NHRC makes preliminary comments and recommendations to the Government of Gujarat and Government of India

In its Proceedings of 1 April 2002, the National Human Rights Commission made known its Preliminary Comments and Recommendations on the human rights situation in Gujarat beginning with the Godhra tragedy and continuing with the violence that ensued subsequently. These Proceedings were part of an on-going process to examine and address the situation, and followed upon earlier Proceedings of the Commission dated 1 and 6 March 2002 when the Commission had taken cognizance of the communal flare-up in that State and called for a report from its Government. The Proceedings also followed a visit of a high level team of the Commission to the State between 19 - 22 March 2002, headed by the Chairperson, Justice J.S. Verma.

In recording its Proceedings, the Commission recalled the background of the situation leading to its intervention in this matter and the nature of its responsibilities arising from its Statute. The Commission also took into consideration a report from the Gujarat Government, which was received by the Commission on 28 March 2002, in response to the Commission’s notice of 1 March 2002, Proceedings of 6 March 2002 and pursuant to the discussions held with the team during its visit to Gujarat.

In its Preliminary Comments, the Commission observed that in the light of its Statute “the Commission must examine whether violations of human rights were committed, or were abetted, or resulted from negligence in the prevention of such violations. It must also examine whether the acts that occurred infringed the rights guaranteed by the Constitution or those that were embodied in the two great International Covenants,” namely the International Covenants on Civil and Political Rights, 1966 and the International Covenants on Economic, Social and Cultural Rights, 1966.

The Commission added that “it is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.”

In its Proceedings, the Commission observed that “a serious failure of intelligence and action by the State Government marked the events leading to the Godhra tragedy and the subsequent deaths and destruction that occurred.” It was added “On the face of it, in the light of the history of communal violence in Gujarat, recalled in the report of the State Government itself, the question must arise whether the principle of ‘res ipsa loquitur’ (‘the affair speaking for itself’) should not apply in this case in assessing the degree of State responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat. The Commission accordingly requests the response of the Central and State Governments on this matter, it being the primary and inescapable responsibility of the State to protect such rights and to be responsible for the acts not only of its own agents, but also for the acts of non-State players within its jurisdiction and any inaction that may cause or facilitate the violation of human rights. Unless rebutted by the State Government, the adverse inference arising against it would render it accountable. The burden is therefore now on the State Government to rebut this presumption”.

Commenting on the Report of the Gujarat Government, the Commission observed “the Report takes the view that “the major incidents of violence were contained within the first 72 hours.” The Report went on to assert, however, that “on account of widespread reporting both in the visual as well as the electronic media, incidents of violence on a large-scale started occurring in Ahmedabad, Baroda cities and towns like Panchmahals, Sabarkantha, Mehsana etc”, inspite of “all possible precautions having been taken”. The Report also adds that various comments attributed to the Chief Minister and Commissioner of Police, Ahmedabad, among others, were torn out of context by the media, or entirely without foundation.

The Commission recorded, however, that it would be naïve for it to subscribe to the view that the situation was brought under control within the first 72 hours. “Violence continues in Gujarat as of the time of writing these Proceedings. There was a pervasive sense of insecurity prevailing in the State at the time of the team’s visit to Gujarat. This was most acute among the victims of the successive tragedies, but it extended to all segments of society, including to two Judges of the High Court of Gujarat, one sitting and the other retired who were compelled to leave their own homes because of the vitiated atmosphere. There could be no clearer evidence of the failure to control the situation. “

On the question of compensation to the next-of-kin of those who had perished in the attack on the Sabarmati Express, and of those who had died in the subsequent violence, in respect of which serious questions had been raised of discriminatory treatment, the Commission noted from the Report that Rs. 1 lakh will be paid in all instances, “thus establishing parity.” The Commission also noted that, according to the Report, this decision was taken on 9 March 2002, after a letter was received by the Chief Minister, “on behalf of the kar sevaks,” saying “that they would welcome the financial help of Rs. 1 lakh instead of Rs. 2 lakhs to the bereaved families of Godhra massacre”. This decision, in the view of the Commission, should have been taken on the initiative of the Government itself, as the issue raised impinged seriously on the provisions of the Constitution contained in Articles 14 and 15, dealing respectively with equality before the law and equal protection of the laws within the territory of India, and the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. “

The Commission has taken good note of the “Rescue, Relief and Rehabilitation Measures” undertaken by the State Government. In many instances, strenuous efforts have been made by Collectors and other district officers, often acting on their own initiative. The Commission was informed, however, during the course of its visit, that many of the larger camps, including Shah-e-Alam in Ahmedabad, had not received visits at a high political or administrative level till the visit of the Chairperson of this Commission. This was viewed by the inmates as being indicative of a deeper malaise, that was discriminatory in origin and character. Unfortunately, too, numerous complaints were received by the team of the Commission regarding the lack of facilities in the camps. The Commission has noted the range of activities and measures taken by the State Government to pursue the relief and rehabilitation of those who have suffered. It appreciates the positive steps that have been taken and commends those officials and NGOs that have worked to ameliorate the suffering of the victims. The Commission, however, considers it essential to monitor the on-going implementation of the decisions taken since a great deal still needs to be done. The Commission has already indicated to the Chief Minister that a follow-up mission will be made on behalf of the Commission at an appropriate time and it appreciates the response of the Chief Minister that such a visit will be welcome and that every effort will be made to restore complete normalcy expeditiously.

The Proceedings of the Commission record that the Commission is duty bound to continue to follow developments in Gujarat consequent to the tragic incidents that occurred in Godhra and elsewhere. Under its Statute, it is required to monitor the compliance of the State with the rule of law and its human rights obligations. This will be a continuing duty of the Commission which must be fulfilled, Parliament having established the Commission with the objective of ensuring the “better protection” of human rights in the country, expecting thereby that the efforts of the Commission would be additional to those of existing agencies and institutions. In this task, the Commission will continue to count on receiving the cooperation of the Government of Gujarat, a cooperation of which the Chief Minister has stated that it can be assured.

The Commission has also now made its first set of Recommendations for the immediate consideration of the Central and State Governments. Once a response is received from these Governments on the report of the visit of the Commission’s team to Gujarat, and a full analysis is made of the numerous representations received by the Commission, additional Proceedings will be recorded by the Commission on the situation in Gujarat, offering further Comments and Recommendations