India: For survivors of the 1984 violence, hope of legal justice is dying

Hindustan Times

http://www.hindustantimes.com/editorial-views-on/HarshMander/Not-biting-the-bullet/Article1-1067379.aspx

Not biting the bullet

Harsh Mander,

New Delhi, May 28, 2013

Cries of bitter weeping echoed in the court, matched by surging rage outside, after District Judge Aryan acquitted Congress leader Sajjan Kumar, absolving him from grave charges that he instigated and personally led murderous mob attacks against Sikhs in the national capital 29 years earlier.

Bibi Jagdish Kaur, the ageing feisty prime witness who saw her husband and son slaughtered by the mobs and also lost her three brothers, angrily declared that she had 'lost all faith in the judicial system', but still added that she would appeal against the decision in the high court.

The consistent failure of the Indian judicial system to punish even a single senior political leader for the massacre of Sikhs after Prime Minister Indira Gandhi was assassinated by her two Sikh guards in 1984, is a festering, open wound on the psyche of the Sikh people.

Only 29 persons have been punished in as many years, and these are only foot soldiers in what is widely believed to have been an organised massacre, which officially took 2,733 lives in Delhi alone (although unofficial estimates are closer to 4,000).

My work with the survivors of mass violence in Nellie, Delhi, Bhagalpur and Gujarat confirms that healing and closure is impossible for survivors unless they see justice done to their tormentors.

But instead of justice, institutions of Indian democracy have established impunity, or the assurance that those who organise and unleash mass crimes that target people because of their religion (and indeed caste) will never be punished. This culture of impunity fuels the next massacre, and the next.

I am convinced that if justice had been done after the forgotten Nellie slaughter in 1983 (for which not a single person has been pushed to date), or after Delhi in 1984, then the subsequent massacres in Bhagalpur in 1989, Mumbai in 1992-93 and Gujarat in 2002 may not have occurred.

The Gujarat carnage convinced me finally that without legal justice, communal incidents would continue to recur, destroying the precious legacy of India's age-old pluralism.

We therefore resolved to pursue several hundred criminal cases in the courts of Gujarat. The same realisation came to several other fine and brave organisations as well, which is why the gang rapists of Bilkees Bano and the mass murderers of Naroda have been punished, including for the first time senior ruling party leaders.

However for the survivors of the 1984 violence, hope of legal justice ever against the mass killers is dying. In a study by the Centre for Equity Studies, we secured through the Right to Information records of most of criminal cases registered after the 1984 carnage.

We find a pattern of cover-up chillingly similar to that perfected later in Mumbai and Gujarat, in which both police complaints and statements made before the police are typically sketchy, deliberately leaving out names of the accused and witnesses. Bail is freely granted and witnesses intimidated.

Many accused persons are declared 'untraceable' although they are sometimes well-known persons, the investigation is deliberately shoddy, the prosecution acts as though it is the defence, and courts typically watch impassively the deliberate demolition of the cases before them by the police and prosecutors.

Robbed of all hope of justice in the individual cases in which their loved ones were killed, the attention of the survivors has shifted entirely to a few iconic 'test cases' involving senior political leaders Sajjan Kumar and Jagdish Tytler, who are widely believed to have led the mobs to slaughter.

The fate of these cases has come to represent 'symbolic justice' for all victims of the butchery, and indeed for the entire community. Yet both politicians have thrived in their political careers, and have consistently managed to evade the unsteady arm of the law.

In the Sajjan Kumar case, the judge discounts Jagdish Kaur's evidence against him on the ground that his name is not mentioned in the 1984 police complaint.

However, as the Supreme Court has held on many occasions, courts must be mindful of the circumstances which prevail typically after a communal carnage - the fear, intimidation and open police bias - before dismissing witness statements on grounds of delay.

The judge explicitly affirms that Kaur is a reliable witness, and relies on her evidence despite delays to convict other accused persons in the same case. But there are clear double standards when he considers the same evidence against Kumar, despite collaborative evidence from two other witnesses.

The testimony of several Delhi police officials absolving Kumar of participating in the crime only add to the impression of official cover-up.

That the case against Sajjan Kumar is not based only on rumour and hearsay is evidenced by the fact that he was indicted by three official committees and commissions - Jain-Banerjee, Jain-Aggarwal and GT Nanavati - all of which recommended action against Sajjan Kumar.

At least 7 FIRs mentioned Sajjan Kumar as an accused person, but the cases were closed as the accused - a leading politician - was incredibly declared 'untraceable'.

Even in the current case, in May 2010 Sajjan Kumar was not produced in court by the CBI and only after the metropolitan magistrate threatened to summon the director of the CBI in person and considerable media attention was given to this case that Kumar appeared in the lower court after securing bail from the Delhi High Court. In 2012, the CBI told the court that Sajjan Kumar had organised the anti-Sikh carnage, which had his 'patronage'. Even so today he walks free.

Justice in the Sajjan Kumar case is not just important to heal the wounded soul of the Sikh community. It is critical if we are to prevent further mass crimes, and indeed to defend secular democracy in India, and redeem its promise of equal treatment of all before the law of the land.

Harsh Mander is Director, Centre for Equity Studies. The views expressed by the author are personal.