciary is evident as he details his “struggle for justice, often in the face of strong political opposition and collusion of investigating agencies with the perpetrators of the carnage”.

“What bothers me the most is the tardy pace of justice. Initially, the police were reluctant in filing FIRs. Later, most of the cases that were registered never reached the courtroom. Of the ones that reached the courts, the majority resulted in acquittal of the accused as the police never made an attempt to find evidence against them. As a result, the conviction rate has been extremely poor,” says Phoolka.

A look at the death toll and the corresponding submissions made by the Delhi police, Union government and the numerous commissions of enquiry that looked into the riots strengthen Phoolka’s claims.

Soon after the riots, in early November 1984, a statement by the Rajiv Gandhi government had put the toll at 450. The claim was countered by the BJP’s then parliamentary party leader Atal Behari Vajpayee, who said the figure was in excess of 2,700. The CJC, appearing before the Ranganath Mishra Commission in 1985, submitted a list of 3,870 names of those killed in the riots. The police’s records showed 1,419 deaths.

Four years after the pogrom, the official toll was put at 2,733. But the police did not alter its records to register the new cases. Phoolka says: “It was evident that for 1,314 deaths, the cops did not register cases.”

While the investigation process was flawed, the court proceedings seemed no different. In the late 1990s, “additional sessions judge SS Bal delivered judgment in 123 cases; 121 ended in acquittals while in the remaining two, the accused got away with minor punishment for rioting,” Phoolka says.

Today, a quarter century later, six cases are still undergoing trial, including four against Congress veteran and former parliamentarian Sajjan Kumar, who earlier this year had to withdraw from the electoral fray owing to the taint of the riots.

Experience notwithstanding, Phoolka is hopeful of getting justice “at least in these remaining cases”. He says the trend now is of convictions “as is evident from the three cases that were decided during this year — two of them led to convictions”.

Sentencing three accused of attempted murder on August 29, a Delhi court made damning observations. Additional sessions judge SS Rathi had said: “History would never forgive the police officials who were at the helm of affairs and the government of the day for their unprecedented slothful and quiescent role. But for the contrived inaction and sluggish response of the Delhi police and the government of the day, scores of priceless lives and valuable property could have been saved. Instead of showing their allegiance to the rule of law, our Constitution and the oath taken by them, a better part of their (the police) force was found toeing the line of their political rulers.”

Commissions and omissions
Cases against Congress leader Sajjan Kumar were registered in 2005 following the Nanavati commission’s report that there was evidence of his involvement in the riots. In March 2007, the Delhi high court admitted an appeal by the CBI against Kumar’s acquittal in one of four cases pending against him; a division bench of justices Manmohan Sarin and SL Bhayana said it would hear the case on a day-to-day basis, but not much progress was made. The remaining three cases, too, are in limbo.

Although Congress leader Jagdish Tytler’s name appears more frequently in connection with the 1984 riots, inquiry panels — among them the Jain-Banerjee committee, Potti-Rosha committee and Jain-Aggarwal committee — found that Kumar’s role was greater in instigating the violence. Various panels recommended the registration of cases against Kumar, Tytler and Congress leaders HKL Bhagat (who died in 2005) and Dharamdas Shastri, but the recommendations were not followed.

Tytler was given a clean chit by the CBI earlier this year and the court is yet to decide whether or not to initiate a fresh probe. Phoolka says not much can be done in Tytler’s case, “since the main witness, Surinder Singh, is dead and can’t be cross-examined further”.