(A TADA Court has meted out a dozen death sentences and other harsh sentences to those indicted in the 1993 Bombay blasts. What justice for those guilty of the communal carnage that preceded the blasts? Gautam Navlakha examines this issue with a close look at the Srikrishna Commission Report and its fate. – Ed.)

Cheerleaders of Indian constitutional democracy claim that such is the strength of our democratic institutions that if one fails there are others institutions which pick up the gauntlet and inject correctives to ensure that system remains buoyant and robust. Thus if the government, administration, and police fail there is the judiciary. If the judiciary fails there is the media. If everything fails people can vote out a government. All these institutions notwithstanding, as the Bombay carnage of December 1992 and January 1993 shows, perpetrators of heinous crimes continue to escape justice.

In the two phases of carnage that took place in Bombay between December 6-12, 1992 and between January 6-20, 1993, the state government said that 900 people died. Of these 356 died in police firing, 347 were stabbed to death, 91 were victims of arson, 80 died in mob action, 22 in private firings and four through other causes. Of those killed 575 were Muslims, 275 Hindus, 45 remain unknown and there were 5 “others”. Of the 2036 injured, 1105 were Muslims, 893 Hindus and 38 were others. The destruction of life and loss of property and sources of livelihood afflicted the Muslims most heavily.

Justice Srikrishna was appointed to inquire into the “circumstances, events and immediate causes of the incidents which occurred in the Bombay Police Commissionarate area” in December 1992 and in January 1993, and to identify the individuals and organizations responsible for them. The setting up of the Commission was far from smooth. The demand to set up a Commission of inquiry was first rejected by the then Congress party’s Chief Minister of Maharashtra. It was at the intervention of the Prime Minister PV Narsimha Rao that the CM relented. When the Srikrishna Commission (SKC) was set up it was given up to March 22, 1993 to submit its report. But extension of time was eventually granted. By 7 June 1993, 2193 affidavits, of which 549 were by the police, were submitted. Recording of evidence began on June 29, 1993. On 24 May 1995 the State Government changed and the Shiv Sena-BJP led Government took over. The first thing they did was to expand the terms of reference of the Commission to find out whether there was a link between the “riots” and the subsequent Bombay blasts and whether they were part of a “common design”. But within six months of this, on 23 January 1996, the State Government disbanded the Commission, arguing that it had taken unduly long to submit its findings.

While public pressure and the Bombay High Court’s displeasure compelled the State Government to reverse this decision on May 28 1996, one of the witnesses, Additional Commissioner of Police, VN Deshmukh, testified before the SKC that in the intervening months, police records pertaining to the case, i.e. those materials not already in possession of the Judge had been destroyed. Despite all this, the SKC managed to present its findings on February 16, 1998 after examining 502 witnesses and 2903 exhibits and recommended chargesheets in 436 cases for various offences. The SKC also held that while it found no evidence of a “common design” (euphemism for ISI) behind the “riots” and the bomb blasts) it held that “the riots of December 1992 and January 1993” appear to be “a causative factor for the latter (the March 12 1993 Bombay blast)”.

Nearly fifteen years after the crime was committed and nearly ten years after the SKC submitted its report, no progress has been recorded by the State Government and the Bombay police to bring the perpetrators of the December 1992 and January 1993 crime to justice. And once again we are being told that this time around the State Government will deliver and the guilty shall be prosecuted.

Consider evidence against three dramatis personae to form an idea of the quality of evidence gathered by the commission and how the search for justice was subverted:

1. On January 8, 1993 at 21.30 hrs Bombay’s Mayor Chandrakant Handore accompanied by his personal assistant and a journalist Yuvraj Mohite of Mahanagar went to meet Bal Thackeray at his residence to take his signature on an appeal for peace. While they were present they heard Bal Thackeray directing Shiv Sainiks to ensure that “not a single ‘landya’ (pejorative word for Muslims) would survive to give oral evidence”. He was also heard directing someone to catch hold of Additional Police Commissioner AA Khan and send him to “Allah’s home”, but to take precautions while finishing him off. Mohite told his editor, Nikhil Wagle, who in his turn requested the Mayor to accompany him to inform the government. The Mayor refused to do so. On January 9, 1993, Nikhil Wagle then informed the Minister of State for Home in the Maharashtra government Babanrao Pachpute and apprised him of the same. Mohite with the help of his notes prepared a first draft and got it translated from Marathi to English by one Prabha Desai, a lecturer of Patkar College, Goregaon. Based on this, an affidavit was prepared and submitted to the Srikrishna Commission. Mohite appeared as a witness before the SKC on June 22 1997 and the Shiv Sena was given an opportunity to cross examine Mohite, which they did extensively. The Commission notes in Volume II, Chapter III para 9.17 that “(t)here is no contrary evidence adduced by Shiv Sena or Bal Thackeray. The Commission sees no reason for not accepting the testimony of this witness”.

Therefore, the State Government had (if not through their own intelligence reports prior to the second phase of the carnage) at least by 9th January, 1993 been aware that the Shiv Sena and its chief were directing the anti-Muslim carnage. Not only was nothing done to stop the carnage, no action was taken by the State Government to proceed against SS.

2. Ramdeo Tyagi was the Joint Police Commissioner when the carnage took place. After retiring from service he joined the Shiv Sena and stood for Legislative Assembly elections which he lost. The evidence against him related to the Radhabhai Chawl massacre in which nine persons were shot dead by the police on 9 January 1993. It was passed off as an encounter until the SKC nailed the lie of the police, through a study of the Control Room log books and post mortem reports which showed that all victims had bullets on their back, as though they were fired upon when fleeing from the police. The SKC also found the police version wrong by pointing out that if there was firing from the side of victims why was it that no bullets were recovered from the spot where the police were stationed. Also the panchnama carried out does not record any bullet mark on the buildings where the police were stationed, which would have been the case if people inside Suleiman Bakery had fired on the police. But as we know by now, rarely if ever are senior police personnel convicted for committing heinous crimes such as massacre.

3. A Shiv Sena MLA, Madhukar Sarpotdar along with his son Atul and five others were arrested by an army patrol led by one Major Goswami on 11 January 1993 and found to be in possession of one licensed pistol as well as two unlicensed pistols, two choppers, two hockey sticks and two sticks. Since Bombay had been declared a TADA notified area anyone found with unlicensed weapon, says the Judge, ought to have been charged under Section 5 of TADA. Neither was he charged under TADA nor did the State Government oppose his bail when he was produced before the magistrate. As for chargesheeting him, SKC notes: “When Shri Sarpotdar gave his evidence before this Commission, as late as 15 January 1996, he claimed that he had not been served with the chargesheet!” (Volume II, Chapter 1, para 21.30)

Later it transpired that Sarpotdar was acquitted by a lower Court because the charge filed against him was for possessing a licensed weapon in a notified area. This is to say that police can prepare a weak case or leave enough “technical errors” to ensure that an accused person they want to protect can go scot-free.

We know that when charges are filed against Muslims, Dalits, Adivasis or Naxalites, charges are filed under TADA, POTA or the Unlawful Activities Prevention Act (2004). Once these laws are invoked it ends up disarming the accused of his/her rights and ensuring that the prosecution’s hands are strengthened. However, these laws are never invoked against either killers in uniform or the Hindu communal fascists. The point is not to demand that these laws should be used against anyone but only to underline that these extraordinary laws are obviously meant for use against certain categories of people. We also know by now that the course of justice for the marginalized and the dispossessed is onerous. The main perpetrators of the anti-Sikh carnage in Delhi and Kanpur in 1984 have yet to be brought before justice. The trial in the massacre of 49 Muslim youths by the PAC in 1987 at Hashimpura finally commenced in 2006, after all manner of twists and turns. But not in UP - in Delhi instead after nearly two decades. The accused in the Bhagalpur carnage of 1989 were convicted in 2007 after eighteen years. What all this suggests is that there is one set of rules which virtually mollycoddles the communal fascists and killers in uniform and another set of laws for the marginalized people in India which virtually becomes a source for their persecution.

This raises two issues. In the first place, a riot or carnage means a breakdown of law and order. If the riotous situation lasts over several days (nearly two weeks in January 1993) then it ceases to be an aberration, a temporary lapse. It then becomes a case of culpability of the authorities in allowing such conditions to persist. Therefore, to believe that by proceeding against a few, mostly flunkeys, the larger issue of acts of omission and commission of authorities which enables pogroms to take place can be ameliorated, is palpably wrong. Secondly, one has long believed that the notion of formal equality between the unequal is untenable. But when laws do not apply equally/uniformly for perpetrators of heinous crimes, even the formal pretense of ‘equality before law’ takes flight. 