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Punish the
Guilty
Gujarat Carnage 2002
I. Implement
all the recommendations of the National Human Rights Commission (NHRC).
II. Prosecute all
those indicted in the NHRC report, including the Chief Minister and his
ministerial colleagues who have aided and abetted the violence by word
and action, under the relevant provisions of Indian Law –Indian Penal
Code (IPC), Prevention of Terrorism Act (POTA) and Unlawful Activities
(Prevention) Act. The Tribunal is also of the view that Shri Modi is
guilty of crimes against humanity and of genocide under the relevant
international statutes. It is the view of the Tribunal that the CM and
his concerned ministers are not fit to hold public office since they are
guilty of the aforesaid crimes. The Tribunal is further of the view that
the interests of the country are not safe in the hands of people like
Shri Modi and of those who hold his views and have his attitude and
approach in public life.
IV.
The Tribunal recommends
immediate banning of the VHP and the BD under the relevant provisions of
the Unlawful Practices (Prevention) Act, 1967, for committing an
“unlawful activity” and “unlawful association” within the meaning of
that Act. “Unlawful activity” under section 2 of the Act relates to an
individual or any association and “any action taken by such individual
or association (whether by committing an act or by word, either spoken
or written, or by sign or by visible representation or otherwise) (i)
which is intended or supports any claim, to bring about, on any ground
whatsoever, the cession of a part of the territory in India or the
secession of the territory of India from the union, or which incites any
individual or group of individuals to bring about such cession or
secession; (ii) which disclaims, questions, disrupts or is intended to
disrupt the sovereignity and territorial integrity of India. “ Unlawful
association” means under section section 2g of the Act (i) which has for
it’s object any unlawful activity, or which encourages or aids persons
to undertake any unlawful activity, or of which the members undertake
such activity; or ii) “which has for its object any activity which is
punishable under Section 153-A or Section 153-B of the Indian Penal Code
1860 (45 of 1860) or which encourages or aids persons to undertake any
such activity; or of which the members undertake any such activity.”
5.2
By
their public utterances and behaviour, that includes provoking their
armed cadres through hate propaganda, they are disturbing the law and
order machinery of different states in a democratic country like ours.
This publicly proclaimed hate propaganda and celebration of violent
pogroms against the country’s minorities, makes public their secret
agenda ––an agenda, moreover that is not contained in the written
Constitution(s) of these outfits. Through this public agenda that
clearly violates the Act, the Vishwa Hindu Parishad and the Bajrang Dal
are holding the country to ransom. Moreover, the declared agenda, is
being promoted by senior office bearers, who travel all over world.
V.
Immediate steps must be taken by both the
central and the state governments to prohibit the distribution of
trishuls and swords since by these means attempts are being made to
arm civil society and prepare a section of Indian society to unleash
violence against other sections; an altogether dangerous and fragile
situation for peace and internal security within the country. The
Tribunal recommends that the law and order machinery seize and
confiscate, not merely in Gujarat but in all other parts of the country,
the trishuls and the swords which have been and are being
distributed for the purpose of generating terror against other sections
of the people.
The Tribunal
observes that the distribution of trishuls particularly to young
men all over the length and the breadth of the country have nothing to
do with the traditional practices of Hindu religion. Yet through a
government resolution, the central government has exempted it under the
Arms Act. The Tribunal recommends the withdrawal of this central
government resolution and the seizure of all the trishuls
forthwith.
VI.
V. .
The government of Gujarat should crackdown on the arms training camps
being conducted by the RSS/VHP and BD as these are breeding grounds for
home bred terrorists who lead violence against sections of Indian
society and hence a threat to internal peace and security.
VII.
The
Tribunal recommends the arrest of, and immediate criminal action
against, those guilty of violence and of incitement to violence in
Gujarat, including politicians, policemen, administrative officers and
all those named by the victims of the violence and also others guilty of
dereliction of the duty. (The list of the accused so named is annexed
separately).
(i)
We
have evidence before us which discloses the direct complicity and active
participation in the carnage of the Chief Minister and other ministers;
of leaders of VHP and Bajrang Dal at the state and local levels; of
complicity of the then Commissioner of police and several others at the
level of inspectors, sub inspectors and the constabulary.
(ii)
Examination of the evidence also shows that elected representatives,
including cabinet ministers supported and led large unlawful assemblies
that indulged in large-scale arson, loot, murders and other offences
against women.
(iii)
Our
inquiry shows that the entire bureaucracy of the state, with a few
exceptions, exhibited a callous and culpable indifference to what was
going on in the state from February 28 onwards. A former Chief Justice
who appeared before us summed up the situation succinctly. Constitution
Law and Authority Stood suspended for Seventy two hours. No preventive
measures were taken against Hindu marauders. This attitude is
inexplicable and unpardonable. Despite the presence of provisions for
keeping peace and public tranquility in the Criminal Procedure Code; the
provisions of the National Security Act, the state laws providing for
the preventive detention of anti social elements or their externment;
the provisions of the Unlawful Activities (Prevention) Act 1967
(iv)
Every one of these officers should be proceeded with for
this culpable indifference by charging them for utter incompetence and
inefficiency.
(v)
The Chief Minister and his cabinet colleagues should be dismissed
forthwith even from the caretakers' status he and his colleagues are
enjoying now.
(vi)
As
many of our political parties increasingly reflect an absence of
proprieties and non-adherence to basic principles of democracy and rule
of law, there is a necessity for a law defining constructive liability
of individual ministers and the political government collectively, when
such gross crimes take place. This alone will enable people to hold
their representatives accountable.
VIII.
The Tribunal recommends immediate detention
and prosecution of Praveen Togadia and Ashok Singhal of the VHP, and
Narendra Modi of the BJP, who repeatedly and with impunity are not
merely inciting communal hatred and violence, through their rabid armed
cadres, against the country’s minorities in violation of sections 153A
and B of the IPC and 295 etc of the CrPC, which in themselves are
serious enough offences, but are also disrupting public peace and order,
are vitiating communal peace and harmony and are creating an atmosphere
of insecurity, tension and active conflict.
IX.
The National Human Rights Commission (NHRC)
noted the need to take firm action on provocative statements which have
the potential to incite communal tensions and violence. In its "Final
Order on Gujarat dated 31st May, 2002", the NHRC has stated that it "had
urged that these [statements] be examined and acted upon, the burden of
proof being shifted to such persons to explain or contradict their
statements."
X.
The promoting of enmity between different
groups on grounds of religion is a recognised criminal offence under
Indian law. Indian Statutory Law also gives effective protection the
rights of minorities whether in Gujarat or the rest of the country. The
Indian Penal Code (IPC) prescribes criminal prosecution for "wantonly
giving provocation with intent to cause riot" (section 153); "promoting
enmity between different groups on grounds of religion" (section 153A);
"imputations, assertions prejudicial to national integration" (section
153B); "uttering words with deliberate intent to wound the religious
feelings of any person" (section 298); "statements conducive to public
mischief" (section 505 (1), b and c); and "statements creating or
promoting enmity, hatred or ill-will between classes (section 505(2).)
XI.
The Judiciary is also empowered to initiate
suo moto action which it has been loth to do under these circumstances.
Section 108 of the Code of Criminal Procedure, in addition, allows an
Executive Magistrate to initiate action against a person violating
section 153A or 153B of the IPC.
XII.
The "Guidelines to promote
communal harmony" issued by the Indian Ministry of Home Affairs in
October 1997 point at the precise responsibility of the state machinery
to deal with potentially inflammatory statements in the context of
communal tension. Guideline 15 states that "effective will needs to be
displayed by the district authorities in the management of such
situations so that ugly incidents do not occur. Provisions in section
153A, 153B, 295 to 298 and 505 of IPC and any other Law should be freely
used to deal with individuals promoting communal enmity".
XIII.
Besides, Article 20 of the
International Covenant on Civil and Political
Rights, which India ratified in 1979, affirms that "Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law".
Despite thee existence of these provisions have been observed in their
breach and both the executive, law and order machinery and the judiciary
have shown a marked reluctance to haul up the offenders.
XIV.
The
Tribunal recommends that the state government urgently provide adequate
security to the sections of the Muslim population of Gujarat who wish to
return to their original places of residence and business.
VII.
The Tribunal recommends independent
investigation of the cases under the direct supervision of the Chief
Justice of the state. The CJ may also be requested to select the
sessions judges and magistrates who should try these cases exclusively.
Special courts should be set up to try the guilty. Inquiries must be
instituted by the CBI against senior police officers and bureaucrats
suspected of dereliction of duty.
(Note: Trial in
riot cases of 1985 in Gujarat, registered against the then Health
Minister, Shri Ashok Bhatt -- one of those who sat in the Police Control
Room in Ahmedabad during the carnage in 2002— , and against Harin Pathak
are yet to begin, even after 18 years. The cases have been stayed in the
wake of a High Court order. In the 60 cases registered against the 263
persons accused of faulty construction, leading to the death of nearly
800 people in the January 2001 earthquake, a year-and a half later,
trial has not begun in a single case. This is a sorry record of the
justice delivery system).
VIII.
The impartial and swift prosecution of those
guilty of violence, both in the Godhra massacre and the incidents
throughout the state thereafter, would go a long way in building
confidence in and in re-establishing the credibility of the state
administration. Without legal and social justice all talk of peace and
the question of healing of the traumatised survivors will simply not be
addressed.
IX.
The establishment of the State Human Rights
Commission in Gujarat is a matter of urgency and should be accomplished
forthwith.
X.
Suitable amendments need to be made in the
existing law of sexual assault that does not recognize all the different
kinds of sexual assaults. Testimonies before us narrate that there were
numerous instances of gruesome sexual violence that involved insertion
of all kinds of objects into the women’s bodies, and sexual mutilation
of all kinds. The existing definition of rape is totally inadequate to
deal with various kinds of rape that took place in the context of the
genocide in Gujarat.
XI.
Immediate suspension of, and action against,
the District Magistrates /Collectors of Ahmedabad, Vadodara, Bharuch,
and Himmatnagar since these officials have violated various laws and
Service Rules.
XII.
The Chief Justice and not the state
government should do the appointment of Public Prosecutors. Among the
Public Prosecutors, there should be an adequate representation of the
minority communities. To this end, the Tribunal recommends an amendment
to the CrPC, as has been made in the Civil Procedure Code with effect
from July 1, 2002, to ensure that the appointment of the Public
Prosecutors are made by the Chief Justice of the concerned High Courts
in consultation with at least five Judges. (At present, the appointment
of the government pleaders in all the districts is being made by the
state government in consultation with the district judge).
XIII.
The quick manning of the police stations and
relief operations by a sizeable and significant number of the
representatives of the minority community (See section below on
‘Recommendations—Police’).
XIV.
On account of the brutal manner in which the
people were attacked, killed and burnt across the length and breadth of
the state, including in the far-flung hitherto `unaffected' rural areas,
many who were killed could not be identified. These may be termed
`missing' persons, though they have all been killed. Formalities and
paper work has not been possible, including post-mortem examination, in
these cases where the bodies were destroyed with no trace left. Hence as
part of it’s wider duty, the state government should compile and declare
the list of ‘missing’ persons and expedite the payment of compensation
to their eligible family members. In cities like Ahmedabad, Vadodara,
Bharuch, Ankleshwar, Anand and elsewhere, victims deposing before the
Tribunal complained of a completely indifferent attitude of the
administration in the matter of the payment of compensation, in general,
but especially to the relatives of the ‘missing persons’ who have been
mute witness to the brutal deaths of their near and dear ones and yet
there is no proof (like a post-mortem or any other record) of their
deaths.
XV.
Many sections of the IPC, the CrPC and other
laws pre-date the Indian Constitution and have not undergone a thorough
revision, restructuring and orientation in keeping with the fundamental
principles of democracy, equity, freedom and equality contained in our
Constitution. While the Constitution of India was framed in 1950, after
India attained independence, the criminal laws date back to the colonial
period and have not been modified to conform to the constitutional
provisions in many respects. Therefore, a new law, termed the National
Human Rights Law, should be formulated along a rights-based perspective.
Hence,
i] The provisions of the
existing criminal justice laws such as the IPC, CrPC and the Evidence
Act should be suitably incorporated in the new law.
ii] A legal framework
should be developed to institutionalise the rights of the victims of
wanton violence to compensation and restitution from the State, along
with relief and rehabilitation.
iii] A legal framework
should be developed to enable the victims of violence to participate in
conflict resolution.
iv] A legal framework
should be developed to promote the rights of the victims of violence and
underdevelopment, and to ensure their right to humane treatment and
humane development and governance in the light of the UN reports on
human development and in the light of the Mahbub-ul-Haq Human
Development Centre reports on humane governance.
v] An independent
monitoring system should be established to monitor government operations
in conflict situations and to ensure the rights of the conflict affected
communities to adequate protection, compensation, relief and
rehabilitation.
vi] Conflict-affected
communities, especially women and the most vulnerable among them, should
be given a voice in determining the course of action to prevent,
mitigate and resolve structural and political violence. Only by
reversing the process of disempowerment engendered by structural
violence and conflict can sustainable strategies for development be
achieved.
(Note: a. The
newly enacted constitutional amendments to institutionalise Panchayati
Raj Institutions (PRIs), empower the PRIs to deal with specific
developmental functions but leave out regulatory and police functions.
The PRIs should be empowered to deal with police functions and the DM
and the SP should be placed under the Panchayat chief of the district.)
b. The sections of the
Commission of Inquiry Act that do not make the report of the
commission statutorily binding on government need to be amended.
c. Another is the
provision under the IPC that requires the government to grant sanction
for the prosecution of the persons spitting venom orally and in writings
that violate sections 153 A and B of the IPC. The Tribunal recommends
the repeal of section 197 of the IPC, which precludes any individual
from criminally prosecuting persons for hate speech until the government
has granted sanction.
XVIII. The Tribunal
believes that no rehabilitation is possible without the guilty being
brought to book. Wherever the accused have been named, the government
needs to take necessary action and instil confidence in the people to
restart their lives. The Tribunal condemns all measures of forcing
compromises in the form of withdrawal of the names of the accused.
Instead the Tribunal demands that:
i]
Proper FIRs be registered and action be taken immediately. The Police
should collect and investigate forensic evidence.
ii]
Wherever possible searches be conducted to get back the goods that
have been looted from the people's houses or to pay compensation for
them.
iii] In view of the extraordinary circumstances under
which the crimes against women were committed and the evidence that the
state machinery was not accessible to the victims, there is a need to
relax some normal requirements of the law
to goad the legal process into swift
and speedy action.
iv]
Wherever the plots of land and the properties belonging to the minority
community have been occupied illegally by the Hindu villagers, as in
many districts and villages, urgent and immediate action needs to be
taken to restore the land to the rightful owners.
v]
Thorough investigation procedures have been consistently ignored by the
police. The culpability of the police personnel where they have failed
to follow the basic investigative procedures should also be referred to
the Grievances Authority (See section below on ‘Recommendations –
Police’).
XIX. Peace
committees in the affected areas should be encouraged. All efforts must
be made to prevent further ghettoisation of the Muslim community. To
this end, specific interest needs to be shown in the matter by the state
government, the civil society and the central government and their
agencies.
XX.
The government should take all steps to
restore confidence amongst all communities. The state government has not
addressed the question of the betrayal of trust by the various sections
of the administration and the consequent sense of extreme insecurity
felt by the victims. Since rehabilitation has been totally ignored by
the state and the central governments, till now, the government has
treated the post-violence scenario as a matter of law and order and of
the maintaining peace only. It has also tried to sweep under the carpet
the enormity of the crimes committed. Eight months after the Sabarmati
Express attack, the towns and villages of Gujarat continue to fester and
simmer. The government and the party that controls the government should
not indulge in any activity which undermines public confidence and
harmonious relations between the communities.
(Source:
Recommendations Short Term, CRIMES
AGAINST HUMANITY—GUJARAT 2002, VOL II)
United
Nations/International Community
I.
Until that happens and
because national legal mechanisms are very inadequate to deal with
crimes of this magnitude where State Complicity of the very highest
level has been found; where there are no laws to deal with issues of
genocide, sexual violence against women in these circumstances, and so
on --there is an urgent need for international agencies to intervene and
help in the process of justice for the victims of the Gujarat Genocide.
Hence the Tribunal
appeals to the International Community to use all the influence at it’s
command with the Government of India and Gujarat government to ensure
the speedy carriage of Justice.
II. To impress
upon the Government of India through its Parliament to legislate
mechanisms for the implementation of the Genocide Convention--- which
India has both signed and ratified --- and to use these mechanisms to
prosecute and punish all those who participated in the planning and
execution of murder, sexual violence, theft, and destruction in the
state of Gujarat in the recent months.
Media
1.
Action needs to be taken against those who
gave provocative speeches on TV channels and made statements in the
newspapers, as well as against the newspapers and the TV channels who
have published the same as well as published the news with a communal
colour, as confirmed by the report and recommendations of the Editors’
Guild of India. (see Annexure__)
2.
The role of sections of the media,
particularly the Gujarati language press, in spreading and inciting the
violence should be investigated and all facilities provided to it, such
as advertisements from public authorities and bodies, postal and
transport concessions, credentials, entry cards and passes should be
withdrawn.
Relief & Rehabilitation - Recommendations
I.
Restoration and repair of places of worship
damaged and destroyed during the violence, in consultation with the
community concerned.
II.
Constitution of a tribunal for
compensation/reparation to victims. This tribunal should have enough
benches spread over an entire city like Ahmedabad and also have benches
in the districts. The tribunal should be given clear guidelines for the
assessment of compensation in respect of the loss suffered by every
individual in the violence. The loss would include the loss of and
damage to homes, belongings, loss of life, injuries sustained,
destruction or damage to business and loss of means of livelihood, as
well as the impact of the sexual assaults on women and their relations.
It is the view of the Tribunal that such tribunals (like those set up
after the Dockyard Explosion in Bombay in 1944 by the colonial power)
should be set up without any further delay to restore a feeling of
justice in the victims of the state-sponsored carnage.
The benches of the
Reparation Tribunal must have:
i] the status of
independent judicial authority to assess the loss suffered and to award
and enforce compensation payment.
ii] specific time frames
for their functioning.
iii] necessary
infrastructure to discharge.
III.
In the meanwhile the victims should be
rehabilitated on available land, including government land at government
expense.
IV. Survey of
Damage to Life and Property
The state government
should immediately conduct a detailed survey of the loss of life,
dignity, property, livelihood and business to the victims and the
compensation if any given to them so far. The findings of the survey
should be made public as at the time of the earthquake. The findings
should include:
A.
The manner in which the amount of Rs 150
crore given by the central government as aid to ensure rehabilitation
have been disbursed.
B.
Detailed tabulations on the amounts of
housing compensation disbursed.
C.
Detailed survey of the affected persons and
the manner in which they are affected.
D.
The identification of destitute women and
orphans.
V. Quick
disbursal of Relief:
i] The government has put
a low ceiling of Rs. 50,000 in assessment of house damages. The vast
majority of payments made are well below this amount; some assessments
and surveys have claimed the damages are as low as 5,000 and 10,000.
Even on a cursory glance it is easy to see that in the majority of the
cases the damages caused are much higher than the ceiling. In the light
of the almost uniform and extensive damage of houses and shops, a
minimum of Rs. 50,000 should be given to all the people whose houses and
shops have been damaged. These payments should be made immediately as
minimum compensation pending the detailed assessment by the tribunal, as
suggested above. There should be no ceiling on the compensation awarded.
(i) The State should be
ensure, along with groups and organisations from among the affected
community and civil society, that everyone affected gets the
compensation.
iv] It should be
ensured that the foodgrains ration reaches the camps and thereafter
people from affected communities who have tried to rehabilitate
themselves but are still facing loss of livelihood, and impending hunger
and starvation, because of the economic and social boycott being faced
by them.
v] The rations provided
should be adequate and the camps should not be closed till the
inhabitants are properly rehabilitated.
vi] The state should have
taken complete responsibility for the running and maintenance of the
camps in a humane manner. It is imperative that the appalling sanitary
conditions in the camps are improved and better health care is provided.
The camps should also get adequate security.
In particular:
vii] Adequate facilities
to address the health needs of pregnant women and trauma therapy to all
the camp residents, particularly women, must be provided.
viii] Adequate and
nutritious food should be made available to all, and in particular to
women and children. Lactating and pregnant women should be given extra
attention.
ix] Provision should be
made in the camps of adequate sanitation facilities, which allow for
privacy and hygiene, particularly during menstruation period.
x] Comprehensive health care, including
counselling for trauma, should be provided on a regular basis and free
medical aid be given to all victim-survivors. In view of the trauma the
victims, especially women and children, have suffered free medical aid,
including psychiatric care, should be provided to them. As there has
been widespread rape, including of the minor girls, special counselling
by medical personnel as well as by social workers should be organised.
xi] Surveys and
panchnamas should be rapidly and properly conducted to ensure timely
disbursement of the interim and other relief.
xii] Interim and other
relief should be handed over to women and men of a family, jointly.
xiii] Ration cards and
other identity cards be provided immediately to those who have lost such
documents.
xiv] The educational
documents/certificates be provided to those who have lost such documents
immediately. Full protection be provided to those who wish to return to
their homes, and legal/ownership documentation be provided expeditiously
in cases where they have been destroyed.
xv] The state should
allocate land for people who want to shift from the camps into safe
localities of their choice and a special rehabilitation package be
provided for widows, single women and female-headed households.
xvi] The government
policy regarding compensation to heirs of the ‘missing’ persons should
be changed in view of the abnormal circumstances in which the people
went ‘missing’.
xvii] A single window
system be established to complete all administrative formalities,
including those for relief and rehabilitation.
xviii] Proper procedures
be laid down to ensure transparency and the right to information,
including those in the case of arrests, relief and rehabilitation
measures.
xix] Specific measures be
taken to give relief to the sections of the survivors who do not fall
under the current rehabilitation schemes, especially widows,
female-headed households and single women.
VI. Economic
rehabilitation needs to be undertaken on an urgent footing. Economic
rehabilitation should not be equated only with the interim relief.
Although interim relief is crucial in the short term, the State has to
address its concerns to the long-term employment opportunities for those
affected by the violence. The compensation and relief package announced
by the government of Gujarat does not reflect the extent of losses
sustained nor does it allow for a reasonable opportunity for economic
rehabilitation. The compensation package does not take into account
ground realities and is, at best, mere token relief.
A.
The Tribunal recommends an urgent and quick
disbursal of interest- free loans for business through a single window
clearance system.
B.
Quick disbursal of insurance claims.
C.
The evidence recorded by the Tribunal from
different districts of the state reveals the depth of communal
polarisation in different sectors, helped by the party in power in
Gujarat. Small and big businessmen and traders who deposed before the
Tribunal testified to the communal and partisan attitude of the
assessment officers of the Oriental Insurance Company that showed that
even those who have insured their businesses and trades are being denied
fair pay back by the insurance company. The government must look into
this matter and take the guilty to task.
D.
Job opportunities for women and men be
encouraged by creating a pool of information particularly for those on
daily wages. The provision of interest-free small loans for those
wishing to set up laaris (handcarts), stalls and small shops or
any other small business be made.
E.
Steps should be taken to ensure education
and employment opportunities for women of the minority community.
VII.
Education/Children
I.
Mass promotion of children who have not been
able to take annual and the Board examinations be made to prevent the
loss of the academic year.
II.
To facilitate the process of school transfer
for those displaced by the
violence; school transfer
should be provided without insisting on a formal transfer certificates.
III.
The Tribunal recommends the immediate withdrawal of
textbooks in Gujarat and elsewhere that distort history, sow communal
discord and teach communal hatred.
VIII. Reparation,
not compensation
The devastation of a
section of the population on a mass scale such as the one witnessed in
the present case in Gujarat has to be distinguished from the sporadic
violence against a few individuals resulting in loss of life and
property. In the former, an attempt is made to uproot people through an
organised plan with the connivance and support of the state, with a view
to leave no trace of theirs. In such cases, the usual compensation doles
cannot recuperate the losses suffered by the people in question. What is
needed is their complete rehabilitation physically, psychologically and
spiritually. The loss in such cases has to be calculated not only in
terms of the loss of men and material, but also the loss of human-self
of the survivors who have to be resuscitated as human beings and induced
to start a new life by overcoming the trauma of the devastation. The
cost of such revival is inestimable. The loss of all that is near and
dear, including the lives of close relatives, the complete defacement of
past existence, the shattering of all dreams, hopes and aspirations, and
the cruel uncertainties of the future are all that the survivor is left
with. He or she has to live with it every moment of his or her life.
What is needed in such circumstances is not mere rehabilitation of
material existence but the dignified restoration of all the survivors in
all aspects of societal life. Hence what is needed to be paid is not
only compensation for the material loss but also the cost of reparation
as a societal being. The government therefore is duty bound to assess
these costs in human terms as well while calculating the losses suffered
by the victims.
Psychological
rehabilitation
In view of the trauma the
victims, especially women and children, have suffered free medical aid,
including psychiatric care, should be provided to them. As there has
been widespread rape, including of the minor girls, special counselling
by medical personnel as well as by social workers should be organised.
Education
The Tribunal recommends
the immediate withdrawal of textbooks in Gujarat and elsewhere that sow
communal discord and teach communal hatred.
Civil Society
Peace committees must be
set up in all localities, including the unaffected ones. These
committees should be involved in creating a conducive atmosphere for the
victims to return home once their residences are reconstructed.
National Human Rights
Commision
I.
In compliance with Article V of the International Convention on the
Prevention and Punishment of the Crime of Genocide, 1948 that India has
signed in 1948 and ratified in 1958, a State that is Signatory is bound
to effectively act upon and legislate upon the intents of the
Legislation. Our country has not done complied with this requisite in
the Convention though more than five decades have passed. The Tribunal
has clearly held that the crimes in Gujarat were crimes against humanity
and Genocide. But, to date there is no law for punishing these people.
Under the present political circumstances, the Tribunal does not expect
either the State of Gujarat or the Union of India to enact such a
much-needed law.
II.
Despite the fact that there is no law on genocide at present, the
Tribunal holds that the Covenant on Genocide has become part of the
customary law as it doesn’t conflict with any other existing law. Such
an interpretation of the law is imperative and binding on the NHRC. Such
an approach would help the NHRC to conduct a detailed investigation into
the crimes in Gujarat and submit a detailed Report to the Government and
the nation. The facts narrated in the NHRC’s Summary Report on Gujarat
already add upto a prima facie accusation of genocide. The Commission
has a present and urgent obligation to the people and a mandatory
obligation to posterity to inquire into Gujarat violence and record its
findings so that no political party and no government in future ever
resort to such brutal practices.
III.
As part of this obligation, the NHRC must prepare a Model Statute on
genocide including provisions for effectively taking preventive measures
to protest religious ethnic and linguistic minorities from being
attacked. This is mandatory because under the International Criminal
Code genocide and crimes against humanity are declared as offences.
State actors may not follow this but Human Rights Commissions set up by
various countries will have to enforce them however limited their
jurisdiction might be ‘’Genocide is an attack on human diversity as
such, that is upon a characteristic of the’’ human status without which
the very words ‘’mankind’’ or ‘’humanity’’ would be devoid of meaning’’
(Hannah Arndt)
RECOMMEDATIONS
LONG TERM
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.
V.
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.
VI.
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. .
VII.
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.
VIII.
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.
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