Updated: May 21, 2021 9:07:29 am
The solicitor-general of India challenged five fact-finding reports conducted on the riots in Northeast Delhi in 2020 in the Delhi High Court on February 24. He argued that the citizen groups, which conducted the fact-finding, were examples of a self-constituted, extra-constitutional, “parallel judicial system”, that did not have any authority in law. They could not be relied upon by any formal judicial forum. He said that people cannot have their own fact-finding committees, they must go to a competent authority.
However, even a cursory look at our past shows that fact-finding investigations are a well-established practice in India since the movement for independence. Worldwide, fact-finding is at the heart of rights advocacy. The first Gandhian experiment, the Champaran satyagraha of 1917, started as an extensive fact-finding exercise. In Champaran, the peasants were forced to grow indigo on their lands as a condition of tenancy and were required to pay an illegal cess on it and exorbitant rent to local landlords. In his autobiography, Gandhi writes that he decided to visit Champaran “to enquire into the conditions of” the indigo planters when he was informed of their distress and the lack of appropriate response by the colonial administration. Gandhi carried out a detailed investigation with a team of volunteers and recorded the statements of peasants. To make these statements credible, the peasants signed or put thumb impressions on them, and these were recorded in the presence of an officer from the Criminal Investigation Department (CID). This exercise forced the Lieutenant Governor of Bihar, Sir Edward Gait, to set up a formal enquiry committee with Gandhi as one of its members.
The Congress conducted another high-profile fact-finding investigation in the aftermath of the Jallianwala Bagh Massacre of 1919. The government had set up an investigative committee led by Lord William Hunter to investigate the massacre. Disappointed with the work and political motivations of the Hunter Commission, the Congress set up a parallel body, the Punjab sub-committee, to investigate the event. A similar fact-finding enquiry was undertaken in 1924, when the police opened fire on the workers of Kanpur Cotton Mills, killing six people and injuring another 58 workers. The enquiry exposed the collusion between the mill management and the police, which had resulted in the deaths. In colonial India, the practice of fact-finding was used routinely to make a demand for an official enquiry or to challenge the existing official enquiry.
There has been a surge in the number of independent citizen groups-led fact-finding investigations in the last few decades. In the 1970s, several fact-finding investigations were undertaken to expose encounter killings that took place during the counter-insurgency operations against the Naxalite movement and during the Emergency. In 1977, the Andhra Pradesh Civil Rights Committee (APCRC), under V M Tarkunde, took up an investigation of 33 cases of encounters of Naxalite political prisoners during the Emergency. It collected enough evidence and testimonies to establish that the police shot 19 of those who died in cold blood. The committee produced reports and sent copies to the Prime Minister, Home Minister and the press. This committee demanded a judicial commission to investigate all other cases of encounters. The central government obliged and asked the state government to institute a judicial enquiry, which was set up under Justice Vashist Bhargava.
In 1987, a citizens’ group constituted itself as the Indian People’s Human Rights Commission (IPHRC) and conducted several fact-finding investigations and published reports. In the 1990s, people’s tribunals were set up in the wake of the 1992-93 Mumbai riots after the Babri Masjid demolition. The enquiry was conducted before Justice Hosbet Suresh and Justice Daud, two retired judges of the Bombay High Court. Justice B N Srikrishna, who was appointed by the government to enquire into the riots, had issued a contempt notice to the two judges stating that conducting a parallel enquiry would lower his prestige. This contempt notice was challenged before the Bombay High Court and struck down.
In 2008, having read the news items of deaths of several workers in manholes, a group of lawyers from the Alternative Law Forum undertook a fact-finding investigation. They submitted a report to the State Human Rights Commission and filed a Public Interest Litigation in the Karnataka High Court. The HC constituted an expert committee to delve into the issues raised by the petition. Having received a report from this committee, the court instructed the Bangalore Water Supply and Sewerage Board to procure manhole cleaning machines. It also issued orders for compensation to the victims’ families.
These cases demonstrate that citizen groups conducting enquiries and publishing reports in the public domain ought to be seen as a sign of democratic and legal consciousness. They are not taking the law into their hands or encouraging vigilante justice. Moreover, these fact-finding investigations are cost-effective, rapidly mobilised, and encourage civic participation. Their findings can potentially transform public and governmental understanding of an event or crime. Thereby, they had laid the groundwork for prosecution if a court of law finds their evidence admissible. Fact-finding reports should be verified and criticised if they lack in rigour or evidentiary standards. They should not be dismissed just because these are self-constituted by the citizens. Seeking to delegitimise citizen-led fact-finding is in fact a way to control the narrative — it robs citizens of the ability to state their side of the story. It would be dangerous if official information was the only information available in the public domain. The long tradition of fact-finding investigations is a strength of India’s democracy. One that should be preserved not discredited.
This column first appeared in the print edition on May 21, 2021 under the title ‘Facts about fact-finding’. The writer is a teacher at Delhi University.
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