NHRC Final Order Continued.....
Recommendations
Further set of Recommendations
of the Commission, in the light of the reply of 1 April 2002 received
from the Government of Gujarat, and of 1 May 2002 from the Ministry
of Home Affairs, Government of India
I. Law and Order
Involvement of CBI
(i) In view of the widespread
allegations that FIRs had been poorly or wrongly recorded and that investigations
had been 'influenced' by extraneous considerations or players, the Commission
had stated that the integrity of the process had to be restored. It
had therefore recommended that certain critical cases, including five
that it had specifically mentioned, be entrusted to the CBI.
(ii) The State Government
responded on 12 April 2002 saying that "An investigation conducted
by the State Police cannot be discredited, cannot be put into disrepute
and its fairness questioned merely on the basis of hostile propaganda".
It then recounted the steps taken in respect of the five cases listed
by the Commission and added that transference of these cases to the
CBI would "indefinitely delay the investigation" and help
the accused persons to get bail. It also stated that the CBI is already
understaffed and over-burdened. The Commission was therefore requested
to reconsider its recommendation as it was based on "unsubstantiated
information given to the Commission by sources with whom authentic information
was not available."
(iii) The response of the
Ministry of Home Affairs, Government of India, dated 1 May 2002, summarizes
the position of the State Government. It then adds that, under existing
rules, the CBI can take up the investigation of cases only if the State
Government addresses and appropriately requests the CBI to do so. Since
the State Government had expressed the opinion that investigation into
the cases is not required by the CBI at this stage, "it is not
possible for the Central Government to direct the CBI to take up the
investigation of the above cases."
(iv) The Commission has considered
these responses with utmost care. It does not share the view of the
State Government that the substance of the allegations made against
the conduct of the police, and the reports of "extraneous"
influences brought to bear on the police, were based on "hostile
propaganda" or "unsubstantiated information." The allegations
were made by those who were personally affected by, or witness to, the
events, and by eminent personalities and activists who spoke to the
Commission directly, or addressed petitions to it, with a full sense
of responsibility.
The Commission would like
to underline that it is a central principle in the administration of
criminal justice that those against whom allegations are made should
not themselves be entrusted with the investigation of those allegations.
It has universally been the practice to act on this principle, including
in this country. To depart from that principle would, therefore, be
to invite a failure of justice. In respect of the cases listed by the
Commission, the allegations of inaction, or complicity by the elements
of the State apparatus were grave and severely damaging to its credibility
and integrity. It would thus be a travesty of the principles of criminal
justice if such cases were not transferred to the CBI. Worse still,
the inability to do so could severely compromise the fundamental rights
to life, liberty, equality and dignity guaranteed by the Constitution
to all of the people of India on a non-discriminatory basis.
Further, in the light of
the unanimously adopted resolution in the Rajya Sabha on 6 May 2002,
urging the Central Government "to intervene effectively under Article
355 of the Constitution to protect the lives and properties of citizens,"
the Commission is emphatically of the view that the role of the Central
Government in respect of the investigation of the cases identified by
the Commission should go beyond a mere invocation of the "existing
rules" in respect of when the CBI can take up a case for investigation
and a statement to the effect that "it is not possible" for
it to direct the CBI to take up the investigation of these cases given
the position taken by the State Government.
(v) In these circumstances,
the Commission urges once again that the critical cases be entrusted
to the CBI and that the Central Government ensure that this is done,
not least in view of the Rajya Sabha resolution referring to its responsibilities
under Article 355 of the Constitution. The Commission is deeply concerned,
in this connexion, to see from Shri Nampoothiri's report of 28 May 2002
that, of 16,245 persons arrested for substantive offences, all but some
2100 had been bailed out as of 10 May 2002. It also noted from that
report that of the 11,363 Hindus arrested for such offences, 8% remained
in custody, while 20% of the 4,882 Muslims thus arrested remained in
such custody. This does not provide a particularly reassuring commentary
on the determination of the State Authorities to keep in check those
who were arrested or to bring them to justice.
Police Reform
(i) The Commission drew attention
in its 1 April 2002 Proceedings to the need to act decisively on the
deeper question of Police Reform, on which recommendations of the National
Police Commission (NPC) and of the National Human Rights Commission
have been pending despite efforts to have them acted upon. The Commission
added that recent events in Gujarat and, indeed, in other States of
the country, underlined the need to proceed without delay to implement
the reforms that have already been recommended in order to preserve
the integrity of the investigating process and to insulate it from 'extraneous
influences'.
(ii) The report of the State
Government of 12 April 2002 contains the ambiguous response that "the
question of Police Reform is already under the consideration of the
State Government." Nothing further is said.
(iii) As to the 1 May 2002
response of the Central Government, it recounts the history of the less
than purposeful effort thus far made to bring about Police Reform. It
takes the position that "Police" is a State subject and that
"the Centre at best can lead and give guidance." Without going
into details of the recommendations made, it recalls the work of the
National Police Commission (NPC), the letters addressed to Chief Ministers
in 1994, the judgement of the Supreme Court in the case filed by Vineet
Narain, the PIL before the Supreme Court in yet another case, the work
of the Ribeiro Committee constituted to review the action taken to implement
the recommendations of the NPC, NHRC and Vohra Committee, etc. The response
concludes "However, crucial recommendations of the Commission (the
NPC) relating to the constitution of State Security Commission/selection
of DGP, insulation of investigation from undue pressure etc., could
not be implemented."
(iv) The Commission is fully
familiar with this melancholy history of failure - and of the lack of
political and administrative will that it signifies - to revive the
quality of policing in this country and to save it from the catastrophic
'extraneous influences' that are ruining the investigative work of the
police. The Commission therefore urges both the Central and State Governments
once again, taking the situation in Gujarat as a warning and catalyst,
to act with determination to implement the various police reforms recommended
and referred to above.
Special Courts and Special
Prosecutors
. (i) The Commission had
recommended on 1 April 2002 that Special Courts be established to try
the most critical cases on a day-to-day basis, the Judges being hand-picked
by the Chief Justice of the High Court of Gujarat, with Special Prosecutors
being appointed as needed. Emphasis was also placed on the need for
procedures to be adopted of a kind that protected the victimized women
and children from further trauma and threat. The deputation of sensitive
officers, particularly those who were women, was recommended to assist
in the handling of such cases.
(ii) The response of the
State Government does not indicate whether it accepts the recommendation
for Special Courts of the kind proposed by the Commission, the purpose
of which was to ensure expeditious trial and disposal of cases. The
Commission would like to stress that justice appropriately and speedily
delivered after an outburst of communal violence is essential to the
return of normalcy, and that delays in the process exacerbate the climate
of violence and mistrust. The response of the State Government also
does not comment on the recommendation regarding the appointment of
Special Prosecutors. This is regrettable since media and other reports
have alleged that the existing Public Prosecutors have, in critical
cases, not asked the Courts to send the accused to police remand, but
have informed the Courts that there was no objection to the granting
of bail. The Government is therefore requested to clarify the facts
pertaining to these matters.
Special Cells
The Commission had recommended
that Special Cells be constituted under the concerned District Magistrates
to follow the progress of cases not entrusted to the CBI and that these
should be monitored by the Additional Director General (Crime). The
response of the State Government accepts the role proposed for the latter,
but does not confirm if appropriate action has been taken. Further,
it is silent on the need for Special Cells under the concerned District
Magistrates/Police Commissioners. The recommendations are therefore
repeated.
Time-frames for investigations
The Commission had recommended
that specific time-frames should be fixed for the thorough and expeditious
completion of investigations. This recommendation appears to have been
accepted by the State Government, but it has not spelt out what the
time-frames will be, so neither the Commission nor the public know how
long the process will take. The State Government should therefore clarify
its position on this matter.
Police Desks in Relief Camps
The Commission had recommended
that police desks should be set-up in the relief camps to receive complaints,
record FIRs and forward them to Police Stations having jurisdiction.
The State Government asserts that instructions to this effect had been
given and that 3,532 statements and 283 FIRs had been recorded in the
relief camps. The Commission, however, is constrained to observe that,
according to a report received from its Special Representative dated
24 April 2002, police desks had been set up only in 9 out of a total
of 35 relief camps then in existence in Ahmedabad, that these desks
worked only for a few days and only for two hours on an average on those
days. The Commission therefore calls for full compliance with its recommendation
in respect of the setting-up of such police desks in the relief camps.
That would go a long way
towards ensuring that FIRs are more accurately and fully recorded, particularly
in respect of crimes committed against women and children, especially
rape and other acts of brutality. Regrettably, such cases are still
not being adequately registered, a fact that emerges from Shri Nampoothiri's
report of 28 May 2002, not least because of the insensitive questioning
by police personnel. There is also a lack of evidence of sufficient
women officers being appointed to help with such cases.
In this connection, the Commission
would also like to reiterate its view that, in the very nature of situations
such as this, material collected and provided by other credible sources,
e.g., NGOs, should be fully taken into account. There is little evidence
to suggest that this is being done. There is therefore need for greater
responsiveness to this recommendation and greater transparency on the
part of Police Commissioners and Superintendents of Police who should
establish a system whereby NGOs and others can know precisely what action
has been taken in respect of material provided by them.
Survey of all Affected Persons
The Commission urges, in
this connection, that a comprehensive survey be expeditiously completed
to establish the facts concerning the number and names of those who
have been killed, or who are missing, injured, rendered widows, orphans
or destitute in the violence that has ensued. The response of the Government
does not throw any light on what is being done to gather such data.
This is posing a major legal and humanitarian problem, not least to
those who are the next-of-kin of those who have been killed or who are
missing. The procedure for declaring a person dead needs to be reviewed
in the present circumstances, and a procedure developed based on affidavits
by the next-of-kin and their neighbours or other reliable persons. The
Commission further recommends that the State Government expeditiously
publish the data that is compiled, on a district-wise basis. This would
not only assist the survivors in receiving the compensation and benefits
that is their due, but also set to rest speculation about the number
of persons killed or missing, and the widespread belief that there is
a serious discrepancy between 'official' and 'unofficial' figures. A
comparable recommendation by the Commission in respect of casualties
after the Super-Cyclone in Orissa and the earthquake in Gujarat greatly
assisted both the State and the affected population to arrive at the
truth and to avoid painful controversy.
Analysis of material collected
by NGOs and others
The Commission had recommended
that material collected by NGOs such as Citizen's Initiative, PUCL and
others should be used. The response of the State Government indicates
that such material, provided by different organizations will be investigated
and, if found to be correct upon investigation, appropriately used in
accordance with law. The Commission has taken note of this and will
be monitoring the action taken by the State Government, particularly
in respect of certain critically important cases and of those involving
crimes against women and children which have been extensively documented
by NGOs and citizens groups. The Commission has also asked its Special
Representative to keep it informed of developments in regard to these
cases, the details of which are available in the widely circulated reports
of these NGOs and citizens groups. The reports thus far received do
not suggest that the State Government is acting with adequate diligence
on this matter.
Provocative Statements
The Commission had drawn
special attention to the provocative statements made by persons to the
electronic or print media, especially the local media, and had urged
that these be examined and acted upon, the burden of proof being shifted
to such persons to explain or contradict their statements. The response
of the State Government merely states that such statements "will
be examined and acted upon appropriately." It does not indicate
which statements are being examined, nor does it provide the details
of the action being taken under the provisions of the Indian Penal Code
and other relevant acts to bring to book those individuals or organizations
that have been making incendiary statements, or publishing articles
or leaflets promoting communal enmity. The Commission would like to
receive all relevant details of the persons or organizations identified
by the State Government in this connection and of the statements or
actions for which they are being prosecuted. Only then will the Commission
be able to arrive at a conclusion as to whether the State Government
has acted appropriately in respect of this most serious matter. A further
detailed report from the State Government would therefore be appreciated
in this respect.
Identification of delinquent
public servants
The Commission had expressly
called for the identification of officers who had failed to discharge
their statutory responsibilities appropriately and for proceedings to
be instituted against them. Likewise, the Commission had added that
those who had performed their duties well, should be commended. The
State Government has stated that it will be guided by the findings of
the Commission of Inquiry appointed by the State Government. It adds
that "some of the officers who have performed their duties commendably
have already been rewarded appropriately." The Commission is of
the view that action against the delinquent public servants need not,
in all instances, await the outcome of the Commission of Inquiry. In
situations such as prevailed in Gujarat, the swiftness and effectiveness
of the action taken against delinquent public servants itself acts as
a major deterrent to misconduct or negligence in the performance of
duty. It also acts as a catalyst to the restoration of public confidence
and as an indication of the good faith of the Administration. Failure
to take prompt action has the opposite effect. The Commission therefore
recommends that prompt action be taken against the delinquent public
servants and that the progress in the action initiated be communicated
to the Commission.
II. Proper Implementation
of Existing Statutory Provisions, Circulars and Guidelines
Communal riots are not new
to India and least of all so to Gujarat, as the responses of the State
Government themselves indicate. The Commission would therefore like
to stress that there already exists in the country a comprehensive body
of material in the form of statutory provisions, circulars, guidelines.
With the help of these provisions, circulars and guildelines the gujarat
government could and should have drawn upon to deal swiftly and effectively
with the violence that ensued. The performance of the authorities, however,
points to a less than vigorous use of these provisions.
In drawing attention to the
Circulars, Guidelines and Reports , the Commission would like to underline
its sense of anguish that, despite the existence of such thorough and
far-reaching advice on how to handle incidents of communal violence,
the Government of Gujarat has conspicuously failed to act in accordance
with the long-standing provisions of these important instructions and
that, measured against the standards set by them, the performance of
the State appears to be severely wanting.
The Commission believes that
there is need for careful introspection within the State Government
in this respect; the shortcomings in its performance need to be analyzed,
inter alia, in the light of the statutory provisions, circulars and
guidelines, and a detailed report based on that analysis should be made
available by the State Government to the Ministry of Home Affairs, Government
of India, and to this Commission for their consideration.
The report should indicate
the precise conclusions that the State Government has reached, and the
steps that it intends to take, to prevent the recurrence of the type
and range of failures that have marred the performance of the State
in the handling of the tragic events that occurred recently. The report
should also indicate clearly what steps the Government intends to take
against those who are responsible for these multiple failures, identifying
the delinquent public servants, and others in authority, without equivocation.
III. Camps
The Commission had recommended
that the camps should be visited by senior political leaders and officers
in a systematic way, that NGOs should be involved in the process, and
that the management and running of camps should be marked by transparency
and accountability. The State Government has, in its response, recounted
the number of visits made, the medical, para-medical, sweepers, anganwadi
and other staff appointed/deployed, the medicines distributed etc.
The Commission has taken
note of these efforts. It would, however, like to draw particular attention
to the following matters:
(i) There is a manifest need
to improve sanitary conditions in the camps, and increase the provision
of toilets and water supply. Particular care must be taken of the needs
of women, for whom special facilities should be provided. There should
be a reasonable ratio prescribed of toilets and bathing places to population.
(ii) Particular vigilance
must be ensured to prevent the spread of epidemics, measles and other
illnesses having already taken a toll.
(iii) While the response
of the State Government indicates the quantity of food-grains, pulses,
etc., supplied to the camps in 8 districts, it does not indicate the
standards adopted in providing essential food-items. These standards
must accord with the minimal nutritional levels set by WHO/UNICEF and
the competent Ministries of the Government of India in situations such
as this. There have been alarming reports of arbitrary reductions in
the quantity of foodstuffs being provided.
(iv) Given the scorching
heat of summer, and the imminent monsoon that will follow, there is
an immediate and most critical need to provide semi-permanent structures
and better protection against the elements. Standards must also be set
for the provision of fans etc., in terms of population, in order to
ease the suffering of those who have sought refuge in the camps.
(v) Camp-wise monitoring
committees should be appointed to watch over each of the camps.
(vi) The role and functions
of NGOs should be more clearly defined than has been the case till now.
Private sector organizations and business houses should be encouraged
to 'adopt' certain camps, or specific activities within them, e.g.,
the provision of medicines, the improvement of shelter, sanitary conditions,
etc.
(vii) The reports of the
Secretary-level officers appointed to monitor work in the camps should
be recorded on a prescribed form, and be available to the public as
also to the Special Representative of the Commission in Gujarat.
(viii) An adequate number
of trauma specialists should be sent to the camps and other distressed
areas for the counseling and treatment of victims.
(ix) Procedures should be
simplified for obtaining death certificates and ownership certificates,
in order to expedite the giving of compensation. Time-frames should
be set for the settlement of claims and the survey of townships and
villages that have been affected. These should be indicated to the public
and to this Commission. There are disturbing reports that the compensation
being announced for damaged homes and properties is being arbitrarily
fixed and serving as a disincentive to victims to start their lives
anew. This should be urgently looked into by the State Government which
should establish credible mechanisms for assessing damages done to homes
and items of property and ensure that those who have suffered receive
fair and just compensation.
(x) Confidence building measures
should be elaborated and made public, in order to facilitate the return
of camp inmates and others who have fled, to their homes and work. Leadership
must be provided by the highest echelons of the State Administration.
(xi) The Commission has noted
the assurance given by the State Government, in its response of 12 April
2002, and reiterated subsequently in media reports to the effect that
the inmates will not be asked to leave the camps until appropriate relief
and rehabilitation measures are in place for them and they feel assured,
on security grounds, that they can indeed leave the camps and return
to their homes.
Reports reaching the Commission,
however, still point to pressures being exerted on the inmates, or conditions
in some camps being so inhospitable, that inmates have felt compelled
to leave the camps and seek refuge with family or friends. The Commission
recommends once again, in the circumstances, that no camp be closed
without a clear recommendation from a Committee comprising the Collector,
a representative of a reputed NGO, a representative of the camp, and
the Special Representative of the Commission in Gujarat or a nominee
of his.
IV. Rehabilitation
. (i) The Commission has
noted that the State Government, in its response of the 12 April 2002,
has accepted its recommendation "in principle" that places
of worship that have been destroyed be repaired expeditiously. However,
little has been done to start work as yet. The Commission recommends
that the full list of damaged and destroyed sites/monuments be published
district-wise. This would constitute an essential confidence-building-measure
as certain historical sites have not only been destroyed but efforts
have been made to erase any trace of them. Plans should be announced
for the future protection of historical, religious and cultural sites
in the State and the entire exercise undertaken in consonance with articles
25 to 29 of the Constitution.
(ii) The Commission has taken
note of the package of relief and rehabilitation measures announced
by the State Government, including the contribution from the Prime Minister's
Relief Fund. It has also noted that disbursement of assistance is "still
under progress." The Commission is concerned that difficulties
have arisen in obtaining death and ownership certificates and has referred
to this matter earlier in these Proceedings. Delays have also occurred
in assessing damages and paying compensation at an appropriate level.
The Commission is aware of the immense amount of work that must be done
to ensure proper relief and rehabilitation to those who have suffered.
It would, however, urge that procedures be streamlined and expedited
to deal with the issues mentioned above.
Further, as long as inmates
stay in the camps, there is need to ensure that this painful interlude
in their lives is redeemed, in part at least, by the provision of work
and training, by the maintenance of appropriate nutritional standards,
by medical and psychiatric care adequate to the demands of the situation.
Particular care should also be taken of the needs of widows, victims
of gender-related crimes, and orphans. Further, while a number of special
schemes have been announced for the victims of the violence, as indeed
they should have been, this should not imply that they should not be
eligible for the existing range of anti-poverty and employment schemes.
In other words, there should be a convergence of Government schemes
for their care.
(iii) The Commission has
noted the measures being taken to re-settle the victims. Various reports
indicate, however, that compensation for damaged property is often being
arbitrarily set at unreasonably low amounts and that pressure is being
put on victims that they can return to their homes only if they drop
the cases they have filed or if they alter the FIRs that they have lodged.
It is important to ensure that conditions are created for the return
of victims in dignity and safety to their former locations. Only if
they are unwilling to return to their original dwelling sites should
alternative sites be developed for them. The response of the State Government
of 12 April 2002 does not indicate whether it has acted upon the Commission's
recommendation that HUDCO, HDFC and international funding agencies be
approached to assist in the work for rehabilitation. The Commission
would like a further response to this.
(iv) The Commission had recommended
that the private sector, including the pharmaceutical industry should
be requested to assist in the relief and rehabilitation process. The
State Government has responded that it has not experienced any shortage
of drugs and medicines thus far. The Commission intends to continue
monitoring the situation in this and other respects through its Special
Representative, Shri Nampoothiri.
(v) The Commission has also
taken note of the response of the State Government in respect of the
Commission's recommendation that NGOs and the Gujarat Disaster Management
Authority be associated with the relief and rehabilitation work. The
plight of women and children, particularly widows, victims of rape and
orphans remains of particular concern to the Commission. It is essential
their names and other details be recorded with care and individual solutions
be pursued for each of them, whether this be for financial assistance,
shelter, medical or psychiatric care, placement in homes, or in respect
of the recording of FIRs and the prosecution of those responsible for
their suffering. The Commission intends to monitor this matter closely.
Concluding Observations
The tragic events in Gujarat,
starting with the Godhra incident and continuing with the violence that
rocked the State for over two months, have greatly saddened the nation.
There is no doubt, in the opinion of this Commission, that there was
a comprehensive failure on the part of the State Government to control
the persistent violation of the rights to life, liberty, equality and
dignity of the people of the State. It is, of course, essential to heal
the wounds and to look to a future of peace and harmony. But the pursuit
of these high objectives must be based on justice and the upholding
of the values of the Constitution of the Republic and the laws of the
land. That is why it remains of fundamental importance that the measures
that require to be taken to bring the violators of human rights to book
are indeed taken.
The Commission has noted
that there has been a decline in the incidents of violence in the past
three weeks and that certain positive developments have taken place
since the start of May 2002. However, as these Proceedings indicate,
much remains to be done, and the integrity of the administration must
be restored and sustained if those who have suffered are to be fully
restored in their rights and dignity.
The Commission will therefore
continue to monitor the situation with care, and it calls upon the Government
of Gujarat to report to it again, by 30 June 2002, on all of the matters
covered in the Comments and Recommendations contained in these Proceedings,
including the Confidential Report of 1 April 2002 transmitted to it
earlier
The Commission would like
to close with an invocation of the thoughts of Mahatma Gandhi and Sardar
Vallabhbhai Patel who, born in Gujarat, illuminated the life of the
country with their wisdom, foresight and courage.
Gandhiji once observed:
"It has always been a mystery to me how men can feel themselves
honoured by the humiliation of their fellow beings."
He also said:
"Peace will not come out of a clash of arms but out of justice
lived and done."
And the comments of Sardar
Patel, who chaired the Advisory Committee of the Constituent Assembly
charged with the drafting of the articles on Fundamental Rights, are
also of the deepest significance. The issue then was this: in the years
preceding Independence, detractors of the National Movement, including
elements of the retreating colonial power, repeatedly claimed that the
minorities of India could not possibly find justice at the hands of
other Indians. Sardar Patel was determined to refute this politically
motivated assessment of the character of the country. Accordingly, on
27 February 1947, at the very first meeting of the Advisory Committee
of the Constituent Assembly on Fundamental Rights, Minorities and Tribals
and Excluded areas, Sardar Patel asserted:
"It is for us to prove that it is a bogus claim, a false claim,
and that nobody can be more interested than us, in India, in the protection
of our minorities. Our mission is to satisfy every one of them
..
Let us prove we can rule ourselves and we have no ambition to rule others."
So it was that the Constitution
of the Republic included a series of articles having a bearing on the
rights of minorities - some of general applicability, others of greater
specificity. The most notable were those relating to the Right to Equality
(particularly articles 14, 15, 16 and 17), the Right to Freedom of Religion
(articles 25, 26, 27 and 28), Cultural and Educational Rights (particularly
articles 29 and 30) and, upholding them all, the Right to Constitutional
Remedies (in particular article 32).
Critical and cruel as the
communal dimension was to the tragedy of Gujarat, what was at stake,
additionally, was respect for the rights of all Indians - irrespective
of community - that are guaranteed by the Constitution. That Constitution
assures the Fundamental Rights of all who dwell in this country, on
a non-discriminatory basis, regardless of religion, race, caste, sex
or place of birth. It was this guarantee that was challenged by the
events in Gujarat. It is for this reason that the Commission has followed
developments in that State closely, and that it will continue to monitor
the situation for as long as is needed.
(Justice J.S. Verma)
Chairperson
(Justice K. Ramaswamy)
Member
(Justice Sujata V. Manohar)
Member
(Virendra Dayal)
This is an edited version. For a full version of the report go to http://nhrc.nic.in/