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If you want to freeze things...

For successive governments, it has been tempting to duck hard business by setting up judicial commissions. The judges so appointed tend to recognise the limitations, writes Ashok Malik.

india Updated: Jul 03, 2009 22:17 IST

Following a CBI investigation, a trial court in Rae Bareli is hearing cases pertaining to the demolition of the Babri Masjid in Ayodhya on December 6, 1992. In parallel, the Allahabad High Court is hearing a case related to ownership of the contentious 2.77 acres in the temple town.

Given these two processes, it is difficult to understand how the four-volume report of the one-man Justice M.S. Liberhan Commission can bring ‘closure’, as is being suggested, to the Ayodhya issue. Indeed, this leads to another question: are most judicial commissions no more than convenient diversions and, in the larger reckoning, a waste of money?

For successive governments, it has been tempting to duck hard business by setting up judicial commissions. The judges so appointed tend to recognise the limitations. They are not mandated to produce legally tenable evidence. As such, even crackpot conspiracy theories get attention.

While it is impossible to assess Justice Liberhan’s conclusions without reading them, precedents are not encouraging. Take two examples: the Justice M.C. Jain Commission set up after Rajiv Gandhi’s assassination, and the Justice Manoj Mukherjee Commission set up in 1999 to ascertain the fate of Netaji Subhas Bose.

Rajiv Gandhi’s assassination in 1991 was an audacious crime and India was honour-bound to find the killers. A special investigation team got cracking, pieced together the LTTE-led plot and brought a number of the participants to justice. Unmindful of this, Justice Jain spent seven years studying the conspiracy. What did he find?

“Rajiv Gandhi,” Justice Jain wrote, “was facing extremely grave threats from Sri Lankan Tamil militants and their Indian sympathisers, fanatic Sinhala elements of Sri Lanka, Sikh terrorists operating from Punjab as well as foreign countries, Kashmiri militant groups operating from India as well as foreign countries, Afghan mujahideen, Islamic fundamentalists from Pakistan, certain groups within the government of Pakistan, some groups connected with the royal family of Nepal, terrorist elements operating from North-eastern India, notably Ulfa, and aggrieved individual elements. There were also hints of certain outside powers involving themselves with some of these hostile forces.”

Justice Jain quoted former home minister S.B. Chavan as saying: “Rajiv Gandhi… was very much interested in seeing that all non-aligned countries remained together... and that is why superpower or powers were interested in seeing that such a force… should not be allowed to continue.”

Finally, the report cited a “prophetic threat perception”: “Yasser Arafat… had received intelligence reports from his sources in Israel and his European sources one month before the assassination… that hostile powers from outside India may also attempt the assassination of Shri Rajiv Gandhi.”

Now consider the Mukherjee Commission’s efforts. It investigated five alternative theories as to the death of Netaji. The best known was, of course, the air crash in Taihoku (Taipei) on August 18, 1945. Among the others were some bizarre concoctions.

From Kolkata, the author of a Bengali book on the subject was brought before the Commission to establish that Netaji had actually been killed on August 15, 1945, in a secret chamber in Delhi’s Red Fort. Another theory can be best described in the words of the commission itself: “One of the persons who responded to the notification issued by the commission... was Shri Jagannath Prosad Gupta, a resident of village Nagda in the district of Sheopurkalan (Madhya Pradesh). He asserted that during the days of struggle for freedom of India a plane crash-landed in the neighbouring village of Pandola and the three persons who survived the crash were a sadhu, Colonel Habibur Rahman and Hitler... The sadhu was none other than Netaji.”

The idea that Hitler and Netaji jointly survived an air crash in rural Madhya Pradesh was so ridiculous that even Justice Mukherjee called it “absurd”. However, the point is the Commission spent taxpayer money listening to such nonsense and recording it.

The Mukherjee Commission travelled widely, to Britain, Russia, Taiwan and Japan. In Japan, it visited the Renkoji temple: “In the aforesaid temple an urn inside a glass chamber was noticed which allegedly contains the ashes. When the Reverend Chief Minister of the temple (Chief Priest) was asked to open the urn to ascertain whether there were any bones in the ashes which could, if possible, be subjected to DNA test, he stated that without a competent mechanic it was not possible to open the glass chamber and for that matter the urn, and that the date of visit being a holiday, it was not possible to requisition the services of any mechanic.”

Alas, Justice Mukherjee couldn’t wait “since the itinerary of the commission did not permit to extend its stay in Tokyo for a day more”. The task of opening the casket, examining its contents and taking photographs was outsourced to the Indian embassy.

The commission then sent these photographs to the Centre for Cellular and Molecular Biology (CCMB), Hyderabad, asking whether a “DNA test could be conducted on the bones found in the ashes”. CCMB replied: “If the bones were collected from the burnt ashes it would not be possible to isolate DNA from the bones for DNA test, as DNA would have been completely destroyed but if those were remains of bones (not burnt bones), then presence of the DNA was likely to be there though in a degraded form but still usable for establishing identity.”

This added a twist to the tale. As the Mukherjee Commission recounted, “The Indian embassy in Japan was requested ... to get the bones lying at the Renkoji temple examined afresh, preferably by or in collaboration with an expert and inform the commission whether the bones seen and photographed were remains of burnt bones or pieces of unburnt bones.”

The examples can go on, and so can the demands for Action Taken Reports. In truth, there is often little on which follow-up action can be taken. Justice Liberhan probably knew that all along, and so spent 17 years studying an event that lasted five hours.

Ashok Malik is a Delhi-based writer