Kamal Nath is in the clear, is he not? No FIR as much as mentions him. He can claim exoneration by two commissions of inquiry, each headed by a Supreme Court (SC) judge, for his role in the 1984 anti-Sikh riots that engulfed Delhi between 1 to 3 November after the assassination of then prime minister Indira Gandhi by two of her Sikh bodyguards on 31 October.

Nath has been a Union minister before, and for long. And now he is the newly-appointed chief minister of Madhya Pradesh. So, 34 years on, what’s this fuss about?

Why this fuss

The fuss is, first, about two men burnt alive at the Rakab Ganj Gurdwara on 1 November. They say at the gurdwara that the two were father and son who had come to serve there. First the father was burnt alive, and then the son who rushed up to save him. We still don’t have their names. The police record no more than notes that two Sikhs were burnt alive at the gurdwara — that was there for many to see. These were murders, and so recorded by the police.

Kamal Nath's 'role'

Nath, then a Congress (I) Member of Parliament (MP) was seen in control of that mob. I was among the witnesses who saw him there, he himself has never denied his presence there on that day. But his position on that day was not investigated further by the police, and no evidence consequently found against him. The first of the SC inquiry commissions dismissed my affidavit filed as eye-witness to his presence there; the second found it not very clear. This affidavit itself acknowledges that at one moment, one gesture from Nath held back a few advancing fellows. Further reason then, to not raise questions over Nath’s role now?

Police who don't police

Do ask the question — and it’s not a difficult one — what would we expect in law to happen at the scene of a murder? Someone calls the police, they arrive soon as they can, begin investigations, gather evidence, search for witnesses and look to make arrests. If it’s a mob that killed, the police must trace and arrest any member or any number of members of that mob for questioning at the least to begin with. If the police turn up in time to face an active mob that is known to have killed, they must make arrests right there, and move fast to disperse the rest.

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Do ask also the question — and this is a difficult one — what would we make of a murder scene where a mob that has killed is out to kill again, and where you don’t need to call the police because the police are there already, armed and in strength? But you then have police who do not police. They watch the mob in static formation from only yards away, making not a move to check their repeated advances. Where this is now a strong police presence under the command of a senior officer.

Without the senior officer and the strong force under his command, a sub-inspector and a couple of constables from the local police station had made some attempts earlier that day to handle the exploding situation, if the police station record is anything to go by. An FIR records that one or two policemen fired into the air with a revolver to stop the advancing mob, but could not. It mentions also revolver fire from within the gurdwara and that one among the mob died in firing but not as a result of police firing.

Wireless reports of violence around the gurdwara brought the top brass of Delhi Police to the scene, and reinforcements with them. Fully armed and in strength now, and under the command of Gautam Kaul, additional commissioner of police then for New Delhi range who was the second most senior officer in Delhi in that area, the police moved into inert mode. They stood under Kaul’s command but were given no orders to check the mob. The repeatedly advancing mob was visibly under the control of Nath right there among them – among a mob that had killed.

Unanswered questions

Consider where that mob had appeared from. These men had come to the gurdwara from Teen Murti Bhavan, as recorded in the Kusum Lata Mittal report that looked into policing failures.

They were from that lot of supposed mourners seen live on Doordarshan only a little earlier that morning, shouting 'khoon ka badla khoon'.

Nath too was at Teen Murti earlier, the Mittal report notes. We certainly cannot put two and two together from these facts to suggest that Nath himself therefore brought these people over and commanded them to kill. But kill they did, and under Nath’s control these people were. No one has ever said they saw — and we cannot say — that Nath himself ordered the killing. But questions continue to haunt that scene despite persistent denials from Nath and his team. Some of those questions have not been asked, let alone answered.

What the law says

Forget the politics, consider where the law stands in relation to the facts appearing on the streets then. The law provides that in a situation of mob violence, the police can arrest any member of that mob. If a particular person is clearly in charge of that mob, you’d expect that the police would want – at the least – to speak to him first. That would seem the starting point for investigations into who the actual killers and their immediate accomplices were, though the net can be spread wider than that. Who may have been guilty would be for a court to decide — if the police could find enough evidence to launch prosecution. That someone seen to be in control of a mob that had killed is not a fact that the police could in law turn away from. In fact they did.

An idle top cop

Were the facts of Nath’s presence there and the idleness of the police unrelated? If at all there had been some moves by a couple of junior policemen to contain the mob earlier, why was it different under a larger police force under the command of a top officer?

Police reinforcements had fired, but at the gurdwara; to deal with the surging mob they were doing clearly nothing.

I did see Kaul break out of his idleness when the mob rushed forward yet again towards the gurdwara just past the police formation; he scampered to a side behind his shield. The police seemed out primarily to protect themselves. Beyond that their response looked driven by reports of a gurdwara on the attack, not a gurdwara under attack.

An eyewitness account

At one point again, and now in my presence as an Indian Express reporter, I also saw Nath gesture towards a few advancing chaps, and at that moment they held back. I had included a reference to this particular moment too in my report for the Indian Express then, and accordingly in the affidavit I later filed. I did so in order to present as accurately photographic a picture of the scene as I could to our readers. Why wouldn’t I? I was there to report, not to prepare some campaign against Nath then or later. Later, Nath picked on my noting of this particular moment to claim that he was in fact restraining the mob. That one snapshot moment of apparent restraint from Nath had not necessarily stretched all day. In any case, it does not answer questions arising from before and after, and in fact from that moment itself.

What was the relationship between Nath and the mob that he had only to raise a hand before some chaps, and they responded? Would it be fair or not to think that you can control a mob only if you have control of it? Could this have been a mob with no Congress (I) links that was responding to a party leader because, well, he was some sort of a leader if not their own? Would this be a mob that thought it was right to kill, but not right to disregard someone else’s leader that they had suddenly found in their midst? What did the police know about the composition of this crowd that they left the control to Nath?

Who was controlling the mob?

Was it for Nath to control that mob or for the police? If restraining a crowd with which he had no relationship was Nath’s intent as a responsible leader, would it be normal to expect an MP who had turned up at the scene to push the police to restrain the mob before they killed some more?

Why did Nath take it upon himself to control that mob rather than call upon the police – present at hand and in strength – to do so, since they clearly were not making any such move on their own?

The Rakab Ganj killings could have become a tell-tale signal to this mob and others. The killers had arrived at the gurdwara carrying their 'khoon ka badla khoon' cries from Teen Murti, they found the khoon they were looking for, they saw a top party leader in their midst who did nothing to call up policemen who stood by as spectators and made no move to stop them.

In the end, they were left free to go their way with the bloody message that for the purpose of killing Sikhs, the law stood suspended. The worst of the killing was to come later that night.

'Insufficient' evidence against Kamal Nath

Evidence against Nath was considered insufficient in the end, one way or another. The police did not gather any, and they seem to have ignored what was self-evident. Without record there is no investigation, without probe no evidence, without evidence there is no case, and so it becomes possible to then say there is no evidence against Nath. We can speculate, of course, that such a process may not have led to a conviction even if carried out, but what is certain is that we did not have such a process. That lack of process killed the possibility of justice to follow.

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Where was Kamal Nath when two Sikhs were burnt alive?

It left questions hanging. Did a handful of junior policemen indeed make some early moves to check the mob as claimed by the local police? Why did the police make no such moves after they had turned up in strength under the command of top officers? Why was Nath in their midst, and for how long? Above all, where exactly was he when the two Sikhs were burnt alive? On this we have no record because we have no investigation that tracked Nath on that day. The police did not question several eyewitnesses, they certainly did not question me though my presence there was known to them, and my report in the Indian Express on 2 November accessible to them.

Probe panels' findings

Some records noted by Justice GT Nanavati, the second SC judge to inquire into those killings, only add to the questions. Nath was present at the gurdwara for “quite a long time”, he recorded. Why was Nath there for a long time? Nanavati found Nath’s explanations over his presence “vague”, and excused the vagueness because Nath was being asked questions to explain his presence 20 years later. In the end, Justice Nanavati pointed to absence of sufficient evidence to say he could not come to any conclusion that Nath had instigated the mob.

Rakab Ganj set the pattern for two more days of killing around Delhi. Passive, and often active police complicity meant few cases were registered, little evidence gathered. Less than half of the killings in Delhi were covered by FIRs. A Citizens Justice Committee set up by former Bombay High Court judge VM Tarkunde counted 3,870 deaths, the Delhi administration put the figure at 2,307, and finally 2,733. A figure of a little more than 3,000 was suggested later on the basis of a body count; the toll is still not much more precise than that. Of these, no more than 1,419 deaths were covered by the FIRs. And these FIRs were mostly vague, as the Kusum Lata Mittal report documents. At places, one FIR would cover scores of deaths and appeared as little more than some slipshod summary of killings. These were drafted to smother evidence, not to gather any.

Where could such cases stand in court, if presented at all? A complicit police force was not going to present cases against itself. Who could be witnesses? Hardly anyone from the mob. Those who saw the killings and survived them were considered interested and therefore unreliable witnesses. The life imprisonment sentence for former Congress (I) member Sajjan Kumar by the Delhi High Court on 17 December comes now because the court chose to believe Jagdish Kaur, who said that Kumar had led rioters who burnt her husband and son alive, which an earlier court did not.

Justices S Muralidhar and Vinod Goel, who ordered life term for Kumar, noted the pattern of killings through the 1984 cases. The killings were “engineered by political actors with the assistance of law enforcement agencies,” they ruled, and these killings “answer the description of ‘crimes against humanity’.” The criminals responsible for the mass crimes have “enjoyed political patronage and have managed to evade prosecution and punishment”. They spoke of a failure to examine important witnesses. If cases were registered, they were not investigated properly, the judges said. “Cases of the present kind are indeed extraordinary and require a different approach to be adopted by the courts.”

What was Rajiv Gandhi seeking to suppress?

The closest step to subsequent justice came from the inquiry conducted in 1985 by police officer Ved Marwah on the orders of then Delhi police commissioner SS Jog. Days before Marwah was to submit his report, the inquiry was called off. It’s inconceivable that such a decision could have been taken without orders from then Prime Minister Rajiv Gandhi; inconceivable that Rajiv could simply have read about the abrupt ending of such an inquiry — into so many killings after the assassination of his mother — in the newspaper one morning. What was Rajiv seeking to suppress? He resisted demands for a judicial inquiry at first on the ground that it would only “open old wounds”. But under pressure from the Akali Dal, a new inquiry was ordered, to be conducted by Justice Ranganath Mishra, a sitting SC judge. All records of the Marwah inquiry were handed over to the Mishra commission.

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Testimony dismissed

I submitted affidavits before the Mishra commission on the Rakab Ganj events and others I had witnessed. At this inquiry, I was asked to produce witnesses to testify that I was a witness. Failing that, to produce a log book from the Indian Express office to prove I was at the Rakab Ganj gurdwara when I was. Mishra knew that Nath and Kaul could have been witnesses to prove I was a witness, but he didn’t want to know. My testimony was dismissed.

Justice Nehra's report

Anyone in awe of the SC should read the Mishra report. The sitting SC judge could not get his basic facts right. “By 1984,” he wrote in his report, “the Union Territory had been divided into five police districts, each being called a Range in charge of a Deputy Inspector General of Police (later, Addl. Commissioner of Police),” he wrote. That’s three serious errors in one sentence. One, Delhi comprised not five but six police districts (north, central, east, New Delhi, south and west). Second, each district was not called a range. There were two ranges only, called Delhi and New Delhi, each divided into three police districts. Thirdly, the officers in charge of those districts were additional commissioners of police right then and not later as Mishra had noted. In 1984, there were no deputy inspector-generals of police in Delhi. The SC judge had delivered his report on policing issues with a fundamentally flawed understanding of what the police system was.

Mishra found that the Congress (I) had no hand in the killings other than some possible involvement at some at party worker level. He pronounced that the killing had begun spontaneously on the evening of 31 October as news of the assassination spread, but that from 1 November became organised — the pattern of organised killings was inescapable. “The change in the pattern from spontaneous reaction to organised riots was the outcome of the takeover of the command of the situation by anti-social elements,” Mishra said.

Satan at work

And who were these anti-social elements? The sitting SC judge had an answer: “It is said that Satan too has a process and when taking to satanic activities the anti-social elements took to their organised process. This is how — and in this sense — violence in Delhi was indeed organised but such organisation was not by any political party or a definite group of persons but by the anti-social elements.” So it was not the Congress (I) that organised the violence but Satan. Mishra was later appointed SC chief justice by a Congress (I) government, then went to become the National Human Rights Commission’s chairman. Finally, Congress (I) nominated him to Rajya Sabha.

The first exoneration of Nath and other leaders’ claims is through an inquiry such as Justice Mishra’s.

The second inquiry ordered by the Atal Behari Vajpayee government in 1999 and led by retired SC judge Nanavati noted also the pattern of “organised carnage” from 1 November. I testified before this commission too. When I brought up a brief meeting I had had with Rajiv over the 1984 killings, I was advised to leave that aside and that input was glossed over. The Nanavati inquiry had been ordered by a BJP government; by the time the findings were finally presented, the Congress was back in power.

Justice Nanavati went slightly further than Justice Mishra, though. He noted in his report published in 2005: “But for the backing of influential and resourceful persons, killing of Sikhs so swiftly and in large numbers could not have happened.” But who were these influential and resourceful persons? Justice Nanavati added, “Whatever acts were done, were done by the local Congress (I) leaders and workers, and they appear to have done so for their personal political reasons.”

How resourceful and influential can local leaders acting for personal political reasons be? What were personal political reasons? With 1984, nothing adds up, no one is responsible. A repeated recommendation is to forget 1984.

Forget the police collusion at places, their unwillingness to protect others, forget the evidence never gathered that then never was and the inquiry commissions that did not inquire. The trouble is that families remember, a community remembers.

— Images from Press Trust of India and Facebook

Sanjay Suri is the Europe editor for Network18

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