NATIONAL HUMAN RIGHTS COMMISSION

SARDAR PATEL BHAVAN

NEW DELHI

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Name of the complainant                               :            Suo motu

 Case No.                                                        :            1150/6/2001-2002

 Date                                                                :            31 May 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.                  These Proceedings of the Commission in respect of the situation in Gujarat are in continuation of those recorded by the Commission on 1 and 6 March 2002 and 1 April and 1 May, 2002.

 Proceedings of 1 April 2002; transmittal of Preliminary Comments and Recommendations, together with Confidential Report, to Government of Gujarat, Ministry of Home Affairs, Government of India and Prime Minister

 2.                  It will be recalled that, in its Proceedings of 1 April 2002, the Commission had set out its Preliminary Comments and Recommendations on the situation.  It had also directed that a copy of those Proceedings, together with a copy of the Confidential Report of the team of the Commission that visited Gujarat from 19-22 March 2002, be sent by the Secretary-General to the Chief Secretary, Government of Gujarat and to the Home Secretary, Government of India, requesting them to send the response/comments of the State Government and the Government of India within two weeks.  In view of the visit of the Hon’ble Prime Minister to Gujarat that had been announced for 4 April 2002, the Chairperson was also requested to send a copy of the Proceedings and of the Confidential Report to him.

 Proceedings of 1 May 2002; response of Government of Gujarat, dated 12 April 2002 to Preliminary Comments and Recommendations of 1 April 2002

 3.                  In its Proceedings of 1 May 2002, the Commission noted that the Government of Gujarat had sent a reply dated 12 April 2002, but that the Ministry of Home Affairs had sent an interim response, dated 16 April 2002, seeking time until 30 April 2002 to send a more detailed reply.  However, no further reply had been received from the Ministry of Home Affairs as of the time of recording the 1 May Proceedings.

 Lack of response to Confidential Report

 4.                  In the same Proceedings, the Commission further noted that the reply of the Government of Gujarat did not respond to the Confidential Report of the Commission’s team, referred to in its Proceedings of 1 April 2002.  The Commission also observed that a specific reply was sought to that Report in order to enable further consideration of the matter, in view of the allegations made, which are mentioned in that Report.  While noting that, ordinarily, it would be in order for the Commission to proceed with the further consideration of this matter with the available reply alone while treating the contents of the Confidential Report as unrebutted, the Commission deemed it fit to give a further opportunity of two weeks to reply to the specific matters mentioned in the Confidential Report.  The Ministry of Home Affairs, Government of India was also given a further two weeks for its detailed reply, which was to cover inter alia the contents of the Confidential Report that had already been sent to it.

 Response of Ministry of Home Affairs, Government of India to Preliminary Comments and Recommendations of 1 April 2002 and to the Confidential Report

 5.                  Later in the day on 1 May 2002, after it had recorded its Proceedings, the Commission received a further response from the Ministry of Home Affairs, Government of India.   The covering letter, dated 1 May 2002, stated that the response related to “the Proceedings of the Commission dated 1st April 2002 and the recommendations made therein in so far as it concerns the Central Government.”  The response added that “the report of the visit of the team of the National Human Rights Commission to Gujarat between 19th and 22nd March, 2002 which was sent in a sealed cover has also been examined and since all the issues mentioned therein pertain to the Government of Gujarat, they have been requested to send their comments on the above report directly to NHRC.”

 Failure of the Government of Gujarat, until the date of recording the present Proceedings, to respond to the Confidential Report

 6.                  Despite the above-mentioned response of the Government of India, and the extension of time until 15 May 2002 that was granted by the Commission to the Government of Gujarat to respond to the Confidential Report, no response has as yet been received from the State Government to that Report.  This is so despite repeated oral reminders by the Commission and assurances by the State Government that a response would soon be forthcoming.

*

7.                  In these circumstances, the Commission is now adopting the following procedure:

 (A)       It will offer additional Comments upon the response of the Government of Gujarat of 12 April 2002, in respect of the Preliminary Comments of the Commission of 1 April 2002;

 (B)       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.

           (C)         It will make a further set of Recommendations developing on its earlier recommendations, in the light of the reply received from the Government of Gujarat dated 12 April 2002  and from the Ministry of Home Affairs, Government of India, dated 1 May 2002.

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.

 A.            Comments of the Commission on the response of the Government of Gujarat of 12 April 2002, in respect of its Preliminary Comments of 1 April 2002

 Failure to protect rights to life, liberty, equality and dignity

 9                  In its Preliminary Comments of 1 April 2002 the Commission had observed that the first question that arises is whether the State has discharged its primary and inescapable responsibility to protect the rights to life, liberty, equality and dignity of all of those who constitute it.  Given the history of communal violence in Gujarat, a history vividly recalled in the report dated 28 March 2002 of the State Government itself, the Commission had raised the question 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 rights of the people of Gujarat.  It observed that the responsibility of the State extended not only to the acts of its own agents, but also to those of non-State players within its jurisdiction and to any action that may cause or facilitate the violation of human rights.  The Commission added that, unless rebutted by the State Government, the adverse inference arising against it would render it accountable.  The burden of proof was therefore on the State Government to rebut this presumption.

 10.             Nothing in the reports received in response to the Proceedings of 1 April 2002 rebuts the presumption.  The violence in the State, which was initially claimed to have been brought under control in seventy two hours, persisted in varying degree for over two months, the toll in death and destruction rising with the passage of time.  Despite the measures reportedly taken by the State Government, which are recounted in its report of 12 April 2002, that report itself testifies to the increasing numbers who died or were injured or deprived of their liberty and compelled to seek shelter in relief camps.  That report also testifies to the assault on the dignity and worth of the human person, particularly of women and children, through acts of rape and other humiliating crimes of violence and cruelty.  The report further makes clear that many were deprived of their livelihood and capacity to sustain themselves with dignity.   The facts, thus, speak for themselves, even as recounted in the 12 April 2002 report of the State Government itself.  The Commission has therefore reached the definite conclusion that the principle of ‘res ipsa loquitur’ applies in this case and that there was a comprehensive failure of the State to protect the Constitutional rights of the people of Gujarat, starting with the tragedy in Godhra on 27 February 2002 and continuing with the violence that ensued in the weeks that followed. The Commission has also noted in this connection that, on 6 May 2002, the Rajya Sabha adopted with one voice the motion stating

          “That this House expresses its deep sense of anguish at the persistence of violence in Gujarat for over six weeks, leading to loss of lives of a large number of persons, destruction of property worth crores of rupees and urges the Central Government to intervene effectively under article 355 of the Constitution to protect the lives and properties of the citizens and to provide effective relief and rehabilitation to the victims of violence.”

             The Commission has further noted, in this connection, that it has proven necessary to appoint a Security Advisor to the Chief Minister, to assist in dealing with the situation.  The appointment implicitly confirms that a failure had occurred earlier to bring under control the persisting violation of the rights to life, liberty, equality and dignity of the people of the State.

 Failure of intelligence

 11.              The response of the State Government of 12 April 2002 also fails to dispel the observation made by the Commission in its Preliminary Comments that the failure to protect the life, liberty, equality and dignity of the people of Gujarat itself stemmed from a serious failure of intelligence and a failure to take timely and adequate anticipatory steps to prevent the initial tragedy in Godhra and the subsequent violence.

 12.             The report of the State Government of 12 April 2002 asserts that the State Intelligence Bureau “had alerted all Superintendents and Commissioners of Police as early as 7.2.2002 about the movement of karsevaks from the State by train on 22.2.2002 to Ayodhya.  Besides the State Intelligence Bureau had also intimated UP State Police authorities on 12th, 21st, 23rd, 25th and 26th February 2002 about the number of karsevaks who had left the State for Ayodhya by train.”  However, “specific information about the return journey of karsevaks by the Sabarmati Express starting from Ayodhya was received only on 28.2.2002 at 0122 hrs i.e., after the incident had taken place on 27.2.2002 morning.”

 13.             It appears incomprehensible to the Commission that a matter which had been the subject of repeated communications between the Gujarat Intelligence Bureau and the UP State Police as to the out-going travel plans of the karsevaks, should have been so abysmally lacking in intelligence as to their return journeys.  This is all the more so given the volatile situation that was developing in Ayodhya at that time and the frequent reports in the press warning of the dangers of inter-communal violence erupting in Ayodhya and other sensitive locations in the country.  In the view of the Commission, it was imperative, in such circumstances, for the Gujarat Intelligence Bureau to have kept in close and continuing touch with their counterparts in Uttar Pradesh and with the Central Intelligence Bureau.  The inability to establish a two-way flow of intelligence clearly led to tragic consequences.  The Commission must therefore also definitively conclude that there was a major failure of intelligence and that the response of the State Government has been unable to rebut this presumption.   

 Failure to take appropriate action

 14.             The failure of intelligence was, in the opinion of the Commission, accompanied by a failure to take appropriate anticipatory and subsequent action to prevent the spread and continuation of violence.  The Preliminary Comments of the Commission had observed, in this connection, that while some communally-prone districts had succeeded in controlling the violence, other districts – sometimes less communally prone – had succumbed to it.  The Commission had therefore pointed to “local factors and players” overwhelming the district officers in certain instances, but not in others, and had asked the State Government as to who these players were in the situations that had gone out of control.  Such information had been sought from the State Government particularly since there were widespread reports of well-organized persons, armed with mobile telephones and addresses, singling out certain homes and properties for death and destruction.  The reports had also implied that public servants who had sought to perform their duties diligently and to deal firmly with those responsible for the violence had been transferred at short notice to other posts without consulting the Director-General of Police and, indeed, over his protests.

 15.             The reply of the State Government of 12 April 2002 does not answer these questions.  Instead, it refers to the “gravity of the communal incident which provoked the disturbances” and the role of the electronic media.  While there can be no doubt whatsoever about the gravity of the Godhra tragedy, it is the considered view of the Commission that that itself should have demanded a higher degree of responsiveness from the State Government to control the likely fall-out, especially in the wake of the call for the ‘Gujarat bandh’ and the publicly announced support of the State Government to that call.  Regrettably, immediate and stringent measures were not adequately taken; the response of the Government thus proved to be unequal to the challenge, as vividly illustrated by the numbers who lost their lives, or were brutally injured or humiliated as the violence spread and continued.

 Failure to identify local factors and players

 16.             As to the “local factors and players”, in respect of whom the Commission had sought specific information, the reply of the State Government is silent, taking instead the position that this is a “matter covered by the terms of reference of the Commission of Inquiry appointed by the State Government.”  The Commission is constrained to observe that it found this answer evasive and lacking in transparency, not least because of the numerous eye-witness and media reports – including allegations specifically made to the Commission and communicated to the State Government – which identify and name specific persons as being involved in the carnage, sometimes within the view of police stations and personnel. The reply makes no effort whatsoever to rebut the allegations made against such persons, or to indicate the action taken by the State Government against those specifically named for participating in the egregious violation of human rights that occurred, or for inciting the acts of violence that resulted in murder, arson, rape and the destruction of lives and property.

 Pattern of arrests

 17.             In this connection, the Commission has made a careful analysis of the pattern of arrests indicated to it by the State Government in its report of 12 April 2002.  That report states that a total number of 27,780 arrests had been made, involving both crimes and as preventive detention.  The response does not, however, make clear how many arrests, preventive or otherwise, were made in the worst afflicted areas of the State within the first 72 hours of the tragedy in Godhra, nor the community-wise break-up of those arrested in those areas in the immediate aftermath of Godhra, though such data would have enabled a proper scrutiny of the charge of discrimination brought against the State Government in respect of its conduct in the critical hours immediately after the Godhra tragedy and the call for the ‘bandh’.  This lack of transparency seriously undermines the response.  The report states instead, that, in relation to various offences, 11,167 persons were arrested, of whom 3,269 belonged to the “minority” community and 7,896 to the “majority.”  As regards the 16,615 preventive arrests, it mentions that 13,804 belong to the “majority” community and 2,811 to the “minority.”  The questions that arise, however, are when and where were the arrests made, who were arrested and for how long were they kept in custody, and were those who were specifically named arrested.    The Special Representative of the Commission, Shri Nampoothiri has observed in a report to the Commission dated 24 April 2002 that “almost 90% of those arrested even in heinous offences like murder, arson, etc., have managed to get bailed out almost as soon as they were arrested.”  Reports have also appeared in the media that those who have been released on bail were given warm public welcomes by some political leaders.  This is in sharp contrast to the assertion made by the State Government in its report of 12 April 2002 that “bail applications of all accused persons are being strongly defended and rejected” (sic).

 Uneven handling of major cases

 18.             The analysis made by the Commission of the State Government’s reply of 12 April 2002 also illustrates the uneven manner in which some of the major cases had been handled until that date.  In respect of the Godhra incident, where 59 persons were killed, 58 persons had been arrested and all were in custody (54 in judicial custody, 4 in police remand).  In respect of the Chamanpura (Gulbarga Society) case, where some 50 persons including a former Member of Parliament were killed, 18 persons had been arrested (17 were in judicial custody, 1 was released by the juvenile court).  As regards Naroda Patia, where some 150 persons were reportedly killed, 22 had been arrested, but the response is silent in respect of whether they had been released on bail or were in custody.  In respect of the Best Bakery case in Vadodara, where some 8 persons were reportedly killed, 12 accused persons were in judicial custody. However, no details were given about the status of the 46 persons arrested in the Sadarpura case of Mehsana District where some 28 persons were reportedly killed.

 Distorted FIRs: ‘extraneous influences’, issue of transparency and integrity

 19.             The Commission had recorded in its Proceedings of 1 April 2002 that there were numerous allegations made both in the media and to its team 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 had thus been constrained to observe that there was a widespread lack of faith in the integrity of the investigating process and the ability of those conducting investigations.  The Commission had also observed that according to the State Government itself, “in Ahmedabad, looting was reported in well-to-do localities by relatively rich people.”  Yet the State Government had not identified who these persons were.

 20.             The report of the State Government of 12 April 2002 once again fails to make the necessary identification of these persons. It also fails to rebut the repeatedly made allegation that senior political personalities – who have been named – were seeking to influence the working of police stations by their presence within them.  It states that the Government “fully accepts the view that there should be transparency and integrity in investigating instances of death and destruction” and adds that “this is being taken care of”.  The Commission’s Special Representative, Shri Nampoothiri, however, has reported to the Commission on 24 April 2002 in a totally opposite vein.  He has stated that, in respect of most of the “sensational cases,” the FIRs registered on behalf of the State by the police officers concerned, the accused persons are shown as “unknown”.   His report adds that “this is the general pattern seen all over the State.  Even when complaints of the aggrieved parties have been recorded, it has been alleged that the names of the offenders are not included.  In almost all the cases, copies of the FIRs which the complainant is entitled to, has not been given.”  There has been widespread public outrage, in particular, in respect of atrocities against women, including acts of rape, in respect of which FIRs were neither promptly nor accurately recorded, and the victims harassed and intimidated.   The Commission must conclude, therefore, that until the time of Shri Nampoothiri’s 24 April 2002 report, the victims of the atrocities were experiencing great difficulty in having FIRs recorded, in naming those whom they had identified and in securing copies of their FIRs.  Further – for far too long - politically-connected persons, named by the victims of the crimes committed, remained at large, many defying arrest.  These are grave matters indeed that must not be allowed to be forgiven or forgotten.  Based on Shri Nampoothiri’s reports the Commission would therefore like to warn that the danger persists of a large-scale and unconscionable miscarriage of justice if the effort to investigate and prosecute the crimes that have been committed is not directed with greater skill and determination, and marked by a higher sense of integrity and freedom from ‘extraneous political and other influences’ than has hitherto been in evidence.  Of particular concern to the Commission have been the heart-rending instances identified in its Proceedings of 1 April 2002, in respect of which it had called for investigations by the CBI: those cases relate to some of the very worst incidents of murder, arson, rape and other atrocities, including many committed against women and children whose tragic and inconsolable circumstances have profoundly shocked and pained the nation.

 Pervasive insecurity: Justices Kadri & Divecha

 21.             In its Preliminary Comments of 1 April 2002 the Commission had referred to the pervasive sense of insecurity prevailing in Gujarat at the time of the visit of its team to that State between 19-22 March 2002.  It added that this was most acute among the victims of the successive tragedies, but that it extended to all segments of society, including to two Judges of the High Court of Gujarat, one sitting (Justice Kadri) and the other retired (Justice Divecha) who were compelled to leave their homes because of the vitiated atmosphere.

 22.             The Commission has carefully considered the 12 April 2002 response of the State Government in respect of Justices Kadri and Divecha.  In regard to the former, the response states that, “prior to 28th, there was already half a section of police guards” posted outside Justice Kadri’s residence in Law Garden.  It adds that on 28 February 2002, Justice Kadri shifted to Judges Colony in Vastrapur “of his own accord.”  It goes on to state that, from 9 March 2002, a further police guard was placed at his house “since he desired to shift back to his original residence.”  The Commission is compelled to observe that the response of the State Government fails to acknowledge an incontrovertible fact:  the movements of Justice Kadri from house to house were compelled on him because of the pervasive insecurity.  They were not “of his own accord” because they were clearly involuntary.  And the conclusion is inescapable that the insecurity was such that it was not dispelled by the police arrangements reportedly made for him.

 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.

 24.             There is a deeper point at issue here that the Commission wishes to make.  If the response of the State Government to the security needs of two Justices of the High Court was so hopelessly inadequate,  despite the time and the opportunity that it had to prevent the harm that was done, it must be inferred that the response to the needs of others, who were far less prominent, was even worse.  Indeed, the facts indicate that the response was often abysmal, or even non-existent, pointing to gross negligence in certain instances or, worse still, as was widely believed, to a complicity that was tacit if not explicit. 

 B.            Release of the Confidential Report transmitted to the Government of Gujarat with the Commission’s Proceedings of 1 April 2002

 25.             For the reasons indicated earlier in these Proceedings, the Confidential Report transmitted to the State Government of Gujarat on 1 April 2002, and to which the State Government has not responded for nearly two months despite repeated opportunities to do so, is now being released by the Commission (see Annexure I).  Even while doing so, however, the Commission urges that Government to come forward with a clear response, indicating in detail the steps it has taken in respect of the persons named in that report who allegedly violated human rights or interfered in the discharge of the responsibilities of the State to protect such rights.  Further, the Commission once again calls upon the State Government to provide a full account of the incidents to which the Commission drew its attention in that Confidential Report, and to indicate the measures it has taken to investigate and redress the wrongs that were committed.

 C.            Further set of Recommendations of the Commission, in the light of the reply of 1 April 2002 received from the Government of Gujarat, and of 1 May 2002 from the Ministry of Home Affairs, Government of India

 26.       Having reviewed the responses received thus far, the Commission would now like to make a further set of Recommendations, keeping in mind those that it had made in its Proceedings of 1 April 2002.  

 I.          Law and Order

 Involvement of CBI

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.

             (ii)            The State Government responded on 12 April 2002 saying that “An investigation conducted by the State Police cannot be discredited, cannot be put into disrepute and its fairness questioned merely on the basis of hostile propaganda”.  It then recounted the steps taken in respect of the five cases listed by the Commission and added that transference of these cases to the CBI would “indefinitely delay the investigation” and help the accused persons to get bail.  It also stated that the CBI is already understaffed and over-burdened.  The Commission was therefore requested to reconsider its recommendation as it was based on “unsubstantiated information given to the Commission by sources with whom authentic information was not available.”

            (iii)            The response of the Ministry of Home Affairs, Government of India, dated 1 May 2002, summarizes the position of the State Government.  It then adds that, under existing rules, the CBI can take up the investigation of cases only if the State Government addresses and appropriately requests the CBI to do so.  Since the State Government had expressed the opinion that investigation into the cases is not required by the CBI at this stage, “it is not possible for the Central Government to direct the CBI to take up the investigation of the above cases.”

            (iv)            The Commission has considered these responses with utmost care.  It does not share the view of the State Government that the substance of the allegations made against the conduct of the police, and the reports of “extraneous” influences brought to bear on the police, were based on “hostile propaganda” or “unsubstantiated information.”  The allegations were made by those who were personally affected by, or witness to, the events, and by eminent personalities and activists who spoke to the Commission directly, or addressed petitions to it, with a full sense of responsibility.  The Commission would like to underline that it is a central principle in the administration of criminal justice that those against whom allegations are made should not themselves be entrusted with the investigation of those allegations.  It has universally been the practice to act on this principle, including in this country.  To depart from that principle would, therefore, be to invite a failure of justice.  In respect of the cases listed by the Commission, the allegations of inaction, or complicity by the elements of the State apparatus were grave and severely damaging to its credibility and integrity.  It would thus be a travesty of the principles of criminal justice if such cases were not transferred to the CBI.  Worse still, the inability to do so could severely compromise the fundamental rights to life, liberty, equality and dignity guaranteed by the Constitution to all of the people of India on a non-discriminatory basis.  Further, in the light of the unanimously adopted resolution in the Rajya Sabha on 6 May 2002, urging the Central Government “to intervene effectively under Article 355 of the Constitution to protect the lives and properties of citizens,”  the Commission is emphatically of the view that the role of the Central Government in respect of the investigation of the cases identified by the Commission should go beyond a mere invocation of the “existing rules” in respect of when the CBI can take up a case for investigation and a statement to the effect that “it is not possible” for it to direct the CBI to take up the investigation of these cases given the position taken by the State Government.

            (v)            In these circumstances, the Commission urges once again that the critical cases be entrusted to the CBI and that the Central Government ensure that this is done, not least in view of the Rajya Sabha resolution referring to its responsibilities under Article 355 of the Constitution.  The Commission is deeply concerned, in this connexion, to see from Shri Nampoothiri’s report of 28 May 2002 that, of 16,245 persons arrested for substantive offences, all but some 2100 had been bailed out as of 10 May 2002.  It also noted from that report that of the 11,363 Hindus arrested for such offences, 8% remained in custody, while 20% of the 4,882 Muslims thus arrested remained in such custody.  This does not provide a particularly reassuring commentary on the determination of the State Authorities to keep in check those who were arrested or to bring them to justice. 

Police Reform

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.”

 (vi)              These observations of the Supreme Court, written in 1997, are singularly prescient when set against the situation in Gujarat.  The Police Reforms directed by the Apex Court never took place.  An unreformed police force thus allowed itself to be overwhelmed by the situation and by the ‘extraneous influences’ brought to bear on it.  In the face of the challenges confronting it, the State Government thus failed in its primary and inescapable duty to protect the constitutionally guaranteed rights of the citizenry.  In such a situation, it was widely reported that certain transfers of police personnel were made for whimsical, ‘extraneously’ influenced reasons.  It was also reported that the Director-General of Police was not consulted in respect of them, but side-lined in the decision-making process and protested against the manner in which these transfers were made.  With the Central Government now being fully associated with the unanimously adopted resolution of the Rajya Sabha requiring it to “intervene effectively under Article 355 of the Constitution,” it becomes doubly incumbent on it to ensure that “prompt measures” are taken by it, “within the ambit of its constitutional powers in the federation” to impress upon the State Government that much of what occurred in the aftermath of the Godhra tragedy was “alien to the envisaged constitutional machinery” and that there is, inter alia, urgent need for radical police reform along the lines already directed by the Supreme Court “if the situation is to be cured, if the rule of law is to prevail.”  The Commission therefore urges that the matter of Police Reform receive attention at the highest political level, at the Centre and in the States, and that this issue be pursued in good faith, and on a sustained basis with the greater interest of the country alone in mind, an interest that must over-rule every ‘extraneous’ consideration.  The rot that has set-in must be cured if the rule of law is to prevail.

 Special Courts and Special Prosecutors

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

 32.       The Commission had recommended that police desks should be set-up in the relief camps to receive complaints, record FIRs and forward them to Police Stations having jurisdiction.  The 12 April 2002 response of the State Government asserts that instructions to this effect had been given and that 3,532 statements and 283 FIRs had been recorded in the relief camps.  The Commission, however, is constrained to observe that, according to a report received from its Special Representative dated 24 April 2002, police desks had been set up only in 9 out of a total of 35 relief camps then in existence in Ahmedabad, that these desks worked only for a few days and only for two hours on an average on those days.  The Commission therefore calls for full compliance with its recommendation in respect of the setting-up of such police desks in the relief camps.  That would go a long way towards ensuring that FIRs are more accurately and fully recorded, particularly in respect of crimes committed against women and children, especially rape and other acts of brutality.  Regrettably, such cases are still not being adequately registered, a fact that emerges from Shri Nampoothiri’s report of 28 May 2002, not least because of the insensitive questioning by police personnel.  There is also a lack of evidence of sufficient women officers being appointed to help with such cases. In this connection, the Commission would also like to reiterate its view that, in the very nature of situations such as this, material collected and provided by other credible sources, e.g., NGOs, should be fully taken into account.  There is little evidence to suggest that this is being done.  There is therefore need for greater responsiveness to this recommendation and greater transparency on the part of Police Commissioners and Superintendents of Police who should establish a system whereby NGOs and others can know precisely what action has been taken in respect of material provided by them.

 Survey of all Affected Persons

 33.  The Commission urges, in this connection, that a comprehensive survey be expeditiously completed to establish the facts concerning the number and names of those who have been killed, or who are missing, injured, rendered widows, orphans or destitute in the violence that has ensued.  The response of the Government does not throw any light on what is being done to gather such data.  This is posing a major legal and humanitarian problem, not least to those who are the next-of-kin of those who have been killed or who are missing.  The procedure for declaring a person dead needs to be reviewed in the present circumstances, and a procedure developed based on affidavits by the next-of-kin and their neighbours or other reliable persons.  The Commission further recommends that the State Government expeditiously publish the data that is compiled, on a district-wise basis.  This would not only assist the survivors in receiving the compensation and benefits that is their due, but also set to rest speculation about the number of persons killed or missing, and the widespread belief that there is a serious discrepancy between ‘official’ and ‘unofficial’ figures.  A comparable recommendation by the Commission in respect of casualties after the Super-Cyclone in Orissa and the earthquake in Gujarat greatly assisted both the State and the affected population to arrive at the truth and to avoid painful controversy.

 Analysis of material collected by NGOs and others

 34.       The Commission had recommended that material collected by NGOs such as Citizen’s Initiative, PUCL and others should be used.  The response of the State Government indicates that such material, provided by different organizations will be investigated and, if found to be correct upon investigation, appropriately used in accordance with law.  The Commission has taken note of this and will be monitoring the action taken by the State Government, particularly in respect of certain critically important cases and of those involving crimes against women and children which have been extensively documented by NGOs and citizens groups.  The Commission has also asked its Special Representative to keep it informed of developments in regard to these cases, the details of which are available in the widely circulated reports of these NGOs and citizens groups.  The reports thus far received do not suggest that the State Government is acting with adequate diligence on this matter.

Provocative Statements

 35.       The Commission had drawn special attention to the provocative statements made by persons to the electronic or print media, especially the local media, and had urged that these be examined and acted upon, the burden of proof being shifted to such persons to explain or contradict their statements.  The response of 12 April 2002 of the State Government merely states that such statements “will be examined and acted upon appropriately.”  It does not indicate which statements are being examined, nor does it provide the details of the action being taken under the provisions of the Indian Penal Code and other relevant acts to bring to book those individuals or organizations that have been making incendiary statements, or publishing articles or leaflets promoting communal enmity.  The Commission would like to receive all relevant details of the persons or organizations identified by the State Government in this connection and of the statements or actions for which they are being prosecuted.  Only then will the Commission be able to arrive at a conclusion as to whether the State Government has acted appropriately in respect of this most serious matter.   A further detailed report from the State Government would therefore be appreciated in this respect.

 Identification of delinquent public servants

 36.       The Commission had expressly called for the identification of officers who had failed to discharge their statutory responsibilities appropriately and for proceedings to be instituted against them.  Likewise, the Commission had added that those who had performed their duties well, should be commended.  The State Government has stated that it will be guided by the findings of the Commission of Inquiry appointed by the State Government.  It adds that “some of the officers who have performed their duties commendably have already been rewarded appropriately.”  The Commission is of the view that action against the delinquent public servants need not, in all instances, await the outcome of the Commission of Inquiry.  In situations such as prevailed in Gujarat, the swiftness and effectiveness of the action taken against delinquent public servants itself acts as a major deterrent to misconduct or negligence in the performance of duty.  It also acts as a catalyst to the restoration of public confidence and as an indication of the good faith of the Administration.  Failure to take prompt action has the opposite effect.  The Commission therefore recommends that prompt action be taken against the delinquent public servants and that the progress in the action initiated be communicated to the Commission.

 II.          Proper Implementation of Existing Statutory Provisions, Circulars and Guidelines

 37.            Communal riots are not new to India and least of all so to Gujarat, as the responses of the State Government themselves indicate.  The Commission would therefore like to stress that there already exists in the country a comprehensive body of material in the form of statutory provisions, circulars, guidelines and the like, that has been meticulously elaborated over the years, that can and must be followed by those responsible for the maintenance of law and order and communal harmony in the country.  In assessing whether or not the Government of Gujarat discharged its responsibilities adequately in the face of the violence that convulsed the State for over two months, it is essential to assess its performance against this body of material.  For purposes of these Proceedings, the Commission will not attempt to list out comprehensively the entire range of statutes, circulars and guidelines germane to developments in Gujarat, but it will, by way of illustration, draw attention to certain of them, since they are singularly relevant to an assessment of the conduct of the State Government and of its officials.

            (i)            Statutory Provisions

 38.             Amongst the principal statutory provisions that could and should have been vigorously used to control the situation are the following:

 39.                   The Indian Penal Code (1860)

Chapter VIII entitled “Of offences against the public tranquility”:

                                     This is relevant in its entirety (Sections 141-160 IPC)

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.

 Chapter XV entitled “Of offences relating to religion”

 This, too, is most relevant and includes the following: 

                    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.

                         The Code of Criminal Produce (1973)

 40.     Attention is drawn, in particular, to the contents of Chapter V, relating to Arrest of Persons, and especially to  

                    Section 41 – When police may arrest without warrant;

                    Section 51 – Search of arrested person; and

                     Section 52 – Power to seize offensive weapons.

 The following sections of Chapter X, dealing with Maintenance of Public Order and Tranquility, are also particularly relevant:

                                  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.

 41.       In addition, attention is drawn to The Police Act, 1861 

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.

 43.       As indicated earlier, the statutory provisions mentioned above do not purport to be a comprehensive listing of all such provisions under the various acts of the country relevant to the maintenance of law and order and communal harmony.  However, even the selected listing contained in these Proceedings gives an idea of the vast range of the provisions of law that the Government of Gujarat could and should have drawn upon to deal swiftly and effectively with the violence that ensued.  The performance of the authorities, however, points to a less than vigorous use of these provisions.

 (ii)             Circulars, Guidelines, etc.

 44.       In examining the situation, the Commission has, in particular, been struck by the apparent failure of the Government of Gujarat to follow vigorously the “Guidelines to Promote Communal Harmony” issued by the Ministry of Home Affairs, Government of India, in 1997 and circulated to all Chief Ministers with a covering letter dated 22 October 1997 from the then Union Minister for Home Affairs, Shri Indrajit Gupta, who called for “urgent action” on the basis of those Guidelines. 

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. 

 62.       The Commission has taken note of these efforts.  It would, however, like to draw particular attention to the following matters: 

(i)                 There is a manifest need to improve sanitary conditions in the camps, and increase the provision of toilets and water supply.  Particular care must be taken of the needs of women, for whom special facilities should be provided.  There should be a reasonable ratio prescribed of toilets and bathing places to population.

(ii)               Particular vigilance must be ensured to prevent the spread of epidemics, measles and other illnesses having already taken a toll.

(iii)             While the response of the State Government indicates the quantity of food-grains, pulses, etc., supplied to the camps in 8 districts, it does not indicate the standards adopted in providing essential food-items.  These standards must accord with the minimal nutritional levels set by WHO/UNICEF and the competent Ministries of the Government of India in situations such as this.  There have been alarming reports of arbitrary reductions in the quantity of foodstuffs being provided.

(iv)             Given the scorching heat of summer, and the imminent monsoon that will follow, there is an immediate and most critical need to provide semi-permanent structures and better protection against the elements.  Standards must also be set for the provision of fans etc., in terms of population, in order to ease the suffering of those who have sought refuge in the camps.

(v)               Camp-wise monitoring committees should be appointed to watch over each of the camps. 

(vi)             The role and functions of NGOs should be more clearly defined than has been the case till now.  Private sector organizations and business houses should be encouraged to ‘adopt’ certain camps, or specific activities within them, e.g., the provision of medicines, the improvement of shelter, sanitary conditions, etc.

(vii)           The reports of the Secretary-level officers appointed to monitor work in the camps should be recorded on a prescribed form, and be available to the public as also to the Special Representative of the Commission in Gujarat.

(viii)         An adequate number of trauma specialists should be sent to the camps and other distressed areas for the counseling and treatment of victims.

(ix)             Procedures should be simplified for obtaining death certificates and ownership certificates, in order to expedite the giving of compensation.  Time-frames should be set for the settlement of claims and the survey of townships and villages that have been affected.  These should be indicated to the public and to this Commission. There are disturbing reports that the compensation being announced for damaged homes and properties is being arbitrarily fixed and serving as a disincentive to victims to start their lives anew.  This should be urgently looked into by the State Government which should establish credible mechanisms for assessing damages done to homes and items of property and ensure that those who have suffered receive fair and just compensation.

(x)               Confidence building measures should be elaborated and made public, in order to facilitate the return of camp inmates and others who have fled, to their homes and work.  Leadership must be provided by the highest echelons of the State Administration.

(xi)             The Commission has noted the assurance given by the State Government, in its response of 12 April 2002, and reiterated subsequently in media reports to the effect that the inmates will not be asked to leave the camps until appropriate relief and rehabilitation measures are in place for them and they feel assured, on security grounds, that they can indeed leave the camps and return to their homes.  Reports reaching the Commission, however, still point to pressures being exerted on the inmates, or conditions in some camps being so inhospitable, that inmates have felt compelled to leave the camps and seek refuge with family or friends. The Commission  recommends once again, in the circumstances, that no camp be closed without a clear recommendation from a Committee comprising the Collector, a representative of a reputed NGO, a representative of the camp, and the Special Representative of the Commission in Gujarat or a nominee of his. 

IV.            Rehabilitation 

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