The dark cloud of 1984 still hangs low over senior Congress leader Jagdish Tytler, but despite a judicial inquiry’s findings against him in 2005, no credible prosecution of the former minister has been launched to date for his alleged role in instigating the anti-Sikh massacres that took the lives of nearly 3,000 innocent persons in the aftermath of the assassination of Indira Gandhi. The Central Bureau of Investigation has made two attempts to give him a clean chit, but judicial persistence has kept the probe alive. The latest order, one by an additional sessions judge in Delhi, setting aside a magistrate’s acceptance of a closure report in 2010, means that the agency would have to make yet another attempt to gather evidence against Mr. Tytler by examining witnesses whose statement it had so far declined to record. The investigation process has been tortuous, and has made little progress against political leaders who had allegedly instigated, if not actively participated in, the Delhi pogrom nearly three decades ago. It was only when the Nanavati Commission said in its 2004 report that there was “credible evidence” against Mr. Tytler and he “very probably” had a hand in organising the attacks that the first effort was made to look for testimony against him. That eight long years later the case is yet to go beyond the lower judiciary, in an investigation that began 21 years late, is a shocking commentary on the CBI’s credibility.

Before one describes this order as a setback to Mr. Tytler or as a boost to the campaign to bring all those involved to book, one must take note of the disturbing fact that the investigation and prosecution are still bogged down in the lower courts, and there is not even a charge sheet. Mr. Tytler has stuck to his defence that there is no evidence that he was present on the scene when the riots took place at Pul Bangash on November 1, 1984. The CBI has accepted that he was at Teen Murti Bhavan at the relevant time. The additional sessions court now wants the agency to record the testimony of those willing to say that he was present at the riots scene. The CBI would do well at least now to file a credible charge sheet in the trial court and leave it to the judicial process to determine Mr. Tytler’s guilt or innocence by due process. To aid Mr. Tytler with more clean chits will ill-serve the agency’s image. But there is a wider issue at stake too. The failure to punish the Congress politicians and police officers who allowed the Delhi massacres to happen emboldened leaders from Meerut and Bhagalpur to Mumbai and Gujarat to use large-scale communal violence for their own ends. The technology of ‘modern’ riots started in November 1984. Only justice can help rid ourselves of that original sin.

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