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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/