National Human Rights Commission
(We reproduce below an excerpt from the preliminary report of the National Human Rights Commission – NHRC):
1 April 2002
Name of the complainant: Suo motu
18. A ‘Preliminary Report’ dated 8 March 2002 was received by the Commission from the government of Gujarat on 11 March 2002. However, it was perfunctory in character. In the meantime, the Commission had received a fairly detailed report on the situation from its Special Group in Gujarat, comprising its special representative, PGJ Nampoothri, former director general of police, Gujarat, Annie Prasad, IAS (Retd) and Gagan Sethi, director, Jan Vikas. With violence continuing, it was in such circumstances that the Commission decided that the chairperson should lead a team of the Commission on a mission to Gujarat between 19-22 March 2002. And it was pursuant to this that the detailed report of the state of Gujarat was received on 28 March 2002, in response to the Commission’s notice of 1 March 2002 and the discussions held with the team.
19. There follow below certain preliminary comments and recommendations of the Commission on the situation in Gujarat. As indicated above, these will be followed, as required, by other proceedings, containing comments and recommendations, which will take into account the response that will be received from the central and state governments to the mission-report of the Commission’s team, a further reading and analysis of the voluminous material that has been, and is being, submitted to the Commission, and the situation as it develops on the ground.
20. (i) The statute of the Commission, as contained in the Protection of Human Rights Act, 1993, requires the Commission under the provisions of Section 12, to perform all or any of the following functions, namely:
"(a) inquire, suo motu or on a petition presented to it by a victim or any person on his behalf, into complaint of
(i) violation of human rights or abetment thereof; or
(ii) negligence in the prevention of such violation, by a public servant; …
(d) review the safeguards provided by or under the Constitution or any law for the time being in force for the protection of human rights and recommend measures for their effective implementation; …
(f) study treaties and other international instruments on human rights and make recommendations for their effective implementation; ...
(j) such other functions as it may consider necessary for the promotion of human rights."
The term ‘human rights’ is defined to mean the right relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India (Section 2(1)(d)), and the International Covenants are defined as the "International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of the United Nations on 16th December 1966." (Section 2(1)(f)).
(ii) It is therefore in the light of this statute that the Commission must examine whether violations of human rights were committed, or were abetted, or resulted from negligence in the prevention of such violation. It must also examine whether the acts that occurred infringed the rights guaranteed by the Constitution or those that were embodied in the two great International Covenants cited above.
(iii) The Commission would like to observe at this stage that it is the primary and inescapable responsibility of the State to protect the right to life, liberty, equality and dignity of all of those who constitute it. It is also the responsibility of the State to ensure that such rights are not violated either through overt acts, or through abetment or negligence. It is a clear and emerging principle of human rights jurisprudence that the State is responsible not only for the acts of its own agents, but also for the acts of non-State players acting within its jurisdiction. The State is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights.
(iv) The first question that arises therefore is whether the State has discharged its responsibilities appropriately in accordance with the above. It has been stated in the report of the state government that the attack on kar sevaks in Godhra occurred in the absence of "specific information about the return of kar sevaks from Ayodhya" (p. 12 of the Report). It is also asserted that while there were intelligence inputs pertaining to the movement of kar sevaks to Ayodhya between 10-15 March 2002, there were no such inputs concerning their return either from the state intelligence branch or the central intelligence agencies (p. 5); and that the "only message" about the return of kar sevaks, provided by the Uttar Pradesh police, was received in Gujarat on 28 February 2002, i.e., after the tragic incident of 27 February 2002 and even that did not relate to a possible attack on the Sabarmati Express.
(v) The Commission is deeply concerned to be informed of this. It would appear to constitute an extraordinary lack of appreciation of the potential dangers of the situation, both by the central and state intelligence agencies. This is the more so given the history of communal violence in Gujarat. The report of the state government itself states:
"The state of Gujarat has a long history of communal riots. Major riots have been occurring periodically in the state since 1969. Two Commissions of Inquiry viz., the Jagmohan Reddy Commission of Inquiry, 1969, and the Dave Commission of Inquiry, 1985, were constituted to go into the widespread communal violence that erupted in the state from time to time. Subsequently, major communal incidents all over the state have taken place in 1990 and in 1992-93 following the Babri Masjid episode. In fact, between 1970 and 2002, Gujarat has witnessed 443 major communal incidents. Even minor altercations, over trivial matters like kite flying have led to communal violence." (p. 127).
The report adds that the Godhra incident occurred at a time when the environment was already surcharged due to developments in Ayodhya and related events (also p. 127).
Indeed, it has been reported to the Commission that, in intelligence parlance, several places of the state have been classified as communally sensitive or hyper-sensitive and that, in many cities of the state, including Ahmedabad, Vadodara and Godhra, members of both the majority and minority communities are constantly in a state of preparedness to face the perceived danger of communal violence. In such circumstances, the police are reported to be normally well prepared to handle such dangers and it is reported to be standard practice to alert police stations down the line when sensitive situations are likely to develop.
(vi) Given the above, the Commission is constrained to observe that a serious failure of intelligence and action by the state government marked the events leading to the Godhra tragedy and the subsequent deaths and destruction that occurred. On the face of it, in the light of the history of communal violence in Gujarat, recalled in the report of the state government itself, the question must arise whether the principle of ‘res ipsa loquitur’ (‘the affair speaking for itself’) should not apply in this case in assessing the degree of state responsibility in the failure to protect the life, liberty, equality and dignity of the people of Gujarat.
The Commission accordingly requests the response of the central and state governments on this matter, it being the primary and inescapable responsibility of the State to protect such rights and to be responsible for the acts not only of its own agents, but also for the acts of non-State players within its jurisdiction and any inaction that may cause or facilitate the violation of human rights. Unless rebutted by the state government, the adverse inference arising against it would render it accountable. The burden is therefore now on the state government to rebut this presumption.
(vii) An ancillary question that arises is whether there was adequate anticipation in regard to the measures to be taken, and whether these measures were indeed taken, to ensure that the tragic events in Godhra would not occur and would not lead to serious repercussions elsewhere. The Commission has noted that many instances are recorded in the report of prompt and courageous action by district collectors, commissioners and superintendents of police and other officers to control the violence and to deal with its consequences through appropriate preventive measures and, thereafter, through rescue, relief and rehabilitation measures.
The Commission cannot but note, however, that the report itself reveals that while some communally-prone districts succeeded in controlling the violence, other districts – sometimes less prone to such violence – succumbed to it. In the same vein, the report further indicates that while the factors underlining the danger of communal violence spreading were common to all districts, and that, "in the wake of the call for the ‘Gujarat Bandh’ and the possible fall-out of the Godhra incident, the state government took all possible precautions" (p.128), some districts withstood the dangers far more firmly than did others.
Such a development clearly points to local factors and players overwhelming the district officers in certain instances, but not in others. Given the widespread reports and allegations of groups of well-organised persons, armed with mobile telephones and addresses, singling out certain homes and properties for death and destruction in certain districts – sometimes within view of police stations and personnel – the further question arises as to what the factors were, and who the players were in the situations that went out of control. The Commission requests the comments of the state government on these matters.
(viii) The Commission has noted that while the report states that the Godhra incident was "premeditated" (p. 5), the report does not clarify as to who precisely was responsible for this incident. Considering its gruesome nature and catastrophic consequences, the team of the Commission that visited Godhra on 22 March 2002 was concerned to note from the comments of the special IGP, CID (crime) that while two cases had been registered, they were being investigated by an SDPO of the Western Railway and that no major progress had been made until then.
In the light of fact that numerous allegations have been made both in the media and to the team of the Commission to the effect that FIRs in various instances were being distorted or poorly recorded, and that senior political personalities were seeking to ‘influence’ the working of police stations by their presence within them, the Commission is constrained to observe that there is a widespread lack of faith in the integrity of the investigating process and the ability of those conducting investigations.
The Commission notes, for instance, that in Ahmedabad, in most cases, looting was "reported in well-to-do localities by relatively rich people" (p. 130). Yet the report does not identify who these persons were. The conclusion cannot but be drawn that there is need for greater transparency and integrity to investigate the instances of death and destruction appropriately and to instil confidence in the public mind.
(ix) The report takes the view that "the major incidents of violence were contained within the first 72 hours." It asserts, however, that "on account of widespread reporting both in the visual as well as the electronic media, incidents of violence on a large-scale started occurring in Ahmedabad, Baroda cities and some towns of Panchmahals, Sabarkantha, Mehsana, etc" in spite of "all possible precautions having been taken" (p. 128-129). The report also adds that various comments attributed to the chief minister and commissioner of police, Ahmedabad, among others, were torn out of context by the media, or entirely without foundation.
(x) As indicated earlier in these proceedings, the Commission considers it would be naïve for it to subscribe to the view that the situation was brought under control within the first 72 hours. Violence continues in Gujarat as of the time of writing these proceedings. There was a pervasive sense of insecurity prevailing in the state at the time of the team’s visit to Gujarat. This was most acute among the victims of the successive tragedies, but it extended to all segments of society, including to two judges of the High Court of Gujarat, one sitting and the other retired, who were compelled to leave their own homes because of the vitiated atmosphere. There could be no clearer evidence of the failure to control the situation.
(xi) The Commission has, however, taken note of the views of the state government in respect of the media. The Commission firmly believes that it is essential to uphold the Right to Freedom of Speech and Expression articulated in Article 19(1)(a) of the Constitution, which finds comparable provision in Article 19 of the Universal Declaration of Human Rights, 1948 and Article 19 of the International Covenant on Civil and Political Rights, 1966. It is therefore clearly in favour of a courageous and investigative role for the media. At the same time, the Commission is of the view that there is need for all concerned to reflect further on possible guidelines that the media should adopt, on a ‘self-policing’ basis, to govern its conduct in volatile situations, including those of inter-communal violence, with a view to ensuring that passions are not inflamed and further violence perpetrated. It has to be noted that the right under Article 19(1)(a) is subject to reasonable restrictions under Article 19(2) of the Constitution.
(xii) The Commission has noted the contents of the report on two matters that raised serious questions of discriminatory treatment and led to most adverse comment both within the country and abroad. The first related to the announcement of Rs. 2 lakh as compensation to the next-of-kin of those who perished in the attack on the Sabarmati Express, and of Rs. 1 lakh for those who died in the subsequent violence. The second related to the application of POTO to the first incident, but not to those involved in the subsequent violence.
On the question of compensation, the Commission has noted from the report that Rs. 1 lakh will be paid in all instances, "thus establishing parity." It has also noted that, according to the report, this decision was taken on 9 March 2002, after a letter was received by the chief minister, "on behalf of the kar sevaks," saying "that they would welcome the financial help of Rs. 1 lakh instead of Rs. 2 lakh to the bereaved families of Godhra massacre" (see p. 115).
This decision, in the view of the Commission, should have been taken on the initiative of the government itself, as the issue raised impinged seriously on the provisions of the Constitution contained in Articles 14 and 15, dealing respectively with equality before the law and equal protection of the laws within the territory of India, and the prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
The Commission has also noted the contents of the report which state that "No guidelines were given by the home department regarding the type of cases in which POTO should or should not be used" and that, subsequent to the initial decision to apply POTO in respect of individual cases in Godhra, the government received legal advice to defer "the applicability of POTO till the investigation is completed" (pp. 66-67). The Commission intends to monitor this matter further, POTO having since been enacted as a law.
(xiii) The Commission has taken good note of the "Rescue, Relief and Rehabilitation Measures" undertaken by the state government. In many instances, strenuous efforts have been made by collectors and other district officers, often acting on their own initiative. The Commission was informed, however, during the course of its visit, that many of the largest camps, including Shah-e-Alam in Ahmedabad, had not received visits at a high political or administrative level till the visit of the chairperson of this Commission. This was viewed by the inmates as being indicative of a deeper malaise that was discriminatory in origin and character. Unfortunately, too, numerous complaints were received by the team of the Commission regarding the lack of facilities in the camps.
The Commission has noted the range of activities and measures taken by the state government to pursue the relief and rehabilitation of those who have suffered. It appreciates the positive steps that have been taken and commends those officials and NGOs that have worked to ameliorate the suffering of the victims. The Commission, however, considers it essential to monitor the on-going implementation of the decisions taken since a great deal still needs to be done. The Commission has already indicated to the chief minister that a follow-up mission will be made on behalf of the Commission at an appropriate time and it appreciates the response of the chief minister that such a visit will be welcome and that every effort will be made to restore complete normalcy expeditiously.
(xiv) In the light of the above, the Commission is duty bound to continue to follow developments in Gujarat consequent to the tragic incidents that occurred in Godhra and elsewhere. Under its statute, it is required to monitor the compliance of the State with the rule of law and its human rights obligations. This will be a continuing duty of the Commission which must be fulfilled, Parliament having established the Commission with the objective of ensuring the "better protection" of human rights in the country, expecting thereby that the efforts of the Commission would be additional to those of existing agencies and institutions. In this task, the Commission will continue to count on receiving the cooperation of the government of Gujarat, a cooperation of which the chief minister has stated that it can be assured.
The Commission now wishes to make a first set of recommendations for the immediate consideration of the central and state governments. As indicated earlier, once a response has been received from these governments on the report of the visit of the Commission’s team to Gujarat, and a full analysis made of the numerous representations received by the Commission, additional proceedings will be recorded by the Commission on the situation in Gujarat, offering further comments and recommendations.
I. Law & Order
(i) In view of the widespread allegations that FIRs have been poorly or wrongly recorded and that investigations are being ‘influenced’ by extraneous considerations or players, the Commission is of the view that the integrity of the process has to be restored. It therefore recommends the entrusting of certain critical cases to the CBI. These include the cases relating to the
Ø Godhra incident, which is at present being investigated by the GRP;
Ø Chamanpura (Gulbarga Society) incident;
Ø Naroda Patiya incident;
Ø Best Bakery case in Vadodara; and the
Ø Sadarpura case in Mehsana district.
(ii) The Commission recommends that special courts should try these cases on a day-to-day basis, the judges being handpicked by the chief justice of the high court of Gujarat. Special prosecutors should be appointed as needed. Procedures should be adopted for the conduct of the proceedings in such a manner that the traumatised condition of many of the victims, particularly women and children, is not aggravated and they are protected from further trauma or threat. A particular effort should be made to depute sensitive officers, particularly officers who are women, to assist in the handling of such cases.
(iii) Special cells should be constituted under the concerned district magistrates to follow the progress of the investigation of cases not entrusted to the CBI; these should be monitored by the additional director-general (crime).
(iv) Specific time-frames should be fixed for the thorough and expeditious completion of investigations.
(v) Police desks should be set-up in the relief camps to receive complaints, record FIRs and forward them to police stations having jurisdiction.
(vi) Material collected by NGOs such as Citizen’s Initiative, PUCL and others should also be used.
(vii) Provocative statements made by persons to the electronic or print media should be examined and acted upon, and the burden of proof shifted to such persons to explain or contradict their statements.
(viii) Given the wide variation in the performance of public servants in the discharge of their statutory responsibilities, action should be initiated to identify and proceed against those who have failed to act appropriately to control the violence in its incipient stages, or to prevent its escalation thereafter. By the same token, officers who have performed their duties well, should be commended.
(i) Visits to camps by senior political leaders and officers should be organised in a systematic way in order to restore confidence among those who have been victimised. NGOs should be involved in the process and the management and running of the camps should be marked by transparency and accountability.
(ii) Senior officers of the rank of secretary and above should be given specific responsibility in respect of groups of camps.
(iii) Special facilities/camps should be set up for the processing of insurance and compensation claims. The chief minister of the State had requested the Commission to issue an appropriate request to insurance companies for the expeditious settlement of claims of those who had suffered in the riots. The Commission will readily do so and recommends that the state government send to it the necessary details at an early date in order to facilitate such supportive action.
(iv) Inmates should not be asked to leave the camps until appropriate relief and rehabilitation measures are in place for them and they feel assured, on security grounds, that they can indeed leave the camps.
(i) The Commission recommends that places of worship that have been destroyed be repaired expeditiously. Assistance should be provided, as appropriate, inter alia by the State.
(ii) Adequate compensation should be provided to those who have suffered. This will require an augmentation of the funds allocated thus far, through cooperative arrangements involving both the State and Central Governments. Efforts should be made to involve HUDCO, HFDC and international financial and other agencies and programmes in this process.
(iii) The private sector, including the pharmaceutical industry, should also be requested to participate in the relief and rehabilitation process and proper co-ordinating arrangements established.
(iv) The role of NGOs should be encouraged and be an intrinsic part of the overall effort to restore normalcy, as was the case in the co-ordinated effort after the earthquake. The Gujarat Disaster Management Authority, which was also deeply engaged in the post-earthquake measures, should be requested to assist in the present circumstances as well.
(v) Special efforts will need to be made to identify and assist destitute women and orphans, and those subjected to rape. The Women and Child Development Department, Government of India and concerned international agencies/programmes should be requested to help. Particular care will need to be taken to mobilise psychiatric and counselling services to help the traumatised victims. Special efforts will need to be made to identify and depute competent personnel for this purpose.
(vi) The media should be requested to cooperate fully in this endeavour, including radio, which is often under-utilised in such circumstances.
IV. Police Reform
(i) The Commission would like to draw attention to the deeper question of police reform, on which recommendations of the National Police Commission and of the National Human Rights Commission have been pending despite repeated efforts to have them acted upon. The Commission is of the view that recent events in Gujarat and, indeed, in other states of the country, underline the need to proceed without delay to implement the reforms that have already been recommended in order to preserve the integrity of the investigating process and to insulate it from extraneous influences.
Justice JS Verma (Chairperson)
Justice Sujata V Manohar (Member)
Virendra Dayal (Member)