Judicial Commission’s findings the first step towards justice in Sarkeguda massacre, say lawyers who worked on the case

On December 1, an expose by The Indian Express showed that the 2012 Sarkeguda encounter, then termed the largest operation against Maoists, was a fake encounter and none of the victims was Maoists. These revelations came to light thanks to the findings of a judicial commission chaired by Justice V K Agarwal, a retired Judge of the MP High Court. 

The report of Justice Agarwal made it clear in no uncertain terms that the security forces opened fire unilaterally on the members of the meeting, killing and injuring many of them. The report goes on to add: 

Support TwoCircles

There was no firing by the members of the meeting. The injuries to the 6 security personnel occurred due to firing of fellow troopers. This firing probably resulted out of panic of some security personnel when they were confronted with an unexpected meeting of villagers so late in the night. But the incident did not end at the firing – the security forces went on to assault the villagers after that, and also killed one person in his house on the next morning. The report concludes that the police investigation into this incident is manipulated and dishonest, and that there is no evidence to show that any of the deceased or injured villagers was a Naxalite, or indeed that any of the participants in the meeting was a Naxalite.”

In this case, members of the Jagdalpur Legal Aid Group (Jaglag) provided legal support to the Sarkeguda residents. Nikita Agarwal, Guneet Kaur and Parijata Bharadwaj, erstwhile members of Jaglag, spoke with Amit Kumar of TwoCircles.net to explain what these findings mean, the way ahead and how to ensure such incidents do not happen in future. Excerpts from the interview:  

The report clearly points out that the residents of the village were not at fault and puts the blame squarely on the security forces. Is this the first time that there such a clear indicting report against the actions of the security forces? If there have been similar reports from Chattisgarh in the past, could you please shed light on a few?

This report is one of a kind in Bastar. It is telling that it has taken this long for a judgment or report in Bastar to shed light on extrajudicial killings in the area. Bastar is heavily militarised and extrajudicial killings are not only carried out with impunity by the police and paramilitary but also encouraged. We have several officers being awarded and given promotions as an incentive for carrying out these encounters in direct violation of the Supreme Court judgement. 

How difficult was it for you, the legal team, and the locals, to manage to convey your position? Media reports clearly suggested that there were attempts by officials to stop any protests and voices of dissent. How did you manage to get your point across and what forms of intimidation did you have to face?

The Sarkeguda case was the first case we were handling completely as Jagdalpur Legal Aid Group. Prior to it, we had little actual legal experience and were mainly involved in research work. I still remember we were so nervous that our inexperience would harm the residents who had kept the fight alive for so long. We were completely raw and didn’t have a clue about how evidence is to be recorded and made several errors. 

This case did bring us to the forefront because locals coming and testifying was something new. But the ordeal they had to face…Plain logistics of travelling so far to Jagdalpur was a big hurdle but they were all desirous of a resolution and toiled for it. They received several threats and incentives not to testify but refused to succumb. At each hearing, someone from the village would come to keep track of the case. If anything, this case is a victory of their spirit and faith in the legal system.

The commission of inquiry started its work about a year or two after the massacre. I don’t remember any incident of intimidation with the legal team. I heard that there were frequent attempts to intimidate Kamla Xaxa, Rita and other village women who were at the helm of the struggle. Two of the injured villagers, Madkam Soma and Xaxa Chenti were even arrested from the hospital and spent five years in Jagdalpur Jail before getting acquitted. 

As mentioned earlier, there have been similar instances in the past previously too. What then, according to you, happened here which was different from other cases, which led to the findings of this nature? And similarly, what can be done for other cases so that the inquiry in those cases are as telling and revealing?

I think it’s a combination of several factors. The most important being that in this case, the locals were spearheading the entire exercise. They were the ones who from day one kept stating that innocents had been killed by the forces and demanded justice. Their unity and determination to ensure that the truth came out was a big factor.

Secondly, we were fortunate to have Justice V.K.Agarwal heading the commission. He was aware that the locals were new to such proceedings and was very gentle with them and ensured they could testify openly without fear. Further, as mentioned he was guided by the aim of uncovering the truth and thus, took pains to get information on every aspect and did not treat the enquiry as a formality.

I must also thank Vikram Nair, the secretary of the commission. He was always available via phone and was really instrumental.  

Thirdly, I think having a lawyer like Dr Yug Chaudhry really helped because he pushed us to examine every aspect and ensured that all the cross-examinations were based on thorough preparation which is often not seen in such cases. And of course, the work of Sudha Bhardwaj and Shishir Dixit, who immediately went on being contacted by the villagers and helped in submitting the affidavits which initiated this entire process.

The report has been widely circulated and covered by the media. But what are your expectations with regards to what the next step will be in this case to ensure justice to the tribals?

As lawyers, our job is to assist these communities. Truth is the first step to justice and this inquiry reveals the truth to some extent. I think the state needs to rigorously consult with affected villagers and understand their idea of justice, reparations etc. Whatever the state does, for us, it will be vital that the findings of the report can lead to introspection about training and security protocols followed in counter-insurgency operations in the state. 

The report has recommended ‘training of security forces, better gadgets, means of communication * better training to avoid panic * defensive gadgets for security forces so that they feel more confident * better intelligence * better communication between members of the marching team than person to person * better relations of security forces with locals.” These sound extremely superficial and clearly absolves any official of heinous charges like murder. Would it be safe to say that the tribals have been left feeling cheated while civil society “applauds” this report? 

Think about what is justice to Sarkeguda. Would putting the entire troop in the operation behind bars amount to justice? Would nit-picking a few and demoting them, expelling them or imprisoning them as punishment be an exemplary moment of justice? Would these in any way bring justice to Sarkeguda and to those who have fought for years for justice? Further, does an incident like Sarkeguda happen because of a troop gone rogue or is it part of a larger State strategy which grants impunity, incentive and ground for an incident like Sarkeguda?

Frankly speaking, we don’t know what justice in a case like this looks like! I only know that the law has its own limitations. The Commission of Inquiry is not a judicial entity; it is a fact-finding body constituted to probe into the incident and suggest recommendations to prevent the incident from repeating itself. What the Hon’ble Commission has done is recommended within its mandate. It deduced that the firing was unilateral and unnecessary and could have been avoided if the security troops marching in the area had been better equipped to deal with panic or would not have been so easily panicked. 

The commission’s mandate did not include affixing individual culpability and that is something for the communities to consider- whether, after the report findings, they want the state to initiate investigations and prosecution to fix individual culpability. 

Do you think the current Congress government will treat this report with more sincerity than the previous state government?

During the time of the incident, the Congress Government was holding power at the Centre and the BJP was in power in the Chhattisgarh Government. The Congress Party in the State went for fact-finding to Sarkeguda and was instrumental in setting up of this Commission of Inquiry in the first place.

We also hope that this report at least initiates the conversation on reducing the deployment in the area. One of the most telling aspects of this experience was the horrid conditions in which the troops are living. They are stationed in regions which are completely new, they neither know the language or culture and on top of it, they are trained to treat everyone as a suspect. Imagine the constant pressure on them. Also, think of the villagers who now live as prisoners in their own land. We wish for this report to push the government to think of non-militaristic steps to resolve the conflict as deploying troops is unjust not only for the villagers but the troops as well.