National Human Rights Commission, New Delhi, India
|
National Human Rights Commission, New Delhi, India |
| NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAWAN NEW DELHI Name of the
complainant
:
Suo motu Case No.
:
1150/6/2001-2002 Date
:
1
March, 2002 CORAM
Justice Shri J.S.Verma, Chairperson
Dr. Justice K.Ramaswamy, Member
Justice Mrs. Sujata V. Manohar, Member
Shri Virendra Dayal, Member PROCEEDINGS
This matter is registered for suo motu action on the basis of media reports, both
print and electronic. In addition, a request
on e-mail has also been received requesting this Commission to intervene.
This matter relates to the existing serious situation in the State of Gujarat. The news items report a communal flare-up in the
State of Gujarat and what is more disturbing, they suggest inaction by the police force
and the highest functionaries in the State to deal with this situation. In view of the
urgency of the matter, it would not be appropriate for this Commission to stay its hand
till the veracity of these reports has been established; and it is necessary to proceed
immediately assuming them to be prima facie correct.
The situation, therefore, demands that this Commission take note of these
facts and steps-in to prevent any negligence in the protection of human rights of the
people in the State of Gujarat irrespective of their religion.
Issue notice by FAX today to the Chief Secretary and Director General of Police,
Gujarat for their reply within three days indicating the measures being taken and in
contemplation to prevent any further escalation of the situation in the State of Gujarat
which is resulting in continued violation of human rights of the people. (Justice J.S.Verma) Chairperson (Justice K.Ramaswamy) Member (Justice Sujata V.Manohar) Member (Virendra Dayal) Member |
 |
| NATIONAL
HUMAN RIGHTS COMMISSION SARDAR
PATEL BHAWAN NEW DELHI Case No. :1150/6/2001-2002 Date
:6 March, 2002 CORAM Justice Shri J.S.Verma, Chairperson Dr.Justice K.Ramaswamy, Member Justice Mrs. Sujata V. Manohar, Member Shri Virendra Dayal, Member PROCEEDINGS On 4 March, 2002 the Secretary General was requested to send a copy of the Commission’s notice dated 1 March, 2002 to Shri P.G.J.Nampoothiri, Special Representative, N.H.R.C. for his information. Shri Nampoothiri was also requested to send a report on the subject, involving in that exercise also other members of the Group constituted by the Commission for monitoring the rehabilitation work after the recent earth-quake in Kutch.
In the meantime, a large number of media reports have appeared which are distressing and
appear to suggest that the needful has not yet been done completely by the Administration.
There are also media reports attributing certain statements to the Police Commissioner and
even the Chief Minister of Gujarat which, if true, raise serious questions relating to
discrimination and other aspects of governance affecting human rights. We had expected a detailed reply from the Government of
Gujarat by now in response to the notice issued by FAX on 1 March, 2002 but,
the same has not yet come, and, instead, there is a request from the Chief Secretary,
Gujarat for grant of further time of 15 days stating that ‘as most of the State machinery is busy with the
law and order situation, it would take some time to collect the information and compile
the report’. May be, preparation of a comprehensive report requires some
more time, but, at least, a preliminary report indicating the action so far taken and that
in contemplation, should have been sent together with an assurance of the State Government
of strict implementation of the rule of law. The Commission is constrained to record its disappointment that even this has not yet been done by the Government of Gujarat in a matter of such urgency and significance, even when the unfortunate incidents have led the Hon. Prime Minister also to describe the happenings as a matter of national shame. In these circumstances, the Commission expects from the Government of Gujarat a comprehensive response at the earliest.
Copy of these documents be sent along with a copy of this proceedings to the Chief
Secretary and to Shri P.G.J. Nampoothiri, Special Representative, NHRC.
(Justice
J.S.Verma) Chairperson
(Justice K.Ramaswamy) Member (Justice
Sujata V.Manohar) Member
(Virendra Dayal) Member |
|
Orders Proceedings of the Commission 1 April 2002 Coram Chairperson Mrs. S.V.M.J., Member Shri V.D., Member
The Commission considered the
Report of its team headed by the Chairperson relating to the visit to Gujarat from 19-22
March 2002 and directed that it be kept in a sealed cover for confidentiality at present,
with the Secretary General.
The Commission then drew up the proceedings containing some preliminary comments
and urgent recommendations which need to be recorded without delay in national interest
and addressed to by the Government of Gujarat and the Government of India. A copy of the
proceedings together with a copy of the above Report (marked confidential) be sent by the
Secretary General to the Chief Secretary, Gujarat and the Home Secretary, Ministry of Home
Affairs, Government of India requesting them for the response/ comments of the State
Government and Government of India within two weeks to enable further consideration of
this matter by the Commission without any avoidable delay.
In view of the reported visit of the Hon’ble Prime Minister to Gujarat on 4
April 2002, and to facilitate his task, the Chairperson is requested to send a copy of
this proceedings and of the Report (marked confidential) to the Hon’ble Prime
Minister.
In the meantime, all the material received so far and hereafter pertaining to this
matter be compiled to enable further consideration of the matter in the light of the
entire material and the further response received from the State Government and the
Government of India. Chairperson Justice Sujata V. Manohar, Member Virendra Dayal, Member |
|
|
NATIONAL HUMAN RIGHTS
COMMISSION SARDAR PATEL BHAVAN NEW
DELHI Name of the complainant
: Suo
motu Case No.
: 1150/6/2001-2002 CORAM
Justice Shri J.S. Verma, Chairperson
Justice Smt. Sujata V. Manohar, Member
Shri Virendra Dayal, Member PROCEEDINGS 1.
These Proceedings on the situation in Gujarat are being recorded in
continuation of earlier Proceedings of the Commission dated 1 and 6 March 2002. They also follow upon a visit of the Chairperson
of the Commission to Gujarat between 19-22 March 2002, during which mission he was
accompanied by the Secretary-General of the Commission, Shri P.C. Sen, the Special
Rapporteur of the Commission, Shri Chaman Lal, and his Private Secretary, Shri Y.S.
Murthy. During the course of that mission,
the team visited Ahmedabad, Vadodara and Godhra and held intensive discussions, inter
alia, with the Chief Minister, Chief Secretary and senior officers of the State, eminent
citizens, including retired Chief Justices and Judges of High Courts, former civil
servants, leaders of political parties, representatives of NGOs and the business
community, numerous private citizens and, most importantly, those who were the victims of
the recent acts of violence. 2.
In his meeting with the Chief Secretary and senior officers of the
State Government, the Chairperson explained the purpose and timing of his visit. He indicated that he had not visited the State
earlier in order not to divert the attention of the State authorities from the tasks in
which they were engaged. However, the visit
could not be further delayed as normalcy had not been restored in the State despite the
passage of three weeks since the tragic events in Godhra.
It was the concern of the Commission to see an end to the violence that was
occurring and a restoration of normalcy. The
Chairperson added that it was the role of the Commission to serve as a facilitator to
improve the quality of governance, as a proper respect for human rights depended on such
governance. This duty had been performed by
the Commission in earlier instances too, notably after the Orissa cyclone and the Gujarat
earthquake. As then, it was now the
responsibility of the Commission to ensure that the violation of human rights ceased, that
further violations were prevented and that those who were victims were expeditiously
rehabilitated and their dignity restored. 3.
The Commission would like to emphasize that the present Proceedings contain
the Preliminary Comments of the Commission on the situation in Gujarat. Likewise, the Recommendations that it
contains are of an immediate character and constitute the minimum that needs to be said at
this stage. 4.
This is because the report of the team that visited Gujarat is
being sent under separate cover, confidentially, both to the Central and State
Governments, and it would be appropriate to wait for their response to it before
commenting in greater length on the situation or setting out comprehensive
recommendations. 5.
Further, while the team was able to meet with a considerable range of persons
concerned with the situation in Gujarat who were desirous of meeting with it, the numbers
of such persons was vast and it was not possible for the team, within the constraints of
the time available and the circumstances prevailing on the ground, to meet individually
with all of those who sought to interact with it. The
team therefore encouraged those who wished to meet with it to do so, if possible, in
groups and also to submit their views and concerns in writing. Numerous and voluminous written representations
have thus been received by the Commission, both from groups and from individuals, during
the visit of the team to Gujarat and subsequently. These
have been and are being carefully examined. They
have been of great value to the Commission in the recording of the Preliminary Comments
and Recommendations contained in these Proceedings and their further analysis and study
will contribute immensely to subsequent Proceedings of the Commission. 6.
On 28 March 2002, the Commission also received a response from the Government of
Gujarat to a notice that it had sent on 1 March 2000; it was entitled “Report on the
incidents in Gujarat after the burning of the Sabarmati Express Train on 27th February
2002,” and came with three Annexures A, B and C, providing details respectively on
the “Law and Order Measures” taken by the State Government; the “Rescue,
Relief and Rehabilitation Measures;” and a “Response to Press Clippings”
that had been sent by the Commission to the State Government for comment. The Report of the State Government, hereinafter
referred to as ‘the Report,’ has been carefully examined and taken into account
in drafting the present Proceedings. 7.
The Commission would like to emphasize that these Proceedings must therefore be seen
as part of a continuing process to examine and address the human rights situation
prevailing in Gujarat beginning with the Godhra tragedy and continuing with the violence
that ensued subsequently. In this
respect, the Proceedings in this case bear some similarity to the manner in which the
Commission kept the situation under review, monitoring and commenting on it as the need
arose, following both the super-cyclone in Orissa in 1999 and the earthquake in Gujarat in
2001. 8.
There is, however, a fundamental difference as well.
The earlier instances arose from catastrophic natural disasters which subsequently
required a monitoring of the performance of the State to ensure that the rights of all,
particularly those of the most vulnerable, were respected.
In the present instance, however, the death and destruction sadly resulted from the
inhumanity of human beings towards other human beings, and the large-scale violation of
human rights. This therefore requires a
response from the Commission of a qualitatively different kind. 9.
The Commission would like to observe that the tragic events that have
occurred have serious implications for the country as a whole, affecting both its sense of
self-esteem and the esteem in which it is held in the comity of nations. Grave questions arise of fidelity to the
Constitution and to treaty obligations. There
are obvious implications in respect of the protection of civil and political rights, as
well as of economic, social and cultural rights in the State of Gujarat as also the
country more widely; there are implications for trade, investment, tourism and employment. Not without reason have both the President and the
Prime Minister of the country expressed their deep anguish at what has occurred,
describing the events as a matter of national shame.
But most of all, the recent events have resulted in the violation of the
Fundamental Rights to life, liberty, equality and the dignity of citizens of India as
guaranteed in the Constitution. And that,
above all, is the reason for the continuing concern of the Commission. 10.
It would now be appropriate and useful to recall the background to the involvement
of the Commission in this matter. 11.
The Commission took suo motu action on the situation in Gujarat on 1 March 2002 on the
basis of media reports, both print and electronic. In
addition, it had also received a request by e-mail, asking it to intervene. 12.
In its Proceedings of that date, the Commission inter alia observed that the news items
reported on a communal flare-up and, more disturbingly, suggested inaction by the police
force and the highest functionaries in the State to deal with the situation. The Commission added: “In
view of the urgency of the matter, it would not be appropriate for this Commission to stay
its hand till the veracity of these reports has been established; and it is necessary to
proceed immediately assuming them to be prima facie correct. The situation therefore demands that the
Commission take note of these facts and steps-in to prevent any negligence in the
protection of human rights of the people of the State of Gujarat irrespective of their
religion.” 13.
Notice was accordingly issued on 1 March 2002 to the Chief Secretary and Director
General of Police, Gujarat, asking “for
their reply within three days indicating the measures being taken and in contemplation to
prevent any further escalation of the situation in the State of Gujarat which is resulting
in continued violation of human rights of the people.” 14.
Meeting again on 6 March 2002, the Commission noted, inter alia, that it had
requested its Secretary General, on 4 March 2002, to send a copy of its 1 March notice to
its Special Representative in Gujarat, Shri Nampoothiri, for his information. The latter was also asked to send a report to the
Commission on the situation, involving in that exercise other members of the Group
constituted by the Commission to monitor the rehabilitation work in that State after the
recent earthquake in Kutch. 15.
In its Proceedings of 6 March 2002, the Commission further noted that “a
large number of media reports have appeared which are distressing and appear to suggest
that the needful has not yet been done completely by the Administration. There are also media reports attributing certain
statements to the Police Commissioner and even the Chief Minister which, if true, raise
serious questions relating to discrimination and other aspects of governance affecting
human rights.”
16.
Instead of a detailed reply from the State Government to its notice of 1 March 2002,
the Commission observed that it had received a request dated 4 March 2002, seeking a
further 15 days to report
17. The Commission’s
Proceedings of 6 March 2002 accordingly stated “May be, preparation of a
comprehensive report requires some more time, but, at least, a preliminary report
indicating the action so far taken and that in contemplation should have been sent
together with an assurance of the State Government of strict implementation of the rule of
law.”
The Commission recorded
its disappointment that even this had not been done by the Government of Gujarat in a
matter of such urgency and significance. It added that it “expects from the
Government of Gujarat a comprehensive response at the earliest.” 18. A ‘Preliminary Report’
dated 8 March 2002 was received by the Commission from the Government of Gujarat on 11
March 2002. However, it was perfunctory in character. In the meantime, the
Commission had received a fairly detailed report on the situation from its Special Group
in Gujarat, comprising its Special Representative, Shri P.G.J. Nampoothri, former Director
General of Police, Gujarat, Smt. Annie Prasad, IAS (Retd) and Shri Gagan Sethi, Director,
Jan Vikas. With violence continuing, it was in such circumstances that the
Commission decided that the Chairperson should lead a team of the Commission on a mission
to Gujarat between 19-22 March 2002. And it was pursuant to this that the detailed
Report of the State of Gujarat was received on 28 March 2002, in response to the
Commission’s notice of 1 March 2002 and the discussions held with the
team. 19. There follow below certain
Preliminary Comments and Recommendations of the Commission on the situation in
Gujarat. As indicated above, these will be followed, as required, by other
Proceedings, containing Comments and Recommendations, which will take into account the
response that will be received from the Central and State Governments to the
mission-report of the Commission’s team, a further reading and analysis of the
voluminous material that has been, and is being, submitted to the Commission, and the
situation as it develops on the ground. Preliminary Comments: 20. (i)
The Statute of the Commission, as contained in the Protection of Human Rights Act, 1993,
requires the Commission under the provisions of Section 12, to perform all or any of the
following functions, namely:- “(a) inquire, suo
motu or on a petition presented to it by a victim or any person on his behalf, into
complaint of (i) Violation of human rights or abetment thereof; or (ii) Negligence in the prevention of such violation, by a public
servant; ……… (b)
review the
safeguards provided by or under the Constitution or any law for the time being in force
for the protection of human rights and recommend measures for their effective
implementation; …….. (c)
study
treaties and other international instruments on human rights and make recommendations for
their effective implementation; …….. (d)
such other functions as it may consider necessary for the
promotion of human rights.” The term ‘human rights’ is
defined to mean the right relating to life, liberty, equality and dignity of the
individual guaranteed by the Constitution or embodied in the International Covenants and
enforceable by courts in India (Section 2(1)(d)), and the International Covenants
are defined as the “International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights adopted by the General
Assembly of the United Nations on 16th December 1966” (Section 2(1)(f)).
(ii)
It is
therefore in the light of this Statute that the Commission must examine whether violations
of human rights were committed, or were abetted, or resulted from negligence in the
prevention of such violation. It must also examine whether the acts that occurred
infringed the rights guaranteed by the Constitution or those that were embodied in the two
great International Covenants cited above. (iii)
The Commission would
like to observe at this stage that it is the primary and inescapable responsibility of the
State to protect the right to life, liberty, equality and dignity of all of those who
constitute it. It is also the responsibility of the State to ensure that such rights
are not violated either through overt acts, or through abetment or negligence. It is
a clear and emerging principle of human rights jurisprudence that the State is responsible
not only for the acts of its own agents, but also for the acts of non-State players acting
within its jurisdiction. The State is, in addition, responsible for any inaction
that may cause or facilitate the violation of human rights. (iv)
The first question that
arises therefore is whether the State has discharged its responsibilities appropriately in
accordance with the above. It has been stated in the Report of the State Government
that the attack on kar sevaks in Godhra occurred in the absence of “specific
information about the return of kar sevaks from Ayodhya” (p. 12 of the Report).
It is also asserted that while there were intelligence inputs pertaining to the movement
of kar sevaks to Ayodhya between 10-15 March 2002, there were no such in-puts concerning
their return either from the State Intelligence Branch or the Central Intelligence
Agencies (p. 5) and that the “only message” about the return of kar sevaks,
provided by the Uttar Pradesh police, was received in Gujarat on 28 February 2002 i.e.,
after the tragic incident of 27 February 2002 and even that did not relate to a possible
attack on the Sabarmati Express. (v)
The
Commission is deeply concerned to be informed of this. It would appear to constitute
an extraordinary lack of appreciation of the potential dangers of the situation, both by
the Central and State intelligence agencies. This is the more so given the history
of communal violence in Gujarat. The Report of the State Government itself states: “The State of Gujarat has a long
history of communal riots. Major riots have been occurring periodically in the State since
1969. Two Commissions of Inquiry viz., the Jagmohan Reddy Commission of Inquiry,
1969, and the Dave Commission of Inquiry, 1985, were constituted to go into the widespread
communal violence that erupted in the State from time to time. Subsequently, major
communal incidents all over the State have taken place in 1990 and in 1992-93 following
the Babri Masjid episode. In fact, between 1970 and 2002, Gujarat has witnessed 443
major communal incidents. Even minor altercations, over trivial matters like kite
flying have led to communal violence.” (p. 127).
The Report adds that the Godhra incident
occurred at a time when the environment was already surcharged due to developments in
Ayodhya and related events (also p. 127).
Indeed, it has been reported to the
Commission that, in intelligence parlance, several places of the State have been
classified as communally sensitive or hyper-sensitive and that, in many cities of the
State, including Ahmedabad, Vadodara and Godhra, members of both the majority and minority
communities are constantly in a state of preparedness to face the perceived danger of
communal violence. In such circumstances, the police are reported to be normally
well prepared to handle such dangers and it is reported to be standard practice to alert
police stations down the line when sensitive situations are likely to develop.
(vi)
Given the above, the
Commission is constrained to observe that a serious failure of intelligence and action by
the State Government marked the events leading to the Godhra tragedy and the subsequent
deaths and destruction that occurred. On the face of it, in the light of the history
of communal violence in Gujarat, recalled in the Report of the State Government itself,
the question must arise whether the principle of ‘res ipsa loquitur’ (‘the
affair speaking for itself’) should not apply in this case in assessing the degree of
State responsibility in the failure to protect the life, liberty, equality and dignity of
the people of Gujarat. The Commission accordingly requests the response of the
Central and State Governments on this matter, it being the primary and inescapable
responsibility of the State to protect such rights and to be responsible for the acts not
only of its own agents, but also for the acts of non-State players within its jurisdiction
and any inaction that may cause or facilitate the violation of human rights. Unless
rebutted by the State Government, the adverse inference arising against it would render it
accountable. The burden is therefore now on the State Government to rebut this
presumption. (vii)
An ancilliary question that arises
is whether there was adequate anticipation in regard to the measures to be taken, and
whether these measures were indeed taken, to ensure that the tragic events in Godhra would
not occur and would not lead to serious repercussions elsewhere. The Commission has
noted that many instances are recorded in the Report of prompt and courageous action by
District Collectors, Commissioners and Superintendents of Police and other officers to
control the violence and to deal with its consequences through appropriate preventive
measures and, thereafter, through rescue, relief and rehabilitation measures. The
Commission cannot but note, however, that the Report itself reveals that while some
communally-prone districts succeeded in controlling the violence, other districts –
sometimes less prone to such violence – succumbed to it. In the same vein, the
Report further indicates that while the factors underlining the danger of communal
violence spreading were common to all districts, and that, “in the wake of the call
for the ‘Gujarat Bandh’ and the possible fall-out of the Godhra incident, the
State Government took all possible precautions” (p. 128), some districts withstood
the dangers far more firmly than did others. Such a development clearly points to
local factors and players overwhelming the district officers in certain instances, but not
in others. Given the widespread reports and allegations of groups of well-organized
persons, armed with mobile telephones and addresses, singling out certain homes and
properties for death and destruction in certain districts – sometimes within view of
police stations and personnel – the further question arises as to what the factors
were, and who the players were in the situations that went out of control. The
Commission requests the comments of the State Government on these matters. (viii)
The Commission has noted that while the Report states that the Godhra incident was
“premeditated” (p. 5), the Report does not clarify as to who precisely was
responsible for this incident. Considering its gruesome nature and catastrophic
consequences, the team of the Commission that visited Godhra on 22 March 2002 was
concerned to note from the comments of the Special IGP, CID Crime that while two cases had
been registered, they were being investigated by an SDPO of the Western Railway and that
no major progress had been made until then. In the light of fact that numerous
allegations have been made both in the media and to the team of the Commission to the
effect that FIRs in various instances were being distorted or poorly recorded, and that
senior political personalities were seeking to ‘influence’ the working of police
stations by their presence within them, the Commission is constrained to observe that
there is a widespread lack of faith in the integrity of the investigating process and the
ability of those conducting investigations. The Commission notes, for instance, that in
Ahmedabad, in most cases, looting was “reported in well-to-do localities by
relatively rich people” (p. 130). Yet the Report does not identify who these
persons were. The conclusion cannot but be drawn that there is need for greater
transparency and integrity to investigate the instances of death and destruction
appropriately and to instil confidence in the public mind. (ix)
The Report takes the
view that “the major incidents of violence were contained within the first 72
hours.” It asserts, however, that “on account of widespread reporting both
in the visual as well as the electronic media, incidents of violence on a large-scale
started occurring in Ahmedabad, Baroda cities and some towns of Panchmahals, Sabarkantha,
Mehsana, etc” in spite of “all possible precautions having been taken” (p.
128-129). The Report also adds that various comments attributed to the Chief
Minister and Commissioner of Police, Ahmedabad, among others, were torn out of context by
the media, or entirely without foundation. (x)
As
indicated earlier in these Prceedings, the Commission considers it would be naïve for it
to subscribe to the view that the situation was brought under control within the first 72
hours. Violence continues in Gujarat as of the time of writing these
Proceedings. There was a pervasive sense of insecurity prevailing in the State at
the time of the team’s visit to Gujarat. This was most acute among the victims
of the successive tragedies, but it extended to all segments of society, including to two
Judges of the High Court of Gujarat, one sitting and the other retired who were compelled
to leave their own homes because of the vitiated atmosphere. There could be no
clearer evidence of the failure to control the situation. (xi)
The Commission has,
however, taken note of the views of the State Government in respect of the media.
The Commission firmly believes that it is essential to uphold the Right to Freedom of
Speech and Expression articulated in Article 19(1)(a) of the Constitution, which finds
comparable provision in Article 19 of the Universal Declaration of Human Rights, 1948 and
Article 19 of the International Covenant on Civil and Political Rights, 1966. It is
therefore clearly in favour of a courageous and investigative role for the media. At
the same time, the Commission is of the view that there is need for all concerned to
reflect further on possible guidelines that the media should adopt, on a
‘self-policing’ basis, to govern its conduct in volatile situations, including
those of inter-communal violence, with a view to ensuring that passions are not inflamed
and further violence perpetrated. It has to be noted that the right under Article
19(1)(a) is subject to reasonable restrictions under Article 19(2) of the Constitution. (xii)
The Commission has noted the
contents of the Report on two matters that raised serious questions of discriminatory
treatment and led to most adverse comment both within the country and abroad. The
first related to the announcement of Rs. 2 lakhs as compensation to the next-of-kin of
those who perished in the attack on the Sabarmati Express, and of Rs. 1 lakh for those who
died in the subsequent violence. The second related to the application of POTO to
the first incident, but not to those involved in the subsequent violence. On the
question of compensation, the Commission has noted from the Report that Rs. 1 lakh will be
paid in all instances, “thus establishing parity.” It has also noted that,
according to the Report, this decision was taken on 9 March 2002, after a letter was
received by the Chief Minister, “on behalf of the kar sevaks,” saying “that
they would welcome the financial help of Rs. 1 lakh instead of Rs. 2 lakhs to the bereaved
families of Godhra massacre” (see p. 115). This decision, in the view of the
Commission, should have been taken on the initiative of the Government itself, as the
issue raised impinged seriously on the provisions of the Constitution contained in
Articles 14 and 15, dealing respectively with equality before the law and equal protection
of the laws within the territory of India, and the prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth. The Commission has also
noted the contents of the Report which state that “No guidelines were given by the
Home Department regarding the type of cases in which POTO should or should not be
used” and that, subsequent to the initial decision to apply POTO in respect of
individual cases in Godhra, the Government received legal advice to defer “the
applicability of POTO till the investigation is completed” (pp. 66-67). The
Commission intends to monitor this matter further, POTO having since been enacted as a
law. (xiii)
The Commission has taken good note of the “Rescue, Relief and Rehabilitation
Measures” undertaken by the State Government. In many instances, strenuous
efforts have been made by Collectors and other district officers, often acting on their
own initiative. The Commission was informed, however, during the course of its
visit, that many of the largest camps, including Shah-e-Alam in Ahmedabad, had not
received visits at a high political or administrative level till the visit of the
Chairperson of this Commission. This was viewed by the inmates as being indicative
of a deeper malaise, that was discriminatory in origin and character. Unfortunately,
too, numerous complaints were received by the team of the Commission regarding the lack of
facilities in the camps. The Commission has noted the range of activities and
measures taken by the State Government to pursue the relief and rehabilitation of those
who have suffered. It appreciates the positive steps that have been taken and
commends those officials and NGOs that have worked to ameliorate the suffering of the
victims. The Commission, however, considers it essential to monitor the on-going
implementation of the decisions taken since a great deal still needs to be
done. The Commission has already indicated to the Chief Minister that a
follow-up mission will be made on behalf of the Commission at an appropriate time and it
appreciates the response of the Chief Minister that such a visit will be welcome and that
every effort will be made to restore complete normalcy expeditiously. (xiv)
In the light of the above, the Commission is duty bound to continue to follow developments
in Gujarat consequent to the tragic incidents that occurred in Godhra and elsewhere.
Under its Statute, it is required to monitor the compliance of the State with the rule of
law and its human rights obligations. This will be a continuing duty of the
Commission which must be fulfilled, Parliament having established the Commission with the
objective of ensuring the “better protection” of human rights in the country,
expecting thereby that the efforts of the Commission would be additional to those of
existing agencies and institutions. In this task, the Commission will continue to
count on receiving the cooperation of the Government of Gujarat, a cooperation of which
the Chief Minister has stated that it can be assured.
Recommendations21.
The Commission
now wishes to make a first set of Recommendations for the immediate consideration of the
Central and State Governments. As indicated earlier, once a response has been
received from these Governments on the report of the visit of the Commission’s team
to Gujarat, and a full analysis made of the numerous representations received by the
Commission, additional Proceedings will be recorded by the Commission on the situation in
Gujarat, offering further Comments and Recommendations. I. Law & Order
(i) In view of the widespread allegations that FIRs have been poorly or wrongly recorded and that investigations are being ‘influenced’ by extraneous considerations or players, the Commission is of the view that the integrity of the process has to be restored. It therefore recommends the entrusting of certain critical cases to the CBI. These include the cases relating to the · Godhra incident, which is at present being investigated by the GRP; · Chamanpura (Gulbarga Society) incident; · Naroda Patiya incident; · Best Bakery case in Vadodara; and the · Sadarpura case in Mehsana district. (ii)
The
Commission recommends that Special Courts should try these cases on a day-to-day basis,
the Judges being handpicked by the Chief Justice of the High Court of Gujarat.
Special Prosecutors should be appointed as needed. Procedures should be adopted for
the conduct of the proceedings in such a manner that the traumatized condition of many of
the victims, particularly women and children, is not aggravated and they are protected
from further trauma or threat. A particular effort should be made to depute
sensitive officers, particularly officers who are women, to assist in the handling of such
cases. (iii)
Special Cells should be
constituted under the concerned District Magistrates to follow the progress of the
investigation of cases not entrusted to the CBI; these should be monitored by the
Additional Director-General (Crime). (iv)
Specific time-frames
should be fixed for the thorough and expeditious completion of investigations. (v)
Police
desks should be set-up in the relief camps to receive complaints, record FIRs and forward
them to Police Stations having jurisdiction. (vi)
Material collected by
NGOs such as Citizen’s Initiative, PUCL and others should also be used. (vii)
Provocative statements made by persons to the electronic or print media should be examined
and acted upon, and the burden of proof shifted to such persons to explain or contradict
their statements. (viii) Given the
wide variation in the performance of public servants in the discharge of their statutory
responsibilities, action should be initiated to identify and proceed against those who
have failed to act appropriately to control the violence in its incipient stages, or to
prevent its escalation thereafter. By the same token, officers who have performed
their duties well, should be commended. II. Camps(i) Visits to camps by senior political leaders and officers should be organized in a systematic way in order to restore confidence among those who have been victimized. NGOs should be involved in the process and the management and running of the camps should be marked by transparency and accountability (ii)
Senior
officers of the rank of Secretary and above should be given specific responsibility in
respect of groups of camps. (iii)
Special
facilities/camps should be set-up for the processing of insurance and compensation
claims. The Chief Minister of the State had requested the Commission to issue an
appropriate request to insurance companies for the expeditious settlement of claims of
those who had suffered in the riots. The Commission will readily do so and
recommends that the State Government send to it the necessary details at an early date in
order to facilitate such supportive action. (iv)
Inmates should 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. III. Rehabilitation
(i)
The Commission recommends that places of worship that have been destroyed be repaired
expeditiously. Assistance should be provided, as appropriate, inter alia by the
State. (ii)
Adequate
compensation should be provided to those who have suffered. This will require an
augmentation of the funds allocated thus far, through cooperative arrangements involving
both the State and Central Governments. Efforts should be made to involve HUDCO,
HFDC and international financial and other agencies and programmes in this process. (iii)
The private sector,
including the pharmaceutical industry, should also be requested to participate in the
relief and rehabilitation process and proper coordinating arrangements established. (iv)
The role of NGOs should
be encouraged and be an intrinsic part of the overall effort to restore normalcy, as was
the case in the coordinated effort after the earthquake. The Gujarat Disaster
Management Authority, which was also deeply engaged in the post-earthquake measures,
should be requested to assist in the present circumstances as well. (v)
Special
efforts will need to be made to identify and assist destitute women and orphans, and those
subjected to rape. The Women and Child Development Department, Government of India
and concerned international agencies/programmes should be requested to help.
Particular care will need to be taken to mobilize psychiatric and counselling services to
help the traumatized victims. Special efforts will need to be made to identify and
depute competent personnel for this purpose. (vi)
The media should be
requested to cooperate fully in this endeavour, including radio, which is often
under-utilized in such circumstances. IV. Police Reform
(i) The Commission would like
to draw attention to the deeper question of Police Reform, on which recommendations of the
National Police Commission and of the National Human Rights Commission have been pending
despite repeated efforts to have them acted upon. The Commission is of the view that
recent events in Gujarat and, indeed, in other States of the country, underline 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. (Justice J.S. Verma) Chairperson (Justice Sujata V. Manohar) Member (Virendra Dayal) Member
|
|
| NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAVAN NEW DELHI
Name of the
complainant
:
Suo motu Case No.
:
1150/6/2001-2002
Justice Shri K. Ramaswamy, Member
Justice Smt Sujata V. Manohar, Member
Shri Virendra Dayal, Member PROCEEDINGS * 7.
In these circumstances, the Commission is now adopting the following procedure: 8.
In proceeding in this manner, the Commission will also keep in mind, in particular,
the reports that it has been receiving from its Special Representative in Gujarat, Shri
P.G.J. Nampoothiri, a former Director-General of Police of that State, who has been
requested by the Commission to continue to monitor the situation and to report on
developments. The State Government has been
advised of Shri Nampoothiri’s responsibilities and it has informed the competent
officers of the Government of Gujarat of this arrangement in writing. The Commission will, in addition, continue
to be mindful of the extensive coverage of developments relating to Gujarat in the print
and electronic media. 23.
As to the
12 April 2002 response of the State Government in respect of Justice Divecha, it totally
ignores any mention of the repeated efforts made by him and his associates to seek
appropriate police protection, the repeated visits of mobs to his home on 27 and 28
February, his forced departure, together with Mrs. Divecha, from their home at around
12.20 p.m. on 28 February 2002 and the fire that was set to their apartment and property
at around 4 p.m. on that day. Justice
Divecha’s letter to the Chairperson of this Commission dated 23 March 2002 (Annexure
II) speaks for itself. The fact that
criminal case no. 121/2002 was subsequently registered, that 7 arrests had been made and
that the matter was under investigation, does not explain the failure to protect Justice
Divecha. The action taken was, sadly, too
little and too late. Nor can the Commission
accept the proposition that, “As the city of Ahmedabad was engulfed by the
disturbance, it was not possible for the City Police to arrange for protection for every
society.” The Commission would like to
underline that there were communal reasons for the repeated and specifically targeted
attacks on Justice Divecha’s property. The
attacks were not a case of random violence against “every society” in the city,
as the response of the State Government would have the Commission believe. Indeed, the response betrays a considerable lack
of sensitivity in explaining what occurred. It is for this reason that the Commission must
reject as utterly inadequate the response of the State Government, as contained in its
reply of 12 April 2002, in respect of this matter. 27.
(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.
(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 28
(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.
(v)
By drawing
attention to the fundamental need for Police Reform, the Commission did not have in mind
the temporary appointment of a Security Advisor to a Chief Minister, necessary as such a
step may be, or the transfer of police personnel – sometimes for the right reasons,
but frequently for the wrong. It had in mind,
instead, the crucial reforms which are detailed in full in its submissions to the Supreme
Court in the case Prakash Singh vs. Union of India. These are fully known to the
Central and State Governments and are also published, in extenso, in the Commission’s
annual report for the year 1997-98, where they may readily be seen. Further, the Commission has in mind the judgement
of the Supreme Court in the case Vineet Narain & Others vs. Union of India &
Another (1998 1SCC 273) in which the Apex Court, inter alia, set out the method of
appointment and functioning of the Central Bureau of Investigation (CBI) and the Central
Vigilance Commission (CVC), and of a Central Prosecution Agency and went on to observe: “In view of the problem in the States
being even more acute, as elaborately discussed in the Report of the National Police
Commission (1979), there is urgent need for the State Governments also to set up a
credible mechanism for selection of Police Chiefs in the States. The Central Government must pursue the matter with
the State Governments and ensure that a similar mechanism, (as indicated above) is set up
in each State for selection/appointment, tenure, transfer and posting of not merely the
Chief of the State Police but also of all police officers of the rank of Superintendent of
Police and above. It is shocking to hear, a
matter of common knowledge, that in some States the tenure of a Superintendent of Police
is on an average only a few months and transfers are made for whimsical reasons. Apart from demoralizing the police force, it has
also the adverse effect of politicizing the personnel.
It is, therefore, essential that prompt measures are taken by the Central
Government within the ambit of their Constitutional powers in the federation to impress
upon the State Government that such a practice is alien to the envisaged constitutional
machinery. The situation described in the
National Police Commission’s Report (1979) was alarming and it has become much worse
by now. The desperation of the Union Home
Minister (then Shri Indrajit Gupta) in his letters to the State Government, placed before
us at the hearing, reveal a distressing situation which must be cured, if the rule of law
is to prevail. No action within the
constitutional scheme found necessary to remedy the situation is too stringent in these
circumstances.” 29.
(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 30.
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 31.
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 Provocative Statements
(i)
Statutory
Provisions Chapter VIII entitled “Of offences against
the public tranquility”: The Commission would, however, draw attention
in particular to the following provisions of that Chapter: ·
Section 153 – Wantonly
giving provocation with intent to cause riot – If rioting be committed, if not
committed; ·
Section 153-A –
Promoting enmity between different groups on grounds of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial to maintenance of harmony; ·
Section 153-B –
Imputations, assertions prejudicial to national integration. ·
Section 295 – Injury
or defiling place of worship with intent to insult the religion of any class; ·
Section 295-A –
Deliberate and malicious acts intended to outrage religious feelings of any class by
insulting its religion or beliefs; ·
Section 297 –
Trespassing on burial places, etc.; ·
Section 298 – Uttering
words, etc., with deliberate intent to wound religious feelings. The Commission would also draw attention to the
special relevance in Chapter XXII of Section 505 (1), (2) & (3) IPC, dealing
respectively with Statements conducing to public mischief, Statements creating or
promoting enmity, hatred or ill-will, between classes, and an Offence under sub-section
(2) committed in a place of worship, etc. ·
Section 41 – When
police may arrest without warrant; ·
Section 51 – Search of
arrested person; and ·
Section 129 –
Dispersal of assembly by use of civil force; ·
Section 130 – Use of
armed force to disperse assembly; ·
Section 131 – Power of
certain armed force officers to disperse assembly; ·
Section 144 – Power to
issue order in urgent cases of nuisance or apprehended danger. Chapter XI, dealing with Preventive
Action of the Police, contains, in particular, the following: ·
Section 149 – Police
to prevent cognizable offences; ·
Section 151 – Arrest
to prevent the commission of cognizable offences. Chapter XII concerning Information to
the Police and their Powers to Investigate, is also of relevance, particularly Section
154 pertaining to the recording of information in cognizable cases. Of particular relevance are the following
provisions: ·
Section 23 – Duties of
police officer; ·
Section 30 –
Regulation of public assemblies and processions and licensing of the same; 42.
The National Security Act, 1980, which
provides for preventive detention, is also germane to the situation that prevailed in
Gujarat, as is the Arms Act, 1959. 45.
Given the pointed relevance of those
Guidelines to the situation in Gujarat, they are being attached to these Proceedings in
full as Annexure III. In addition,
however, it is essential to highlight certain portions of those Guidelines, by reproducing
them in the main body of these Proceedings. Excerpts from the “Guidelines to
Promote Communal Harmony” 46.
From the Chapter entitled Intelligence · Paragraph 2: “The organizational
aspect of intelligence, with special reference to its adequacy, scope and efficacy, both
at the State level and in the Districts/Towns/Areas identified as
sensitive/hyper-sensitive should be thoroughly reviewed on a priority basis.” · Paragraph 8: “There is an urgent need to make use of the
intelligence feed-back so gleaned from the ground level.
To ensure this there must be at least a monthly review of intelligence at
the District level by the District Magistrate, Superintendent of Police and the Head of
District Intelligence. Such reviews should
not get ‘routinised.’ A monthly
report of the review should be sent to the State Government.” 47.
From the Chapter entitled “Periodical
Review of Communal Situation at District level and State level” · Special arrangements are recommended to ensure
that women are protected as they are “the most affected group in communal tensions or
riots” (paragraph 11), as also for “industrial areas,” as they
“may be prone to communal flare-ups” (paragraph 14). · Paragraph 15 requires: “At the
first sign of trouble, immediate steps have to be taken to isolate elements having a
non-secular outlook. Effective will needs to
be displayed by the District Authorities in the management of such situations so that ugly
incidents do not occur. Provisions of
section 153(A), 153(B), 295 to 298 and 505 of IPC and any other law should be freely used
to deal with individuals promoting communal enmity.” · Paragraph 16: “Activities of communal organizations
fomenting communal trouble, should be under constant watch of intelligence/police
authorities. Prompt action should be taken
against them at the first sign of trouble.” · Paragraph 17: Processions have been the single largest cause of
communal conflagrations. 48.
Under the Chapter entitled Stringent
Implementation of Acts relating to Religious Places, the Guidelines stress, in
particular, the need to ensure respect for the Religious Institutions (Prevention of
Misuse) Act, 1988 and the Places of Worship (Special Provisions) Act, 1991. The Guidelines also call for the
“strict enforcement of the penal provisions of these Acts” (paragraphs 25-27). 49.
The responsibility of the Press is
dealt with in the Chapter devoted to this subject. It
calls on the Press to “report incidents factually without imparting a communal colour
to them” (paragraph 30) and states that “Action should be taken against
writers and publishers of objectionable and inflammatory material aimed at inciting
communal tension.” (paragraph 31). 50.
In the “Administrative Measures”
required for dealing with serious communal disturbances, the Guidelines state that,
“as soon as a communal incident occurs, a report should be sent thereon to the
Ministry of Home Affairs immediately, mentioning, inter alia, the grant of awards for good
work or punishments for showing laxity in the district officer connected with the
incidents” (paragraph 35). The
Guidelines add “special Public Prosecutors, preferably from outside the district
concerned or in any event from outside the affected area should be appointed” (paragraph
36). 51.
The need to “Detect and Unearth”
illegal arms and to cancel arms licences issued without adequate justification is
considered in paragraph 40. 52.
Thereafter, the
“Role of the Police” is dealt with at some length. Paragraph 44 stresses the need for
“minority community members in the police force deployed in communally sensitive
areas;” it urges the “launching of special campaigns to recruit more members of
minorities in the State Police Force” and the “creation of composite battalions
of armed police which should include members of all religious communities including
SC’s/ST’s for exclusive use in maintaining communal peace and amity in sensitive
areas.” 53.
Under the heading “Punitive Action”,
the Guidelines state that “Laws relating to collective fines should be used without
fear or favour, wherever the situation warrants” (paragraph 48). It is then urged that “Crimes committed
during riots should be registered, investigated and the criminals identified and
prosecuted.” “Stringent judicial
action” is required to be taken against criminals and it should be well publicized in
order to impose “a high degree of constraint upon others” (paragraph 49). 54.
Paragraph 50
deals with Special Courts for expeditious trial and disposal of cases. It also suggests that when an Enquiry Committee/
Commission is set up, “its recommendations should be expeditiously implemented, say
within three months and the Central Government should be kept informed”. 55.
As regards “Personnel Policy,”
the Guidelines categorically state that the District Magistrate and the Superintendent of
Police “will be responsible” for maintaining communal harmony in the district (paragraph
52) and that “A mention should be made in the ACRs of DMs/SPs which should
reflect their capability in managing law and order situations, especially their handling
of communal situations” (paragraph
53). 56.
Of great importance in the Guidelines and of
clear relevance to the situation in Gujarat is the view expressed on the “Role of
Ministers/Office Bearers of Political Parties.”
Paragraph 57 states that “Ministers and office bearers of
political parties should exercise maximum restraint and self-discipline in making public
utterances on any issue concerning the communal disturbance” and paragraph 58
adds “No Minister or an office bearer of a political party should participate in any
function or a meeting or a procession which may have a bearing on religious or communal
issues. It would be best if the District
Magistrate is consulted before participating therein.” 57.
The Guidelines recapitulated above were issued
by the Government of India 18 years after the Second Report of the National Police
Commission (NPC) which, in 1979, analyzed the grave issue of Communal Riots in great
detail. Chapter XLVII of that Report
contained specific observations and recommendations which retain a high degree of
relevance to what occurred in Gujarat recently. 58.
The Second Report of the NPC recalled and
examined the work of various Commissions of Inquiry appointed earlier to look into major
incidents of communal violence, including inter alia the Raghubar Dayal Commission
(Ranchi-1967), the Madon Commission (Bhiwandi-1970), the Jaganmohan Reddy Commission
(Ahmedabad-1969) and the Balasubramanian Commission (Bihar Sharief-1981) and reached the
conclusion that there was a “pattern in the failures” to deal effectively with
the outbursts of communal violence. The
“pattern” pointed to the following “failures” (paragraphs 47.6
– 47.16): ·
A failure in timely and
accurate gathering of intelligence; ·
A failure to make a correct
assessment of the intelligence reports; ·
A failure to anticipate
trouble, and to make adequate arrangements on the ground; ·
A failure to deploy
available resources adequately and imaginatively in vulnerable areas; a tendency to
disperse the force in penny-packets without sufficient striking reserves; ·
A failure by the DM and SP
to take “quick and firm decisions” and a “growing tendency among the
district authorities to seek instructions from higher quarters, where none are
necessary”; ·
A failure of police
officers and their men to function without bias; a pattern instead of such personnel
showing “unmistakable bias against a particular community”; ·
A failure of officers to
take responsibility in dealing with a situation, “to avoid to go to a trouble spot,
or when they happen to be present there, (to) try not to order the use of force when the
situation demands, or better still slip away from the scene leaving the force
leaderless”; ·
A failure to post district
officers on “objective considerations” or for “long enough tenures”;
instead, officers “being posted and transferred due to political pressures,”
adversely affecting the discipline and moral of the force, the “spate of
transfers” undermining the “credibility of the administration.” ·
A failure to be transparent
in respect of a situation and a tendency to “hide the true-facts,” even among
senior officers. The tendency to
“minimize” the number of casualties often resulted in rumours, the populace then
choosing to believe “sources other than the administration and the government
media.” 59.
The Second Report of the National Police
Commission (NPC) then went on to make a number of powerful recommendations, many of which
were subsequently used in the Guidelines of 1997, referred to above. Among the more relevant of the NPC
recommendations, specifically in respect of communal situations, were the following: · The administration should disseminate correct information to the public through all available means. In cases of mischievous reporting, the State Government and local administration should use every weapon in the legal armory to fight obnoxious propaganda prejudicial to communal harmony (paragraphs 47.28, 47.29). ·
The authorities in dealing
with communal riots should not be inhibited, by any consideration, to adopt luke-warm
measures at the early stages; a clear distinction must be made between communal riots and
other law and order situations and “the most stringent action taken at the first sign
of communal trouble” (paragraph
47.34). ·
Officers who have
successfully controlled the situation at the initial stages with firm action should be
suitably rewarded. Immediate and
exemplary action should be taken against officers who willfully fail to go to the trouble
spot or who slip away from there after trouble has erupted
(paragraph 47.35). ·
The NPC Report
“strongly disapproves” of “the practice of posting and transfers on
political pressures.” Only specially
selected experienced officers with an image of impartiality and fair play should be posted
to communally sensitive districts (paragraph 47.36). ·
There should be a control
room in all of those places which have been identified as prone to communal trouble. Even though some information passed on to the
control room may not be useful ….. every bit of information passed on to the control
room should ….. be acted upon as if it were genuine
(paragraph 46.37). ·
Unless crimes committed are
registered, investigated and the criminals identified and prosecuted, the police would not
have completely fulfilled its role as a law enforcement agency….. The police should realize that the task of
investigation is a mandatory duty cast upon it and any indifference to this task can
attract legal sanctions (paragraph 47.47). ·
In a riot situation
registration of offences becomes a major casualty. “It
is futile to expect the victim of the crime to reach a police station risking his (her)
own life and report a crime to the police.” The
police should therefore open several reporting centers at different points in a riot-torn
area (paragraph 47.48). ·
The police forces of the
various States in the country should truly represent the social structure in the
respective States (paragraph 47.58). 60.
In drawing attention to the Circulars,
Guidelines and Reports mentioned above, 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 referred to above, 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 61.
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 of 12 April 2002, recounted the number of visits
made, the medical, para-medical, sweepers, anganwadi and other staff appointed/deployed,
the medicines distributed etc. (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 63.
(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 on 12 April 2002 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 64.
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. 65.
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. 66.
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 (Annexure I).
67.
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. 68.
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.” 69.
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.” 70.
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).
71.
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) Member
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NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAVAN NEW DELHI NAME OF THE COMPLAINANT:
Suo motu DATE
: 1 May, 2002 CORAM Justice Shri J.S. Verma,Chairperson Dr .Justice K.Ramaswamy,Member Justice Mrs. Sujata V.Manohar, Member Shri Virendra
Dayal, Member PROCEEDINGS
The above reply of Government of Gujarat does not respond to the contents of the
Confidential Report of the NHRC team
referred to. In the proceedings
dated 1April 2002. A specific reply was sought to this Report to enable further consideration of the matter, in view
of the allegations, made which are mentioned in that Report. Ordinarily, it would be in
order to proceed with the further consideration of this matter with the available
reply alone treating the contents of the Confidential Report as unrebutted. However, the Commission deems it fit to give a further
opportunity to the Government of Gujarat to
reply/comment on the specific matters mentioned I the above Report, confidentiality of
which theCommissiion continues to maintain.
Accordingly, two weeks further time is given to the Government of Gujarat to
reply/comment on the contents of the above Confidential Report of theNHRC team toenable
further consideration of this matter.In these circumstances,
the Ministry of Home Affairs, Govt. of India also is given further two weeks for its
detailed replays required earlier, covering inter alia the contents of the said
Confidential Report, already sent to it. Intimation to both be given by Fax today. Sd/-
(Justice J.S.Verma) Chairperson
Sd/- (Dr .Justice K.Ramaswamy)
Member Sd/- {Justice Mrs. Sujata V Manohar) Member Sd/-
(Virendra Dayal) Member
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NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAVAN NEW DELHI Name of the complainant
: Suo
motu Case No.
: 1150/6/2001-2002 Date
: 10 June 2002 CORAM
Justice
Shri J.S. Verma, Chairperson
Justice Shri K. Ramaswamy, Member
Justice Smt. Sujata V. Manohar, Member
Shri Virendra Dayal, Member PROCEEDINGS 1. In paragraph 6 of its
Proceedings of 31 March 2002, the Commission had observed that there had been no response
until that date from the Government of Gujarat in respect of the Confidential Report on
the visit of the team of the Commission to Gujarat between 19-22 March 2002. The
Commission had noted that this was so despite repeated oral reminders by the Commission
and assurances by the State Government that a response would soon be forthcoming. 2. In these circumstances, as recorded in paragraph 7(B) of its Proceedings of 1 May 2002, the Commission had stated:
“It
will not wait any longer for the response of the Government of Gujarat to the Confidential
Report that was sent to it on 1 April 2002, enough time and opportunity having been
provided to the State Government to comment on it. Instead, the Commission now
considers it to be its duty to release that Confidential Report in totality. It is,
accordingly, annexed to these Proceedings as Annexure I. The Commission had
earlier withheld release of the Confidential Report because it considered it appropriate
to give the State Government a full opportunity to comment on its contents, given the
sensitivity of the allegations contained in it that were made to the team of the
Commission that visited Gujarat between 19-22 March 2002. As and when the response
of the State Government to that Confidential Report is received, the Commission will also
make that public, together with the Commission’s views thereon.” 3.
On 31 May 2002, after the Commission had despatched its
Proceedings of that date, inter alia to the Chief Secretary, Government of Gujarat, the
Secretary-General of the Commission received by fax a letter dated 30 May 2002 from the
Chief Secretary, Government of Gujarat to which was attached a “Reply to the
Confidential Report of the National Human Rights Commission.” 4. The Commission has carefully considered that reply. In accordance with paragraph 7(B) of its Proceedings of 31 May 2002 that reply is being made public, together with the Chief Secretary’s letter dated 30 May 2002 (see Annexure I). 5.
The Commission does not consider that there is any need, at this stage, to express its
views on that reply since it does not add substantially to the earlier reports received
from the Government of Gujarat, notably that dated 12 April 2002. The Commission,
however, is deeply disturbed by recent press reports stating that the charge-sheets filed
thus far in respect of the Gulbarga Society and Naroda Patia incidents lack
credibility in as much as they are reported to depict the victims of violence as the
provocateurs. 6. The Commission now awaits a reply from the Government of Gujarat to its Proceedings of 31 May 2002. Upon receiving that reply, which is due by 30 June 2002, the Commission will consider the nature of any further comments that it may wish to make in regard to the situation in Gujarat, including any views that it may need to express in respect of the reply that has been received in response to its Confidential Report. (Justice J.S. Verma) Chairperson (Justice K. Ramaswamy) Member (Justice Sujata V. Manohar) Member (Virendra Dayal ) Member
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1.7.2002 ------------------------------------------------------------------------------------------------
NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAWAN NEW DELHI
Name of the complainant : Suo motuCase No.
: 1150/6/2001-2002 CORAM
Justice Shri J.S. Verma, Chairperson Dr. Justice K. Ramaswamy, Member Justice Mrs. Sujata V. Manohar,
Member Shri Virendra Dayal, Member
PROCEEDINGS 1.
In paragraph 66 of its Proceedings of 31 May 2002 in respect of
the situation in Gujarat, the Commission had indicated that it intended to continue to
monitor the situation with care and it called 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 those Proceedings, including the Confidential Report of 1
April 2002 transmitted to it earlier. 2.
Subsequently, in paragraph 3 of its Proceedings of 10 June 2002,
the Commission noted: “On 31 May, after the Commission had despatched its Proceedings of that date, inter alia to the Chief Secretary, Government of Gujarat, the Secretary-General of the Commission received by fax a letter dated 30 May 2002 from the Chief Secretary, Government of Gujarat to which was attached a reply to the Confidential Report of the National Human Rights Commission.” 3.
That reply was made public by the Commission on 12 June 2002,
together with the Chief Secretary’s letter dated 30 May 2002. 4. On 30 June 2002, the Commission received by fax a reply of that date from the Government of Gujarat to the Commission’s Proceedings of 31 May 2002. That reply will be carefully studied and the Commission will comment upon it, as needed, in the period ahead. 5. On 1 July 2002, the Commission also
received a response of that date from the Ministry of Home Affairs, Government of India to
its Proceedings of 31 May 2002 and the recommendations made therein, “so far as it
concerns the Central Government” (see Annexure
I). The Commission has taken note of that response. 6. In the meantime, however, the Commission has learnt both from its Special Rapporteur in Gujarat, Shri P.G.J. Nampoothiri, and from numerous media reports, that there are imminent plans to hold a series of Gaurav Yatras all over Gujarat from 4 July 2002 and that Jagannath Rath Yatras are scheduled to be held on 12 July 2002 in over 70 locations of the State. 7. The reports indicate that there is a
widespread apprehension both within sections of the Administration and among members of
the public that this could re-ignite communal violence in the State. Of particular
concern is the situation in Ahmedabad and Bhavnagar which, in the view of Shri
Nampoothiri, Special Rapporteur of the Commission, and a former Director General of Police
of Gujarat, have “a distinct potential for disturbing communal peace.” Shri
Nampoothiri has recalled that large-scale rioting occurred in Ahmedabad in 1985 and 1992
at the time of the Jagannath Rath Yatra and that such violence had also occurred twice in
Bhavnagar. Indeed, in 1985 in Ahmedabad, despite the police having persuaded the
organizers to cancel the event in view of the on-going disturbances in the State, on the
appointed day, a full procession was held, defying the police ban. Shri Nampoothiri
adds that “though the army had been deployed in the city, the procession passed
through sensitive areas resulting in large-scale rioting.” 8. Given this unfortunate history, of
which the authorities in the Centre and State are fully aware, the Commission urges all
concerned – including non-State actors in Gujarat – to behave in such a way that
the peace is not disturbed and innocent residents of the State are not exposed, yet again,
to violence or the threat of violence. Apprehensions have also been expressed that
the Gaurav Yatras being planned might be countered by rival rallies and that, as a
result, the situation could become volatile for this reason as well. The Commission
trusts that this danger, too, will be avoided and contained by the Government and others
concerned. The Commission recalls that, when its team visited Gujarat between 19-22
March 2002, an appeal was made by its Chairperson that the ‘Asthi-kalash Yatra’
planned from 27 March 2002, in the wake of the Godhra tragedy, be not proceeded
with. At that time the Chief Minister had personally intervened to have that
programme withdrawn. The Commission therefore expects that all due care will
be taken by the State Government in the coming days - both at the political and at the
administrative levels - to prevent situations arising that have the potential to endanger
lives and property and that can lead to the violation of human rights. 9. The Commission would like to recall,
in this connection, certain positions that it took in its Proceedings of 1 April 2002,
when it held, inter alia, that: “…. it is the primary responsibility of the State to protect the right to life, liberty, equality and dignity of all those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence.” The Commission then added that: “…. it is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.” 10. The Commission would, further, like to draw
attention to its Proceedings of 31 May 2002, in which it underlined the unambiguous duty
of the police and the magistracy to fulfil their statutory responsibilities under the laws
of the land and in accordance with the circulars and guidelines already issued by the
Central Government on matters relating to the promotion of communal harmony and the
maintenance of law and order. As those responsibilities and the relevant statutory
provisions, circulars and guidelines are detailed fully in the Commission’s
Proceedings of 31 May 2002, they are not being repeated here. Suffice it to say,
however, that those laws and directives clearly lay down the manner in which the police
and magistracy are expected to function and that any failure to discharge their
responsibilities in accordance with those statutory provisions, circulars and guidelines
would render the delinquent public servants personally liable and accountable for their
conduct. 11. It is opportune here to recall the rulings of the
High Court of Madras in two cases having to do with the duty of a magistrate when public
peace is threatened, inter alia, by the taking out of processions in public streets.
In Sundram Chetti and Others vs The Queen (1883 ILR 6 Mad. 203 (F.B.)), it was
held: “ The first duty of the Government is the preservation of life and property, and, to secure this end, power is conferred on its officer to interfere with even the ordinary rights of members of the community …. In this view, it matters not whether the exercise of the rights of procession is of ancient usage or a novelty; the Government is not bound to deprive some members of the community of the services of the force that is found necessary for the protection of their lives and property to enable others to exercise a right which not only is not indispensable to life or to the security of property, but, in the case assumed, creates an excitement which endangers both….. Where rights are threatened, the persons entitled to them should receive the fullest protection the law affords them and circumstances admit of. It needs no argument to prove that the authority of the Magistrate should be exerted in the defence of rights rather than in their suspension; in the repression of illegal rather than in interference with lawful acts. If the Magistrate is satisfied that the exercise of a right is likely to create a riot, he can hardly be ignorant of the persons from whom disturbance is to be apprehended, and it is his duty to take from them security to keep the peace” In similar vein, in Muthialu Chetti vs. Bapun Saib (1880 ILR 2 Mad. 142) the High Court of Madras held: “For the preservation of the public peace he (the Magistrate) has a special authority – an authority limited to certain occasions ….If he apprehends that the lawful exercise of a right may lead to civil tumult, and he doubts whether he has available a sufficient force to suppress such tumult, or to render it innocuous, regard for the public welfare is allowed to override temporarily the private right, and the Magistrate is authorised to interdict its exercise.” 12. It is worth emphasizing, in this connection, that
these two rulings of the High Court of Madras were quoted with approval by the Supreme
Court in the Ayodhya Judgement (M. Ismail Faruqui vs. Union of India, AIR 1995 S.C.605)
when it was observed that, even prior to the guarantee of freedom of religion in the
Constitution of India, it had been held that all religions were to be treated equally,
with the State maintaining neutrality between them having regard to the public
welfare. It follows, then, that there is even greater need now, in the light of the
Constitutional guarantees that exist, for the State and its agents to act in accordance
with that principle. 13. The Commission has had occasion to stress that it
is essential to heal the wounds and to look to a future of peace and harmony in
Gujarat. The Commission has, however, added that the pursuit of these high
objectives must be based on justice and the upholding of the Constitution and the laws of
the land. 14. It therefore remains fundamentally important, in such circumstances, that those who are responsible for the promotion of communal harmony and the maintenance of law and order – whether in the political or administrative leadership – should discharge their duties in the present and future in accordance with that Constitution and the relevant statutory provisions, or be answerable for such acts of omission or commission that result in the violation of the law and the rights to life, liberty, equality and dignity of their fellow human beings.
(Justice J.S. Verma) Chairperson (Justice K. Ramaswamy) Member (Justice Sujata V. Manohar) Member (Virendra Dayal) Member |
| NATIONAL HUMAN
RIGHTS COMMISSION SARDAR PATEL
BAHWAN NEW DELHI Name of the
complainant
:
Suo motu
Case No.
:
1150/6/2001-2002 Date
:
25 September 2002
CORAM
Justice Shri J.S. Verma, Chairperson
Justice Mrs. Sujata V. Manohar, Member
Shri Virendra Dayal, Member PROCEEDINGS
The Commission, sharing the
nation’s shock and grief, strongly condemns the
outrageous terrorist attack which occurred against innocent civilians at the Akshardham
temple in Gandhinagar on 24 September 2002 and continued into this morning.
(Justice J.S.
Verma) Chairperson (Justice Sujata V.
Manohar) Member (Virendra Dayal) Member
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| NATIONAL HUMAN RIGHTS COMMISSION SARDAR PATEL BHAWAN NEW DELHI
Name of the complainant :In
re. Custodial death of Case No.
:452/6/2002-2003 Date
:28 October, 2002 CORAM
Justice Shri
J.S.Verma, Chairperson Justice Mrs. Sujata
V. Manohar, Member Shri Virendra Dayal,
Member PROCEEDINGS
Even though intimation of the custodial death of Samirkhan Sarfarazkhan Pathan has
been received from the Office of the Joint Commissioner of Police, Ahmedabad City, there
are also newspaper reports mentioning some disturbing circumstances in which the killing
took place. It is to ensure a fair inquiry into all such killings and to also ensure
thereby compliance with the rule of law that the NHRC has issued guidelines requiring the
procedure to be followed in such cases before reaching the conclusion that the killing was
justified under the law and it was not the result of a fake encounter or death caused by
custodial violence. It is, therefore, necessary for the Commission to examine the death so
reported in that light. Issue notice to the Chief
Secretary, Gujarat and the Commissioner of Police, Ahmedabad to reply within two weeks
giving the details of the procedure followed in the present case and also mentioning
clearly whether the procedure adopted is in accordance with the NHRC guidelines issued for
the purpose. A copy of this proceedings as well as that of the NHRC guidelines be sent to
the noticees for ready reference. (Justice J.S.Verma) Chairperson (Justice Sujata
V.Manohar) Member
(Virendra Dayal) Member |
