In October 2017, a familiar scene played out in a sessions court in Mumbai. A constable informed the judge that the police had not been able to trace the complainant. A new date was given, and the accused in the case trooped out. The complainant was a policeman, no longer residing at his old address. With their vast resources, the Mumbai Police had not been able to trace one of their own, who, just six years back, had been an assistant commissioner of police (ACP).

But the public prosecutor was not unduly perturbed, for this was just one of the many cases he had to handle. In fact, he saw this one as a burden on him, given that it was almost 25 years old.

A year ago the same case was being heard in another court. At that time, it was the investigating officer who could not be traced. His house was locked; long retired, he was visiting his daughter in the United States (US). After some weeks, the public prosecutor urged the judge to issue a warrant against him. But on whom would it be served?

Mysteriously, on the next date, the investigating officer who had apparently gone to the US, returned. But he was of no help in tracing the case files. He knew little of the many twists and turns it had taken, he shrugged. Before the next date could arrive, the case was transferred to another court, and within a few months, to yet another, where it is currently listed.

The accused in this case are serving policemen.

This story of the murder case against Ram Dev Tyagi, Mumbai’s former Police Commissioner, tells you why the families of the 900 persons who were killed in the post-Babri Masjid demolition riots in Mumbai in 1992–93, have yet to get justice, despite a judicial commission of inquiry recording in meticulous detail who was responsible. It was not the usual delays of the legal system that made the victims lose hope, but the deliberate scuttling of the judicial process.

Slow to Act on Promises

It has been 19 years, but one still remembers the shock and euphoria that greeted the tabling of the Justice B N Srikrishna Commission of Inquiry Report on the December 1992–January 1993 Bombay riots, on 6 August 1998. Shiv Sena chief Bal Thackeray was then the “remote control” of the state, as his party was in power as the senior partner in a coalition government with the Bharatiya Janata Party (BJP). But that had not deterred Justice Srikrishna from naming Thackeray as responsible for the anti-Muslim violence in the second phase of the riots (Government of Maharashtra 1998). The commission had also recommended strict action against 31 policemen, indicted for crimes ranging from cold-blooded murder of innocents to inhuman conduct to shielding rioters. The most senior in that list was Tyagi (Government of Maharashtra 1998). With the Sena–BJP government in power, it was evident that the Srikrishna report would not be implemented. Indeed, the then Chief Minister Manohar Joshi only tabled the report in the assembly after being compelled to do so by the Bombay High Court. Along with the report, he also filed an action taken report (ATR) in which the commission’s main findings were rejected.

Yet the excitement created by the Srikrishna Commission’s report did not let matters end there. As copies of the report fell short—the government had printed only enough to distribute in the assembly—private citizens reprinted it. Its findings were publicised in Hindi, Marathi, and Urdu; protest meetings were held, and a Congress social worker, Naseem Arif Khan, filed a petition in the Supreme Court asking for its implementation.

In 1999, the Sena–BJP government was replaced by another coalition government comprising of the Congress party, the Nationalist Congress Party (NCP), and the Samajwadi Party (SP). However, although both the Congress and the NCP had made implementation of the Srikrishna Commission Report an election promise, in the Supreme Court the government counsel refused to declare unequivocally that the government had accepted the report. After repeated questioning by the Court, he said the report would be referred to the Criminal Investigation Department (CID) for further investigation and action (Telegraph 2000). Two of the 31 indicted policemen were then in the CID.

As the government’s ambivalence became clear, public pressure continued. The Nirbhay Bano Andolan sent 20,000 postcards to the chief minister. The Lawyers Legal Aid Committee, which had appeared before the commission, intervened in the case. Its affidavit prompted the then Chief Justice A S Anand to ask the government what action had been taken against Tyagi. His obvious displeasure led to the setting up of a Special Task Force (STF) comprising hand-picked police officers in August 2000, and the filing of a case of murder in 2001 against the former police commissioner and 17 policemen who had, under his command, carried out a raid that had left eight innocents dead.

Why was the Congress–NCP government unwilling to implement the Srikrishna Commission Report?

Unwilling to Act

An inkling of this unwillingness was visible on the day the report was tabled in the assembly and simultaneously rejected. This author asked the then leader of the opposition Chhagan Bhujbal whether his party, the Congress, would launch an agitation for the report’s implementation. “What? And risk the Hindu vote?” he retorted. But after the party won the election and formed the government with the NCP, and the danger of losing the Hindu vote no longer existed, why did it continue to drag its feet over the report’s findings?

There were two reasons for the dilly- dallying. First, Bhujbal held the portfolio as the state’s home minister. He was the one who would have had to take the decisions required to act on the report’s findings. This former Shiv Sainik’s indifference to the report has been mentioned above.

The second reason was the Congress’s tilt towards Hindutva, which was evident in front of the commission. On every matter of importance, from the causes of the riots to the conduct of the police, its submissions by and large reflected the stand taken by the Shiv Sena. In the Bombay High Court, the government’s counsel even defended Thackeray’s inflammatory editorials in the party’s mouthpiece, the Marathi daily Saamna, written during the riots.

To implement the report, the government would have had to reopen 1,358 closed cases (60%) of all riot cases. In many, though not all of these, the accused were Shiv Sainiks. To show the Supreme Court that action was being taken, the STF reopened five cases. This kind of tokenism resulted in acquittals or the cases being closed again. Meanwhile, the Congress welcomed into its ranks Shiv Sainiks, including riot accused, whose names had featured in the report (Telegraph 2005).

Implementing the report would also have meant taking “strict action’’ against the 31 indicted policemen. The government did take action. The STF took legal action against nine of them, eight were charged with murder, of whom six were acquitted. The acquittal was a foregone conclusion since no one was willing to testify in this case. The remaining two were discharged (with help from the STF as will be shown below). One was charged with minor offences. Departmental action was taken against nine others. These actions included “a reprimand,’’ “compulsory retirement,’’ and “increments stopped for two years.’’ No one cared to find out whether such “punishments,’’ mentioned in government affidavits in the Supreme Court, had actually been meted out. One of these policemen died and one had been punished before the report came out. Finally, overruling the findings of a judicial commission comprising a sitting high court judge, the STF exonerated the remaining 11, without even talking to their victims who had testified in front of the commission.

Almost all governments tend to ignore the long-term recommendations of judicial commissions, because they involve altering the functioning of the police. The state government in power then also ignored the Srikrishna Commission’s recommendations on prevention and control of riots, such as punitive measures against policemen for failed prosecutions and closed cases. It also showed no interest in implementing even politically harmless recommendations such as compensating the families of the 165 missing persons of the riots, many of whom were Hindus.

In the 15 years the coalition was in power, it behaved as if the report did not exist. Its affidavits in the Supreme Court repeated the police version of events, which had been disproved by the commission. No special public prosecutors were appointed in cases described in the report, not even in the politically important case against the Shiv Sena’s former Member of Parliament (MP) Madhukar Sarpotdar. In this case, the regular public prosecutor resigned after not having been paid for six months. Only after the tabloid Mid-Day exposed this state of affairs, were charges framed against Sarpotdar and his co-accused, eight years after the riots. In all riot cases, the public prosecutors, paid from public money to safeguard victims’ interests, were at best indifferent, because no instructions had been given to them, and at worst, hostile to the victims.

No Political Pressure

With the Shiv Sena as the main opposition, there was no political pressure on the government to implement the report. Even the Samajwadi Party president Abu Asim Azmi played a dubious role. From 1999–2004, when he was part of the government, he intervened only once to persuade riot victim Abdul Haq Ansari to “settle matters’’ with the men who had looted and burnt his garment workshop in December 1992. The report had indicted three policemen for the violence. The meeting was set up at the residence of then minister Chhagan Bhujbal, who by then had joined the NCP. The assailants had been his loyal followers since his Shiv Sena days. Ansari met them but refused to settle. After 2004, as an opposition leader, Azmi spewed communal rhetoric against the government over non-implementation of the report, but asked riot victims who approached him to go to the activists (Mumbai Mirror 2007).

Why the Lack of Involvement?

What of the Muslim community? The commission quoted official figures that showed 575 Muslims were killed in the riots as against 275 Hindus (Government of Maharashtra 1998). The report restored the faith of the community in the system. Many joined the protests and packed the courtroom in the initial stages of the Tyagi case. Since then, however, the case continues to be fought in empty courtrooms.

There are many reasons for the apathy of Mumbai’s Muslim leaders towards following up a report that generally vindicated their community’s stand on the 1992–93 violence. First, for most Muslims, the greatest finding of the report was Bal Thackeray’s culpability. “Punish Thackeray’’ became the catchword in the community. They simply overlooked one important detail: the commission had not recommended the Sena chief’s prosecution, because the evidence against him would not have stood up in court.

Second, the legal battle to get the report’s recommendations implemented was fought in the Supreme Court. The Mumbai Aman Committee, which had worked through the riots and the Commission hearings, the Nirbhay Bano Andolan and a handful of individuals were active in the Supreme Court battle, but not the community at large.

Hundreds of Cases

In Mumbai, hundreds of riot cases involving unknown Muslims were on, but no one bothered to track them. The Jamaat-e-Islami, which has a panel of lawyers grandly named Association for Protection of Civil Rights, sent one of its lawyers to monitor these cases. The lawyer dozed through the proceedings, explaining to this reporter later that they were in Marathi, a language he did not know. Helping these unknown victims would have meant providing them moral and physical support to cope with mystifying and unfriendly court proceedings, arrange to look after their children or make up for a day’s loss in wages. None of these things were done.

The complex relationship between Muslim leaders and the establishment also played a role. Like leaders of disadvantaged minority communities everywhere, Mumbai’s Muslim leaders too have a fragile relationship with the police. They are aware of the force’s prejudice against their community but cannot afford to make enemies of them.

The original petitioner in the Supreme Court, Naseem Arif Khan, became a minister in the Congress–NCP government only because of his petition. In fact, in 2009 he became Maharashtra’s first Muslim minister of state for home affairs as well as minister for minority affairs. He was thus best placed to ensure the report’s implementation. But he did nothing, not even appointing a special public prosecutor to fight Shiv Sena leader Sarpotdar’s appeal against his historic conviction under Section 153A (promoting communal enmity) in 2008 by a Special Magistrate’s Court.

What of other community leaders? Khan took care to cultivate the ulema and the Urdu media. But even before him, the ulema’s priorities had been captured in one unforgettable photograph taken at an iftaar party during the Sena–BJP reign: a phalanx of maulanas extending spoons of sheer korma towards Chief Minister Manohar Joshi. The man they were so eager to feed had justified to the Srikrishna Commission the use of the derogatory term “landya” for Muslims, by Saamna.

No wonder then that when some riot victims decided to use Congress Chief Minister Vilasrao Deshmukh’s iftaar party to distribute leaflets, Deshmukh simply handed their leaflet to his aide. The guests, comprising the crème de la crème of the Muslim community, remained equally unperturbed (Times of India 2007).

Within four years of the report being tabled, the 2002 Gujarat violence took over the national consciousness. Mumbai’s Muslim leaders joined the outcry against Narendra Modi, then the Chief Minister of Gujarat, and forgot the oppressors in their own backyard.

The fight for justice for Mumbai’s riot victims was finally left to a small group of determined victims and activists and an even smaller number of lawyers, most of who had appeared before the commission for five long years already. Neither the National Human Rights Commission (NHRC) nor the National Minorities Commission responded. The Supreme Court lost interest as the government filed voluminous affidavits, full of meaningless data. The matter has still not been disposed of; the last substantive hearing was in 2008.

Two Iconic Cases

Two cases of the riots, the Suleman Bakery Case and the Hari Masjid case, which were dealt with at length in the Srikrishna Commission Report, encapsulate all the odds Mumbai’s victims have had to face. In both, policemen charged with murder spent not a moment in custody, and walked free, with help from the prosecution. In both, victims were charged with attempt to murder and rioting, charges which the commission and even the state in one case, said were fabricated to cover up the police firing. Yet these cases were not withdrawn and the victims had to fight for years to prove their innocence. Freeing Tyagi’s victims in the Suleman Bakery case from these false charges in 2011, Justice R P Sondurbaldota remarked: “Nothing can be more frightening than the situation where the protector becomes the predator’’ (Ashfaque Ahmed v The State of Maharashtra, Criminal Revision Application No 94 of 2006). That is exactly what happened in both incidents, which took place in January 1993. One of the enduring myths of the 1992–93 riots is that the Mumbai police were demoralised in January by criticism of their excessive firing on Muslims in December 1992. There were no signs of this though, in either of these incidents, wherein unarmed Muslims were shot dead inside their own homes and mosques.

In the Suleman Usman Bakery case, the main accused was a joint commissioner of police (he later became commissioner). In the Hari Masjid case, the accused was a sub-inspector. Rank did not matter: both men got the full support of the Congress–NCP government.

In both cases, the police’s story was that they had fired in response to attacks by armed Muslims. But in both, neither policemen nor members of the public were injured, nor were any weapons found. The Suleman Usman Bakery incident left eight innocent Muslims dead; in the Hari Masjid case, the toll was six, four killed inside the masjid. None of the policemen in these cases have faced trial.

In the Suleman Usman Bakery case, Tyagi and eight of his co-accused were discharged of the charge of murder within two years of the case being filed. The judge accepted Tyagi’s defence that he was only doing his duty, responding to an emergency call from his junior in an area engulfed by violence, where policemen were being targeted. He had not entered the bakery, and had ordered his men to catch the terrorists by using “minimum force.’’ Records showed that of his 17 co-accused, only nine had actually fired. They continue to stand trial, because the judge accepted that they had fired on unarmed men. The remaining eight had “shown restraint’’ said the judge, by not firing, and were hence discharged along with Tyagi.

Role of Public Prosecutors

This extraordinary reasoning, which claimed that in a 20-minute raid, the commander waited outside while nine policemen made a personal decision to fire and eight simply stood by, was accepted right up to the Supreme Court. The Srikrishna Commission and the STF’s findings had shown this entire story to be false. The special public prosecutor appointed under public pressure to oppose Tyagi’s anticipatory bail application immediately after the case had been filed, had blown this police version to bits. Yet, when it came to Tyagi’s crucial discharge application, the STF did not even inform him about the application.

The STF left it to the regular public prosecutor to oppose the discharge. Did he put up a fight? The discharge proceedings were not reported in the press. But during an earlier proceeding in the case, this public prosecutor had presented an application on behalf of Tyagi, provoking the magistrate to angrily ask, “Are you representing the accused?”

The role of public prosecutors in the Suleman Usman Bakery case provoked two judges to comment on them. The Hari Masjid case also drew the anger of the court. Responding to a petition filed by victim Farooq Mapkar, who had been shot while preparing for namaz, the Bombay High Court ordered a reluctant Central Bureau of Investigation (CBI) to investigate this case that “affects the very soul of India.’’ Pulling up the government and the STF for exonerating sub-inspector Nikhil Kapse without even speaking to his victims, Justices F I Rebello and R S Mohite wrote:

[this case is] of great public interest in so far as it is the mandate of the Constitution that the State maintain its secular fabric. It is a primary duty of the State to ensure that no community should be left with feeling that they have no forum to address their grievance or a feeling that the law is not uniformly applied to all its citizens. (Farooq Mohammed Kasim Mapkar v The Commissioner of Police, Criminal Writ Petition No 1437 of 2007)

But none of this could deter the Congress–NCP government’s zeal to protect its policemen. It rushed to the Supreme Court to stay the CBI investigation. “Nikhil Kapse has suffered enough these 16 years,’’ said a government spokesperson (Indian Express 2009). Obviously, the Supreme Court did not agree, for it refused a stay in a case it described as “extraordinary” (State of Maharashtra v Farooq Mohammed Kasim Mapkar & Ors, Criminal Appeal No 1376 of 2010).

If the Hari Masjid case became victim Farooq Mapkar’s fight, the Suleman Usman Bakery case, too, was fought by two victims: Abdullah Qasim, a student at the madrasa adjoining the bakery, which had also been raided, and Maulana Noor ul Huda, a teacher there. Abdullah was 12 years old when his handicapped father, also a teacher at the madrasa, was tortured, shot and left to die, pleading for water (affidavit in front of Srikrishna Commission). Eager to see the men who had done this put behind bars, he intervened to oppose their bail—but in vain. The special public prosecutor had instructions not to oppose their anticipatory bail as police custody would have cost them their jobs.

Maulana Noor ul Huda, who bore on his forehead the scars left by the assault on him by Tyagi’s men, was initially reluctant to get involved. But Tyagi’s discharge shook him. “I want to show that we are not powerless, we too have guts. History will record that there were people who fought,’’ the heart patient told this author. Alas, the Maulana’s long, lonely fight right up to the Supreme Court was in vain. So was Farooq Mapkar’s.

The CBI exonerated Kapse, refusing to believe his victims. They were not “neutral,” said the agency in its closure report, because the police had filed a case against them in the incident (they had by then been acquitted). The CBI also spoke to two independent witnesses. One of them contradicted Mapkar, the other corroborated his version. The CBI accepted the former’s account and ignored the latter’s. Was it a coincidence that the former was a Hindu and the latter a Muslim, one whose testimony had been found credible by the Srikrishna Commission?

Before indicting Kapse, the Srikrishna Commission had studied the records of the police station as well as wireless messages that confirmed Kapse’s role. This material was lying with the Maharashtra government and the concerned police station. Neither handed it to the CBI. Despite the absence of this vital evidence, the country’s prime investigative agency proceeded to exonerate Kapse.

The Suleman Usman Bakery case cries out for a special public prosecutor as it continues to make its way through various courts, but who will ask for one? Both Noor ul Huda (he passed away in 2012) and Abdullah lost hope. But Mapkar has not. For six years now, he has been trying to challenge the CBI’s closure report.

‘Popular’ Narrative

Twenty-five years after the riots, the popular perception of the way events then unfolded, remains this: in December, angered by the Babri Masjid demolition, Muslims attacked the police, forcing them to open fire. In January, a demoralised police refused to act, forcing the Shiv Sena to “retaliate’’ and let loose a “Hindu backlash.’’

The Srikrishna Commission, after listening to 502 testimonies, including those of policemen, and poring through piles of police documents and hospital records, stood this theory on its head. Yet, it is as if the commission’s report had never come out. Radhabai Chawl, where six Hindus, five of them women, were burnt alive on the night of 7–8 January 1993, remains the enduring metaphor of those days, not Suleman Usman Bakery or Hari Masjid. Significantly, the public prosecutor in the Radhabai Chawl case, to which the Terrorists and Disruptive Activities Act (TADA) was applied, did what a public prosecutor is supposed to do. He met the victims, went to court fully prepared and won a conviction against 11 Muslims. In 1998, the Supreme Court struck down this ruling with harsh words both for the police and the judge.

Yet, this account of deliberate thwarting of justice will be incomplete without a mention of the three convictions that have emerged in these 25 years: those of Madhukar Sarpotdar, Jaywant Parab, and Ashok Shinde. The first had been both MLA and MP. All three were charged under Section 153A, the first Shiv Sainiks to be so convicted. Finding them guilty on the basis of police records of their speeches, magistrate R C Bapat-Sarkar made a simple observation: elected representatives who made provocative speeches deserved punishment “to send the correct signal that wrongdoing would be punished.’’

The convictions came about in 2008, 15 years after the riots, thanks to special riot courts set up by chief minister Vilasrao Deshmukh. Death penalties and life sentences had just been handed down to the perpetrators of the 12 March, 1993 bomb blasts. Muslims were angry that those responsible for the 1992–93 riots, which were the trigger for the blasts, had gone unpunished.

The special courts were a sop, designed not to deliver results. Magistrates’ courts cannot try cases of arson and murder, only the sessions courts can do that. Yet, of the four special courts, the government reserved only the two magistrates’ courts exclusively for riot cases, not the sessions courts. And it made sure that even the former were not empowered. Neither the two magistrates nor the public prosecutors were given a copy of the Srikrishna Report; the latter were not even told which cases were important. Yet, over four months, they tried around 70 cases and convicted 17 accused in six of them.

Only the convictions in Sarpotdar’s case were upheld by the higher court, thanks to a surprisingly conscientious regular public prosecutor and a foolproof judgment. Pointing out that India was a secular country, Additional Sessions Judge Dilip Murumkar ruled that freedom of speech could not mean hurting the feelings of others.

If these convictions could come after 15 years, how many more would have come had special courts been set up right after the riots?

But, within eight weeks of the riots ending, the 12 March 1993 bomb blasts rocked Mumbai. The entire wrath of the state, then headed by Sharad Pawar, was directed towards punishing their perpetrators. The riots were forgotten, featuring only in TADA courts where the worst riot cases were being tried; and in the Srikrishna Commission’s courtroom.

Even their memory has died today.

References

Government of Maharashtra (1998): Justice B N Srikrishna Commission of Inquiry Report, Vol I, Chapter II, Para 1.27.

Indian Express (2009): “State Obtains Stay On Cbi Probe Against Cop in Hari Masjid Case,’’ 2 September, http://indianexpress.com/article/mumbai/state-obtains-stay-on-cbi-probe-….

Mumbai Mirror (2007): “Implement Srikrishna Report: SP,” 26 October, https://mumbaimirror.indiatimes.com/mumbai/other/Implement-Srikrishna-re….

Telegraph (2000): “Mumbai Green Signal on Srikrishna Action,’’ 7 January, https://www.telegraphindia.com/1000108/national.htm.

— (2005): “‘Outsider’ Fire at Thackeray,’’ 21 August, https://www.telegraphindia.com/1050821/asp/nation/story_5137894.asp.

Times of India (2007): “Boycotting into Kebab’’ 30 September, https://timesofindia.indiatimes.com/home/sunday-times/Boycotting-into-ke….