Jagdish Tytler and the Burden of Proof

Tytler has insisted, since 1984, that there isn’t enough proof to nail him in court. He may not be so lucky in 2012
CAUGHT IN THE ACT
Despite the Justice GT Nanavati Commission of Enquiry implicating him in the anti-Sikh violence of 1984, Tytler still finds favour with the Congress High Command

Jagdish Tytler claims that the case against him pertaining to the Odisha violence of 6 September is politically motivated and he will continue to be the All India Congress Committee in-charge of the state. His confidence perhaps springs from the fact that despite his alleged involvement in the anti-Sikh riots of 1984, he debuted as minister in the Rajiv Gandhi Government barely two months later. And, despite a damning report of the Justice GT Nanavati Commission of Enquiry into the anti-Sikh violence of 1984 that implicated him in 2005, he still finds favour with the Congress High Command, enough to be the party’s in-charge for Odisha. The Congress’ and Tytler’s alibi has been simple: there wasn’t enough proof to nail him in court.

But now, an incriminating piece of evidence—a video recording of Tytler’s provocative speech egging on protestors to break a police cordon—could nail the veteran Congressman in the criminal case against him and other Congress leaders and workers who clashed with the police on 6 September in Bhubaneshwar, leaving scores of people, including police personnel, injured. The Odisha police has requested the video footage from a local TV channel whose camera crew had filmed the speech, Deputy Commissioner of Police, Bhubaneshwar, Nitinjit Singh says in a phone interview. One of the clips shows Tytler urging the crowds to break down the police barricades and defy prohibitory orders, following which the mob goes berserk. Towards the end of his speech, Tytler is seen telling the crowds: “Chalo, hala bolo, tod do, tod do, tod do (Move forward, lay siege and break! Break! Break!).”

Several police personnel and protestors were injured in the violence on MG Road in Bhubaneshwar that day. Among those injured is a woman constable who was shown on TV channels being brutally beaten and manhandled by some of the protestors. She had been posted at the venue to provide security to the Mahila Congress leaders at the rally. “Jagdish Tytler instigated the crowd to take on the police,” she says over the phone from her hospital bed. She is likely to be in hospital—where she is admitted with a fractured arm and badly bruised body—till Saturday, [15 September 2012], she adds. The constable is a complainant in one of the five cases registered after the violence. Tytler has been claiming that he is being targeted by the media. As he told the TV channel Headlines Today: “She will have to prove what she is alleging. How can she prove it?”

“The police doesn’t have the guts to register cases like this. Obviously the Chief Minister has given instructions because he is also the home minister of the state,” Tytler told another interviewer on Times Now

When I call him, Tytler claims he is not an accused in any of the cases. “My name is not there in the FIR,” he says, while refusing to discuss the charges against him. DCP Nitinjit Singh however refutes Tytler’s claim, saying “While the investigation is still on, he is among the accused.” The police is now constructing a time line of the incidents and will submit the investigation report including the video clippings to the court to establish that these leaders, including Tytler and state Congress chief Niranjan Patnaik, were a part of the gathering that had been declared an “unlawful assembly” and resorted to violence.

In August 2005, after the Nanavati Commission report asking the Government to take action against Tytler and other Congress leaders was tabled in Parliament, Tytler resigned as Union Minister for Overseas Indian Affairs.

The commission’s report is damning, yet the Government did not take action against Tytler.

Govind Narain, a former Union Defence Secretary and Karnataka Governor, was among those who had come together to form a citizens’ committee headed by Justice Sikri shortly after the 1984 violence to go into the details of the incidents. The committee visited 135 sites and relief camps and prepared a report. In his deposition, Narain told the commission, “There was sufficient indication that something like that would happen and therefore the Government should have taken immediate action.” The commission’s final report notes: ‘He has also stated that there was a lot of evidence before them that in the trans Yamuna area, Shri HKL Bhagat, a Congress leader, had planned an organised massacre of Sikhs. He has also stated that there was evidence that Shri Sajjan Kumar and Jagdish Tytler had instigated mobs which had attacked the houses of Sikhs and had set them on fire.’

The Nanavati Commission report adds that it appeared that certain Congress leaders and workers, including Tytler, ‘were in some way involved in the attacks on Sikhs or their properties in this area’.

Surinder Singh, who at the time of the anti-Sikh pogrom was Head Granthi of Gurdwara Pulbangash, near Azad Market, in his testimony, described the incidents on the morning of 1 November 1984, when a mob led by Tytler, who was then the area MP, attacked the gurdwara. The Nanavati Commission notes: ‘He has stated that Shri Jagdish Tytler had incited the mob to burn the Gurudwara and kill the Sikhs. According to his evidence the mob had thereafter attacked the Gurudwara and burnt it. One Badal Singh was also burnt alive. He has also stated that he was contacted by Shri Jagdish Tytler on 10-11-84 and asked to sign on two sheets of paper’.

The commission noted that Tytler in his response to the allegations refers to an affidavit by Surinder Singh dated 5 August 2002 (filed before an earlier commission) that he had not seen Tytler when the mob had attacked the gurdwara. The commission goes on to conclude, ‘Witness Shri Surinder Singh, during his cross examination, admitted that he had not filed any affidavit earlier either before Justice Mishra Commission or any other authority regarding what he had stated now. It would appear that [the affidavit] by itself cannot be a good ground for not believing him. He has given evidence before this Commission and therefore what he has stated in his subsequent affidavit referred to by Shri Jagdish Tytler is not of much value. What appears from all this is that the subsequent affidavit was probably obtained by persuasion or under pressure. If this witness had really not seen Shri Jagdish Tytler in the mob or if he was not approached by Shri Tytler then he would not have come before the Commission to give evidence or would have told the Commission that the attack did not take place in that manner. For speaking the truth it was not necessary for him to wait till 5-2-2002 and file an additional affidavit. He was not called for cross-examination by Shri Tytler.’

After other testimonies that implicated Tytler, including that of former Karnataka Governor Narain, the Commission concluded: ‘Relying upon all this material, the Commission considers it safe to record a finding that there is credible evidence against Shri Jagdish Tytler to the effect that very probably he had a hand in organizing attacks on Sikhs. The Commission, therefore, recommends to the Government to look into this aspect and take further action as may be found necessary.’ As pressure on the Government increased to act, Tytler merely resigned from the Manmohan Singh ministry on 10 August 2005. The Prime Minister, in a statement in the Rajya Sabha next day, said: “I have no hesitation in apologising not only to the Sikh community but to the whole Indian nation because what took place in 1984 is the negation of the concept of nationhood enshrined in our Constitution. On behalf of the Government, on behalf of the entire people of this country, I bow my head in shame that such a thing took place.” Yet, Tytler has continued to find favour with the Congress leadership, with the burden of conscience always outweighed by the burden of proof. Could the fresh case against him change this at last?