Justice delayed

Has Supreme Court censured Modi government by reopening the 1984 Sikh massacre cases its SIT closed?

It has, says the senior lawyer HS Phoolka, who has fought for justice on behalf of many victims of the anti-Sikh pogrom.

In June 1984, Prime Minister Indira Gandhi ordered the Army to storm the Golden Temple to flush out armed Sikh separatists who had turned it into a fortress. Apparently angered by the assault on this holiest of Sikh shrines in Amritsar, Punjab, Gandhi’s two Sikh bodyguards shot her dead four months later.

The assassination set off a pogrom against Sikhs, especially in Delhi. Nearly 3,000 Sikh men, women and children were killed in what is widely seen as a state-sponsored massacre, with the police colluding with murderous mobs. Yet, 34 years later, there has been little justice for the victims.

New investigation

Last week, however, the Supreme Court ordered a new investigation into the massacre. It decided to set up a three-member Special Investigation Team to look afresh at 186 cases that have been closed by another three-member SIT appointed by the Narendra Modi government in 2015. The government’s SIT was to examine the evidence in criminal cases relating to the 1984 carnage and, if needed, reopen cases that the Delhi police had not investigated or had closed for lack of evidence. It looked at 293 cases and decided to seek trial in 12. As many as 241 cases were closed, reportedly without investigation.

In August last year, the Supreme Court appointed a supervisory committee to examine whether the SIT’s decision to close the 241 cases “was correct or not”.

“We have perused the report of the supervisory committee,” the court said in its order last week. “On perusal of the same, we find that the SIT has not done further investigation in respect of 186 cases. Regard being had to the nature of the case, we think it appropriate that a fresh SIT should be constituted for carrying on the further investigation.”

This raises the question: how effectively has the government’s SIT done its job?

HS Phoolka, a senior lawyer who has represented many victims of the 1984 carnage, argues that the Supreme Court’s intervention was necessary. “The government’s SIT did not do its work properly,” he alleged, speaking to Scroll.in in his chambers at the Delhi High Court. “It was originally set up for six months. It has been three years but they have concluded the investigation in only 12 cases. In only 12 cases, the SIT has held that there is sufficient evidence to go for trial.”

It was because of the SIT’s low success rate, Phoolka said, that the matter went to the Supreme Court. “The SIT itself told the court that out of 293 cases, they have closed 241 and 12 will go for trial,” he said. “Hence, the court appointed a supervisory panel of two retired Supreme Court judges. They went through the SIT records and submitted a report in which they mention that 186 cases have not been investigated by the SIT. The court decided that they will not send these cases back to the SIT since they had not done anything...[and] decided to appoint its own SIT.”

What does the Supreme Court’s intervention mean? “This is an expression of no confidence in the Union government’s SIT by the Supreme Court,” Phoolka said. “The SIT was not interested in the case. One of the judges [on the SIT] was also the president of a district consumer forum at the time [of the carnage]. They took the matter lightly.”

Lack of evidence

The SIT, however, dismissed the allegation that it has not done its work competently. “It is not that the cases were summarily closed,” said Rakesh Kapoor, a retired district and sessions judge who is one of the SIT’s members. “These cases were investigated. The SIT scrutinised them and came to the conclusion that further investigation was not warranted because of lack of evidence.”

Phoolka rejected the contention that cases cannot be prosecuted because of an apparent lack of evidence. He pointed to cases reopened in 2005 that resulted in the conviction of five people in 2013, including a former legislator. “That conviction was why there was a demand – since evidence is available – that the other 1984 cases should be reopened too,” said Phoolka. “It is for this purpose that the Union government formed the SIT in 2015.”

As to the argument that the Supreme Court has shown a lack of confidence in his team, Kapoor said, “The SC order, in fact, says the SIT is functioning very well. The new SIT is not a reflection on the working of the earlier SIT.”

Phoolka, meanwhile, is confident about the new SIT making progress where the old one did not. “The head of this new SIT, Justice Dhingra, had sent Congressman HKL Bhagat to jail,” Phoolka said.

Shiv Narayan Dhingra, as an additional sessions judge in Delhi in the 1990s, had conducted trials in several cases relating to the 1984. He is said to have been so tough with the accused, The Times of India reported that Bhagat, a former Union minister, asked for his case to be transferred from Dhingra’s court.

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