Refugee Review Tribunal AUSTRALIA

RRT RESEARCH RESPONSE

Research Response Number: IND31504 Country: Date: 27 March 2007

Keywords: India – – – BJP

This response was prepared by the Country Research Section of the Refugee Review Tribunal (RRT) after researching publicly accessible information currently available to the RRT within time constraints. This response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

Questions

1. Please provide information on the BJP in the state of Maharashtra – of which Mumbai (Bombay) is the capital – and in India generally. 2. Was there a bomb blast in Mumbai in the last 10 years and, if so, was a commission of inquiry set up to investigate it and what was the outcome of the inquiry?

RESPONSE

1. Please provide information on the BJP in the state of Maharashtra – of which Mumbai (Bombay) is the capital – and in India generally.

Question 2 of an August 2006 RRT Research Response examines the position of the BJP in Maharashtra state. It contains information which indicates that at present the ruling party in the state is the ; while the opposition group is a coalition of and the BJP, with the BJP as the junior partner. However, Shiv Sena/BJP coalition is in power at local level and runs the local government of the state’s capital, Mumbai, which is called the Municipal Corporation of Greater Mumbai. At the time of writing, the office of mayor was held by the Shiv Sena’s Datta Dalvi while the office of deputy mayor was held by the BJP’s Dilip Patel [however see Attachment 11 below for the latest local poll results in 2007, and the names of the new mayor and deputy]. Some commentators feel that the Sena and BJP use the force for political ends, while others have detected some recent strain between the parties and the police (RRT Country Research 2006, Research Response IND30381, 10 August – Attachment 1).

A December 2005 article from the Indian magazine Frontline is highly critical of the effect of Shiv Sena and the BJP on the politics of Maharashtra during the period they were in power at state level:

It is as if the Sena-BJP’s 1995-99 spell of success in Maharashtra was destined to be ephemeral, largely premised as it was upon the Sena’s polarisation of politics along communal lines through the instigation of the terrible post-Babri Masjid demolition violence in Mumbai. Once that momentum ran out, the Sena contented itself with enjoying the gains amassed in its years in office through the award of crony contracts, and individual leaders’ investments in real estate, the film industry, and other shady activities.

There is another way of looking at the Sena’s historic decline. The Sena was created in 1966 and forged as a repressive and undemocratic instrument by powerful cynical business groups in Mumbai. They deployed it against a growing militant trade union movement. A small group of industrialists mentored and tutored into working for a range of right-wing causes...

This “anti-outsider” campaign was directed primarily at semi-skilled Left-leaning South Indians, who had recently migrated to Mumbai and become highly effective unionists in technologically advanced industries like electrical engineering, chemicals and pharmaceuticals. Sena goons targeted them, accusing them of snatching jobs away from Maharashtrians. They disrupted union meetings, beat up activists and smashed union offices. In all this, they had the full support, not always tacit, of the State government, whose leaders were hand-in-glove with Mumbai’s increasingly belligerent industrialists. The latter had persuaded Congressmen like V.P. Naik that if Mumbai were not to go Kolkata’s way with its bandhs, industrial unrest and capital flight, they must ensure industrial peace by repressing the Communists who were a growing force. The Sena would play the key role here.

By the mid-1970s, scores of Left-affiliated and independent plant-based unions had been considerably weakened and demoralised. The pro-employer Bharatiya Kamgar Sena had spread its tentacles into many factories. A measure of “containment” was thus achieved – but at an enormous cost to democratic freedom, labour rights, fair industrial relations practices, and multiculturalism, and harmony between different linguistic-ethnic groups.

The Sena’s historic role was not confined to repressing the working class movement. It extended to spreading xenophobic ideas, communalising politics with the able assistance of the BJP, and reversing the gains of the 150-year-old social reform movement in Maharashtra of which Shahu Maharaj, Jyotiba Phule and B.R. Ambedkar were the greatest representatives and products. The profoundly reactionary Sena set society and politics back by decades. It is impossible to comprehend the intolerance, parochialism and criminality that Maharashtra has witnessed in recent years – including the burning of books, attacks on institutions of higher learning, physical assaults on dissident journalists, and cultural policing – without referring to the Sena’s predations. Once it lost State power in 1999, the Sena concentrated on business… (Bidwai, Praful 2005, ‘End of “social engineering”‘, Frontline, 17-30 December http://www.flonnet.com/fl2226/stories/20051230007013100.htm – Accessed 26 March 2007 – Attachment 2).

An August 2006 research response provides general background and history on the place of the BJP in Indian politics. It states that , meaning Indian People’s Party, was formed in 1980. It is a Hindu nationalist party, espousing the term “Hindutva” meaning cultural Hindu nationalism. It also belongs to a group of Hindu fundamentalist organisations referred to as (“family of associations”) who are said to be inspired by the ideology of the Rashtriya Swayamsevak Sangh (RSS), a paramilitary Hindu communal group which has been banned three times by the government in 1948, 1975 and 1992. The BJP led the national Indian government between 1998 and 2004, but was then defeated by the Indian National Congress (INC) and its electoral alliance, known as United Progressive Alliance (UPA). The BJP currently leads the opposition as head of the National Democratic Alliance (NDA), and heads several state governments (RRT Country Research 2007, Research Response IND30527, 31 August – Attachment 3).

A selection of recent news reports on the BJP is attached. It includes material both on Maharashtra and on India generally:

• A March 2007 report states that the chief of the Sena, Bal Thackeray, has called for the Nationalist Congress Party and the BJP to join with the Sena in a coalition for the “larger interests of Maharashtra”. The NCP had installed a mayor in Pune with the support of the BJP and the Sena (‘NCP gets more Sena feelers’ 2007, India Express, 21 March – Attachment 4).

• Another March 2007 report states that the Sena is the BJP’s “strongest ally” in Maharashtra, but that across the state in the wake of recent local elections, alliances were being formed purely for expedience and to share power, with little ideology involved: “parties which are sworn rivals in one city are friends in another” (‘Masters of poll vault pull it off’ 2007, The Economic Times, 20 March – Attachment 5).

• Following the local elections, the new mayor of Mumbai is Shubha Raul of Shiv Sena. The deputy is Vidya Thakur of the BJP (‘Sena woman elected Mombai Mayor’ 2007, The Hindu, 11 March – Attachment 6).

• The “impressive performance” of the BJP in local elections in Uttar Pradesh and Maharashtra has been a “morale booster” for the BJP which has been “wilting in the wilderness” since 2004 (‘The Statesman (India) Edits’ 2007, The Statesman, 2 March – Attachment 7).

• A February 2007 report also comments on the BJP’s “dramatic bounce back” in elections in and Punjab, stating that it is now positioning itself effectively to contest the 2009 national parliamentary elections (‘With victory glow, BJP dreams of 2009 battle’ 2007, Indo-Asian News Service, 28 February – Attachment 8.

2. Was there a bomb blast in Mumbai in the last 10 years and, if so, was a commission of inquiry set up to investigate it and what was the outcome of the inquiry?

There have been several bomb blasts in Mumbai in the last ten to fifteen years. The most serious bombings in recent years were a series of explosions in July 2006 which took place in suburban trains and claimed 200 lives.

In the early 1990s there were widespread riots and some bombings in Mumbai, involving anti-Muslim violence and reprisals by Muslim groups. There were an estimated 700 casualties. A Commission of Inquiry was set up in 1993 to investigate the violence, under the direction of Justice B.N. Srikrishna. The Commission released its findings in 1998 and trials of persons named in the report have continued to the present day.

The 1992-1993 Mumbai riots and the Srikrishna Commission

Question 2 of a 2003 RRT Research Response examined the Mumbai (Bombay) riots of December 1992 to 1993, which were part of a larger series of riots around India that began with the demolishing of the Babri mosque in Ayodhya. Drawing on cables from the Department of Foreign Affairs and Trade, it includes information on casualty figures; responses by state government and security forces; effects on business; possible causes; reactions of the Muslim community; and questioning of the central government’s capacity to respond to a serious internal crisis. Commentators who described the events as the worst internal conflict the city had experienced in its 300-year history. The party Shiv Sena was held responsible for some of the anti-Muslim violence. The Srikrishna Commission was set up in 1993; dissolved in 1996 when the Shiv Sena came to power in Maharashtra; and then reinstituted after widespread protest (RRT Country Research 2003, Research Response IND15701, 11 February – Attachment 9).

A 1998 report by the Indian magazine Frontline called for the release of the Commission’s report, accusing the Shiv Sena government of suppressing it:

When will the Maharashtra Government make public the report of the commission of inquiry that probed the communal riots in Mumbai in December 1992 and January 1993 and the serial bomb explosions that devastated parts of the city on March 12, 1993? If the Government’s track record before and after the Justice B.N. Srikrishna Commission submitted the 700-page report on February 16 is any guide, the Government is likely to defer the matter for as long as it finds it legally and/or politically feasible to do so. One cannot even rule out an attempt, through resort to case law, to avoid publication altogether.

The Srikrishna Commission was set up on January 23, 1993, when the Congress(I) was in power in the State, to inquire into the communal riots. The Shiv Sena, which by its own admission took an active part in the riots, was not well disposed towards the inquiry (Padmanabhan, R. 1998, ‘A stalling game’, Frontline, Vol.15, No.9, 25 April-8 May http://www.hinduonnet.com/fline/fl1509/15090400.htm – Accessed 27 March 2007 – Attachment 10).

A later 2001 report by Frontline, after the Commission’s findings had been released, states that the report’s findings had not yet been implemented due to political manoeuvring and the fact that some senior police were implicated in the violence. There were now signs that some prosecutions might take place:

In January 2000, the D.F. [Democratic Front] set up the Special Task Force (STF) as the first step in the process of prosecuting persons against whom evidence had been gathered by the Srikrishna Commission. Explaining the legalities involved in prosecuting these persons, A. Majeed Memon, criminal lawyer and vice-president of the State unit of the , said: “The evidence gathered by the Srikrishna Commission cannot be used in a criminal trial. For this to happen, an investigative agency has to work on individual cases. Upon completion of this investigation a charge-sheet is to be filed and the case brought up for trial by a judicial officer.”

The STF, the investigating agency, is attached to the Mumbai Police and is headed by K.P. Raghuvanshi, Additional Police Commissioner. Earlier it was suggested that the investigations be handled by the Criminal Investigation Department (CID) of the Mumbai Police, but the Samajwadi Party shot down the idea on the grounds that such an investigation would be biased because many officers of the Mumbai police had been named by the Commission.

Memon said that attaching the STF to the Mumbai Police was also “not a fully satisfactory” arrangement since it would send wrong signals to the riot-affected people. “It would appear that vested political interests are at work... that there is a lack of total commitment to prosecuting those named by the Commission,” he said.

The STF has been in the public eye ever since it filed on May 25 the First Information Report (FIR) against R.D. Tyagi, former Commissioner of Pol-ice, Mumbai, and 16 other police personnel in connection with the murder of nine Muslims in 1993.

One of the most controversial incidents during the riots was the police firing at Suleiman Bakery in Mumbai on January 9, 1993. The police had claimed that suspected terrorists were harboured in the bakery. Tyagi, then Joint Commissioner of Police (Crime), ordered the Special Operations Squad to storm the bakery and an adjoining mosque. Nine persons were killed in the operation. Tyagi claimed that before storming the bakery he had urged those inside to open the doors, but acid-filled bulbs, stones and soda water bottles were thrown at the police from the bakery. (While recording Tyagi’s statement the Commission observed that it was strange that none of the people outside received any injuries when these missiles were hurled from the bakery’s rooftop. The Commission also called the police “trigger-happy”.)

The STF investigation says that Tyagi himself, along with another accused, entered the bakery and the neighbouring mosque and shot dead nine people. The investigation reveals that these nine persons were unarmed, and there is no proof that they were terrorists as claimed by Tyagi.

Tyagi’s affidavit denies all this and specifically states that he did not order the squad to open fire. He says the squad opened fire in self-defence.

Given this background and the fact that the STF had framed murder charges against him, it was expected that Tyagi would be arrested on June 7. But that did not happen. An anticipatory bail petition filed by Tyagi is before the Bombay High Court. “Given the facts, this (postponement of a decision on the petition by the High Court) is inexplicable,” says Memon. “The incident is not in dispute – there were nine cases of homicide caused by bullets. Legal cognisance of this fact has been taken, and the suspects have been named and identified. In such cases arrest is the only course of action. And yet Tyagi is not arrested. Justice should not only be done, it should also seen to have been done. In the instance of Tyagi neither has been achieved.”

THE other high-profile person against whom the STF has been conducting inquiries is Gajanan Kirtikar, who was Minister of State for Home in the Shiv Sena government. The STF filed a charge-sheet against seven persons including Kirtikar and Shiv Sena legislator Nandkumar Kale in connection with the communal riots at Jogeshwari in north Mumbai in January 1993. They have been charged under Sections 37 (3) to be read with Sections 135, 153 and 506 and 34 of the Indian Penal Code (IPC). The charges include illegal assembly, illegal carrying of arms, and the delivering of inflammatory speeches. Kirtikar had been indicted by the Commission for his role in instigating the Jogeshwari riots by inflammatory speeches in January 1993. Kirtikar and the four Shiv Sainiks accused along with him were granted bail on June 6.

Minister of State for Home Kripa Shankar Singh said that Shiv Sena chief Bal Thackeray and former Chief Minister Manohar Joshi would also be proceeded against as recommended by the Commission.

The creation of the STF to carry out the factual recording of evidence from the riot victims and file cases came as a shot in the arm for the efforts of the Commission. Ever since it was constituted in January 1993, the Srikrishna Commission had had an on again-off again career. When the Shiv Sena-Bharatiya Janata Party (BJP) combine came to power in 1995, it expanded the Commission’s scope to include the bomb explosions in Mumbai in 1993. In January 1996, the same government disbanded the Commission. Four months later it was reinstated under pressure from the Atal Behari Vajpayee government. Many people thought the saga had ended when Justice B.N. Srikrishna, a sitting Judge of the Bombay High Court, submitted his report to the Shiv Sena-BJP government on February 16, 1998, but it was not to be. The government rejected the report, arguing that it was biased against the Shiv Sena, against Hindus and against the police. Bavadam, Lyla 2001, ‘A probe and proceedings’, Frontline, Vol.18, Iss.13, 23 June-6 July http://www.hinduonnet.com/fline/fl1813/18131100.htm – Accessed 27 March 2007 – Attachment 11.

A December 2006 report indicates that there have been prosecutions resulting from the Commission’s report, and that several are awaiting sentence as the courts debate the legal details of their charges:

Convicts in the 1993 Mumbai blasts case argued on Monday on quantum of sentence to be awarded to them by the trial court by relying upon the findings of Srikrishna Commission of inquiry report to point out the circumstances under which the serial explosions occurred.

However, the CBI, objected saying the Commission report cannot be used by the convicts to defend themselves on the quantum of punishment to be given to them by the TADA court.

Defence lawyer Harshad Ponda, arguing on behalf of those convicted for aiding and abetting terrorist acts, harped on the Srikrishna Commission report, which described the circumstances including the Babri Masjid demolition leading to 1992 communal riots and subsequent bomb blasts.

He said the terms of reference of Srikrishna Commission of Inquiry Act included the communal riots of 1992-93 and bomb blasts of March 1993 as both were interlinked.

Special public prosecutor Ujjwal Nikam, however, objected saying the provisions of Commission of Inquiry Act laid down that the report of a commission of inquiry could not be used as evidence in any court of law.

He said the findings of the Srikrishna Commission of Inquiry were recommendatory in nature and could not be used in the blast trial to justify the acts committed by the accused.

Defence lawyer Ponda contended that the Srikrishna Commission of Inquiry report was a public document and could be used as corroborative evidence in the blast trial.

Nikam countered his argument saying the Commission of Inquiry Act specifically prohibited making use of such report and questioned the use of Srikrishna Commission of Inquiry report for submitting arguments on quantum of sentence to be awarded to convicts.

The defence lawyer focussed his arguments on the convicts who have been held guilty under section 3(3) of TADA (P) Act for aiding and abetting terrorist acts.

These include Ashraf-ur-rehman, Mulchand Shah, Noor Mohammed, Liyakat Ali Shaikh, Sharif Parkar and Dawood Phanse.

Mulchand was convicted for financing prime accused Tiger Memon’s terrorist activities, while Parkar and Phanse were held guilty of helping Tiger in smuggling arms and RDX which were used in the blasts. Others were convicted for facilitating transport of arms.

Ponda submitted that for the purpose of giving punishment, the convicts would have to be categorised on the basis of terrorist acts committed by them, namely attempt to commit, advocate to commit, abet offence, advise others to commit acts, inciting others to commit acts and knowingly facilitating such acts.

He said acts which are preparatory in nature would invite lesser punishment while those directly involving commission of terrorist acts would attract more severe sentence. On the categorisation of the accused for awarding punishment, the defence lawyer relied upon Supreme Court judgements in Nalini v/s in Rajiv Gandhi assassination case.

The arguments were inconclusive and will continue before Judge P D Kode. The exercise is expected to last for a month before the court declares quantum of sentence for each accused.

The court has held 100 accused guilty of various offences leading to serial bomb blasts which claimed 257 lives on March 12, 1993. Twenty-three others were acquitted due to lack of evidence (‘Convicts in ‘93 blast case rely upon Srikrishna Comm report’ 2006, Rediff News, 11 December http://www.rediff.com/news/2006/dec/11verdict.htm – Accessed 27 March 2007 – Attachment 12).

Recent bomb blasts

Reports of two of the most serious bombings in Mumbai in recent years are below.

An August 2003 ABC report describes the explosion of two car bombs in a Mumbai parking lot which killed 50 people and injured 150. They are described as the worst in Mumbai for more than a decade. The report mentions that there had been “five previous bomb blasts in Mumbai in the last nine months” (Epstein, Rafael 2003, ‘The World Today – Security tightened in Mumbai after deadly blasts’, ABC Online, 26 August http://www.abc.net.au/worldtoday/content/2003/s932375.htm – Accessed 27 March 2007 – Attachment 13).

A July 2006 report describes seven bomb explosions within 11 minutes, which took place on suburban trains, killing 200 people and injuring 600. Prime suspects were the Lashkar-e- Toiba and Students Islamic Movement of India, although police were not ruling out the involvement of “D-company – an underworld outfit believed to be behind the 1993 bombings” (Ramachandran, Sudha 2006, ‘Mumbai attacks: A new spiral of violence’, Asia Times Online, 13 July http://www.atimes.com/atimes/South_Asia/HG13Df02.html – Accessed 27 March 2007 – Attachment 14).

List of Sources Consulted

Internet Sources: Google search engine Factiva

Databases: ISYS CISNET

List of Attachments

1. RRT Country Research 2006, Research Response IND30381, 10 August.

2. Bidwai, Praful 2005, ‘End of “social engineering”’, Frontline, 17-30 December http://www.flonnet.com/fl2226/stories/20051230007013100.htm – Accessed 26 March 2007.

3. RRT Country Research 2007, Research Response IND30527, 31 August.

4. ‘NCP gets more Sena feelers’ 2007, India Express, 21 March. (FACTIVA)

5. ‘Masters of poll vault pull it off’ 2007, The Economic Times, 20 March. (FACTIVA)

6. ‘Sena woman elected Mombai Mayor’ 2007, The Hindu, 11 March. (FACTIVA)

7. ‘The Statesman (India) Edits’ 2007, The Statesman, 2 March. (FACTIVA)

8. ‘With victory glow, BJP dreams of 2009 battle’ 2007, Indo-Asian News Service, 28 February. (FACTIVA)

9. RRT Country Research 2003, Research Response IND15701, 11 February.

10. Padmanabhan, R. 1998, ‘A stalling game’, Frontline, Vol.15, No.9, 25 April-8 May http://www.hinduonnet.com/fline/fl1509/15090400.htm – Accessed 27 March 2007.

11. Badvadam, Lyla 2001, ‘A probe and proceedings’, Frontline, Vol.18, Iss.13, 23 June- 6 July http://www.hinduonnet.com/fline/fl1813/18131100.htm – Accessed 27 March 2007.

12. ‘Convicts in ‘93 blast case rely upon Srikrishna Comm report’ 2006, Rediff News, 11 December http://www.rediff.com/news/2006/dec/11verdict.htm – Accessed 27 March 2007.

13. Epstein, Rafael 2003, ‘The World Today – Security tightened in Mumbai after deadly blasts’, ABC Online, 26 August http://www.abc.net.au/worldtoday/content/2003/s932375.htm – Accessed 27 March 2007.

14. Ramachandran, Sudha 2006, ‘Mumbai attacks: A new spiral of violence’, Asia Times Online, 13 July http://www.atimes.com/atimes/South_Asia/HG13Df02.html – Accessed 27 March 2007.