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1984 Anti-Sikh Pogrom Judges Have Been A Party To A Cover-up


Jun 1, 2004
[FONT=Arial, Helvetica, sans-serif]I[/FONT]F one person can be credited with keeping alive the fight for justice for the 1984 riot victims, it is Advocate Harvinder Singh Phoolka.

He has been the force behind setting up of the Citizen’s Justice Committee and has spearheaded one of the longest and most torturous legal battles for the riot victims.

The visit changed the life for Phoolkas. The advocate and his wife have devoted two decades to fighting the cause of the victims. Phoolka recounts his fight for justice in an interview with Timesofindia.com.

Where were you on October 31, 1984? Were you caught up in the riots?
I was at the High Court when I heard of Indira Gandhi’s assassination. I picked up my pregnant wife from my office and was driving to our home in south Delhi on my motorbike. At a traffic crossing, a friend called to warn me about attacks on Sikhs a few meters ahead.

Skirting the main roads, I drove through slum clusters of Kotla Mubarakpur to reach home safely. But looking back we could see smoke bellowing from the South Extension market. The Kotla gurdwara was burning and bodies of the dead had begun to pile up.

We decided to return to Chandigarh immediately after the riots, travelling in the {censored}pit of an Indian Airlines plane.

But when I came to wind up my practice, I heard that lawyers were needed for writing affidavits of the victims. I went to Farsh Bazaar camp where riot victims from Trilokpuri were living and it changed my life for ever.

So your tryst with the 1984 riot cases began by chance, didn’t it?

I was preparing affidavits for the riot victims when an elderly person told me that in his family only four minor girls are left. Their father, mother, brother and uncle had been killed. His grand daughters had sent to the Nari Niketan. He wanted to take them in his custody but did not have any money to pay the court fees. That was the first case I filed in the High Court. After that I followed each and every case that Justice Kirpal heard, whether I was involved or not.

How did you come to play such a critical role?

In May 1985, when the government appointed Mishra Commission, I suggested we float an organisation so that we could pool our resources to take on the government.

[FONT=Georgia, Times New Roman, Times, serif]My response was that if on Oct 31, 1984 I could pass through a burning gurdwara, this was certainly less dangerous.[/FONT]​
[FONT=Arial, Helvetica, sans-serif]

[/FONT]NITIALLY people were not very enthusiastic and in the end I got Khushwant Singh and General (Jagjit Singh) Arora to endorse the idea. Various human right groups met at Soli Sorabjee's house and formed Citizens Justice Committee. Soli Sorabji, General Arora, Tarakunde, Khushwant Singh and Justice Narula all signed up as members. Justice Sikri was made the president. I was appointed the secretary. That is how a lawyer of three years’ standing became the secretary of the organisation.

I became the main counsel of the (Justice Ranganatha) Mishra Commission. Soli Sorabjee really gave a lot of time. I had to virtually give up my practice for a year and spend hours at our office in North Avenue - Akali Dal's Gurcharan Singh Tohra allowed us the use of his MP’s flat.

What kind of challenges you had to go through during fighting for this cause?

HKL Bhagat and Sajjan Kumar were very powerful those days. My wife gave me her full support though other member of my family had some apprehensions and said this is too dangerous a work. But my response was that if on October 31,1984 I could pass through a burning gurdwara, this was certainly less dangerous. Slowly young boys and girls joined our team. They visited areas dominated by Sajjan Kumar and HKL Bhagat and worked day and night. We were getting threatening letters, but nobody got scared. Soli Sorabjee, Tarkunde and Sikri were there with us through all this.

Hundreds of survivors, scared witnesses and powerful political leaders. It must have been a difficult time in court.

Yes, victims are victimised in the courts too. Mishra commission's terms of reference were very limited. It had only to ascertain whether the violence was premeditated. Soli Sorabji advised me to concentrate on this rather than filing thousands of affidavits. I had interviewed more than 3,000 victims and prepared affidavits. Ultimately, I filed only 575 of them.

How much time did it take you to interview these persons?

It took two months. But it was not just me, but a team. I cross examined these 575 persons to check whether they would stand scrutiny.
Justice Mishra, however, concentrated on the flaws in the affidavits. He put these to investigating agency. They focused not on getting the culprit, but on errors in the affidavits.

It was primarily a team headed by a police officer from outside Delhi, wasn’t it?

Yes, an IPS officer from Orissa cadre, Mr Meena, was heading it. Justice Mishra started calling evidences at random. We had filed 575 affidavits but some came directly also to the Commission. So as a total some 620 affidavits had come before the commission.
But there were 2,200 affidavits filed against these victims. Sikhs had sworn in these affidavits how the police and their MP had saved them from mobs.

Advocate Harvinder Singh Phoolka at his residence. (TOI photo)
Justice Mishra decided to call 25 witnesses from both sides every day. On the first day, all witnesses from victims’ side appeared but only one from the other side and he too said that he had filed no affidavit. The one filed in his name was a forgery. This was widely reported in the newspapers.
Next day Justice Mishra banned press reports as the hearing was in-camera. But in-camera proceedings does not mean a press black-out. Nobody protested. Rajiv Gandhi had two-third majority in Parliament.
One of the state witness said, ‘Forget about saving me, nothing is left of me. My house, hotel ... everything had been looted.’ When shown his signed affidavit, he said a policeman had come to him and asked for his signature for compensation of his house.

After that Justice Mishra decided he will not call those witnesses. In his report too he wrote that he would ignore all those affidavits. But in the end we realised that Mishra had examined many witnesses in his chamber and did not tell us. He did not give us their statements nor did he allow us to cross examine them.

There was only one way we could tell the world what was happening: Citizen's Justice Committee had to withdraw from the commission. That was duly published in the newspapers and we could give our reasons of withdrawing. They then approached the victims. They pressurised them to procure counter-affidavits.

Though the last date of filing such affidavits was September 9, 1985 Justice Mishra accepted affidavits even in December, 1985. I intentionally filed a bunch of affidavits on September 9 at 5 pm because I knew they would be leaked. And I did not want to give them the opportunity to pressurise the victims to file counter affidavits. He accepted counter-affidavits in December without even informing us.

So Ranganath Mishra became first of the many to perpetuate the misery of the victims?

That's right. We were not to given a right to cross examine their witnesses. Some other parties with dubious credentials were also present at the inquiry. They were front men of HKL Bhagat and Sajjan Kumar. They were made to ask embarrassing question from the victims before the commission.

Was Mishra so insensitive? He became Chief Justice of India and also the chairman of the National Human Rights Commission. And later was a Rajya Sabha member.

See that was a rare case. Generally, judges favour the government in these types of cases. And if you see the role of the judiciary in 1984 riot cases you will be shocked. Its role is so terrible. They have been a party to an eyewash.

But many more commissions and committees came up after Mishra Commission.

Nine commissions and committees. First came Mishra. He said it was not part of his terms of reference to identify anybody. ‘You appoint another committee to identify the people but HKL Bhagat is not involved.’ He said that in his report.

If this was not part of his terms of reference how was he saying that HKL Bhagat was not involved? He said people like Congress leader Tara Singh (a Sikh) had supported the Congress and HKL Bhagat during the elections and it clearly shows that if Bhagat had been involved, these people won't have supported him.

In the second part, which is the report of the investigating agency, you will that the focus is on finding loopholes in the affidavits (of victims). It was then I realised how right Soli Sorabjee was.

[FONT=Georgia, Times New Roman, Times, serif]I was told,‘You appoint another committee to identify the people but HKL Bhagat is not involved.’[/FONT]​

[FONT=Arial, Helvetica, sans-serif]I[/FONT]F we had filed even 20-30 weak affidavits, Justice Mishra would have based the whole of his report on that. But they could not break even a single victim in cross examination. Everybody stood the cross-examination. But even Justice Mishra said the cases had not been registered and wherever victims had named a political leader, they refused to register the FIR or the politicians’ names were deleted. Therefore, another committee should be appointed which should go into all this material and recommend fresh registration of cases.

Mishra recommended three separate committees. Jain-Banerjee panel to recommend registration of fresh cases, another committee on the role of the police and the third was to ascertain the number of killings.

These committees were appointed in February 1987, but two and a half years later not even head counts had been done. We submitted a list to Justice Mishra containing names, addresses and complete details of 3,870 people killed in Delhi. But police said 1,419 were killed. Cases of only these people were registered. And Delhi government filed a list of 2,300 people killed.

The Jain-Banerjee committee had instructed the police to register a murder case against Sajjan Kumar, but it was initially scuttled, wasn’t it?

Yes. Initially the case was not registered. We protested. Then Brahmanand Gupta (a co-accused) filed a writ petition in the High Court. The government lawyer did not oppose and a stay was imposed not only on registering a case against Sajjan Kumar but also on registration of cases on the recommendation of this committee.

You sound dissatisfied with the role of the judiciary.

Not at all, particularly in regard to the 1984 cases. I have not been closely following the Gujarat cases but I believe something similar is happening. But fortunately the Supreme Court is monitoring things.

Did judiciary actively support a cover up?

Yes it has. The first writ was filed by Rahul Bedi (on the role of police). That writ was dismissed by the high court on the pretext that Ved Marwah Committee will be looking into it. The second writ was filed by PUDR (Peoples Union for Democratic Rights).

During the hearing, Justice Yogeshwar Dayal made abusive comments about journalists and professors. Defamation cases were filed against him. That was the kind of attitude of the judiciary. Justice Dayal dismissed the writ petition saying that the court had no power to direct the government.
Then there was Justice Ranganath Mishra. When Ved Marvah was about to submit his report, the High Court stayed it.

After the Jain-Banerjee committee’s recommendation was stayed, Sajjan Kumar was granted bail.

In the Shahdra court, Judge SS Bal finished so many cases as fast as he could. In none of the murder cases, was there any conviction.
That was how we fell to the ploy of asking for the special courts (in late 1980s when VP Singh government came to power). Had it been divided amongst all the courts - there are honest judges like JD Kapoor and JB Goyal -- we would have got convictions in many more cases.

What was the general attitude of the legal community?

[FONT=Georgia, Times New Roman, Times, serif]The Congress leaders and other people in responsible positions did not want to come to any conclusion.

It was very hostile. Most of the Congress people use to call me the lawyer of terrorists, though I have not done any TADA work. Some of the lawyers loyal to Congress use to call me a terrorist. This changed when during the VP Singh government, I was appointed Union government’s standing council.

Now after 20 years what do you expect from Nanavati commission? You are again the leading counsel for the victims.

Firstly, all the cases have not been even registered. Many of those registered were closed by the police and did not reach the courts. From Nanavati Commission, we are expecting two things: registration of murder cases and reopening of about 300 cases which were closed without any challan or chargesheet being filed.

[FONT=Arial, Helvetica, sans-serif]A[/FONT]LSO, there has not been any exhaustive inquiry on who is responsible and how all this happened. We have submitted voluminous evidences before the Nanavati Commission and we expect some answers now.

Twenty years and only 10 convictions. Why did the cases drag on for so long?

With the passage of time, justice just dries up. First, don’t allow the registration of cases and then cover up. Most riot cases do not survive more than two or three years. This is the first instance I think where the fight has continued for 20 years.
The Congress leaders and other people in responsible positions did not want to come to any conclusion. They planned to delay things till the cases died its own natural death.

What stopped the NDA government, which promised to deliver justice?

During the short tenure of VP Singh government, few decisions were taken on the basis of which the cases continued. By 1998, when the BJP-led government came to power, most of these cases were spoilt to such an extent that it was difficult to revive them. That is why a new commission of inquiry (the Nanavati commission) was appointed in 2000.

During these 20 years of fight of justice, were there any mistakes on your part?

To agree to special courts was our biggest mistake. Many times we were told to file a PIL on the high court but we did not do it. We thought if the high court passes a judgement in a single case that affects hundred other cases. This was conscious decision and we were right.

Jagdish Tytler has accused you of exploiting the riot cases for money and fame. How much did you charge for these cases?

I have not charged a single penny from any riot victim. All expenses I have incurred are from my own pocket. Initially, there was Citizen’s Justice Committee. But it was virtually defunct by the late 1980s.
By the 1990s, my own practice was flourishing. It is not that I am handling only these cases.
Amongst Sikhs it is common practice to dedicate one-tenth of one’s earnings for Daa-Dharam. I utilised this money for that purpose.


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Hardip Singh

Jan 14, 2009
Everything what is stated in the thread is OK. But what than Mr Phoolka was doing in the Congress Party meetings at their Mintoo Road , New Delhi office in order to propogate for some Sikhs as the congress candidates for the last Delhi assembly elections. I myself had seen him honoring The DPCC Chief in that meeting.
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