A   B R I E F

After rejecting all demands for a judicial inquiry for over five months, the Rajiv Gandhi finally appointed a Commission in April 1985 under the chairmanship of a sitting Supreme Court judge Ranganath Misra. According to its terms of reference, the object of the Misra Commission was to inquire into “the allegations in regard to the incidents of organised violence” which took place in Delhi. Misra interpreted this to mean that his job was only to find out whether the violence in Delhi was organised or not. His finding was that the violence was initially spontaneous and, as the police failed to act promptly, anti-social elements took over and organised the carnage that followed. Misra did not however identify those anti-social elements, much less did he explain why the police either failed to act against them or in several cases even colluded with them.  The Commission categorically ruled out the possibility of the Congress Party and the Rajiv Gandhi Government having a hand in the holocaust. The only political involvement Misra conceded was that Congress workers had on their own participated in the violence.

It did not seem to matter much to the Misra Commission that its findings were hardly convincing. The report is breathtaking crude in its reasoning and vindicates the apprehensions that led the Citizens Justice Committee, the main representative of the victims, to withdraw from the Commission’s proceedings at an advanced stage. A subsequent Congress Government headed by P.V. Narasimha Rao, who was home minister during the carnage, rewarded Misra by appointing him the first chairman of (all the things) the National Human Rights Commission. Later, Misra himself put a question mark over the integrity of his inquiry by joining the Congress party and becoming its Rajya Sabha member. About two years ago, Parliament sought to atone for all these sordid happenings by passing a unanimous resolution in support of the Vajpayee Government’s decision to order a fresh judicial inquiry into the 1984 carnage in the form of the Justice G.T. Nanavati Commission. Here are a few frequently asked questions about the cover-up of the massacre by the Misra Commission. 

(1)   Why did the Citizens Justice Committee withdraw from the proceedings of the Misra Commission at an advanced stage?

(a)    There were several reasons why the CJC felt compelled to withdraw from the proceedings. The most important reason was the Commission’s overweening concern for secrecy. Misra approached the inquiry with a pre-determination to hold all the proceedings in camera. One of the rules of procedure he framed right at the beginning said that the proceedings would be held in camera “unless directed otherwise.” This is in contrast to the normal practice of holding an inquiry in public to ensure that justice is not only done but also seems to be done.  As if the idea of shutting out the public was not bad enough, Misra excluded even the CJC from more and more areas of the inquiry. The CJC estimated that more than three-fourth of the inquiry  was kept out of its reach. Misra’s secretive methods, rather uncharacteristic for a judge, betrayed his anxiety to give a clean chit to the Rajiv Gandhi Government and Congress leaders. The last straw was Misra’s announcement at an advanced stage of the inquiry that there was no need to summon any of the dignitaries the CJC wanted to question because he had already examined most of them in the privacy of his chamber. In its 18-page submission announcing its withdrawal from the inquiry on March 31, 1986, the CJC evocatively described that innovation of Misra as “an in camera inquiry within an in camera inquiry.”

(2)   Why did the Misra Commission not permit the Citizens Justice Committee to cross examine the persons in authority during the massacre?

(a)    Take the nine dignitaries the Citizens Justice Committee wanted to cross-examine. They included P.G. Gavai, who was the lt governor and administrator of Delhi during the massacre, M.K. Wali, who replaced Gavai subsequent to the riots, and Subhash Tandon, who was the police commissioner of the Capital during the fateful period. It is self-evident that each of those high office holders were indispensable for the CJC to establish its allegation of complicity against the Government and Congress Party.  The Commission admitted in its report that it was asked repeatedly to permit cross examination of those public officials. And it even admitted to have turned down that request simply because “it was of the view that that it would not be expedient to allow cross-examination.” Misra did not deign to give any reason for why he considered it inexpedient to allow cross-examination of those dignitaries who were best positioned to throw light on the CJC’s allegation that the violence was organised by the powers that be.  His silence can mean only one thing: He knew that he would not have been able to exonerate the Rajiv Gandhi Government and the Congress Party if he permitted the normal procedure of subjecting all the witnesses, no matter how highly placed, to cross examination.

(3)   Why do you think cross examining persons in authority should have been considered indispensable to the inquiry into the 1984 massacre?

(a)    It is not just in the case of the 1984 massacre. Cross examination is a must for any inquiry commission as also for any trial court. Nowhere in the civilised world is anybody’s testimony taken to be true unless it has gone through and withstood the test of cross examination. If a witness is permitted to narrate his version without fear of cross examination from the other side, it amounts to giving him a licence to concoct anything with impunity. The rule of cross examination applies even to high office holders. That is why so many other inquiry commissions have subjected Cabinet ministers to cross examination. In the fifties, the then finance minister, T.T. Krishnamachari, was cross examined before the M.C. Chagla Commission probing the Mundhra scam. More recently, Cabinet ministers L.K. Advani, Murli Manohar Joshi and Uma Bharati were cross examined before the Liberhan Commission probing the demolition of the Babri Masjid and George Fernandes was cross examined before the Venkataswami Commission probing the Tehelka defence deal controversy. Needless to add, the cross examination of all those VIPs took place in public and the press could therefore publish their reports on the basis of first-hand information. But the standards adopted by Misra were rather different. He did not permit the cross examination of any of the public officials and, since whatever happened was all in camera, the question of the press reporting any of that did not arise at all.

(4)   How did the Misra Commission react to the withdrawal of the Citizens Justice Committee?

(a)  Misra made no bones about the fact that the CJC’s withdrawal was a blow to the credibility of his inquiry. While admitting that its withdrawal created “some amount of embarrassment in the working of the Commission,” Misra recorded his “disapproval of the manner in which the CJC withdrew from the proceedings.” But oddly enough Misra did not mention anywhere in his report a single line from the 18-page withdrawal statement of the CJC. Instead, he reproduced the contents of a letter the CJC wrote subsequently at his instance saying its withdrawal did not “in any manner imply a lack of personal confidence in your Lordship or any mark of disrespect for the Commission.” That was merely an expression of courtesy but Misra reproduced the letter in entirety, that too not once but twice. Clearly, he was seeking to salvage some credibility by clutching at that letter of CJC as evidence of his integrity. 

(5)   Were the victims left in the lurch because of the withdrawal of the Citizens Justice Committee?

(a) On the contrary, the CJC did a great service to the cause of the victims by recording in its withdrawal statement the farcical nature of the Misra Commission’s inquiry. If anything, the so-called findings that the Misra Commission came up with subsequently vindicated the CJC’s apprehensions about the object of the whole exercise. When the CJC withdrew on March 31, 1986, what was still left to be done was the last lap of evidence and then present arguments on the entire material recorded by the Commission. The Delhi Sikh Gurdwara Management Committee represented the victims for the remainder of the proceedings, for whatever they were worth. 

(6)  India is known for its free and vigilant press. Did they not come down heavily on all those dubious activities of the Misra Commission?

(a) No, they did no such thing when the proceedings were on. On the contrary, it was the Misra Commission that came down heavily on the press. For all the courage and independence the press displayed in reporting the 1984 massacre, and for all the service they rendered subsequently by keeping the issue alive, they somehow gave in at that particular moment to the bullying of the Misra Commission. The bone of contention was whether the press could circumvent Misra’s in camera proceedings and publish reports of the hearings on the briefing of unnamed sources. The controversy arose in the last week of January 1986 when the Commission came to the stage of recording evidence (meaning, when witnesses started giving their testimonies). The reports that came on the first two days of evidence were acutely embarrassing to Misra and threatened to give away his game of fixing the inquiry in favour of Congress leaders. On the third day, the Commission passed a gag order threatening to take action against newspapers that continue to carry reports on the proceedings. Misra succeeded in having his way with the press even though he had no authority in law to pass any gag order. No newspaper dared to test his claim or challenge his order. Misra rewarded the press with a dubious compliment: “The Commission places on record that the press has mostly behaved responsibly and was co-operative after the direction was given.”

(7) What was so embarrassing to the Misra Commission in the press reports that came on the proceedings of the first two days of recording of evidence?

(a) The press reports inadvertently betrayed a conspiracy of “counter affidavits.” Out of a total of 2,905 affidavits received by the Commission, only 639 affidavits were filed by the victims or in support of them. The rest of the affidavits were all against the victims. The Misra Commission should have found it odd if there was even a single affidavit against Sikhs in the context of their massacre. Yet, there were about three counter affidavits for each affidavit filed from the side of the victims. When the Commission started recording evidence, it summoned six to seven witnesses from each of the two sides. But as it happened, on the first two days hardly anyone came to depose from among those who filed the counter affidavits. The ones who came either denied having filed those counter affidavits or ended up contradicting the statements attributed to them. Much to the embarrassment of Misra and the sponsors of the counter affidavits, these tell-tale developments in the in camera proceedings found their way into newspapers.  The tenor of the reports made it clear to Misra that his cover up was in danger of being exposed if he did not immediately find a way to stop the press from reporting his proceedings. Hence the gag order.

(8) Could the Misra Commission not have decided to hold the proceedings in camera simply because the inquiry was sensitive and Punjab was then still wracked by secessionist militancy?

(a) First of all, it must be pointed out that even the Commission did not make such a claim about its decision to hold the entire inquiry in camera. In fact, it suppressed the fact that it had framed a rule at the outset stipulating that the proceedings would be held in camera “unless directed otherwise.” Instead, it made out in its report that it began to hold the proceedings in camera only after “wrong reports started featuring in the press” and “when evidence came to be taken, tainted news appeared with greater frequency.” Misra blamed the CJC for all those allegedly distorted reports without however explaining why the fourth estate in the first place had to depend entirely on the CJC for information. Misra did not want to admit that he had made up his mind to hold the inquiry in camera long before the journalists could have given him any reason to lose faith in their integrity or ability.

(9) What did the Misra Commission say about the many affidavits filed against the victims of the massacre?

(a) Misra did not discuss them at all. This seems to have been mainly to avoid mentioning that most of those 2,200 affidavits were stereotyped. The same set of assertions was repeated in many affidavits in more or less the same language. In fact, in a lot of those counter affidavits all that the deponent did was to fill his personal details with his hand in the blanks and affix his signature at the end. Not surprisingly, the stereotyped affidavits had no evidence to offer. They were low on facts and high on opinion: Their thrust was to make a bald assertion that the violence on the Sikhs was entirely spontaneous and not organised at all. But when some of those deponents appeared before the Commission in the first round of evidence, they repudiated the affidavits attributed to them and came out with shocking details of how some Congress members and other interlopers tricked them into signing those documents. This forced Misra to keep aside the counter affidavits for a good part of the inquiry. But he kept silent about all this in his report because it would have betrayed the fact that there was an organised effort before him to make out that the massacre was not organised.

(10) How could the Misra Commission have not seen the stereotyped nature of the counter affidavits as evidence of a conspiracy to shield culprits of the 1984 carnage?

(a)  It of course did not want to draw such an inference because that would have knocked the bottom out of its so-called finding that the Rajiv Gandhi Government and Congress party were not involved in the organisation of the massacre.  So, far from rejecting their authenticity, Misra pressed some of the counter affidavits into service in the last lap of evidence to give a clean chit to H.K.L. Bhagat, the most important Congress leader from Delhi alleged to have been involved in the violence.  Why did the Commission at one stage keep aside the counter affidavits and why did it later change its mind and consider some of them? There is no answer to this vital question anywhere in the report. This despite its claim to the contrary in its report: “The Commission has dealt with these affidavits separately and for reasons indicated there not much of reliance has been placed on most of these affidavits.”

(11) If the Misra Commission exonerated the Rajiv Gandhi Government and Congress party, who did it blame for the massacre?

(a) It blamed the police and an amorphous, anonymous entity called “anti-social elements.” The Commission said that the violence started spontaneously on the evening of October 31, 1984 around the time Indira Gandhi’s death was announced. The violence intensified the following day, according to the Commission, for two reasons. First, the failure of the police to nip it in the bud. Second, the entry of anti-social elements who converted the spontaneous violence into an organised attack. The highest office holder the Commission censured for negligence was P.G. Gavai, who was Delhi’s lt governor during the violence and was anyway sacked while the killings were still going on.

(12) Did the Misra Commission not consider the possibility of the police having failed to curb the violence because of pressure from above?

(a) The Commission gave a categorical finding that the main reason for the failure of the police was a communication breakdown. The police stations failed to convey to their control rooms or superior officers the magnitude of the violence taking place in their territories. Additional Commissioner of Police H.C. Jatav, for instance, told the Commission that he received information about Trilokpuri, the worst affected area in the whole of Delhi, only on the evening of November 2, 1984. Jatav claimed that there was an 18-hour delay in the communication even though Trilokpuri is barely 12 km from the police headquarters. Since the top brass was thus apparently unaware of the alarming proportions of the violence till a late stage, there was a delay in enforcing curfew and deploying reinforcements. Again, because of this communication breakdown within the police force, the Commission held that there was no question of attributing any negligence, much less complicity, to the Rajiv Gandhi Government.

(13) What reasons did the Misra Commission give for the negligence of the policemen in the field during the massacre?

(a) Anything but pressure from their higher-ups or top political leaders. He had no proper explanation to offer for why the staff manning the police stations failed to communicate on time with their superiors. All he could say was that some of the policemen were evidently too distressed by the fact that Indira Gandhi was assassinated by two of their colleagues. But then that does not explain the instances found by the Commission in which the police either looked the other way or instigated the mobs. Worse, the Commission also found instances when the police, rather than nabbing the miscreants, disarmed Sikhs acting in self defence and arrested them on trumped up charges.  To any reasonable person, such behaviour would have aroused the suspicion that policemen acted as henchmen of political leaders during the massacre. But the closest the Commission came to attributing the acts of omission and commission of the police to any interference was when it referred to “local political pressure.” Even then, the Commission refrained from examining the sources of that local political pressure.

(14) Who are these anti-social elements who are supposed to have on their own mounted an attack on Sikhs in the Capital on such a large scale and got away with it?

(a) The Misra Commission made no effort to identify the so-called anti-social elements although they were in its opinion the main culprits. In fact, the whole idea of passing the buck to unnamed anti-social elements seems to have been to deflect attention from the specific names thrown up by the victims and witnesses. Misra simply said that the anti-social elements belonged to the poor sections of the population living in slums in and around Delhi. He also took pains to clarify that they did not belong to the Congress party and that is why so many victims found them to be, he said, in a jubiliant mood as they indulged in arson, loot and killings apparently in retaliation to Indira Gandhi’s assassination. The most Misra conceded was the likelihood of Congress workers joining the anti-social elements in the riots.

(15) If it acknowledged the role of Congress workers in the massacre, how could the Misra Commission exonerate the party?

(a) It had the gall to say that the Congress party could not be blamed for the very reason the Sikh community as such could not be held responsible for the action of two Sikhs who killed Indira Gandhi.   “Every person who takes a dip in the Ganges is not purified. Similarly, everyone in the Congress (I) is not a Gandhi believing and practising non-violence. The party label, therefore, does not attract the party nor take away the individual element,” rationalised Misra. Even though he never called the Congress party for an explanation, Misra on his own took great pains to defend the organisation he was going to join in the future. He said: “The Congress party at the lower level – like any political party anywhere – has loose ends and from the fact of participation of people belonging to the party at that level it is difficult to accept the stand that the Congress (I) party had either organised or participated as such in the riots.” 

(16) What reasons did the Misra Commission give for finding the Congress leadership in general blamless for the massacre meant to avenge Indira Gandhi’s assassination?

(a) Misra made no pretence of arriving at that conclusion in the manner of a judge. He dismissed the allegation against the Congress party without even feeling the need to call for its explanation. Going purely by his personal predilection, Misra gave a pseudo-scientific explanation for justifying his belief. Had the Congress party been involved, the magnitude of the violence, he suggested, would have been even greater and neither the police nor the combined defence of the local citizens would have been effective anywhere in Delhi. “If the Congress (I) party or a powerful force in the party played any role, neither of these two elements could have functioned in the manner each of them has been ascribed,” he said.

(17) How did the Misra Commission indict 19 Congress workers if there was no proper inquiry?

(a) That the Misra Commission indicted 19 Congress workers is a myth Congress leaders have been propagating to save their faces. Indictment suggests that the Commission had issued notices to those workers and considered the allegations levelled against each of them. In reality, he did no such thing nor did he even pretend to have conducted such an inquiry. He examined the subject only in terms of broad sweeps. Since he conceded the likelihood of Congress workers participating in the riots, he said he had “no particular reason to disbelieve the allegations so tabulated” against 19 workers by the Delhi Sikh Gurdwara Management Committee in its written arguments.

(18) Did the Misra Commission go into the conduct of the Congress party in the context of the massacre?

(a) Yes, it did, but only in terms of the resolutions passed by it at the Central and state levels. Thus, the Congress party got a clean chit because it had done its paper work alright. “In the face of these resolutions of November 1, 1984, by the Central and Union Territory party organs, it is indeed difficult to allege, much less discover, unseen hands of the party behind the violence perpetrated so dastardly,” the Commission observed. Misra set much store by the fact that several Sikhs belonging to the Congress party were also not spared by the rioters. On the basis of a highly questionable assumption, Misra said: “If the Congress (I) party or some of its highly placed leaders had set the rioters to operate, one would expect the Sikhs with Congress base and affinity to have escaped the depredation.”

(19) How did the Misra Commission exonerate H.K.L. Bhagat despite the fact that his constituency of east Delhi was the worst affected in the violence?

(a) Besides Rajiv Gandhi, Bhagat is the only Congress leader to have been specifically exonerated by the Misra Commission. Misra did this honour to Bhagat not only because he was the sole representative of Delhi in Indira Gandhi’s council of ministers. Bhagat was also at the centre of two conflicting sets of affidavits on his role in the riots. In fact, most of the 2,000-odd counter affidavits were filed mostly in support of Bhagat. In a manner that befits no judge, Misra chose to record evidence on Bhagat without issuing any notice to him. Bhagat on his part did not protest because he was probably had fore-knowledge of the outcome of the inquiry. Bhagat’s confidence was not misplaced as Misra himself came up with purely extra-legal arguments to reject all allegations against him. For instance, noting the fact that some Sikhs had filed affidavits in his favour, Misra said: “If Shri Bhagat had indeed played the role of an organiser of the riots, it is difficult to find even a single Sikh supporter in his camp.” Further, in a gratuitous display of respect for Bhagat, Misra said he “being  a sitting MP and minister was not likely to misbehave in the manner alleged… People of the Sikh community being electors of his constituency, Shri Bhagat, keeping the democratic politician’s behaviour towards the elector in view, was not likely to antagonise the Sikh sympathy towards him.”

(20) What exactly were the grounds on which Rajiv Gandhi himself was given a clean chit by the Misra Commission?

(a) While H.K.L. Bhagat figured in hundreds of affidavits one way or the other, there were only two affidavits pertaining to Rajiv Gandhi – and both against him. But the Misra Commission report had nothing but high praise for Rajiv Gandhi who took charge as Prime Minister within hours of his mother’s assassination. Without giving any indication of the source of his evidence, Misra recorded a finding that on the very night of the assassination, Rajiv left instructions to alert and, if need be, call in the Army. Holding that Rajiv took “all reasonable steps expected of him to meet the situation,” Misra said he even visited affected areas on November 2 against security advice and “boosted the  morale of the victims.” Misra therefore said that Rajiv’s peace appeals to the nation on October 31 and November 1, his condemnation of the riots “in strong terms,” his decision to sack Lt Governor of Delhi P.G. Gavai on November 3 and “the overall posture adopted against the mad crowd leave no scope to entertain the allegation in a couple of affidavits that he too had something to do to help the unseemly situation.”