(The Times of India> Interview> November 7, 2004)
Struggle for Justice
Struggle for Justice Advocate Harvinder Singh Phoolka has spearheaded the long and arduous legal battles for the 1984 riot victims. Two decades after he filed the first case, Phoolka recounts the fight for justice.
How did you get associated with the 1984 riot cases?
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 were 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. In May 1985, when the government appointed the Mishra commission, I suggested we float an organisation so that we could pool our resources to take on the government. Various human rights groups met at Soli Sorabjee's house and formed the Citizens Justice Committee. Sorabjee, General Arora, Justice Tarkunde, Khushwant Singh and Justice Narula all signed up as members. Justice Sikri was made the president. I was appointed the secretary and became the main counsel of the (Justice Ranganath) Mishra Commission.
What kind of challenges did you face during the course of investigation and trial?
H K L Bhagat and Sajjan Kumar were very powerful those days. My wife gave me full support though other members of my family said this was very dangerous work. Slowly young boys and girls joined our team. They visited areas dominated by Kumar and Bhagat and worked day and night. We were getting threatening letters, but nobody got scared. Sorabjee, Tarkunde and Sikri were 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. Sorabjee 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.
Yes, an IPS officer from Orissa cadre, Mr Meena, was heading it. Justice Mishra started calling evidences at random. A total of 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. Justice Mishra decided to call 25 witnesses from both sides every day. On the first day, all witnesses from the victims' side appeared but only one from the other side who said that he had not filed any affidavit. The one filed in his name was forged. This was widely reported in the newspapers. Next day, Justice Mishra banned press reports as the hearing was in-camera.
After that Justice Mishra decided not to call those witnesses. In his report too he wrote that he would ignore all those affidavits. But in the end we realised that he had examined many witnesses in his chamber. 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 withdrew from the commission. They then approached the victims and 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.
But many more commissions and committees came up after Mishra commission.
Nine commissions and committees. First came the Mishra commission. Justice Mishra said it was not part of his terms of reference to identify anybody. 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 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 the police said 1,419 were killed. Cases of only these people were registered. And Delhi government filed a list of 2,300 people killed.
What do you expect from the Nanavati commission? You are again the 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 the 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. Also, there has not been any exhaustive inquiry on who is responsible and how all this happened.
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