The Nanavati Commission Report highlights two questions. The first deals with the sanctity of the recommendations; and second, the proceedings conducted by the Commission and its outcome. As far as the first issue is concerned, the Commissions— headed by a retired Supreme Court judge and which was appointed by an unanimous parliamentary resolution — held the inquiry for five long years and came out with certain recommendations. The Union government then sat over these recommendations for the full six months allowed to them under the Commissions of Inquiry Act, and came out with an Action Taken Report (ATR). It rejected some of the recommendations and postponed decision on others, by simply stating that a decision would be taken in consultation with the law ministry. But, unfortunately, the ATR in this case merely stated that the government would consider taking action in consultation with the law ministry, as if the law ministry is not part of the Government of India! It is also surprising that on such a simple matter, the Law and Home ministries could not arrive at a conclusion within six months.Three days in Parliament were then wasted. Then came the resignation of two persons. A number of reporters asked me if I was happy with these resignations. They pointed out that as a result of a struggle for 21 years, some big heads had rolled for the first time. That is correct, of course, but no one in my team has a feeling of having achieved success. Perhaps this is because the disappointment over the ATR — and indeed the Commission’s Report — has overshadowed everything else. Justice Nanavati conducted an exhaustive inquiry for almost five years. I agree with the prime minister. The truth has still not come out.This takes us to the second question: the proceedings and outcome of the Commission. The Commission was expected to scrutinise the findings of all the earlier committees and commissions appointed for this purpose and then find out whether they have been properly implemented. The Jain Aggarwal Committee, for instance, had conducted an inquiry regarding defective investigation and non-registration of cases. It did a marvellous job and recommended the registration of some fresh cases. Delhi’s Riot Cell registered and reinvestigated 316 cases, out of which 151 were closed by the police as untraced — even challans were not filed on these. The Nanavati Commission, sadly, mentions nothing about the reason for closing them. During the proceedings, our main emphasis was to get these cases reopened. The Report is totally silent on this, as well.Then take Kusum Mittal of the Kapoor Mittal Committee. She too did a great job and identified 72 police officials, who were negligent or had actively connived with the mobs. Since all these police officials were subsequently exonerated in departmental inquiries, we arguedbefore the Nanvati Commission that those proceedings were a sham and that all the material against police officials has not been considered in the departmental inquiries. At our request, the relevant files were summoned, but the Delhi Government, claiming privilege, declined to show them to us. They were made available only to the Commission. In our arguments running to 500 pages, we had detailed the role of each police official and had requested the Commission to look into whether these allegations and material from the records had been taken into consideration during the departmental proceedings. We were assured that this would be done. On this, too, the Report is silent.In East Delhi, where more than a thousand deaths took place, there were serious allegations against DCP Sewa Dass (presently special commissioner of police, Delhi Police). Kusum Mittal had recommended the dismissal of this officer due to serious allegations of his connivance with the mobs. The Report simply mentions that a departmental inquiry has been conducted against him and since he has been exonerated no further action is recommended. There is no discussion in the Report, whether the voluminous material mentioned in the written argument was considered by the inquiry officer or not.What came as a shock was the finding of the Commission regarding Surbir Singh Tyagi, then SHO of Kalyanpuri Police Station, under whose jurisdiction Tirlokpuri — where 400 Sikhs were brutally killed — falls. Surbir Singh Tyagi is now ACP, Delhi Police.Two reporters from Indian Express, Rahul Bedi and Joseph Maliakan, went to the area when the massacre was taking place. They informed police headquarters about it and still no action was taken. The government had boasted of having taken action against Tyagi by registering a criminal case against him. But that was a sham. In actual fact, he was operating from within the police station itself. I was myself witness to this. The chargesheet was filed against him without any sanction from the government under Section 197 CrPC. Obviously, criminal proceedings were dropped on the technical ground of non-grant of sanction. The challan was intentionally filed without obtaining sanction since it was known that criminal proceedings would be dismissed on this ground alone. In our arguments, we specifically mentioned this case and Tyagi’s questionable role. The Report just mentions that he has been exonerated in a departmental inquiry and no action need be taken against him.With regard to East District, the Commission has mentioned the above reason of exoneration for not recommending action against the police officials, whereas with regard to police officials of South District, it took a contrary position, holding that exoneration in departmental proceedings is no bar as the object and scope of the inquiry under the Commissions of Inquiry Act is different. The Commission has held these officers negligent in performing their duties and has recommended action against them.The Commission has mentioned in the report that 25 criminal cases were registered against the police on the recommendations of Jain Aggarwal and Kusum Mittal Committees and has also recorded that these cases have resulted in exoneration. Unfortunately, the Commission chose not to go further into what happened in the cases; what kind of investigations were carried out, why they were closed and whether challans were filed. In fact, most of these cases were closed by the police themselves and they were never sent for trial.In our written arguments, we had detailed the defective investigation conducted by the police, dealing with each FIR. All these records and the related case diaries were available to the Commission. The bare minimum we expected was that it would record whether or not it was satisfied with the investigation and, if the Commission agreed with us, recommend measures to correct them and order re-investigation of such cases. The Report, however, does not deal with a single FIR or mention a single case diary.This is only a fraction of the shortcomings in the report. The Commission has treated this matter as a lis (dispute) between two parties and has only considered the affidavits filed by the victims before the Commission and the replies given by the persons to whom 8B notices were issued. It has, in the process, totally lost sight of the fact that it was a fact-finding body. One that was required to establish the truth and not decide a dispute.The writer is a senior advocate, who spearheaded the campaign for justice to the victims of the ’84 carnage
