Never Expected 1984 Anti-Sikh Riot Cases to go on for 40 Years: H S Phoolka

Almost 40 years after the 1984 October-November pogrom of Sikhs in the streets of Delhi following the assassination of Prime Minister Indira Gandhi, Special CBI Judge, Rakesh Syal, maintained in his order in the first week of this month that there was not sufficient ground for proceeding against accused Jagdish Tytler under Section 148 IPC (rioting while armed with a deadly weapon or something that can cause death if used as a weapon).

But his 57-page verdict concluded that “However, there appear to be sufficient grounds to CBI Case No. 96/2023 Central Bureau of Investigation vs. Sh. Jagdish Tytler Page no. 56 of 57 presumes that the accused has committed offences punishable under Sections 143(unlawful assembly), 147(rioting), 188(disobedience to orders from public servants) and 153 A IPC (crime of promoting enmity between different groups), Sections 295 (injuring or defiling a place of worship), 436 (mischief by fire or explosive substance), 451 ( house-trespass committed to committing an offence), 380 read with Section 149 IPC, and Section 302(Murder) read with Section 109 IPC(Section 109 deals with abetment). Let the charges be framed accordingly against the accused.”

What does this mean?  It means that a trial against the Congress leader's role in the genocide of innocent Sikhs is practically yet to begin in October after 21 years.

A case against Tytler was filed in 2005 only after the Nanavati Commission's recommendation in 2005.

According to official figures, 2,733 Sikhs were killed during the 1984 riots, but only 70 killers have been punished so far.

Senior Advocate of the Supreme Court of India, Harvinder Singh Phoolka has been fighting for hundreds of victims since December 1984 till date. In an interview with this writer, Phoolka said the entire 1984 killings and following court proceedings were “shameful examples” of the sorry state affairs of the Indian judicial system and investigation methods and mechanisms. Especially the proceeding in the case against Jagdish Tytler. Edited excerpts.

Jasvinder Sidhu: You have attended and argued hundreds of court hearings for the 1984 victims for the past 40 years. How did you read the case against Jagdish Tytler and the recent verdict by a CBI judge regarding his role in the riots?

H S Phoolka: You see, in practice, the trial against Tytler has just begun. The proceedings have not concluded, the charges are framed and the trial has just begun. I don't think there is anything to celebrate as it has taken 40 years for a proper trial to start against him. This is an atrocious example of the sorry state of affairs and shows how fragile our system is, that a powerful person can stall the whole process and manipulate the entire judicial system and escape for such a long time.

JS: As many as 21 years of waiting for the framing of charges against Tytler must be frustrating for you and the victims. Hundreds of innocent people were killed and became homeless.  

HSP: This is true. It is a shameful chapter in the whole system, and the judiciary didn't rise up to expectations. Also, it was the government and the investigating machinery that had failed. But the judiciary was expected to intervene, and it has failed to do so.

JS: Can we say such a lengthy proceeding is a case study when we talk about the sorry state of affairs of the whole system, especially the judiciary?

HSP: See, this particular case (Tytler)was started after the Nanavati Commission's recommendation in 2005. So, after 21 years, the investigation began in this case. Then the CBI filed three closure reports in 2007, 2009 and 2014, giving him a clean chit. This is the first time in the history of India that the court rejected CBI's three closure reports. Then there was the court-monitored investigation. It is a result of this court- monitored that now the charges have been filed.

JS: This particular saga suggests that the powerful can manipulate the system and investigation in India.

HSP: It shows that a powerful person can hijack the entire process. But in this particular case, the whole State machinery was also involved. The operation was planned by the government and executed by the intelligence agencies. Therefore, it was the Deep State which was interested in saving him (Tytler) and others.

JS: The victims of the 1984 riots have been waiting for justice for decades. Why is there not much talk about these delays?

HSP:  It is unfortunate that this is not an agenda for anyone. The media, of course, has supported the victims throughout, and has played a major role. This is why the issue is still alive today.

JS:  How would describe your fight for the victims over the past 40 years?

HSP: It was a very, very difficult time. We never expected that the case would go on for so long. I have been handling these cases since December 1984.

We are not only fighting for the victims. We are also fighting to establish that this country is governed by the rule of law. The law is above everybody. Some people feel they are above the law. I mean, that shouldn't be there. So, it is necessary to put fear in the minds of people who are in power that the law is there. The law is above you.

If today you are in power, you will commit some mistakes or heinous crimes, you may not be able to save yourself.

It is my duty to fight to the best of my ability.

JS: How do you want to be remembered?

HSP: I don't want to be remembered. The only thing I want is for the people to keep in mind that if somebody has taken up a cause, they should not give it up just because of the passage of time. Whenever a person takes up a cause, he must take it to its logical end.

We will carry on till the end.

The interviewer is an independent journalist.