FINALLY, JUSTICE AFTER 34 YEARS : The Tribune India

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FINALLY, JUSTICE AFTER 34 YEARS

Though communal violence has been a serious and recurring problem for decades, it was not until 2012 thatany political leader got convicted in this connection. But then, former BJP minister Maya Kodnani’s conviction in a Gujarat 2002 case was overturned eight months ago by the Gujarat High Court.

FINALLY, JUSTICE AFTER 34 YEARS

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While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes — Delhi High Court

Manoj Mitta

Though communal violence has been a serious and recurring problem for decades, it was not until 2012 thatany political leader got convicted in this connection. But then, former BJP minister Maya Kodnani’s conviction in a Gujarat 2002 case was overturned eight months ago by the Gujarat High Court. So the conviction now by the Delhi High Court of former Congress MP Sajjan Kumar for his complicity in 1984 is the only precedent left and, given the quality of the reasoning displayed in the 207-page judgment, likely to be an enduring one. 

Calling such mass killings “crimes against humanity”, the verdict provided a comparative perspective on the follow-up to Delhi 1984 and Gujarat 2002. The systems had evolved in the intervening period: the National Human Rights 

Commission (NHRC) came into existence in 1993 and the Supreme Court proved receptive to NHRC’s pleas to intervene in Gujarat cases. In fact, the HC might well have recalled that when NHRC first approached the Supreme Court in 2003 after the collapse of the trial in the Best Bakery case, Justice S Muralidhar himself was the advocate-on-record for NHRC. 

What the HC verdict did point out, though, was that while in the Gujarat cases the Supreme Court had set up a special investigation team (SIT) within five years, a similar mechanism meant to reduce local influences was constituted for Delhi cases only last year, after a lapse of 33 years. The HC also bemoaned the absence in Delhi cases of the witness protection measures that had been adopted in the Gujarat context. There was also a reference to the Bilkis Bano judgment of 2017 for thwarting Sajjan Kumar’s attempt to take undue advantage of the delay in the registration of the FIR.     

After all, the FIR  was filed only toward the end of 2005 following the findings of the Justice Nanavati Commission earlier that year. And even that might not have happened had the action taken report (ATR) tabled by the Manmohan Singh government in August 2005 not been vehemently opposed in Parliament and outside. Despite all the evidence, the UPA government in the first instance rejected its findings against Sajjan Kumar and its minister Jagdish Tytler. The conviction came after another 13 years as the case had to cross yet another hurdle in the form of Sajjan Kumar’s acquittal.

The main ground for his 2013 acquittal was the alleged unreliability of the complainant Jagdish Kaur. Her testimony against Sajjan Kumar was discarded by the trial court merely because her 1985 affidavit before the Ranganath Misra Commission did not name him. The HC, however, accepted her assertion that she had very much talked about him in her Punjabi testimony and that the name went missing when translated into English. Besides, the HC  rightly stressed that the judiciary was in any event bound to go only by the evidence recorded during the trial and the manner in which it withstood cross-examination. It upheld Jagdish Kaur’s testimony on the basis of a rigorous cross-examination running into 78 pages.

In the big picture, this belated conviction of the first Congress leader exposes the Rajiv Gandhi government’s culpability for not only the carnage that took place on its watch, but also the systematic attempts to shield the culprits. Even the first judicial inquiry conducted by the Misra Commission, which otherwise earned the odium of doing a whitewash in its 1986 report, recommended a further probe to identify the many cases that had either not been registered or not been properly investigated. That is how, in 1987, the Jain-Banerjee committee for the first time recommended a case against Sajjan Kumar. And when that case was actually registered in 1990 and a CBI team sought to arrest him, they ended up being besieged by Sajjan Kumar’s supporters till his lawyers obtained an anticipatory bail, making a mockery of the rule of law. 

Such contrived delays, disruptions and cover-ups ensured that other Congress leaders allegedly complicit like Rajiv Gandhi, PV Narasimha Rao (who was the home minister) and HKL Bhagat (whose East Delhi constituency saw more killings than even Sajjan Kumar’s Outer Delhi constituency) escaped accountability during their lifetime. The most prominent among those who are left is Kamal Nath, who, in a historic irony, became CM of Madhya Pradesh the very day Sajjan Kumar was convicted. Kamal Nath was actually given a clean chit by the Nanavati panel, but the allegations continue to haunt him. For all the embarrassment to the Congress, the ruling has also put the Modi government in a fix because of its call for a law on genocide and crimes against humanity.

(The writer has penned ‘When a Tree Shook Delhi: The 1984 Carnage’)

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