memorandum to the Government of Gujarat on its duties in the aftermath
of the violence
At least 900 people have been killed in the Indian state of Gujarat
since violence and rioting broke out on 28 February 2002 Several non
governmental organizations, however, estimate that the actual number
of the victims might be over 2000.. On 27 February, 58 Hindus were killed
in the town of Godhra in an attack on a train. Mass killings followed
the incident in large parts of the state, where the majority of the
victims belonged to the Muslim community.
The violence is reported
to have reached levels of brutality unprecedented in the state. Some
form of organization and planning of the crimes committed is repeatedly
suggested by survivors, eyewitnesses, relief workers, political commentators
and members of extremist Hindu organizations themselves. Reports, including
the statements of the Chair of the National Human Rights Commission,
suggest that both the state administration and the police have taken
insufficient action to protect the population of the state during the
massacres, and in some cases may have even connived with the attackers.
Although the violence started
to abate on 3 March, after the army was called in, isolated attacks
and killings continue throughout the state to date.
Amnesty International reminds
all the relevant government authorities in Gujarat that the violence,
as well as the circumstances in which it happened, give rise to precise
responsibilities for the state with respect to redress for the victims.
The organization believes that two areas of concern need to be addressed
by the government authorities as a matter of urgency, namely the need
to deliver justice to the victims and the protection of the rights of
the people displaced by the violence throughout the state.
1-The need for justice
Amnesty International believes
that if the crimes carried out during the violence in Gujarat are not
thoroughly investigated and those suspected of being responsible, together
with their accomplices, brought to justice, the circumstances under
which they were able to carry out those crimes may remain unchanged
and they and others may remain free to repeat them.
In several cases in the past
the investigation and prosecution of similar episodes of mass violence
have not shown to be considered as a priority by the central or state
governments, especially when a section of the government authorities
was suspected to have connived with the attackers. Amnesty International
believes that the expectation by the perpetrators and their accomplices
not to be questioned on their role during the violence may have been
one of the causes of the open, systematic and brutal nature of the violence
in the Gujarat.
The Constitution of India clearly sets out in Article 32 the right of
victims and their families to have access to remedies for the enforcement
of fundamental rights when they appear to have been violated, as in
the case of the alleged abuses committed during the violence in Gujarat.
The Constitution is equally clear, in Article 14, about the fact that
"the State shall not deny to any person equality before the law
or equal protection of the laws within the territory of India."
This suggests that all victims of abuses have the right to seek justice,
even when government authorities and police might share responsibility
for the perpetration of those crimes.
The obligation of governments
to conduct prompt, thorough, effective and impartial investigations
into such killings is also established in international human rights
standards, including Article 2(3) of the International Covenant on Civil
and Political Rights, ratified by India in 1979, and the United National
Principles on the Effective Prevention and Investigation of Extra -
legal, Arbitrary and Summary Executions.
Amnesty International believes
that any official investigation or enquiry into the recent violence
in Gujarat should have the following characteristics:
1. It should be impartial
and not unduly lenient towards the security forces or other state agencies.
2. It should be effective, should obtain and consider all relevant evidence
and should reach conclusions that are as firm as evidence permits.
3. It should be prompt. Undue delays will give rise to fears that the
investigation is being blocked or evidence tempered. A time limit should
be fixed for the completion of the investigation.
3. The methods of the investigation should be made public in advance
and described in the report of the investigation.
4. Advance notices should be widely publicized inviting members of the
public with relevant evidence to submit it to the investigation. Relatives
of the victims and anyone else who has relevant information should have
an opportunity to present it.
5. Relatives should have
access to all information relevant to the investigation.
6. Anyone called to give
testimony should at the outset be informed of the subject and purpose
of the inquiry and of their right to legal counsel and other legal rights.
7. There should be an opportunity
for the effective questioning of witnesses.
9. Complainants, witnesses, lawyers and others involved in the investigation
should be protected from intimidation and reprisals.
10. Officials suspected of responsibility for the crimes investigated
should be suspended from active duty during the investigation, as a
precaution against the possibility of their perpetrating further such
acts and to ensure the integrity of the investigation. They should be
removed from any position of control or power over relatives, witnesses
and others involved in the investigation while the investigation is
in progress. These measures should be without prejudice to the outcome
of the investigation, to the careers of the officers concerned or to
any eventual judgment regarding their suspected involvement.
11. The report of the investigation, or at least the findings and recommendations,
should be made public as soon as the investigation is completed. It
should state the evidence on which the findings and recommendations
12. Once the report has been submitted, the government should respond
promptly, stating publicly what steps will be taken as a result. The
findings should be acted on. Amnesty International believes that the
Government of Gujarat should immediately and publicly state its commitment
to act upon the recommendation of any official investigation into the
13. The pendency of a comprehensive investigation on the violence in
Gujarat should not be presented by any executive or judicial officer
as a reason to suspend or delay the prosecution in court of individuals
having been accused of being involved in the abuses.
The body carrying out the
investigation into the violence in Gujarat should have several characteristics:
1. It should be independent
and separate from those allegedly responsible, or allegedly sharing
any form of responsibility with them. Its members and staff, including
the investigative staff, should not be associated with any person, governmental
entity or political party potentially implicated in the matter.
2. It should have the necessary powers and resources to carry out its
tasks, such as laboratory facilities, clerical equipment such as typewriters
and computers and resources to travel and to hold hearings. It should
be able to use the services of legal counsel and experts in such fields
as ballistics, pathology and forensic science. It should have adequate
investigative, administrative and clerical staff.
3. Those carrying out the investigation and their staff should be professionally
competent for the required tasks.
4. They should be protected against intimidation and reprisals.
The terms of reference of
any official investigation into the recent violence in Gujarat should
1. Both the initial incident
which occurred in Godhra and the violence which followed it throughout
2. The circumstances and
causes of the whole wave of violence in the state.
3. The patterns of the violence and abuses as well as individual responsibilities.
4. Whether any individual, group or institution, including government
authorities and elected representatives, is responsible for fomenting
the violence or directly or indirectly provoking it.
5. Whether any individual, group or institution, including government
authorities and elected representatives, is responsible for the offence
of abetting, instigating or otherwise promoting the occurrence of the
violence through their public statements.
6. The possibility of examining other matters which appear during the
enquiry to be relevant to the issues under investigation.
7. The adequacy or otherwise of the precautionary and preventive measures
taken by the police preceding the aforesaid incidents.
8. Whether the steps taken by the police in controlling the violence
were adequate and proper and whether any killings resulting from the
use of force and firearms by police were unlawful.
9. The issuing of recommendations for the criminal prosecution of those
10. Consideration of the institutional changes needed to prevent further
occurrence of the same pattern of abuses, including legal changes, changes
in administrative practice and procedures, recruitment, training and
accountability of personnel.
11. Consideration of the means of providing adequate compensation and
redress to victims and their families.
12. Consideration of the steps which need to be taken by the State Government
for providing security for the minority and for their complete rehabilitation.
Amnesty International believes that, in view of the fact that the Government
of Gujarat and different state agencies, including Gujarat Police, are
suspected of sharing some form of responsibility for the manner in which
they dealt with the violence, in this case an inquiry carried out by
an agency appointed by the central government would have larger legitimacy.
The organization calls any
body or institution mandated to investigate the abuses committed in
Gujarat to carry out such an investigation according to the terms of
reference and characteristics listed above in this document. Considering
the magnitude of the task, the organization believes that extraordinary
investigative resources should be assigned to the body carrying it out.
Attention should be paid to the fact that the investigative staff used
by any institution on this occasion do not belong to Gujarat Police.
The attitude of this law enforcement agency during the violence would
in fact be the object of the investigation itself.
Amnesty International acknowledges
the proactive role taken by the National Human Rights Commission in
the aftermath of the violence. On 1 March the NHRC issued a suo moto
notice to the Government of Gujarat and to the Director General of Police
asking them to submit a report on the incidents and the measures taken
to contain them. On 21 March the NHRC rejected the Government of Gujarat's
preliminary report as "perfunctory" and asked the government
to file a more comprehensive one. A panel of the NHRC also visited Gujarat
for three days from 20 March in order to take an independent view of
the situation in the state. At the end of this tour the Chair of the
NHRC publicly expressed the view that police inaction was a factor in
the violence that followed the train attack. He criticized the state
administration for failing to stem the violence, adding that "Things
could have been better and all that happened could have been averted."
Amnesty International calls on the NHRC to explore all possible avenues
within its mandate to ensure that full light is shed on individual cases
of abuses as well as on patterns of violations occurred in Gujarat.
Several non governmental
organizations (NGOs) have publicly and repeatedly expressed the view
that the judicial commission established by the Government of Gujarat
on 6 March under the Commissions of Enquiry Act, 1952, and composed
of a retired judge of the Gujarat High Court may fall short of these
requirements. The organizations have expressed concern in particular
about the possible pressures a judicial commission appointed by the
Government of Gujarat could be subjected to in the present context and
that any investigation on the Gujarat violence should be initiated by
a body appointed by the Government of India in order for this investigation
to meet the necessary standards of impartiality. The record of impartiality
of the only member of the aforementioned judicial commission with respect
to previous incidents of violence targeting the minority community,
as well as the lack of resources assigned to this body, have also been
openly questioned by the same organizations.