Judicial Inquiry Commissions and Recommendations

Introduction

The rapid response of any state government following a communal violence has been to appoint an Inquiry Commission. The major worry of any administration after a communal violence ought to be to re-establish the faith of the victimised community, and the Commissions are principally set up to balm the pains of viciousness of the violence. What is the message that the administration passes on by assigning an Inquiry Commission? Amongst the several measures that the administration takes following a communal violence to restore normalcy, appointment of an Inquiry Commission might help to regain the lost trust and confidence in the legislature and the state. Inquiry Commissions are additionally assigned to present dependable data identified with the communal violence. There are various adaptations which arise and there is an attempt to characterise or connect significance to incidents of violence where there is a “struggle to control interpretations and explain the violence” (Paul Brass 1992:4).

Since the principle objective of appointing Inquiry Commissions is to conduct an impartial investigation and restore faith in the state, it would be helpful to analyse whether Inquiry Commissions in the past have been fruitful in satisfying this objective. This study tries to analyse the state responsibility, and the justice emerging from the orderly assessment of post-communal violence judicial inquiry. In India, there have been various reports and studies about the failure of the Commissions in achieving the objective, due to delays and the prolonged period taken to arrive at the findings. As per the administration records, forty Inquiry Commissions were appointed till 2013 since Independence, to probe the communal violence. These Commissions were assigned to inquire a portion of the major communal violence where two groups belonging to different caste or religions were involved. Among the forty Commissions, action taken reports (ATR) by the administration are accessible only for just eleven Commissions of Inquiry. Just fourteen Commissions had submitted the report within one year and the rest had taken between two to eight years to complete the inquiry and submit the report. Each and every judicial Commission report on communal violence, since the first major communal violence that occurred in Jabalpur in 1961 archived patterns noticeable in the disposition of the states in opposing the mobs, which are, a delicate approach towards the troublemakers and indiscipline of the responsible cops.

Deliberate assaults on one specific community during communal violence has resulted in the breakdown of trust and confidence on the foundations of state to protect its citizens. Since 1980s there has been a difference in the pattern of communal violence as well as in the reaction of the state to situations of violence. The equivocalness of governments on issues essential for both the majority and minority religious communities brings about a need of scrutinising the secular credentials of the Indian states. The situations which developed in Gujarat in February 2002, resulting in the massive massacre of members of the minority community and more essentially the explanations given by the authorities, had further stained the secular credentials of the government.

Despite the fact that all Inquiry Commissions are constituted, and work and submit a report from within the structure of the Commissions of Inquiry Act 1952, they receive different reactions during their tenure and even subsequent to the report submission. In this context, this study tries to analyse the following Judicial Inquiry Commission reports and actions taken by various state governments based on the reports.

These following Commissions that were appointed to inquire about various communal violence that had occurred in different parts of India are considered for this study.

1. Justice Joseph Vithayathil Commission – Thalasserry riot in 1971
2. Justice Nanavathi Commission – Delhi riot in 1984
3. Justice Srikrishna Commission – Bombay riots 1992-93
4. Justice Nanavathi-Metha Commission – Gujarat pogrom in 2002
5. Justice Thomas P Joseph Commission – Marad riot in 2003

Justice Joseph Vithayathil Commission – Thalasserry riot in 1971

Justice Joseph Vithayatthil Commission was appointed by the government of Kerala on 14^th February 1972, to investigate the causes of disturbances in Thalasserry and other parts of Kannur district in the last week of December 1971 and first week of January 1972. And they were instructed to look into the adequacy of measures taken by the local authorities and police to prevent and deal with the violence, and to recommend measures which may be adopted for preventing recurrence.

The Commission investigated the cases brought before it. There was a perceived feeling among the Hindus that Muslim League which was a partner of the United Front Government was abusing its position, and there were political uproar and promulgation which had prompted communal hatred and pressure which led to the communal disturbances. The Commission records that the first phase of disturbance was pre-planned by Hindu communalists, the subsequent stage was of the idea to counter by Muslims and the third was reprisal by the Hindus. The Commission also records that, sufficient measures were not taken by the local authorities in charge of law and order to prevent and to deal with the situation.

The recommendations of the Commission are:

1. It is not conducive to the integration of the country and the maintenance of communal harmony and peace that political parties are formed on communal lines whether in form or in substance.
2. Religious communalism is the most serious obstacle in the way of national solidarity which has various facets and conflicting implications but its most dangerous manifestation is the politics based on Hinduism or Islam. While it admits that banning of communal parties may create problems, it suggests for stringent laws for crushing the activities of those parties and their members who have a tendency to create communal hatred and tension.
3. More than legislative measures, what is required is the creation of strong public opinion against activities likely to create communal tension and consequent disturbances.
4. Commission expresses its anxiety that communalism has infiltrated to the rank and file of the secular democratic parties also. This is an unwholesome tendency which should be checked by the parties concerned. It suggests that government and political parties should take the lead in the matter of creating strong public opinion.
5. It is a matter whether appropriate steps are taken by government to remove the cause of feeling among the minorities that they are not getting justice; they are discriminated against in the matter of appointment in public service; they are not given equal protection of law and that their religion is in danger. As a result of this, they are provoked to rally round political organisations of their own.
6. The attitude adopted by the rank and file of the police in Thalasserry during the disturbances showed that they were affected with the virus of communalism and that serious note should be taken in the matter. It urged that it is a matter of utmost importance, that in the maintenance of law and order, all sections of the public, particularly the minority have confidence in the impartiality of the police. It also suggests that policemen found guilty of communal hatred or prejudice should be immediately dismissed from service and also that adequate representation should be given while recruiting policemen, to the minorities.
7. It is necessary that political parties do not make use of the police to further their party interests and they do not interfere in the police administration. It pointed out that there is no meaning in blaming the police for action taken by them under pressure from the political parties in power. It urges that the police should have a sense of security and assurance of freedom to act in the manner best suited for the maintenance of law and order.
8. Formation of permanent Peace Committees in areas of communal disturbances, consisting of prominent members of the society unattached to the political parties.
9. Finally, it suggests that, wherever legislative or executive measures may be adopted, the ultimate solution of the problem is the raising of the standard of morality of the people. People should believe that to whichever community or religion they may belong, they are all brethren and should live together as such.

Justice Nanavathi Commission – Delhi riot in 1984

Justice Nanavathi Commission of Inquiry was appointed on 8^th May 2000 to investigate the cause and course of violence and riots targeting members of the Sikh community which took place in Delhi and other parts of country on 31^st October and thereafter. And also to look into the adequacy of the administrative measures taken to prevent and to deal with the violence and riots and to recommend measures which may be adopted to meet the ends of justice.

The need for appointment of the Nanavathi Commission of Inquiry arose out of widespread demand from different sections of the society, particularly Sikh community for an inquiry into several aspects of violence, abuse of authority and remissness and apathy of the law enforcement agencies. The Ranganath Mishra Commission which was set up earlier to probe the same matter had given its report and left a number of matters to another committee to be set up. It was in this background that the Nanavathi Commission was appointed.

Major recommendations of the Commission are:

1. The Nanavathi Commission agrees with the findings recorded by Justice Mishra, as regards the delay in calling the army, preventing happenings of such events.
2. There should be an independent police force which is free from political influence and which is well equipped to take immediate and effective action.
3. The government should take steps at the earliest to see that all complaints are properly recorded and investigated by independent investigating officers, if the police is not able to register every offence separately at the time when they are reported.
4. The government should consider providing employment to one member of the family, if that family has lost all its earning male members and it has no other sufficient means of livelihood.

Justice Srikrishna Commission – Bombay riots 1992-93

The Srikrishna Commission of Inquiry was appointed by Maharashtra government on 25^th January, 1993 to investigate the circumstances, events and immediate causes of incidents which occurred in the Bombay Police Commissionerate area in December, 1992 on or after 6^th December 1992 and again in January, 1993. Instructed to look into, whether any individual or group of individuals or any other organisations was responsible for it. In 1995, the terms of reference were expanded by the subsequent Shiv Sena-BJP government to include investigation into the cause of the Mumbai blasts of March 1993 too. In January 1996, the Commission was disbanded by the Sena-BJP government on the ground that it had taken unduly longtime to produce its report and that its report, even if produced, was only likely to open old wounds that had healed. It was reconstituted in May 1996 due to pressure from civil groups and prodding by the then Prime minister who wrote a letter to the state government.

Recording of evidence started on June 24, 1996, and came to an end on July 4, 1997, during the course of which the Commission recorded the statement of 502 witnesses, whose depositions run into 9,655 pages, and also took on record 2,903 documents as exhibits (about 15,000 pages) and 536 orders were passed. 2,126 affidavits were filed before the Commission, of which two were by the government, 549 by the police and 1,575 by members of the public. It submitted the report in February 1998.

The Commission said that the December 1992 phase of the rioting by the Muslims was a spontaneous reaction of leaderless and incensed Muslim mobs. It stated that the January 1993 phase commenced on 6th “by the Hindus brought to fever pitch by communally inciting propaganda unleashed by Hindu communal organisations and writings in newspapers like Saamana and Navakaal. It was taken over by Shiv Sena and its leaders who continued to whip up communal frenzy by their statements and acts and writings and directives issued by the Shiv Sena Pramukh Bal Thackeray.” It also stated that there was “no material on record suggesting that even during this phase any known Muslim individuals or organisations were responsible for the riots, though a number of individual Muslims and Muslim criminal elements appear to have indulged in violence, looting, arson and rioting”.

It lists out 11 incidents in which 31 police officers were found actively participating in the riot, communal incidents or incidents of loot and arson and so on. It recommends the government to take strict action against them. The government said that while it accepts the Commission’s recommendation to improve policing in the state, it “cannot agree with the conclusions of the Commission”.

The Commission has recommended measures, both long and short term required to be taken by the administration to avoid recurrence of such incidents and to ensure communal harmony and improvement in the law-and-order machinery.

Major recommendations of the Commission are:

1. The Commission feels that the average policeman is seen as a bloated bumbling comic figure holding a lathi in one hand and holding the other palm extended. It recommends that steps be taken to substitute this image with image of a professional policeman, sensitive to the problems of the law abiding public yet hardened to deal with crooks and criminals.
2. In the short term measures, recommends more frequent and strict inspections by senior police officers so as to ensure that the discretion to register and investigate offences, exercisable by the station house officer is used strictly in accordance with law and to safeguard the safety and liberty of the citizens.
3. Political interference in police work was evident during the riot periods. Ministers and politicians of different shades descended upon the police stations to browbeat or pressurise the officers in charge to release arrested persons who according to them were innocent.
4. Peace Committees should consist only of reputable local persons unconnected with any political party, viz., professionals, merchants, social workers with no political linking, or even members of working class. It is only such a Peace Committee that can endeavour to bring peace.
5. It is essential to have a proper public relations machinery which can be approached by media persons and public for getting the latest authentic information. As a general rule, the information to be disseminated to the public and the media should be channelised through the established public relation officer subject to the Commissioner’s right of holding press conferences and press briefings either by himself or through his nominated officer.

Justice Nanavathi-Metha Commission – Gujarat pogrom in 2002

The Nanavati-Mehta Commission is the Commission of Inquiry appointed by the government of Gujarat to probe the Godhra train burning incident of 27 February 2002. It later went on to include the investigation of the 2002 Gujarat pogrom under its mandate. It was appointed on 6 March, 2002, with KG Shah, a retired Gujarat High Court judge, as its only member. It was later re-constituted to include GT Nanavati, a retired judge of the Supreme Court of India, after protests from human rights organisations over Shah’s closeness to then Gujarat chief minister Narendra Modi. Following Shah’s death in 2008, Justice Akshay Mehta was appointed in his place.

Initially, the scope of the panel was to inquire the facts, circumstances and events that led to the burning of the S6 coach of Sabarmati Express. But soon after the UPA government came to power at the centre in 2004, the scope of the Commission was widened to include within its scope of inquiry, the role and conduct of the then chief minister Narendra Modi and other ministers in his council of ministers, police officers, other individuals and organisations.

Key recommendations of the report are:

1. Ensuring an adequate number of well-equipped police personnel, educating the masses about true religion, highlighting harm caused by communal riots, and ensuring that the media shows restraint while reporting such tragedies.
2. It was deep-rooted hatred between some sections of Hindu and Muslim communities that caused such riots, and recommended educating the masses to remove feelings of ill will.
3. Disciplined police force, provided in adequate number and which is well-equipped, will help control communal riots. While considering the evidence relating to the incidents which happened during the communal riots, we have noticed that the absence of police or their inadequate number emboldened the mobs to indulge in violence, report says.
4. Commission suggests to adopt modern technology to improve policing. The government should also ensure that every police station has an adequate number of officers and policemen and that they are properly equipped with means of communication, vehicles, arms and ammunition.
5. The root cause of the communal violence that followed the Godhra incident was the deep-rooted hatred between some sections of Hindu and Muslim communities, it noted that certain religious leaders and organisations and other anti-social elements take advantage of this hatred. Poor and illiterate people are easily led away by religious leaders or by such interested persons and they indulge in communal violence without properly knowing the effect of what they are doing. This weakness of the society can be changed only by properly educating the masses about what true religion is and how harmful the communal violence is to the welfare of the society.
6. The media should ensure it does not become instrumental in provoking more communal violence by publishing “exaggerated” reports about the incidents.

Justice Thomas P Joseph Commission  –  Marad riot 2003

Government of Kerala had appointed Justice Thomas P Joseph to inquire into the incidents that occurred at Marad Beach, Kozhikode, Kerala on 2^nd May 2003. Fourteen people were killed in two separate incidents when Muslims and Hindus at the sleepy coastal village of Marad, clashed with each other with the first incident taking place in January 2002 and the second one in May 2003. The Justice Joseph Commission recommended a Central Bureau of Investigation probe into the conspiracy involving fundamentalist forces and terrorists in the violence.

Thomas P Joseph Commission formed three level intervening measures to prevent such incidents in future, they were Ideological Measures, Political Measures, and Legal Measures.

The recommendations of the Commission are:

1. Secularism, moral values, communal amity and religious tolerance should be taught in the educational institutions. Morality and value clubs should be started in schools. Constitutional provisions, ethical principles and human right laws required for communal amity should be part of the curriculum for TTC, B.Ed., M.Ed courses and in-service courses for teachers.
2. Religion must be separated from state matters, politics and education. There should, if necessary, be a special enactment separating religion from state matters, politics and education.
3. Government should conduct deep study into causative, developmental, control, reduction and preventive aspects of communal clashes, the growth and activities of the religious fundamentalists / terrorists in the state, identify such elements and organisations and take steps to prevent such activities.
4. Government should ensure economic sustainability of people living in the coastal areas. Steps should be taken to improve and diversify the people’s measures of subsistence.
5. Secular bodies should be formed in coastal areas; such bodies should have the poor people of the village as its members. Such bodies can be used for resolution of conflicts in the conventional form.
6. The government should ensure that officials appointed in key posts in riot prone areas and districts are persons capable of acquiring the confidence of different communities.
7. Permanent Peace Committees should be set up at appropriate levels. Such committees should consist of non-controversial and respected persons of the locality belonging to all communities, professionals and social workers.
8. Special enactment should be made to stringently deal with communal clashes. Such special enactments should provide for special rules regarding the burden of proof and acceptability of statements of accused/witnesses recorded before the Judicial Magistrates.

Justice Naidu Commission – Kandhamal riot 2008

The Odisha state government had set up the judicial Commission on 8^th September 2008, after ethno-communal riots broke in Kandhamal district and other parts of the state following the murder of VHP leader Swami Laxmanandha Saraswati and four of his associates at his Chakpada Ashram on the night of August 23. Saraswati’s killing had triggered communal violence in Kandhamal and adjoining areas in which at least 38 people were killed. Riots broke out in different parts of Kandhamal during the VHP leader’s funeral procession from Jalespata ashram to Chakapada ashram located at the other end of the district on August 25.  Justice Sarat Chandra Mohapatra was appointed as the one-man Commission to probe Saraswati’s killing and the subsequent riots. However, Justice Mahpatra passed away in 2012 before completing the inquiry. Then Justice A S Naidu was appointed by the government to head the one-man probe panel in 2012.

Analysis of Commissions’ recommendations

The Judicial Inquiry Commissions have emphasised the necessity of improving the intelligence inputs, both in terms of quality and timeliness. There are limitations inherent in such an approach.  Commissions advise that, the District Magistrate and Superintendent of Police have to develop their own sources so as to improve intelligence inputs. Mostly, the seeds of disturbances are local, gathering of intelligence should also be efficacious at the grassroots.

Judicial Commissions have suggested that the “beat constable” framework be restored. Whenever beat constable builds up a network of personal contacts with neighborhood individuals and gains their trust, he picks up the information on nearby conditions in genuinely more noteworthy detail which becomes valuable at times of communal disturbances. And furthermore, earlier, most disturbances were based upon local issues, any clashes were brought under control rapidly through dialogue. Reports pointed out that police stations do not possess up-to-date list of communal goondas. It creates lots of confusion in the department at the time of disturbances.

The vast majority of communal disturbances begin with unsettling influences at the time of procession, for example, Ganesh Chaturthi, Durga Pooja, Moharram. The courses of procession had been fixed when the density of populace and traffic were lower. Now, as the population and traffic have increased, such processions cause traffic bottlenecks. They pass through gallies and by-paths where police find it difficult to reduce the possibility of provocation by observers. Any place that are communally sensitive, it might be very well prudent to make changes in the course of the processions in order to go through more secure zones with less disturbance to traffic. It has been discovered that public response erupts quickly and the provocation comes from unreceptive social components. Continuous videography and strategically positioned photographers can prevent such incidents and in the event of its occurrence, help identify the offenders.

A new phenomenon in urban areas is the sudden springing up of new places of worship in locations. It is suggested that a regulatory mechanism be set up whereby in rural areas, a place of religious worship requires registration with the revenue administration and in urban areas, with the local bodies. Absence of such registration should enable the local administration to remove the unlawfully built place of worship.

It is important to reinforce the prosecution of guilty parties. During communal riots, it is hard to apprehend offenders and collect eyewitness accounts. Witnesses also, at times, turn hostile under pressure or inducement from the accused after the prosecution starts. Sometimes, the charge-sheet is drawn up in a perfunctory manner, leading to serious lacunae and consequent acquittal of the accused. A review of the number of cases registered and the number of persons convicted from time to time at the state level, particularly in communal matters, would lead to an improvement in the record of prosecution.

As of now, Peace Committees are pointed towards settling common issues during troubled times. Commissions of Inquiry have recommended that the Peace Committees ought to be regulated at district level and it should meet occasionally to audit the circumstance in any event, when there is no public pressure. Women should be given more representation in these Peace Committees. In this unique situation, it has been recommended that the Peace Committees could advance attention to the fundamental unity of individuals by promoting the cooperation of all communities in each other’s festivals.

The area / Mohalla Committee has been proposed as a method for community participations. It is set up at police station level and it controls the activity of nearby individuals. The nearby Executive Magistrates and Police Officers could energise the development of such zone / Mohalla Committees, for example, going to their festivals, accepting invitations to their programs and responding to their requests for special visits to resolve local issues. All the means available for nurturing the development of these committees would merit consideration.

In recent communal riots, countless people have been discovered to be displaced. Their property has either been demolished or because of fear they are not able to return to their residence. A large number of them are daily wage workers. In such cases, it is important to make satisfactory plans for their rehabilitation and take into account their food prerequisites until conditions are normal. Administration should target to finish rehabilitation of the displaced people and enable them to resume their previous style of life in the same old vicinity.

It is presently an acknowledged rule that the state should bear obligation of paying compensation to the victims of communal violence who have lost their dear-ones or those who have lost their property in the communal disturbances. In respect of such compensation, however, there are complaints that compensation is inadequate. It might be important to develop a bunch of rules so the compensation is commensurate to the loss of life and property. The second aspect refers to the delay in payment of compensation. There have been serious criticisms in this regard. It is, therefore, necessary to prescribe a time-frame within which the administration should disburse compensation to the claimant.

In several circumstances, it has been discovered that coordination between the state police and military of the Union including the central paramilitary force needs to improve. The state police dread that their services would be counted inefficient when the military is called out or Central forces are deployed. The deployed forces on the other hand have a serious disadvantage since they do not know the local areas. It could be important to have a strategy arranged ahead of time, especially in hypersensitive areas so that the transition from the state police to a combined operation of police plus Central forces is smooth and effective.

It has been observed in recent times that there has been a marked weakening in social attitudes towards communal issues. The fabric of communal harmony and peace that used to prevail earlier seems to have frayed considerably, at least in some states. The spirit of tolerance, understanding, and acceptance of religious differences has come under heavy strain, of late. It is, therefore, essential for government institutions and civil society to make special efforts to restore the secular atmosphere that used to prevail earlier.

Another area that requires serious attention is the course content of Indian history as a subject taught to all students. There has been an identification of certain communities with historical invasions of India, thereby creating negative stereo-types in the public mind. On the contrary, the role played by them in the freedom struggle has not received primacy. It is, therefore, necessary to review the educational curriculum with particular reference to history as a subject of study.

It has been said that secularism is a positive concept and not merely the denial of religion but the promotion of awareness about the good points of all religions. A system of beliefs needs to be taught and inculcated into our value system at a formative age.

Recent incidents have highlighted the inherent maturity of the people which needs to be reinforced. Prolonged period of communal peace and harmony would nurture mental trust. This would enable citizens to bring social pressure to bear on contentious issues. As observed by the Commissions of Inquiry, differences arise very often due to misgivings in the minds of people. Programmes on the media showing the good aspects of all religions would help in changing the mindset and preventing a social divide.

Verbal exchange was our conventional mode of passing on news before the advent of newspapers, radio and TV. As of now, it has turned a difficulty to the police as verbal exchange is used for gossip mongering. On a few events, riots have spread on flawed convictions incited by gossipy tidbits. Commissions of Inquiry have proposed concentrated utilisation of media by unique radio releases, if vital, to counter bits of gossip. In the final analysis, rumor mongering can be countered on a permanent basis only by eliminating the deep seeded suspicion among communities. A positive exertion through creation of reasonable TV serials, radio plays and the holding of public workshops would unite networks and limit the believability of rumor mongers.

Courts and Commissions of Inquiry should ensure that communal riot cases are dealt with expeditiously, preferably within the fixed tenure so that the need for extension of tenure is avoided. The state governments must take steps to make all the facilities available to this end and also ensure speedy implementation of the Court’s/Commission’s orders/recommendations.

Conclusion

Reviewing the Commissions until this point, no doubt the Judicial Commission constitution is something that the legislatures do as a ritual after each communal disturbance. Out of the 40 Commissions appointed till date to inquire into the communal riots, 13 Commission Reports are missing.

The Commissions focus on the police as the essential guilty parties in many communal violence. They often remain idle or partake in the savagery during the riots. Had any government attempted to change this scenario? This can be found in the 1971 report and the 2008 report. Frequently, when the police remain dispositioned to the advantage of the major community, the minority loses confidence in the nation’s overall set of laws.

A significant finding of Justice Joseph Vittayathal, who investigated the Thalassery riots, was that the minority community was losing confidence in the government and the need to recapture confidence in the government by implementing their term and upholding equivalent equity. However, have any governments had the option to instill trust in the minorities here?  Likewise, another issue that most reports talk about is the obstruction of political groups in the police force. This frequently blocks a reasonable investigation.

Despite the fact that the harmony council gatherings have been fairly useful, they are not working a similar route all over. Political influence is presently required for an individual to get in to such panels. The foremost object must be to reinforce shared trust and fellowship among the individuals. If the arrangements are made without fortifying consent and trust, harmony won’t prevail.

The main responsibility of each Commission of Inquiry is to ensure the trust of the people in the law and order, and justice for the victims. But the question is as to what extent this is being achieved. Delayed justice and injustice are equal. The worthiness of any Commission is at stake here. It takes two to eight years to submit the report, after a communal riot.

While analysing different enquiry Commission reports, we can understand one thing that they have failed in fulfilling their basic objective of establishment, i.e. regaining trust of the people and to be fair-minded and sensible. Ruling and opposition parties use the reports for their political end. Assessment of losses in the reports have always been without any basis thus denying the victims of their deserving compensation. The media too do not discuss the Commissions’ exposures. So, as the concluding remark, I should point out that the Inquiry Commissions are used as an instrument of the government to divert the attention of the people from the real issue. No government has ever made new policies and programmes for communal harmony based on any report.