The state is duty bound to protect a threatened group or class of citizens from assault. If it fails to do so, it fails to perform its constitutional and statutory obligations. The state is bound to take every precautionary measure and act swiftly to curb riots and mass terror. Inaction or passivity on its part can result in the loss of life, limbs, livelihood, property and liberty, and the negation of Article 21. If the state is unable to do so and especially if its own officials are complicit in the execution of unconstitutional acts, it is liable to compensate for loss of life, limbs, livelihood, shelter and property.

In these circumstances, the state of Gujarat is constitutionally obliged to provide adequate and appropriate compensation to those who have lost their lives, limbs, houses, livelihood and property in the violence of 2002.

As far back as March 2003, legal action group, Citizens for Justice and Peace (CJP) and Communalism Combat had filed a petition in the Gujarat High Court challenging several questionable acts by the state of Gujarat with regard to compensation for the victim survivors of the genocide.

The total amount earmarked for relief by the government of Gujarat, including compensation for deaths, emergency rations in the relief camps and compensation for destroyed homes, was an abysmally low Rs 205 crore, of which the state received Rs 150 crore from the government of India. In February 2003 the Gujarat government even announced its decision to return Rs 19.10 crore to the central exchequer, stating that adequate compensation had been made.

The CJP petition queried the arbitrary disbursal of compensation, the returning of central funds unused when, in fact, paltry amounts had been paid to victims, and also demanded an enhancement of the compensation scheme. CJP and its team was then authorised by the court to inspect records in all state districts and city collectorates since there were gross discrepancies between amounts claimed by victims and those actually disbursed by the state.

In the course of this inspection as many as 8,358 survey forms were collected from 12 districts of Gujarat between 2003 and 2006. These violence affected households, which suffered losses averaging Rs 1.5 lakh each, were the total number included in the first survey. (CJP is now undertaking phase two, which will provide the complete picture.) Carefully collated by the CJP team, the data reproduced below highlights the extent of the state’s abdication of responsibility. In a mammoth exercise not attempted before, CJP has also undertaken to collate independent data related to about 80,000 families in Gujarat that should be completed a few months from now. This will offer comprehensive material on all issues of criminal justice (legal cases, etc), compensation and reparation for a vast section of the minority population in the state.

In Ahmedabad city, where there was maximum destruction, loss of life and property, a total of 1,007 households were surveyed. Of these, 30 per cent have received no compensation at all. Twenty per cent received between Rs 1,000-2,000 each; 20 per cent received between Rs 2,000-5,000 each; 14 per cent received between Rs 5,000-10,000 each and 16 per cent received more than Rs 10,000 each in compensation.

In Anand district, where a total of 1,146 households were surveyed, 24 per cent have received no compensation at all (these include victim survivors of some of the worst massacres in the genocide). Ten per cent received between Rs 1,000-2,000 each; 24 per cent received between Rs 2,000-5,000 each; 19 per cent received between Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

In Banaskantha district, where a total of 105 households were surveyed, 23 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; 16 per cent received Rs 2,000-5,000 each; 56 per cent received Rs 5,000-10,000 each and three per cent received more than Rs 10,000 each in compensation.

In Bharuch district, where a total of 50 households were surveyed, 10 per cent have received no compensation at all. Six per cent received Rs 2,000-5,000 each; 30 per cent received Rs 5,000-10,000 each and 54 per cent received more than Rs 10,000 each in compensation.

In Bhavnagar district, where a total of 359 households were surveyed, 23 per cent have received no compensation at all. Twenty-three per cent received Rs 1,000-2,000 each; 22 per cent received Rs 2,000-5,000 each; nine per cent received Rs 5,000-10,000 each and 23 per cent received more than Rs 10,000 each in compensation.

In Dahod district, where a total of 91 households were surveyed, 18 per cent have received no compensation at all. Twelve per cent received Rs 1,000-2,000 each; 18 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 38 per cent received more than Rs 10,000 each in compensation.

In Kheda district, where a total of 1,192 households were surveyed, 18 per cent have received no compensation at all while 12.5 per cent received Rs 1,000-2,000 each in compensation. Thirty-six per cent received Rs 2,000-5,000 each; 25.5 per cent received Rs 5,000-10,000 each and eight per cent received more than Rs 10,000 each in compensation.

In Mehsana district, where a total of 195 households were surveyed, 72 per cent have received no compensation at all. Two per cent received Rs 1,000-2,000 each; five per cent received Rs 2,000-5,000 each; four per cent received Rs 5,000-10,000 each and 17 per cent received more than Rs 10,000 each in compensation.

In Panchmahal district, where a total of 441 households were surveyed, 15 per cent have received no compensation at all. Eight per cent received Rs 1,000-2,000 each; 10 per cent received Rs 2,000-5,000 each; 14 per cent received Rs 5,000-10,000 each and 52 per cent received more than Rs 10,000 each in compensation.

None of the 12 households surveyed in Patan district have received any compensation for homes destroyed.

In Sabarkantha district, where a total of 2,884 households were surveyed, 48 per cent have received no compensation at all. Six per cent received between Rs 1,000-2,000 each; 16 per cent received between Rs 2,000-5,000 each; 12 per cent received between Rs 5,000-10,000 each and 18 per cent received more than Rs 10,000 each in compensation.

In Vadodara district, where a total of 876 households were surveyed, 15 per cent have received no compensation at all. Ten per cent received Rs 1,000-2,000 each; 36 per cent received Rs 2,000-5,000 each; 25 per cent received Rs 5,000-10,000 each and 14 per cent received more than Rs 10,000 each in compensation.

The state of Gujarat’s studied disregard for reparation to victim survivors becomes even more evident from the existing condition of many homes that were attacked in some of the worst massacres of the genocide.

Nineteen homes were destroyed at Shaikh Mohalla in Sardarpura village, Mehsana district. Victim survivors photographed these homes on June 21, 2006. In these photographs, submitted to both the Gujarat High Court and the Supreme Court in July 2006, the extent of the damage is still clearly visible.

A total of 19 homes were destroyed but a meagre compensation, a sum of Rs 39,050, has been paid to the victims. This for a case involving mass carnage – a case that is currently under scrutiny at the Supreme Court (the trial having been stayed on November 21, 2003). Indeed, the Gujarat government’s attitude to the hapless victims of a monumental tragedy needs no further elucidation.

Similarly, at three locales in Ode village of Anand district – Malu Bhagol, Surivali Bhagol and Piraveli Bhagol, 275 homes were destroyed. The totality of the damage can be seen even today. A total sum of Rs 23,22,750 (including miscellaneous compensation expenses) has been paid to the victims in Ode. Victim survivors photographed these homes on June 22, 2006. Photographs of their homes in their current state alongside photographs taken in 2002 as well as a chart showing the extent of damage and the actual compensation paid have all been placed before the courts.

It is clear from these documents and photographs that the amounts paid as compensation are woefully inadequate where the damage to victim survivors, their homes, is immense. Equally clear is that this is no typical instance of administrative negligence or inadequacy. It appears to be a deliberate attempt by the state of Gujarat to shirk their constitutional obligations and deny citizens their constitutional rights.

Compensation for death

The Gujarat state has paid out a mere Rs 1.5 lakh (Rs 90,000 in cash and Rs 60,000 in Narmada Bonds) as compensation to the next of kin of those killed in the violence of 2002.

Detailed memoranda to the United Progressive Alliance (UPA) government (to the prime minister, Manmohan Singh, the union home minister, Shivraj Patil, minister for minority affairs, AR Antulay, and UPA chairperson, Sonia Gandhi), not to mention three public meetings held by victim survivors, pointed out these glaring inadequacies.

Between 2002 and 2006, CJP had been pursuing the matter legally and through advocacy with the political class. CJP and its team worked out a reasoned basis for the actual amount that should be paid as compensation for death given judicial precedents set after the 1984 anti-Sikh carnage. They argued that the amount declared by the state of Gujarat was inadequate and arbitrary, and amounted to a failure on the part of the state to fulfil its constitutional obligations.

In April 2007, a team of representatives from various districts of Gujarat presented this data to union home minister, Shivraj Patil, and the chairman of the National Commission for Minorities (NCM). The delegation also met the general secretaries of the Communist Party of India (Marxist), Prakash Karat, and the Communist Party of India, AB Bardhan.

A significant landmark with regard to compensation for riot victims was a ruling of the Delhi High Court six years prior to the Gujarat violence. In 1996 the Delhi High Court directed the payment of Rs two lakh plus interest from 1984 onwards (amounting to a total of Rs 3.5 lakh) as compensation for those killed in the anti-Sikh riots of 1984. On that basis, and allowing for an average seven per cent annual rate of inflation from 1996 to 2002, the amount of compensation for victims of the Gujarat genocide should be approximately Rs three lakh, with the interest on this amount being around Rs one lakh. Thus the amount of compensation for those killed in the Gujarat violence of 2002 would be over Rs four lakh each.

Following this rationale, it was argued that the Gujarat government’s ceiling of Rs 1.5 lakh, and the payment of Rs 60,000 of this in bonds, was wholly illegal, arbitrary and unconstitutional. CJP and its counsel maintained that the amount should be in consonance with the state’s obligations under Article 14 (guaranteeing equality before the law) and Article 21 of the Constitution of India and should therefore be fixed at Rs four lakh as detailed above. Compensation for injuries/disabilities sustained should be pro rata or proportional to this amount.

One of the many unfortunate characteristics of the post-Godhra violence in Gujarat was the numerous attacks on women and children, including several instances of rape – a fact also acknowledged by the state home department. However, the Gujarat government’s compensation scheme contained no compensation or reparation amounts for women and children victims of violence. This was pointed out to the Supreme Court through the CJP’s detailed analysis of the compensation scheme in August 2004. At the time, the apex court passed an order directing that any suggestions made by the petitioners (CJP) for enhancement of the compensation scheme should be considered in the Public Interest Litigation (PIL) before the Gujarat High Court.

By August 2002 the government had itself documented that there had been 185 cases of attacks on women (of which 100 were in Ahmedabad city) and 57 attacks on children (of which 33 were in Ahmedabad). In all, 225 women and 65 children were killed. The government also recorded 11 cases of rape: three cases in Ahmedabad, one in Anand, three in Dahod and four in Panchmahal.

In fact, the rape and sexual abuse of women was far more pervasive and the actual number of rape cases far exceeds the official figures. Many victims were killed and burnt beyond recognition. Others were too terrified to record complaints. At the Shah Alam relief camp in Ahmedabad, where many refugees of the violence took shelter, accounts of victim survivors indicated that a much larger number of rapes in fact took place. The same is true of other areas in Gujarat.

To date, no compensation has been paid to the victims of such heinous attacks. In the PIL before the Gujarat High Court, CJP has argued that constitutional obligations require the state to make full and appropriate compensation, of an amount not less than that made available in the case of death (i.e. Rs four lakh), to such helpless women and children.

Substantive reports on sexual violence by various Indian and international civil rights and women’s rights organisations have highlighted how the government of Gujarat failed to fulfil its obligations, under both national and international law, to protect its citizens. In particular, how the state government failed to protect Muslim women who were the targets of specific gendered forms of sexual violence.

Reports have highlighted how elements of the criminal justice system, including the police and the judiciary, failed in their constitutional duty to objectively record and investigate complaints and prosecute offences. They have also illustrated how the Gujarat government, authorities and trial courts failed to provide medical relief and secure medico-legal evidence from victims who had been sexually abused. Many of these findings also exposed a deficiency long recognised by Indian women’s rights activists and quasi-governmental bodies, including the Law Commission of India. The inadequacy of existing penal provisions relating to rape meant that many of the sexual crimes inflicted on women during the genocide fell outside the existing legislative framework and were thus not registered by the police.

A closer inspection of the handful of cases that have been registered – some of which are at advanced stages of investigation – also reveals the manifold failings of the judiciary in Gujarat. It also emphasises that but for the incessant and dogged efforts by victims and human rights activists to pursue these cases in court, they would never have come this far.

Destruction of homes

The position as regards compensation for houses that were damaged or destroyed is equally adverse. The Gujarat government fixed an arbitrary ceiling of Rs 50,000 as compensation for the destruction of homes and in most cases has paid only a pittance of this inadequate amount.

In its August 2002 report, the women’s parliamentary Committee on Empowerment of Women (WPC) noted that the Gujarat government had informed the committee that 4,954 houses (2,023 urban and 2,931 rural) had been "completely destroyed" and that the amount of compensation disbursed for the same was Rs 7.62 crore.

This would mean that an average of around Rs 15,000 was paid for each completely destroyed house. The construction of a house costs approximately Rs one lakh in rural areas and approximately Rs two to three lakh in the urban areas. As a result, nearly 5,000 families have been unable to rebuild their houses or make alternative provisions for their shelter or accommodation.

The committee recorded that it had been informed by the Gujarat government that 18,294 houses had been partially damaged (11,199 urban and 7,095 rural), for which Rs 15.55 crore had been paid as compensation. This works out to an average of a mere Rs 8,500 per house. The committee in fact noted that a number of recipients had shown them cheques made out by the state for as little as Rs 40 to Rs 200. The detailed survey conducted by CJP now corroborates this pathetic reality.

Moreover, the state government has refused to accept even those estimates of losses contained in panchnamas prepared by its own officers. In the PIL before the Gujarat High Court, CJP has argued that the ceiling of Rs 50,000 is entirely illegal, arbitrary and unconstitutional and the amount should, in consonance with the state’s obligations under Articles 14 and 21 of the Constitution, be fixed at Rs 1.5 lakh in rural areas and Rs three lakh in the urban areas. Compensation as per losses indicated in the official panchnamas (subject to the above ceilings) should also be paid.

In August 2002, the WPC report had recorded that as many as 1,32,532 persons had been displaced or forced to leave their houses and were living in 121 riot relief camps of which 58 were in Ahmedabad city.

By June 1, 2002, as mentioned earlier, there had been 4,954 cases (2,023 urban and 2,931 rural) of residential houses having been completely destroyed. There were a further 18,294 cases of partially damaged houses (11,199 urban and 7,095 rural) - i.e. more than 23,000 houses had been destroyed or damaged by the rioters. In addition to this, approximately 5,000 urban houses and approximately 1,000 rural houses were destroyed or damaged after June 2002.

And yet, despite the facts on the ground, the state of Gujarat continues with the false propaganda that adequate compensation has been paid. Unaffected by a genocide that claimed thousands of lives, the state’s attitude has remained unabashedly unrepentant. In July 2002 the Gujarat government announced that the relief camps which sheltered thousands of displaced refugees had been voluntarily closed down by camp organisers. This was yet another example of the state’s manipulation of the truth. Even documents prepared by the state establish that the camps were forcibly closed down following threats and coercion by officers of the state. (In August 2002, the chief minister callously dubbed the relief camps "baby-making factories".) In fact, the camps were forcibly closed down in anticipation of a visit from the Chief Election Commission, in an attempt to establish that ‘normalcy’ had been restored.

Another item on the state’s long list of misdeeds was its refusal to acknowledge official documents detailing losses suffered by victims of the violence. Initial losses were recorded in panchnamas prepared by state officials after site visits or inspections. Although recorded by government officials in the presence of panchas, or witnesses, these panchnamas were later rejected by the state. After the panchnamas had been collected by local police stations at various relief camps in the normal course, the state asked district collectors to appoint teams that conducted their own surveys. Predictably, the losses and damage shown in these survey results were drastically reduced to protect the state’s interests and public image.

More often than not, the state’s so-called technical teams carried out ex parte visits (in the absence of victim survivors) to sundry business establishments. Their reports were never made available for public scrutiny. The compensation amounts paid on the basis of these reports are so niggardly and inadequate as to confer further insult or injury upon those who had already lost their livelihoods and property. Ignoring the earlier panchnamas, during the course of the PIL the Gujarat government also demanded that the victims prove their losses "conclusively" and by adopting "proceedings in civil courts".

Apart from the panchnamas, some first information reports (FIRs) by victim complainants and the police statements recorded therein also contain details of actual losses suffered.

The Gujarat government’s denial of the panchnamas, its response to victims’ losses, only exemplifies its overall approach to a people who had suffered so grievously. It negates, yet again, the Gujarat government’s claims that it had fulfilled its constitutional obligations of compensation. On the contrary, it highlights the government’s continuing reluctance to provide just and fair compensation to those who had already lost so much.

The state’s complicity in influencing records and policy in Gujarat vis-à-vis the genocide, its aftermath, the payment of compensation and reparation, and its obstruction to the path of justice continues even today. Five years later, attitudes have not changed.

By the state’s own admissions to various national bodies, it is evident that the Gujarat government has spent a total of Rs 55 crore for compensation. The balance of funds came from a central government grant of Rs 150 crore, of which the sum of Rs 19.10 crore was returned unused.

Apart from the obvious lacunae in compensation awarded to victims of the genocide, which have been detailed above, the aggregate figures themselves illustrate a glaring discrepancy. While the government estimated that the total loss to property alone was well over Rs 600 crore, the total amount awarded as compensation, including compensation for deaths, rations to relief camps, etc, was in fact only Rs 185.90 crore (including Rs 119 crore spent on providing rations at refugee camps and Rs 17.90 crore awarded as compensation for those killed). The numbers speak for themselves.

There is a pattern of behaviour that establishes that the government of Gujarat intends to deny dignified compensation to the victims of the mass carnage of 2002. What is required is an independent comparison between the discrepancies in the official records, the losses recorded in the FIRs, police statements and panchnamas, and thereafter by the technical survey team. Significantly, the government informed the WPC in August 2002 that almost 5,000 houses had been completely destroyed. In the same breath, the Gujarat government defends the ceiling of Rs 50,000 per home when far greater losses have been suffered.

In effect, the compensation paid is pitiful even where FIRs and panchnamas were dutifully recorded. Whereas ration in the relief camps was given to 1,60,753 persons as per the Gujarat government’s own records, relief money and money for rehabilitation were given to a far reduced number. This is a gross discrepancy that appears to victimise the inmates of relief camps who were and in some cases still are internally displaced persons or refugees. And given their refugee status, it would be reasonable to assume that each one of them should have been entitled to rehabilitation or compensation.

Constitutional obligations require that compensation of at least Rs three lakh plus interest from 2002 be paid to the relatives of those killed and proportional amounts be paid as compensation for disabilities and serious injuries. Women who were raped or sexually abused must be given compensation equal to that awarded for persons who were killed. The ceiling amount for house compensation must be raised to Rs 1.5 lakh in the rural areas and Rs three lakh in the urban areas, and compensation based on a fair assessment of data and records, including the panchnamas contemporaneously recorded, must be paid along with the interest amount accruing from 2002.

Activists have also argued that when communal violence takes place, the state should be duty bound to provide adequate reparation rather than capriciously handing out arbitrary sums of money to victims. Given these recommendations, the government of India is reported to be considering a review of existing policies governing the payment of compensation to victims of communal violence. (India, including Gujarat, has witnessed a series of communal conflicts since independence and rates of compensation awarded to victims of these conflicts have varied greatly.) Furthermore, in light of the paltry amounts given by the Gujarat government to the families of those killed in the violence, the government of India awarded a compensation amount of Rs 3.5 to four lakh to these individuals in November 2006.

Many activists have however highlighted that the compensation needs to encompass those victims who weren’t killed during the violence but nevertheless suffered serious harm and injury – including victims of sexual violence, victims of serious injuries and those who suffered significant damage to their property but were not properly recompensed under the state government’s disbursement.