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 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)