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JUSTICE FOR MASS
CRIMES
I. A Standing
National Crimes Tribunal be established, forthwith, to deal with all
cases of,
-- Crimes against
humanity, pogroms,
-- Offences in
the nature of genocide,
-- Cases of mass
violence and genocide,
-- Cases of riots
and incidents where there is a large-scale destruction of lives and
property including caste, religious, linguistic, regional, ethnic and
racial violence.
A.
A suitable Statute should
be enacted for the purpose by
Parliament
B.
The Standing National
Crimes Tribunal (SNCT) should be an
independent body, the
personnel of which should be selected by a committee consisting of the
Chief Justice of India, the Prime Minister of India and the Leader of
the Opposition in Parliament. Persons with legal and judicial background
should be appointed on the tribunal for a fixed tenure of not less than
7 years.
C.
The members of the SNCT
should be free to follow such procedure as they may find
fit notwithstanding the provisions of any other law.
D.
The SCNT should have the
power to investigate the offences through it’s own
investigating agency created for the purpose. The SNCT should have for
it’s independent use a special investigating and enforcing agency.
E.
The SCNT should take
cognisance of mass crimes as soon as they occur. Once the cognisance of
such crimes is taken, no court should have the power to deal with them.
The SNCT should depose of the cases within a time bound frame.
F.
The SNCT will have the
power to arrest, try, and punish the accused as well as to compensate,
and rehabilitate the victims and their dependents.
G.
Jurisdiction,
Admissibility and Applicable Law
For the
purpose of the statute to be enacted, “mass violence and genocide”
should mean, as it does in the international convention on
Prevention and Punishment of the Crime of Genocide,
any of the following acts committed with intent to destroy in whole or
in part
an ethnic, racial caste or religious group:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of
the group;
(c) Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in
part;
(d) Imposing measures intended to prevent births within
the group;
(e) Forcibly transferring children of the group to
another group.
In addition the following acts should also be punishable
under the proposed statutes:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
II. Crimes Against Humanity
Within the definition of
crimes that fall under the definition of crimes against humanity, sexual
crimes against women should be recognised as crimes against humanity.
Sexual crimes should not include only rape in the conventional sense;
but should also include sexual slavery, debasing, enforced pregnancy,
enforced sterilisation; forcible insertion of any object into the
vagina. The definition of crimes against humanity should also include
attacks on the lives and dignity of a section of the people, attempted
or actual obliteration of a section of the people, economic annihilation
of a targeted section, as well as their religious and cultural
obliteration.
III. Gender Crimes
i] The definition of rape
and sexual assault under the new statute should recognise that it cannot
be restricted to the act or the proof of the penis forcibly entering a
woman’s vagina. Any object used to abuse a woman’s body and even verbal
assault should be considered a part of the same crime. The present laws
of evidence and procedures involve medical examination of the victim as
well as of the accused, as proof of such assault. In situations such as
that of mass rapes and gang rapes during the recent violence in Gujarat
this is an impossibility because where the victims have fled for days on
end if they have survived the assault at all, or where the police has
refused to file any complaints or have deliberately filed incorrect
complaints no accused may be apprehended. It is important that the onus
of proof in all such cases of mass and gang rapes should rest on the
accused and the victims should not be burdened with proof of the crime.
The testimonies of the witnesses in cases where women have been burnt or
killed have to be given due weightage as those of the victims
themselves.
ii] In most cases, the
accused might be unknown or due to the presence of a large number of
people, it might be difficult to identify the persons involved directly
in the crime. In such situations, the State has to be held responsible
for the crime, for not protecting its citizens. The persons holding
responsible offices must be made accountable for the same.
iii] The concept of
justice has to be widened in such cases. It is not only punishment of
those found guilty of the crime, but also reparation for the women who
suffer bodily and mental injuries should be considered as such assaults
further curtail women’s right to be a part of mainstream social life
besides inflicting a long term damning impact on the coming generation.
Precisely for this failure to protect the basic human rights of these
citizens the State has to provide reparation. Financial reparations are
no doubt extremely important, but ought not to be seen as full
compensation. Since all individual women are not in a position to
register their complaints, reparation should be provided to all women of
the affected community.
iv] Women and witnesses
who have come forward to give testimonies should be given adequate
protection by the SNCT, holding the State and the offenders responsible
and punishable for any harm that may be caused to them.
IV. Justice and
the Judiciary
The near collapse of the
criminal justice system in our country has made the deliverance of
justice an exception rather than the rule. It is a painful reality and
has to be acknowledged by all. Hence, when situations like the Gujarat
carnage/genocide occur, where mass scale violence takes place; it is
unrealistic to expect prompt justice from the present system. It has
therefore become necessary to suggest a mechanism such as the SNCT
above, with special composition, status, power and procedure. Section 11
of the UN Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, 1985 envisages such a Tribunal.
Supreme Court
The Tribunal therefore
recommends that all necessary steps including a
seeking direction from
the Supreme Court and making statutory recommendation to the Government
of India to (i) appoint such a Tribunal for fixing responsibility for
acts and omissions of officials and political executive in the Gujarat
riots of February- March 2002 and for making persons found derelict to
make restitution, reparation and compensation for all sufferers of riots
(ii) enact a law on the Prevention and Punishment of the Crime of
Genocide (iii) such a comprehensive law on riots and disorders should
take into consideration detailed recommendations made by the National
Police Commission, the NHRC & the NCM.
RECOMMENDATIONS
LONG TERM
Rehabilitation
I. A long term
and systematic plan should be worked out by the civic and town planning
administration in urban centres in Gujarat, with the assistance of the
Housing Boards and Housing Financing Authorities to actively break the
aggressive, violent and enforced ghettoisation of Gujarat’s cities,
especially Ahmedabad, Vadodara and the like. This can be ensured with
adequate political and moral will committed to the belief that enforced
ghettoisation makes communities more vulnerable as target groups for
mass violence and also actively prevents interaction that breeds
toleration between the communities.
The Municipal Authorities
and the Housing Boards of the cities in the state need to prepare plans
that encourage mixed, inter-religious, inter-caste housing. This is
vital for the future health of all the sections of the population.
RECOMMENDATIONS
LONG TERM
Police
I.
Recommendations of the National Police Commission [1979-81] to establish
the autonomy of the police and free it from undue political control
should be accepted and implemented immediately, especially in relation
to:
i) the setting up
of a composite State Security Commission to deal, among other things,
with the selection of the police chief to ensure his autonomy,
independence and professional functioning, and to confer on him the
fixity of tenure to remove fear of punitive transfer and to empower him
to act within the ambit of his statutory authority;
ii) the evaluation
of the performance of the police and receipt of complaints from police
officials about illegal and irregular orders from above;
iii) recasting of
the Police Act of 1861.
II. An
independent Police Complaints Authority should be created, on
the lines of the British model, to hear complaints from the
public against police misbehaviour. In the recent violent
incidents in Gujarat, a large number of complaints about human
rights violations by the police had to be registered with the
very same police authorities who had committed the violations in
the first place, creating a very bizarre situation. The
creation of an Independent Police Complaints Authority is
essential to obviate such a situation in the future.
III. The Tribunal
is of the view that it is the urgent need of the hour that
law-enforcement is made impartial, effective and humane. The functioning
of the police must be independent of political direction and
interference for impartial law-enforcement. The provision of a course on
human rights in the training courses of the police and the eradication
of caste and communal prejudices, as well as the humane riot control
methods should be added in the training programme of the police and
other law-enforcement agencies. The training of police personnel on the
especially sensitive matter of dealing with communal violence is also
necessary. The examination of video footage telecast by the local TV
channels as well as by the police videos to identify and prosecute those
found guilty of making provocative speeches/statements and indulging in
the acts of violence should be considered.
IV. The social
composition of all law-enforcement agencies should be diverse, wherein
the presence of at least 25% of the personnel from the minorities and
women should be ensured. For this purpose, a study should be undertaken
to assess the present representation of these categories in the police
and the deficiency should be made up.
II.
Recommendations of the Committee on Police
Training, 1972, should be implemented especially in relation to social
justice, and attitudinal reorientation of the police through appropriate
training on social justice issues.
III.
The need for the existence of the
centralised All India Services such as the IAS and the IPS should be
examined in the light of increasing democratic decentralisation in the
country. An Administrative Reforms Commission with a comprehensive
mandate should be set up to examine a gamut of issues that arise in this
connection. .
IV.
Official and NGO inquiries and investigative
reporting by eminent persons have noted the partisan role of the police
during riots. These reports include those of the Justice Madon
Commission (1970), National Police Commission (1981), studies by NC
Saxena (1983) and VN Rai (1996), and finally, by the Justice Shrikrishna
Commission on Mumbai riots (1992-93). (See Annexure ___)
Such partisan role of the
law-enforcement agencies has been generally attributed to the following
four factors:
i] The culture of
governance making police function as a subordinate body carrying out
orders and directions of the political executive.
ii] Deeply entrenched
communal prejudices in the minds of a section of the officials and the
police personnel.
iii] Social composition
of the police and of the other wings of the law-enforcement and criminal
justice system, wherein minorities are persistently under-represented.
iv] Lack of training in
humane and effective mob control by the police. This is a state of
affairs that needs to be rectified and rectified quickly. The Tribunal
notes with anguish and concern that no political party has ever
initiated the urgent need for radical police reform. The Tribunal
recommends that this be a matter that is debated and legislated upon
with the utmost urgency. Let it not happen that more carnages take place
and are condoned by the political class, simply because they lack the
moral courage to initiate and push for an independent police authority
in the country.
V.
Legal provisions must be enacted to ensure
restitution of rights and compensation to sufferers/victims of the
riots. (The rationale and modalities for taking these measures have been
discussed in the National Commission on Minorities) Report on Communal
Riots: Prevention & Control (1999).
Civil Society
1. Joint forums
of all social group – castes, religions, etc. -- should be created to
discuss, debate and deliberate upon all matters of common concern.
2.
Common festivities and festivals should be
organized not only on national occasions but also to celebrate the
special occasions of all religious groups.
3.
Discourses to educate people on the merits
of each religion should be held and the denigration of any religion
should be statutorily banned and made punishable.
4.
Mixed localities, housing complexes, housing
societies, clubs, educational and recreational institutions should be
promoted and social inter-course and interactions including voluntary
inter-caste, inter-religious marriages should be encouraged.
(Source: RECOMMEDATIONS--LONG
TERM, CRIMES AGAINST HUMANITY, VOL II)
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