Harvinder Singh Phoolka

[JagtarSinghKhalsa]

The following is based on writings in the Indian press and interviews given to them by Harvinder Singh Phoolka

1. Harvinder Singh Phoolka, senior advocate, Supreme Court, and former additional advocate general, Punjab, stands apart from his colleagues in the legal fraternity. At the risk of incurring the then Congress government's wrath, he took up the cases of the victims of the 1984 anti-Sikh pogroms.
   
2. If one person can be credited with keeping alive the fight for justice for the 1984 victims, it is Advocate Harvinder Singh Phoolka. He has been the force behind setting up of the Citizen’s Justice Committee and has spearheaded one of the longest and most torturous legal battles for the victims. Harvinder Singh Phoolka and his wife have devoted almost a quarter of a century to fighting the cause of the 1984 pogrom victims.
   
3. On 31 October 1984 Harvinder Singh Phoolka was at the High Court when he heard of Indira Gandhi’s assassination. He picked up his pregnant wife from his office and was driving to their home in south Delhi on his motorbike. At a traffic crossing, a friend called to warn him about attacks on Sikhs a few meters ahead.
   
4. Skirting the main roads, he drove through slum clusters of Kotla Mubarakpur to reach home safely. But looking back they could see smoke bellowing from the South Extension market. The Kotla Gurdwara was burning and bodies of the dead had begun to pile up.
   
5. They decided to return to Chandigarh immediately after the massacre of Sikhs, travelling in the cockpit of an Indian Airlines plane. But when he came to wind up his practice, he heard that lawyers were needed for writing affidavits of the victims. He went to Farsh Bazaar camp where Sikh victims from Trilokpuri were living and it changed his life for ever.
   
6. He was preparing affidavits for the Sikh victims when an elderly person told me that in his family only four minor girls were left. Their father, mother, brother and uncle had been killed. His grand daughters had been sent to the Nari Niketan. He wanted to take them in his custody but did not have any money to pay the court fees. That was the first case Harvinder Singh Phoolka filed in the High Court. After that he followed each and every case that Justice Kirpal heard, whether he was involved or not.
   
7. In May 1985, when the government appointed the Mishra Commission, he suggested they float an organisation so that they could pool their resources to take on the government. Initially people were not very enthusiastic and in the end he got Khushwant Singh and General (Jagjit Singh) Arora to endorse the idea. Various human right groups met at Soli Sorabjee's house and formed the Citizens Justice Committee. Soli Sorabji, General Arora, Tarakunde, Khushwant Singh and Justice Narula all signed up as members. Justice Sikri was made the president. Harvinder Singh Phoolka was appointed the secretary. As a lawyer of only three years’ standing he became the secretary of the organisation.
   
8. He became the main counsel of the (Justice Ranganatha) Mishra Commission. Soli Sorabjee really gave a lot of time. Harvinder Singh Phoolka had to virtually give up his practice for a year and spend hours at his office in North Avenue - Gurcharan Singh Tohra allowed the use of his MP’s flat.
   
9. When asked about the challenges he had to go through fighting for this cause he responded that HKL Bhagat and Sajjan Kumar were very powerful in those days. His wife gave him her full support though other members of his family had some apprehensions and said this was too dangerous a work. But my response was that if on 31 October 1984 I could pass through a burning Gurdwara, this was certainly less dangerous. Slowly young boys and girls joined our team. They visited areas dominated by Sajjan Kumar and HKL Bhagat and worked day and night. We were getting threatening letters, but nobody got scared. Soli Sorabjee, Tarkunde and Sikri were there with us through all this.
   
10. It was a difficult time in court, victims are victimised in the courts too. Mishra commission's terms of reference were very limited. It had only to ascertain whether the violence was premeditated. Soli Sorabji advised him to concentrate on this rather than filing thousands of affidavits. He had interviewed more than 3,000 victims and prepared affidavits. Ultimately, he filed only 575 of them. It took two months to interview these people. But it was not just him, but a team. He cross examined these 575 persons to check whether they would stand scrutiny.
    
11. Justice Mishra, however, concentrated on the flaws in the affidavits. He put these to an investigating agency. They focused not on getting the culprit, but on errors in the affidavits. The investigation was primarily a team headed by a police officer from outside Delhi. An IPS officer from Orissa cadre, Mr Meena. Justice Mishra started calling evidences at random. He had filed 575 affidavits but some came directly also to the Commission. So a total of some 620 affidavits had come before the commission. But there were 2,200 affidavits filed against these victims. Sikhs had sworn in these affidavits how the police and their MP had saved them from mobs.
    
12. Justice Mishra decided to call 25 witnesses from both sides every day. On the first day, all witnesses from the victims’ side appeared but only one from the other side and he too said that he had filed no affidavit. The one filed in his name was a forgery. This was widely reported in the newspapers.
    
13. The next day Justice Mishra banned press reports as the hearing was in-camera. But in-camera proceedings does not mean a press black-out. But nobody protested as Rajiv Gandhi had a two-third majority in Parliament.
    
14. One of the state witnesses said, ‘Forget about saving me, nothing is left of me. My house, hotel ... everything had been looted.’ When shown his signed affidavit, he said a policeman had come to him and asked for his signature for compensation of his house.
    
15. After that Justice Mishra decided he would not call those witnesses. In his report too he wrote that he would ignore all those affidavits. But in the end they realised that Mishra had examined many witnesses in his chamber and did not tell them. He did not give them their statements nor did he allow them to cross examine them.
    
16. There was only one way we could tell the world what was happening: Citizen's Justice Committee had to withdraw from the commission. That was duly published in the newspapers and we gave our reasons for withdrawing. They then approached the victims. They pressurised them to procure counter-affidavits.
    
17. Though the last date of filing such affidavits was 9 September 1985 Justice Mishra accepted affidavits even in December 1985. Harvinder Singh Phoolka intentionally filed some affidavits on 9 September at 5 pm because he knew they would be leaked. And he did not want to give them the opportunity to pressurise the victims to file counter affidavits. Mishra accepted counter-affidavits in December without even informing them.
    
18. So Ranganath Mishra became first of the many to perpetuate the misery of the victims. Harvinder Singh Phoolka and his team were not given a right to cross examine their witnesses. Some other parties with dubious credentials were also present at the inquiry. They were front men of HKL Bhagat and Sajjan Kumar. They were made to ask embarrassing questions from the victims before the commission.
    
19. Mishra was rewarded for his insensitivity. He became Chief Justice of India and also the chairman of the National Human Rights Commission. And later was a Rajya Sabha member. Generally, judges favour the government in these types of cases. If you see the role of the judiciary in the 1984 anti-Sikh pogrom cases you will be shocked. The judiciary’s role has been terrible. They have been a party to an eyewash.
    
20. But many more commissions and committees came up after the Mishra Commission. Nine commissions and committees. First came Mishra. He said it was not part of his terms of reference to identify anybody. ‘You appoint another committee to identify the people but HKL Bhagat is not involved.’ He said that in his report.
    
21. If this was not part of his terms of reference how was he saying that HKL Bhagat was not involved? He said people like Congress leader Tara Singh (a Sikh) had supported the Congress and HKL Bhagat during the elections and it clearly shows that if Bhagat had been involved, these people would not have supported him.
    
22. In the second part, which is the report of the investigating agency, you will see that the focus was on finding loopholes in the affidavits (of victims). It was then Harvinder Singh Phoolka realised how right Soli Sorabjee was. If they had filed even 20-30 weak affidavits, Justice Mishra would have based the whole of his report on that. But they could not break even a single victim in cross examination. Everybody stood the cross-examination. But even Justice Mishra said the cases had not been registered and wherever victims had named a political leader, they refused to register the FIR or the politicians’ names were deleted. Therefore, another committee should be appointed which should go into all this material and recommend fresh registration of cases.
    
23. Mishra recommended three separate committees. Jain-Banerjee panel to recommend registration of fresh cases, another committee on the role of the police and the third was to ascertain the number of killings. These committees were appointed in February 1987, but two and a half years later not even head counts had been done. Harvinder Singh Phoolka submitted a list to Justice Mishra containing names, addresses and complete details of 3,870 people killed in Delhi. But police said 1,419 were killed. Cases of only these people were registered. And the Delhi government filed a list of 2,300 people killed.
    
24. The Jain-Banerjee committee had instructed the police to register a murder case against Sajjan Kumar. Initially the case was not registered. Following protests Brahmanand Gupta (a co-accused) filed a writ petition in the High Court. The government lawyer did not oppose and a stay was imposed not only on registering a case against Sajjan Kumar but also on registration of cases on the recommendation of this committee. Something similar is happening with the more recent anti-Muslim Gujarat cases.
    
25. Harvinder Singh Phholka has gone on record to state the judiciary has actively supported a cover up. The first writ was filed by Rahul Bedi (on the role of police). That writ was dismissed by the high court on the pretext that the Ved Marwah Committee will be looking into it. The second writ was filed by PUDR (Peoples Union for Democratic Rights). During the hearing, Justice Yogeshwar Dayal made abusive comments about journalists and professors. Defamation cases were filed against him. That was the kind of attitude of the judiciary. Justice Dayal dismissed the writ petition saying that the court had no power to direct the government.
    
26. Then there was Justice Ranganath Mishra. When Ved Marvah was about to submit his report, the High Court stayed it. After the Jain-Banerjee committee’s recommendation was stayed, Sajjan Kumar was granted bail. In the Shahdra court, Judge SS Bal finished so many cases as fast as he could. In none of the murder cases, was there any conviction.
    
27. That was how they fell to the ploy of asking for the special courts (in late 1980s when VP Singh government came to power). Had it been divided amongst all the courts - there are honest judges like JD Kapoor and JB Goyal - they would have got convictions in many more cases.
    
28. The Congress leaders and other people in responsible positions did not want to come to any conclusion. It was very hostile. Most of the Congress people use to call Harvinder Singh Phoolka the lawyer of terrorists, though he had not done any TADA work. Some of the lawyers loyal to Congress use to call him a terrorist. This changed when during the VP Singh government, he was appointed the Union government’s standing council.
    
29. After 20 years he was asked what he expected from the Nanavati commission where he was again the leading counsel for the victims. Firstly, all the cases were not even registered. Many of those registered were closed by the police and did not reach the courts. From Nanavati Commission, he said they were expecting two things: registration of murder cases and reopening of about 300 cases which were closed without any challan or chargesheet being filed.
    
30. Also, there has not been any exhaustive inquiry on who is responsible and how all this happened. We have submitted voluminous evidences before the Nanavati Commission and we expect some answers now.
    
31. With the passage of time, justice just dries up. First, they do not allow the registration of cases and then cover up. Most of these types of cases do not survive more than two or three years. This is the first instance where the fight has continued for 24 years. The Congress leaders and other people in responsible positions did not want to come to any conclusion. They planned to delay things till the cases died their own natural death.
    
32. During the short tenure of the VP Singh government, a few decisions were taken on the basis of which the cases continued. By 1998, when the BJP-led government came to power, most of these cases were spoilt to such an extent that it was difficult to revive them. That is why a new commission of inquiry (the Nanavati commission) was appointed in 2000.
    
33. To agree to special courts was the biggest mistake. Many times they were told to file a PIL on the high court but we did not do it. We thought if the high court passes a judgement in a single case that affects a hundred other cases. This was a conscious decision and we were right.
    
34. Jagdish Tytler has accused Harvinder Singh Phoolka of exploiting these cases for money and fame. However, Harvinder Singh Phoolka has not charged a single penny from any victim. All expenses he has incurred have been from his own pocket. Initially, there was Citizen’s Justice Committee. But it was virtually defunct by the late 1980s. By the 1990s, my own practice was flourishing. It is not that I am handling only these cases. Amongst Sikhs it is common practice to dedicate one-tenth of one’s earnings for Daa-Dharam. I utilised this money for that purpose.