Ranganath Mishra Commission

recommendations
Mishra Commission Recommends 15% Reservation for Muslims in Education &
Employment
Also Recommends Inclusion of Muslim & Christian Dalits in SC List

The National Commission on Religious & Linguistic Minorities Leaded by Justice Ranganath
Mishra former Chief Justice of India and Dr. Tahir Mahmood submitted its Report to the
Prime Minister on 22 May, 2007 shall be formally released only after being established in the
Parliament in the Monsoon Session relevant extracts of in terms of the Muslim Community
an reported below. - Editor of Muslim India.
http://www.muslimindiamonthly.com/

Term of Reference No. 1 (original)

Criteria for identifying socially and economically backward classes among the religious
and linguistic minorities

16.15. We recommend that in the matter criteria for identifying backward classes there
should be absolutely no discrimination whatsoever between the majority community and the
minorities; and, therefore, the criteria now applied for this purpose to the majority community
— whatever that criteria may be – must be unreservedly applied also to all the minorities.
16.15. As a natural corollary to the aforesaid recommendation we recommend that all those
classes, sections and groups among the minorities should be treated as backward whose
counterparts in the majority community are regarded as backward under the present scheme
of things.
16.18. To be more specific, we recommend that all those social and vocational groups among
the minorities who but for their religious identity would have been covered by the present net
of Scheduled Castes should be unquestionably treated as socially backward, irrespective of
whether the religion of those other communities recognises the caste system or not.
16.19. We also recommend that those groups among the minorities whose counterparts in the
majority community are at present covered by the net of Scheduled Tribes should also be
included in that net; and also, more specifically, members of the minority communities living
in any Tribal Area from pre-independence days should be so included irrespective of their
ethnic characteristics.

Term of Reference No. II (original)

Measures of Welfare for Minorities including Reservation

General welfare measures

A. Educational measures
16.2.4 As the meaning and scope of Article 30 of the Constitution has become quite
uncertain, complicated and diluted due to their varied and sometimes conflicting judicial
interpretations, we recommend that a comprehensive law should be enacted without delay to
detail all aspects of minorities, educational rights under that provision with a view to
reinforcing its original dictates in letter and spirit.
16.2.5 The statute of the National Minority Educational Institute Commission should be
amended to make it wide-based in its composition, powers, functions and responsibilities and
to enable it to work as the watchdog for a meticulous enforcement of all aspects of minorities,
educational rights under the Constitution.
16.2.6 As by the force of judicial decisions the minority intake in minority educational
institutions has, in the interest of national integration, been restricted to about 50%, thus
virtually earmarking the remaining 50% or so for the majority community – we strongly
recommend that, by the same analogy and for the same purpose, at least 15% seats in all non-
minority educational institutions should be earmarked by law for the minorities as follows:-
(a) The break up within the recommended 15% earmarked seats in institutions shall be 10%
for the Muslims (commensurate with their 73% share of the former in the total minority
population at the national level) and the remaining 5 % for the other minorities.
(b) Minor adjustments inter se can be made in the 15% earmarked seats. In the case of non-
availability of Muslim candidates to fill 10% earmarked seats, the remaining vacancies may
be given to the other minorities if their members are available over and above their share of
5%; but in no case shall any seat within the recommended 15% go to the majority
community.
(c) As is the case with the Scheduled Castes and Scheduled Tribes at present those minority
community candidates who can compete with others and secure admission on their own merit
shall not be included in these 15% earmarked seats.
16.2.7 As regards the backward sections among all the minorities, we recommend that the
concessions now available in terms of lower eligibility criteria for admission and lower rate
of fee, now available to the Scheduled Castes and Scheduled Tribes, should be extended also
to such sections among the minorities.
16.2.8 In respect of the Muslims – who are the largest minority at the national level with a
country-wide presence and yet educationally the most backward of the religious communities
– we recommend certain exclusive measures as follows:—
(i) Select institutions in the country like the Aligarh Muslim University and the Jamia Millia
Islamia should be legally given a special responsibility to promote education at all levels to
Muslim students by taking all possible steps for this purpose. At least one such institution
should be selected for this purpose in each of those states and Union Territories which has a
substantial Muslim population.
(v) In the funds to be distributed by the Maulana Azad Educational Foundation a suitable
portion should be earmarked for the Muslims proportionate to their share in the total minority
population. Out of this portion funds should be provided not only to the existing Muslim
institutions but also for setting up new institutions from nursery to the highest level and for
technical and vocational education anywhere in India but especially in the Muslim-
concentration areas.
(vi) Anganwaris, Navoday Vidyalayas and other similar institutions should be opened under
their respective schemes especially in each of the Muslim-concentration areas and Muslim
families be given suitable incentives to send their children to such institutions.
16.2.9 As regards the linguistic minorities, we recommend the following measures:-
(a) The law relating to the Linguistic Minorities Commissioner should be amended so as to
make this office responsible for ensuring full implementation of all the relevant
Constitutional provisions for the benefit of each such minority in all the States and Union
Territories.
(b) The three-language formula should be implemented everywhere in the country making it
compulsory for the authorities to includes in it the mother-tongue of every child – including,
especially, Urdu and Punjabi – and all necessary facilities, financial and logistic, should be
provided by the State for education in accordance with this dispensation.
B. Economic measures
16.2.10 As many minorities groups specialize in certain household and small scale industries,
we recommend that an effective mechanism should be adopted to work for the development
and modernization of all such industries and for a proper training of artisans and workmen
among the minorities – especially among the Muslims among whom such industries, artisans
and workmen are in urgent need of developmental assistance.
16.2.11 As the largest minority of the country, the Muslims, as also some other minorities
have a scant or weak presence in the agrarian sector, we recommend that special schemes
should be formulated for the promotion and development of agriculture, agronomy and
agricultural trade among them.
16.2.12 We further recommend that effective ways should be adopted to popularise and
promote all the self-employment and income-generating schemes among the minorities and
to encourage them to benefit form such schemes.
16.2.13 We recommend that the rules, regulations and processes of the National Minorities
Development and Finance Corporation be overhauled on a priority basis – in the light of the
recent report recently submitted by the NMDF Review Committee and in consultation with
the National Commission for Minorities – with a view to making it more efficient, effective
and far-reaching among the minorities.
16.2.14 We further recommend that a 15% share be earmarked for the minorities – with a
break-up of 10% for the Muslim (commensurate with their 73% share of the former in the
total minority population at the national level) – and 5% for the other minorities in all
government schemes like Rural Employment Generation Programme, Prime Minister’s
Rozgar Yojna, Grameen Rozgar Yojna, etc.
Reservation
16.2.15 Since the minorities – especially the Muslims – are very much under-represented, and
sometimes wholly unrepresented, in government employment, we recommend that they
should be regarded as backward in this respect within the meaning of that term as used in
Article 16 (4) of the Constitution – notably without qualifying the word ‘backward’ with the
words “socially and educationally” – and that 15% of posts in all cadres and grades under the
Central and State Governments should be earmarked for them as follows:-
(a) The break up within the recommended 15% shall be 10% for the Muslims (commensurate
with their 73% share of the former in the total minority population at the national level) and
the remaining 5% for the other minorities.
(b) Minor adjustment inter se can be made within the 15% earmarked seats. In the case of
non-availability of Muslims to fill 10% earmarked seats, the remaining vacancies may be
given to other minorities if their members are available over and above their share of 5%; but
in no case shall any seat within the recommended 15% go to the majority community.
16.2.16 Should there be some insurmountable difficulty in implementing this
recommendation, as an alternative we recommend that since according to the Mandal
Commission Report the minorities constitute 8.4% of the total OBC population, in the 27%
OBC quota an 8.4% sub-quota should be earmarked for the minorities with an internal break-
up of 6% for the Muslims (commensurate with their 73% share in the total minority
population at the national level) and 2.4% for the other minorities with minor adjustment
inter se in accordance with population of various minorities in various States & UTs.
16.2.17 We further recommend that the reservation now extended to the Scheduled Tribes,
which is a religion-neutral class, should be carefully examined to assess the extent of
minority presence in it and remedial measures should be initiated to correct the imbalance if
any.
16.2.18 We recommend that the judicial reservation recently expressed in several case about
the continued inclusion of the creamy layer in various classes enjoying reservation, inclusive
of the Scheduled Castes and Scheduled Tribes, should be seriously considered for acceptance
as a State policy.
Additional Term of Reference
Para 3 of the Constitution (Scheduled Castes) Order 1950.
16.3.4 We recommend that Para 3 of the Constitution (Scheduled Castes) Order 1950 – which
originally restricted the Scheduled Caste net to the Hindus and later opened it to Sikhs and
Buddhists, thus still excluding from its purview the Muslims, Christians, Jains and Parsis, etc.
– should be wholly deleted by appropriate action so as to completely de-link Scheduled Caste
status from religion and make the Scheduled Castes net fully religion-neutral like that of the
Scheduled Tribes.
16.3.5 We further recommend that all those groups and classes among the Muslims and
Christians, etc. whose counterparts among the Hindus, Sikhs or Buddhists, are included in the
Central or State Scheduled Castes lists should also be covered by the Scheduled Caste net. If
any such group or class among the Muslims and Christians, etc. is now included in an OBC
list, it should be deleted from there while transferring it to the Scheduled Castes.
16.3.6 We further recommend that as the Constitution of India guarantees freedom of
conscience and religious freedom as a Fundamental Right, once a person has been included in
a Scheduled Caste list a willful change of religion on his part should not effect adversely his
or her Scheduled Caste status.

Term of Reference No. III (original)

Modalities for implementing our recommendations

16.4.2 We recommend that all Central and State Acts, Statutory Rules and Regulations be
suitably amended to implement those of our recommendations which in the opinion of the
Ministry of Law and Justice or any another concerned authority may require such
amendments.
16.4.3 We recommend the following legislative actions which in our opinion are required
either for the implementation of some of our recommendations stated above or otherwise in
the interest of the welfare of minorities:-
(a) Enactment of a detailed law to enforce the dictates Article 30 of the Constitution;
(b) Amendment of the National Commission for Backward Classes Act 1993;
(c) Amendment of the Constitution (Scheduled Castes) Order 1950 and the Constitution
(Scheduled Tribes) Order 1951 as also of the Central and State lists of the Scheduled Castes
and Scheduled Tribes;
(d) Review of the laws and rules, processes and procedures, relating to selection and
notification of OBC at the Central and State levels:-
(e) Enactment of a law to clothe with statutory status and judicial enforceability the Prime
Minister’s 15-Point Programme for Minorities 1983 as modified in 2006;
(f) Amendment of the National Commission for Minorities Act 1992 and the National
Commission for Educational Institutions Act 2004 so as to make it necessary for the
government to appoint as the chairpersons and members of these bodies – through a Search
Committee as in the case of the National Human Rights Commission – only reputed experts
in the constitutional, legal, educational and economic matters relating to the minorities;
(g) Necessary amendments in the Wakf Act 1993 and all the Rules framed under its
provisions;
(h) Review and necessary overhaul of the laws, rules, regulations, procedures and processes
relating to the National Minorities Development and Finance Corporation and the Maulana
Azad Education Foundation.
16.4.4 We recommend the following administrative measures which in our opinion are
required either for the implementation of some or our recommendations or otherwise in the
interest of the welfare of minorities:—
(a) Establishment of a Parliamentary Committee to consider and decide in the light of the
Constitution policy matters relating to the minorities;
(b) Establishment of a National Committee consisting of Chairpersons of NHRC, NCW,
NCBC, NCSC, NCM, NCMEI, NMDFC, CLM, Central Wakf Council and Maulana Azad
Foundation along with nominated experts for monitoring the educational and economic
development of he minorities;
(c) Creation of similar bodies in all the States/UTs for the same purpose and consisting of
local top-level officials dealing with minority-related matters and independent experts;
(d) Establishment of a National-level Coordination Committee consisting of representatives
of all the nationalized banks and other financial institutions to work under the RBI for
monitoring credit flow to the minorities;
(e) Establishment of State Minorities Commission and Minority Welfare Departments in all
those States and UTs where these do not exist as of now;
(f) Decentralization of all minority-related schemes, programmes and plans so as to create
suitable district-level mechanisms for their day-to-day implementation;
(g) Revision of the list of Minority Concentration Districts as suggested by the NCM in
1990s and initiating special educational, economic and general welfare measures there
through the local administration;
(h) Appointment of Minority Welfare Committees consisting of official and local experts in
all districts of the country to act as the nodal agencies of NCM, State Minorities Commission
and all other Central and State-level bodies working for the minorities.
Tahir Mahmood
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This biographical article is written like a résumé. Please help improve

it by revising it to be neutral and encyclopedic. (October 2009)

Dr. Tahir Mahmood, Member, Law Commission of India[1],[2] is a renowned jurist

specializing in Islamic Law, Hindu Law, Religion and Law and Law Relating to Minorities.
He has been Dean, Faculty of Law, University of Delhi, Chairman, National Commission for
Minorities, Member, National Human Rights Commission and Jurist-Member, Ranganath
Misra Commission. Dr. Mahmood is well-known in India and abroad for his expertise in
religion and the law, human rights and civil liberties, especially the law relating to the
educational rights of Minorities. He is a globally noted authority on Islamic Law, Legal
Systems of the Arab World and Hindu Law, subjects on which he has written and edited
more than two dozen books and 500 research papers. His academic work which focuses on
his progressive interpretation of these laws is widely acclaimed and has been cited by the
Supreme Court of India and many State High Courts in more than 20 judgments besides
being prescribed by many Indian and foreign Universities for higher legal studies. He has
inaugurated, attended and presided over many international conferences and seminars all over
the world and has delivered numerous lectures at internationally renowned Universities
including the Universities of Harvard, Cambridge, London, Iowa and many others. As an
expert on family laws, he has advised the International Commission of Jurists and many
foreign governments. He is associated in different capacities with a number of notable Indian
and foreign academic, legal and human rights organizations, prominent amongst them being
the International Society on Family Law, Paris, the Vienna Christian-Islamic Round Table,
the International Consortium of Religion and Law Studies, Milan, the Institute of Muslim
Minority Affairs, Jeddah and the Committee for Drafting the Model Constitution for Islamic
Countries, Kuala Lumpur. He is also the academic founder of many law schools in India
including the Amity Institute of Advanced Legal Studies of which he is the Honorary
Chairman[3].

Professor Mahmood speaks Urdu, Hindi and English and has a fair knowledge of Arabic and
Persian. He does not pratice religious rituals and is a strict vegetarian.

TAHIR MAHMOOD'S BOOKS

A. BOOKS Note :-- Books no. 4, 6, 7, 8 & 11 have been cited by Supreme Court & various
High Courts in 17 different judgments

(a) Books authored

1. Changing Law of the Hindu Society (1968) 2. Family Law Reform in the Muslim World
(1972) – [Malayalam translation 1982] 3. An Indian Civil Code and Islamic Law (1976) 4.
Muslim Personal Law : Role of State in the Subcontinent (1977) – [2nd ed 1983] * 5. Family
Planning : Muslim Viewpoint (1977) – reprinted 1981 6. Civil Marriage Law of India :
Perspectives and Prospects (1978) * 7. The Muslim Law of India (1980) – [3rd edition
2002]* 8. Studies in Hindu Law (1981) – 3 volumes; [reprinted 1998]* 9. Personal Laws in
Crisis – Endowment Lectures, Bombay University (1986) 10. Statutes of Personal Law in
Islamic Countries : Texts & Analysis (1987) – [2nd edition 1995] 11. Statute Law relating to
Muslims in India : Islamic & Constitutional Perspectives (1995)* 12. Uniform Civil Code :
Fictions and Facts (1995) – [Malayalam translation 1999] 13. From the Heart : Select
Speeches on Religion, Law and Literature (1998) 14. Minorities Commission : Minor Role in
Major Affairs (2005) 15. Amid Gods and Lords : My Life with Votaries of Religion and Law
(2005) 16. Laws of India on Religion and Religious Affairs (2008) (b) Anthologies [books
edited] 17. Islamic Law in Modern India (1972) 18. Family Law and Social Change (1975)
19. Minorities and State at the Indian Law (1991) 20. Pressing Issues Facing the Nation
(1992) 21. Human Rights in Islamic Law (1993) 22. Criminal Law in Islam and the Muslim
World (1996) 23. Islamic Law in Indian Courts Since Independence: Fifty Years of Judicial
Interpretation (1997) 24. Politics of Minority Educational Institutions : Law & Reality in
Subcontinent (2007) 25. Vienna Interfaith Dialogue Yearbooks (2004-2007) – four volumes
(i) Reading Signs of Time (iii) Intolerance and Violence (ii) Poverty and Injustice (iv)
Education and Equality

(c) Muslim Law Classics Revised & Updated

26. Syed Ameer Ali’s two-volume book on Muslim Law (1985) 27. Asaf Ali Asghar Fyzee’s
casebook on Muslim Law (2005) 28. Asaf Ali Asghar Fyzee’s textbook on Muslim Law
(2008) 29. DF Mulla’s book on Principles of Muslim Law (in progress)

(d) Original Books in Urdu

30. Muslim Personal Law ke Tahaffuz ka Mas’ala (1972) 31. Hayat-e-Mahmood : Sawaneh-
o-Nazariyat (1986) 32. Dil ki Hekayetein: Intikhab-e-Afkar (1998) 33. Jur’at-e-Rindana:
Nazariyat-o-Shakhsiyat (2001) 34. Taza Hain Merey Waredat : Majmu’ah-e-Maqalat (2005)
35. Qissa-e-Dard Sunatey Hain : Afkar-o-Sawaneh (2009) (e) Books translated 36.
Compendium of Islamic Laws – English translation of Muslim Law Board’s Urdu book
(2001) 37. Muslim Qanoon ke Usool – Urdu translation of DF Mulla’s English book on
Muslim law (2001) 38. Basic Reader of the Holy Qur’an – translation of late SM Hasan’s
Urdu book on tajwid (2002) 39. Isharat-e-Waqt ka Shu’oor (Vienna Dialogue Yearbook) –
translated from English to Urdu (2004) 40. Adam Rawadari aur Tashaddud (Vienna Dialogue
Yearbook) – translated from English (2006)

(f) Journals (Founder-Editor)

1. Islamic and Comparative Law Quarterly – 44 issues (1981--1996) 2. Religion and Law
Review – 12 issues (1992--1999) 3. Minorities India Quarterly – 12 issues (1996--1999) 4.
Amity Law Watch – 12 issues (2003-2009)
 A BRIEF

After rejecting all demands for a judicial inquiry for over five months, the Rajiv
Gandhi finally appointed a Commission in April 1985 under the chairmanship of a
sitting Supreme Court judge Ranganath Misra. According to its terms of reference,
the object of the Misra Commission was to inquire into “the allegations in regard to
the incidents of organised violence” which took place in Delhi. Misra interpreted this
to mean that his job was only to find out whether the violence in Delhi was organised
or not. His finding was that the violence was initially spontaneous and, as the police
failed to act promptly, anti-social elements took over and organised the carnage that
followed. Misra did not however identify those anti-social elements, much less did he
explain why the police either failed to act against them or in several cases even
colluded with them. The Commission categorically ruled out the possibility of the
Congress Party and the Rajiv Gandhi Government having a hand in the holocaust.
The only political involvement Misra conceded was that Congress workers had on
their own participated in the violence.

It did not seem to matter much to the Misra Commission that its findings were
hardly convincing. The report is breathtaking crude in its reasoning and vindicates
the apprehensions that led the Citizens Justice Committee, the main representative
of the victims, to withdraw from the Commission’s proceedings at an advanced
stage. A subsequent Congress Government headed by P.V. Narasimha Rao, who
was home minister during the carnage, rewarded Misra by appointing him the first
chairman of (all the things) the National Human Rights Commission. Later, Misra
himself put a question mark over the integrity of his inquiry by joining the Congress
party and becoming its Rajya Sabha member. About two years ago, Parliament
sought to atone for all these sordid happenings by passing a unanimous resolution in
support of the Vajpayee Government’s decision to order a fresh judicial inquiry into
the 1984 carnage in the form of the Justice G.T. Nanavati Commission. Here are a
few frequently asked questions about the cover-up of the massacre by the Misra
Commission.

(1) Why did the Citizens Justice Committee withdraw from the proceedings of the
Misra Commission at an advanced stage?

(a) There were several reasons why the CJC felt compelled to withdraw from the
proceedings. The most important reason was the Commission’s overweening
concern for secrecy. Misra approached the inquiry with a pre-determination to
hold all the proceedings in camera. One of the rules of procedure he framed right
at the beginning said that the proceedings would be held in camera “unless
directed otherwise.” This is in contrast to the normal practice of holding an inquiry
in public to ensure that justice is not only done but also seems to be done. As if
the idea of shutting out the public was not bad enough, Misra excluded even the
CJC from more and more areas of the inquiry. The CJC estimated that more than
three-fourth of the inquiry was kept out of its reach. Misra’s secretive methods,
rather uncharacteristic for a judge, betrayed his anxiety to give a clean chit to the
Rajiv Gandhi Government and Congress leaders. The last straw was Misra’s
announcement at an advanced stage of the inquiry that there was no need to
summon any of the dignitaries the CJC wanted to question because he had
 already examined most of them in the privacy of his chamber. In its 18-page
submission announcing its withdrawal from the inquiry on March 31, 1986, the
CJC evocatively described that innovation of Misra as “an in camera inquiry
within an in camera inquiry.”

(2) Why did the Misra Commission not permit the Citizens Justice Committee to
cross examine the persons in authority during the massacre?

(a) Take the nine dignitaries the Citizens Justice Committee wanted to cross-
examine. They included P.G. Gavai, who was the lt governor and administrator of
Delhi during the massacre, M.K. Wali, who replaced Gavai subsequent to the
riots, and Subhash Tandon, who was the police commissioner of the Capital
during the fateful period. It is self-evident that each of those high office holders
were indispensable for the CJC to establish its allegation of complicity against the
Government and Congress Party. The Commission admitted in its report that it
was asked repeatedly to permit cross examination of those public officials. And it
even admitted to have turned down that request simply because “it was of the
view that that it would not be expedient to allow cross-examination.” Misra did not
deign to give any reason for why he considered it inexpedient to allow cross-
examination of those dignitaries who were best positioned to throw light on the
CJC’s allegation that the violence was organised by the powers that be. His
silence can mean only one thing: He knew that he would not have been able to
exonerate the Rajiv Gandhi Government and the Congress Party if he permitted
the normal procedure of subjecting all the witnesses, no matter how highly
placed, to cross examination.

(3) Why do you think cross examining persons in authority should have been
considered indispensable to the inquiry into the 1984 massacre?

(a) It is not just in the case of the 1984 massacre. Cross examination is a must for
any inquiry commission as also for any trial court. Nowhere in the civilised world
is anybody’s testimony taken to be true unless it has gone through and withstood
the test of cross examination. If a witness is permitted to narrate his version
without fear of cross examination from the other side, it amounts to giving him a
licence to concoct anything with impunity. The rule of cross examination applies
even to high office holders. That is why so many other inquiry commissions have
subjected Cabinet ministers to cross examination. In the fifties, the then finance
minister, T.T. Krishnamachari, was cross examined before the M.C. Chagla
Commission probing the Mundhra scam. More recently, Cabinet ministers L.K.
Advani, Murli Manohar Joshi and Uma Bharati were cross examined before the
Liberhan Commission probing the demolition of the Babri Masjid and George
Fernandes was cross examined before the Venkataswami Commission probing
the Tehelka defence deal controversy. Needless to add, the cross examination of
all those VIPs took place in public and the press could therefore publish their
reports on the basis of first-hand information. But the standards adopted by Misra
were rather different. He did not permit the cross examination of any of the public
officials and, since whatever happened was all in camera, the question of the
press reporting any of that did not arise at all.
(4) How did the Misra Commission react to the withdrawal of the Citizens Justice
Committee?

(a) Misra made no bones about the fact that the CJC’s withdrawal was a blow to the
credibility of his inquiry. While admitting that its withdrawal created “some amount
of embarrassment in the working of the Commission,” Misra recorded his
“disapproval of the manner in which the CJC withdrew from the proceedings.” But
oddly enough Misra did not mention anywhere in his report a single line from the
18-page withdrawal statement of the CJC. Instead, he reproduced the contents of
a letter the CJC wrote subsequently at his instance saying its withdrawal did not
“in any manner imply a lack of personal confidence in your Lordship or any mark
of disrespect for the Commission.” That was merely an expression of courtesy
but Misra reproduced the letter in entirety, that too not once but twice. Clearly, he
was seeking to salvage some credibility by clutching at that letter of CJC as
evidence of his integrity.

(5) Were the victims left in the lurch because of the withdrawal of the Citizens
Justice Committee?

(a) On the contrary, the CJC did a great service to the cause of the victims by
recording in its withdrawal statement the farcical nature of the Misra
Commission’s inquiry. If anything, the so-called findings that the Misra
Commission came up with subsequently vindicated the CJC’s apprehensions
about the object of the whole exercise. When the CJC withdrew on March 31,
1986, what was still left to be done was the last lap of evidence and then present
arguments on the entire material recorded by the Commission. The Delhi Sikh
Gurdwara Management Committee represented the victims for the remainder of
the proceedings, for whatever they were worth.

(6) India is known for its free and vigilant press. Did they not come down heavily on
all those dubious activities of the Misra Commission?

(a) No, they did no such thing when the proceedings were on. On the contrary, it was
the Misra Commission that came down heavily on the press. For all the courage
and independence the press displayed in reporting the 1984 massacre, and for
all the service they rendered subsequently by keeping the issue alive, they
somehow gave in at that particular moment to the bullying of the Misra
Commission. The bone of contention was whether the press could circumvent
Misra’s in camera proceedings and publish reports of the hearings on the briefing
of unnamed sources. The controversy arose in the last week of January 1986
when the Commission came to the stage of recording evidence (meaning, when
witnesses started giving their testimonies). The reports that came on the first two
days of evidence were acutely embarrassing to Misra and threatened to give
away his game of fixing the inquiry in favour of Congress leaders. On the third
day, the Commission passed a gag order threatening to take action against
newspapers that continue to carry reports on the proceedings. Misra succeeded
in having his way with the press even though he had no authority in law to pass
any gag order. No newspaper dared to test his claim or challenge his order. Misra
rewarded the press with a dubious compliment: “The Commission places on
 record that the press has mostly behaved responsibly and was co-operative after
the direction was given.”

(7) What was so embarrassing to the Misra Commission in the press reports that
came on the proceedings of the first two days of recording of evidence?

(a) The press reports inadvertently betrayed a conspiracy of “counter affidavits.” Out
of a total of 2,905 affidavits received by the Commission, only 639 affidavits were
filed by the victims or in support of them. The rest of the affidavits were all against
the victims. The Misra Commission should have found it odd if there was even a
single affidavit against Sikhs in the context of their massacre. Yet, there were
about three counter affidavits for each affidavit filed from the side of the victims.
When the Commission started recording evidence, it summoned six to seven
witnesses from each of the two sides. But as it happened, on the first two days
hardly anyone came to depose from among those who filed the counter affidavits.
The ones who came either denied having filed those counter affidavits or ended
up contradicting the statements attributed to them. Much to the embarrassment of
Misra and the sponsors of the counter affidavits, these tell-tale developments in
the in camera proceedings found their way into newspapers. The tenor of the
reports made it clear to Misra that his cover up was in danger of being exposed if
he did not immediately find a way to stop the press from reporting his
proceedings. Hence the gag order.

(8) Could the Misra Commission not have decided to hold the proceedings in camera
simply because the inquiry was sensitive and Punjab was then still wracked by
secessionist militancy?

(a) First of all, it must be pointed out that even the Commission did not make such a
claim about its decision to hold the entire inquiry in camera. In fact, it suppressed
the fact that it had framed a rule at the outset stipulating that the proceedings
would be held in camera “unless directed otherwise.” Instead, it made out in its
report that it began to hold the proceedings in camera only after “wrong reports
started featuring in the press” and “when evidence came to be taken, tainted
news appeared with greater frequency.” Misra blamed the CJC for all those
allegedly distorted reports without however explaining why the fourth estate in the
first place had to depend entirely on the CJC for information. Misra did not want
to admit that he had made up his mind to hold the inquiry in camera long before
the journalists could have given him any reason to lose faith in their integrity or
ability.

(9) What did the Misra Commission say about the many affidavits filed against the
victims of the massacre?

(a) Misra did not discuss them at all. This seems to have been mainly to avoid
mentioning that most of those 2,200 affidavits were stereotyped. The same set of
assertions was repeated in many affidavits in more or less the same language. In
fact, in a lot of those counter affidavits all that the deponent did was to fill his
personal details with his hand in the blanks and affix his signature at the end. Not
surprisingly, the stereotyped affidavits had no evidence to offer. They were low
on facts and high on opinion: Their thrust was to make a bald assertion that the
 violence on the Sikhs was entirely spontaneous and not organised at all. But
when some of those deponents appeared before the Commission in the first
round of evidence, they repudiated the affidavits attributed to them and came out
with shocking details of how some Congress members and other interlopers
tricked them into signing those documents. This forced Misra to keep aside the
counter affidavits for a good part of the inquiry. But he kept silent about all this in
his report because it would have betrayed the fact that there was an organised
effort before him to make out that the massacre was not organised.

(10) How could the Misra Commission have not seen the stereotyped nature of the
counter affidavits as evidence of a conspiracy to shield culprits of the 1984
carnage?

(a) It of course did not want to draw such an inference because that would have
knocked the bottom out of its so-called finding that the Rajiv Gandhi Government
and Congress party were not involved in the organisation of the massacre. So,
far from rejecting their authenticity, Misra pressed some of the counter affidavits
into service in the last lap of evidence to give a clean chit to H.K.L. Bhagat, the
most important Congress leader from Delhi alleged to have been involved in the
violence. Why did the Commission at one stage keep aside the counter affidavits
and why did it later change its mind and consider some of them? There is no
answer to this vital question anywhere in the report. This despite its claim to the
contrary in its report: “The Commission has dealt with these affidavits separately
and for reasons indicated there not much of reliance has been placed on most of
these affidavits.”

(11) If the Misra Commission exonerated the Rajiv Gandhi Government and
Congress party, who did it blame for the massacre?

(a) It blamed the police and an amorphous, anonymous entity called “anti-social
elements.” The Commission said that the violence started spontaneously on the
evening of October 31, 1984 around the time Indira Gandhi’s death was
announced. The violence intensified the following day, according to the
Commission, for two reasons. First, the failure of the police to nip it in the bud.
Second, the entry of anti-social elements who converted the spontaneous
violence into an organised attack. The highest office holder the Commission
censured for negligence was P.G. Gavai, who was Delhi’s lt governor during the
violence and was anyway sacked while the killings were still going on.

(12) Did the Misra Commission not consider the possibility of the police having failed
to curb the violence because of pressure from above?

(a) The Commission gave a categorical finding that the main reason for the failure of
the police was a communication breakdown. The police stations failed to convey
to their control rooms or superior officers the magnitude of the violence taking
place in their territories. Additional Commissioner of Police H.C. Jatav, for
instance, told the Commission that he received information about Trilokpuri, the
worst affected area in the whole of Delhi, only on the evening of November 2,
1984. Jatav claimed that there was an 18-hour delay in the communication even
though Trilokpuri is barely 12 km from the police headquarters. Since the top
 brass was thus apparently unaware of the alarming proportions of the violence till
a late stage, there was a delay in enforcing curfew and deploying reinforcements.
Again, because of this communication breakdown within the police force, the
Commission held that there was no question of attributing any negligence, much
less complicity, to the Rajiv Gandhi Government.

(13) What reasons did the Misra Commission give for the negligence of the
policemen in the field during the massacre?

(a) Anything but pressure from their higher-ups or top political leaders. He had no
proper explanation to offer for why the staff manning the police stations failed to
communicate on time with their superiors. All he could say was that some of the
policemen were evidently too distressed by the fact that Indira Gandhi was
assassinated by two of their colleagues. But then that does not explain the
instances found by the Commission in which the police either looked the other
way or instigated the mobs. Worse, the Commission also found instances when
the police, rather than nabbing the miscreants, disarmed Sikhs acting in self
defence and arrested them on trumped up charges. To any reasonable person,
such behaviour would have aroused the suspicion that policemen acted as
henchmen of political leaders during the massacre. But the closest the
Commission came to attributing the acts of omission and commission of the
police to any interference was when it referred to “local political pressure.” Even
then, the Commission refrained from examining the sources of that local political
pressure.

(14) Who are these anti-social elements who are supposed to have on their own
mounted an attack on Sikhs in the Capital on such a large scale and got away
with it?

(a) The Misra Commission made no effort to identify the so-called anti-social
elements although they were in its opinion the main culprits. In fact, the whole
idea of passing the buck to unnamed anti-social elements seems to have been to
deflect attention from the specific names thrown up by the victims and witnesses.
Misra simply said that the anti-social elements belonged to the poor sections of
the population living in slums in and around Delhi. He also took pains to clarify
that they did not belong to the Congress party and that is why so many victims
found them to be, he said, in a jubiliant mood as they indulged in arson, loot and
killings apparently in retaliation to Indira Gandhi’s assassination. The most Misra
conceded was the likelihood of Congress workers joining the anti-social elements
in the riots.

(15) If it acknowledged the role of Congress workers in the massacre, how could the
Misra Commission exonerate the party?

(a) It had the gall to say that the Congress party could not be blamed for the very
reason the Sikh community as such could not be held responsible for the action
of two Sikhs who killed Indira Gandhi. “Every person who takes a dip in the
Ganges is not purified. Similarly, everyone in the Congress (I) is not a Gandhi
believing and practising non-violence. The party label, therefore, does not attract
the party nor take away the individual element,” rationalised Misra. Even though
 he never called the Congress party for an explanation, Misra on his own took
great pains to defend the organisation he was going to join in the future. He said:
“The Congress party at the lower level – like any political party anywhere – has
loose ends and from the fact of participation of people belonging to the party at
that level it is difficult to accept the stand that the Congress (I) party had either
organised or participated as such in the riots.”

(16) What reasons did the Misra Commission give for finding the Congress
leadership in general blameless for the massacre meant to avenge Indira
Gandhi’s assassination?

(a) Misra made no pretence of arriving at that conclusion in the manner of a judge.
He dismissed the allegation against the Congress party without even feeling the
need to call for its explanation. Going purely by his personal predilection, Misra
gave a pseudo-scientific explanation for justifying his belief. Had the Congress
party been involved, the magnitude of the violence, he suggested, would have
been even greater and neither the police nor the combined defence of the local
citizens would have been effective anywhere in Delhi. “If the Congress (I) party or
a powerful force in the party played any role, neither of these two elements could
have functioned in the manner each of them has been ascribed,” he said.

(17) How did the Misra Commission indict 19 Congress workers if there was no
proper inquiry?

(a) That the Misra Commission indicted 19 Congress workers is a myth Congress
leaders have been propagating to save their faces. Indictment suggests that the
Commission had issued notices to those workers and considered the allegations
levelled against each of them. In reality, he did no such thing nor did he even
pretend to have conducted such an inquiry. He examined the subject only in
terms of broad sweeps. Since he conceded the likelihood of Congress workers
participating in the riots, he said he had “no particular reason to disbelieve the
allegations so tabulated” against 19 workers by the Delhi Sikh Gurdwara
Management Committee in its written arguments.

(18) Did the Misra Commission go into the conduct of the Congress party in the
context of the massacre?

(a) Yes, it did, but only in terms of the resolutions passed by it at the Central and
state levels. Thus, the Congress party got a clean chit because it had done its
paper work alright. “In the face of these resolutions of November 1, 1984, by the
Central and Union Territory party organs, it is indeed difficult to allege, much less
discover, unseen hands of the party behind the violence perpetrated so
dastardly,” the Commission observed. Misra set much store by the fact that
several Sikhs belonging to the Congress party were also not spared by the
rioters. On the basis of a highly questionable assumption, Misra said: “If the
Congress (I) party or some of its highly placed leaders had set the rioters to
operate, one would expect the Sikhs with Congress base and affinity to have
escaped the depredation.”
(19) How did the Misra Commission exonerate H.K.L. Bhagat despite the fact that
his constituency of east Delhi was the worst affected in the violence?

(a) Besides Rajiv Gandhi, Bhagat is the only Congress leader to have been
specifically exonerated by the Misra Commission. Misra did this honour to Bhagat
not only because he was the sole representative of Delhi in Indira Gandhi’s
council of ministers. Bhagat was also at the centre of two conflicting sets of
affidavits on his role in the riots. In fact, most of the 2,000-odd counter affidavits
were filed mostly in support of Bhagat. In a manner that befits no judge, Misra
chose to record evidence on Bhagat without issuing any notice to him. Bhagat on
his part did not protest because he was probably had fore-knowledge of the
outcome of the inquiry. Bhagat’s confidence was not misplaced as Misra himself
came up with purely extra-legal arguments to reject all allegations against him.
For instance, noting the fact that some Sikhs had filed affidavits in his favour,
Misra said: “If Shri Bhagat had indeed played the role of an organiser of the riots,
it is difficult to find even a single Sikh supporter in his camp.” Further, in a
gratuitous display of respect for Bhagat, Misra said he “being a sitting MP and
minister was not likely to misbehave in the manner alleged… People of the Sikh
community being electors of his constituency, Shri Bhagat, keeping the
democratic politician’s behaviour towards the elector in view, was not likely to
antagonise the Sikh sympathy towards him.”

(20) What exactly were the grounds on which Rajiv Gandhi himself was given a
clean chit by the Misra Commission?

(a) While H.K.L. Bhagat figured in hundreds of affidavits one way or the other, there
were only two affidavits pertaining to Rajiv Gandhi – and both against him. But
the Misra Commission report had nothing but high praise for Rajiv Gandhi who
took charge as Prime Minister within hours of his mother’s assassination. Without
giving any indication of the source of his evidence, Misra recorded a finding that
on the very night of the assassination, Rajiv left instructions to alert and, if need
be, call in the Army. Holding that Rajiv took “all reasonable steps expected of him
to meet the situation,” Misra said he even visited affected areas on November 2
against security advice and “boosted the morale of the victims.” Misra therefore
said that Rajiv’s peace appeals to the nation on October 31 and November 1, his
condemnation of the riots “in strong terms,” his decision to sack Lt Governor of
Delhi P.G. Gavai on November 3 and “the overall posture adopted against the
mad crowd leave no scope to entertain the allegation in a couple of affidavits that
he too had something to do to help the unseemly situation.”