Against all odds

By Jyoti Punwani

AS MUMBAI'S former Police Commissioner, Mr. Ram Deo Tyagi, lies in the intensive care unit of one of the city's state-of-the-art hospitals, half-a-dozen constables guard him. They are not there for his security. Their former boss is today their prisoner. Mr. Tyagi is technically in police custody till August 28, an accused in a murder case. His victims: nine innocents killed in a raid carried out under his command during the communal riots of December '92-January '93.

This is the first time that a police officer who retired as Director-General of Police has been arrested on a murder charge for an action carried out while controlling riots. Expectedly, the BJP and Shiv Sena have condemned his arrest (on August 14, which, the BJP reminded us, is Pakistan's Independence Day) as ``anti-national'' and a ``ploy'' by the Democratic Front Government of Maharashtra to win Muslim votes. A substantial section of Hindus agrees with them.

But are the BJP-Shiv Sena willing to dub the order of the Bombay High Court, upheld by the Supreme Court, which directed Mr. Tyagi to surrender before the police ``anti-national''? Every step in the entire Tyagi episode has been taken on the orders of the court. Far from having won Muslim votes by this unprecedented ``arrest'' (Mr. Tyagi took ill when he was going to surrender and was `arrested' while in hospital), the Maharashtra Government has alienated them by its obvious reluctance to act against a man indicted by a Commission of Inquiry and again by the Bombay High Court.

Mr. Tyagi's arrest marks another first. Never before has any punitive action been taken against a senior police officer on the recommendations of a judicial Commission of Inquiry. The Justice B. N. Srikrishna Commission of Inquiry which investigated the Mumbai riots, recommended ``strict action'' against Mr. Tyagi and two of his assistants who it held responsible for the death of nine innocents in a raid on a bakery and madarsa on January 9, 1993. Mr. Tyagi led the raid, though he maintains he did not enter the bakery.

The police claimed they acted in self-defence against sten-gun- wielding terrorists shooting at them from the terrace of the bakery. But the raid recovered neither terrorist nor firearms, nor was any policeman injured in it. The nine who died, shot either from point blank range or while running away, and the 78 arrested, had no criminal record. The Srikrishna Commission condemned the police's conduct as ``not befitting the police force of any civilised, democratic state''.

Mr. Tyagi, who retired in 1997, fought elections to the Legislative Council last year as an independent backed by the Sena. There was no question of the Sena-BJP Government taking any action against him. But the Democratic Front Government too was all set to exonerate Mr. Tyagi, claiming that he did what he did ``in the course of duty''. That was its stand in black and white, recorded in its affidavit before the Supreme Court filed last August. It remained unchanged till April this year, when, during a hearing of the Srikrishna Commission Report implementation case, the Chief Justice asked Government counsel what it was doing about Mr. Tyagi.

Then began an elaborate shadow-play, aimed at convincing the Supreme Court that action had been taken against Mr. Tyagi, but executed in a way to leave him untouched. On May 25, the Government filed an FIR against Mr. Tyagi and 16 policemen who took part in the raid. The charge: murder and conspiracy to murder. Simultaneously, Mumbai's Police Commissioner announced that there was no question of arresting his predecessor in the near future. Had Mr. Tyagi not panicked at the first hint of a public campaign to have him arrested, and rushed for anticipatory bail a mere eight days after the FIR was filed, he would still be a free man, like his co-accused. His anticipatory bail application was dismissed by the High Court, but even after the Supreme Court upheld the High Court's order, Mr. Tyagi's co- accused were granted anticipatory bail because the State had no objection.

Mr. Tyagi is the only police officer indicted by the Srikrishna Commission to have been taken into (notional) custody, thanks to his own panicky reaction. Of the 31 indicted by Mr. Justice Srikrishna for their role in the riots, the Congress-NCP Government has initiated legal action against only nine, and actually exonerated seven without even holding a departmental inquiry against them. The rest face only departmental action. Those against whom FIRs have been filed continue in service, though the charge against them is murder.

Officers of the Special Task Force set up to act upon the Commission's findings make it clear that they do not want their colleagues behind bars. It is obvious they have the complete backing of the State's Home Minister, Mr. Chhagan Bhujbal. They also make it clear that it is on his orders that they have filed cases against Shiv Sena leaders and activists, which are bound to result in acquittal because the charges do not apply, or there are no witnesses. Significantly, action against politicians does not form part of the Commission's recommendations.

But where the Commission has made specific recommendations, the action taken cannot even be called half-hearted. The Commission had pointed out that as many as 1,358 cases, almost 60 per cent of all the cases filed during the riots, were closed by the police although enough evidence existed to arrest the rioters. The STF has re-opened only five of these cases! 173 persons were declared `missing' in the riots. The Sena-BJP government which rejected the Report, paid compensation to 41 of the families. This Government has compensated just three.

Even this limited action has been taken thanks to the Supreme Court. Six hearings have taken place since this Government came to power. Every time, the Chief Justice has pulled up the Government for its inaction, pointed out by the intervenors in the case. Indeed, today the question can no longer be asked: Should the Srikrishna Commission Report be implemented? The Supreme Court has made it clear that the Report must be ``respected''. The implications for other Commissions of Inquiry, and indeed, for the Shiv Sena if it succeeds in dislodging this Government, do not seem to have sunk in.

Both the Congress and the NCP had promised implementation of the Report in their election manifestoes. Why the reluctance now? The most likely answer lies in what Mr. Bhujbal, then in the Opposition, told this writer when the Report was about to be tabled. There was no doubt that the Sena-BJP Government would reject it. Asked whether he would lead an agitation for its implementation, he retorted, ``What? And lose the Hindu vote?'' The way he has gone about implementing the Report, using it as a political weapon against his bete noir, Mr. Bal Thackeray, he must have lost it by now. On his part, the only time the Chief Minister, Mr. Vilasrao Deshmukh, talks about the report, it is on Muslim platforms. Not to be left behind, Muslim politician have done their bit to communalise the Report by fighting in public about who should get credit for the progress in the Supreme Court.

If anyone has demanded, and projected, the implementation of the Srikrishna Commission Report as a matter of human rights, of ``retribution for wrong done'', to use Mr. Justice Srikrishna's own words, it has been small groups of citizens. Three months after this Government took over, the Chief Minister was handed over 20,000 individual signed letters asking for the implementation of the Report, by a delegation of activists and victims led by a former State Chief Secretary. At least half of those who had signed were Hindus. If the Srikrishna Commission Report has become the first in India's history to be implemented, albeit piecemeal, against the will of two successive Governments at two opposing ends of the political spectrum, it is because of the Judiciary and these ordinary Hindus and Muslims.

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