1. National Crimes Tribunal
1.1. A Standing National Crimes Tribunal be established, forthwith, to deal with all cases of,
– Crimes against humanity, pogroms,
– Offences in the nature of genocide,
– Cases of mass violence and genocide,
– Cases of riots and incidents where there is large-scale destruction of lives and property, including caste, religious, linguistic, regional, ethnic and racial violence.
1.2. A suitable Statute should be enacted for the purpose by Parliament
1.3. The Standing National Crimes Tribunal (SNCT) should be an independent body, the personnel of which should be selected by a committee consisting of the Chief Justice of India, the Prime Minister of India and the Leader of the Opposition in Parliament. Persons with legal and judicial background should be appointed on the tribunal for a fixed tenure of not less than 7 years.
1.3. The members of the SNCT should be free to follow such procedure as they may find fit notwithstanding the provisions of any other law.
1.4. The SNCT should have the power to investigate offences through its own investigating agency, created for the purpose. The SNCT should have, for its independent use, a special investigating and enforcing agency.
1.5. The SNCT should take cognisance of mass crimes as soon as they occur. Once the cognisance of such crimes is taken, no court should have the power to deal with them. The SNCT should depose of these cases within a fixed time-frame.
1.6. The SNCT should have the power to arrest, try, and punish the accused, as well as to compensate, and rehabilitate the victims and their dependents.
1.7. Jurisdiction, Admissibility and Applicable Law
For the purpose of the statute to be enacted, "mass violence and genocide" should mean, as it does in the International Convention on Prevention and Punishment of the Crime of Genocide, any of the following acts committed with intent to destroy in whole or in part an ethnic, racial caste or religious group:
ØKilling members of the group;
Ø Causing serious bodily or mental harm to members of the group;
Ø Deliberately inflicting on the group, conditions of life calculated to bring about its physical destruction in whole or in part;
Ø Imposing measures intended to prevent births within the group;
Ø Forcibly transferring children of the group to another group.
In addition, the following acts should also be punishable under the proposed statutes:
Ø Conspiracy to commit genocide;
Ø Direct and public incitement to commit genocide;
Ø Attempt to commit genocide;
Ø Complicity in genocide.
2. Crimes Against Humanity
2.1. Within the definition of crimes that fall under the definition of crimes against humanity, sexual crimes against women should be recognised as crimes against humanity. Sexual crimes should not include only rape in the conventional sense; but should also include sexual slavery, debasing, enforced pregnancy, enforced sterilisation, forcible insertion of any object into the vagina. The definition of crimes against humanity should also include attacks on the lives and dignity of a section of the people, attempted or actual obliteration of a section of the people, economic annihilation of a targeted section, as well as their religious and cultural obliteration.
3. Gender Crimes
3.1. The definition of rape and sexual assault under the new statute should recognise that it cannot be restricted to the act, or the proof, of the penis forcibly entering a woman’s vagina. Any object used to abuse a woman’s body, and even verbal assault should be considered a part of the same crime. The present laws of evidence and procedures involve medical examination of the victim as well as of the accused, as proof of such an assault. In situations such as that of mass rapes and gang rapes during the recent violence in Gujarat, this is an impossibility because in some cases, where the victims have fled for days on end if they have survived the assault at all, or where the police has refused to file any complaints, or have deliberately filed incorrect complaints, no accused may be apprehended. It is important that the onus of proof, in all such cases of mass and gang rapes, should rest on the accused and the victims should not be burdened with proof of the crime. The testimonies of the witnesses, in cases where women have been burnt or killed, have to be given due weight as those of the victims themselves.
3.2. In most cases, the accused might be unknown, or due to the presence of a large number of people, it may be difficult to identify the persons involved directly in the crime. In such situations, the state has to be held responsible for the crime, for not protecting its citizens. The persons holding responsible offices must be made accountable for the same.
3.3. The concept of justice has to be widened in such cases. It must deal, not only with the punishment of those found guilty of the crime, but should also consider reparation for the women who suffered physical and mental injuries, since such assaults further curtail women’s rights to be a part of mainstream social life, besides inflicting a damning long term impact on the coming generation. Precisely for this failure to protect the basic human rights of these citizens, the state has to provide reparation. Financial reparations are no doubt extremely important, but ought not to be seen as full compensation. Since all individual women are not in a position to register their complaints, reparation should be provided to all women of the affected community.
3.4. Women and witnesses who have come forward to give testimonies should be given adequate protection by the SNCT, holding the state and the offenders responsible and punishable for any harm that may be caused to them.
4. Justice and the Judiciary
4.1. The near collapse of the criminal justice system in our country has made the deliverance of justice an exception rather than the rule. It is a painful reality and has to be acknowledged by all. Hence, when situations like the Gujarat carnage/genocide occur, where mass scale violence takes place, it is unrealistic to expect prompt justice from the present system. It has, therefore, become necessary to suggest a mechanism such as the SNCT above, with special composition, status, power and procedure. Section 11 of the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 envisages such a tribunal.
5. Supreme Court
5.1. The Tribunal therefore recommends that all necessary steps including seeking direction from the Supreme Court and making a statutory recommendation to the government of India to (i) appoint such a Tribunal for fixing the responsibility for acts and omissions of officials and the political executive in the Gujarat carnage of February-March 2002, and to ensure that persons found derelict make restitution and reparation, and to ensure compensation for all sufferers in the violence (ii) enact a law on the Prevention and Punishment of the Crime of Genocide. (iii) Such a comprehensive law on riots and disorders should take into consideration detailed recommendations made by the National Police Commission, the NHRC and the NCM.
6.1 A long term and systematic plan should be worked out by the civic and town planning administrations in urban centres in Gujarat, with the assistance of the housing boards and housing financing authorities, to actively break the aggressive, violent and enforced ghettoisation of Gujarat’s cities, especially Ahmedabad, Vadodara and the like. This can be ensured with adequate political and moral will, committed to the belief that enforced ghettoisation makes communities more vulnerable as target groups for mass violence and also actively prevents healthy interaction that breeds tolerance between communities.
The municipal authorities and the housing boards of cities in the state need to prepare plans that encourage mixed, inter-religious, inter-caste housing. This is vital for the future health of all sections of the population.
6.2. Provision of alternative housing to those who are not in a position to return to their old homes, and the formation of mohalla committees, to rebuild trust in mixed neighbourhoods, will also go a long way in the direction of rehabilitation.
6.3. Dissemination of accurate information about the Muslim community, including their comparative socio-economic development indices, statistics on bigamy etc., in an easily understandable form, will help prevent false propaganda against them.
6.4. Dissemination of information on the history of the struggle for independence, and the part played by the different communities, classes and tribes in the freedom struggle, will increase awareness about the contribution of all communities to the building of India as a nation and their deep interdependence on one another.
6.5. Recruitment of a non–partisan, gender-sensitive police force and bureaucracy, by building gender sensitivity and impartiality indicators into the selection process and following it up with periodic training programmes, is a must and must be followed strictly.
7.1. Recommendations made by the National Police Commission(1979-81), in order to establish the autonomy of the police and free it from undue political control, should be accepted and implemented immediately, especially in relation to:
Øthe setting up of a composite State Security Commission to deal with, among other things, the selection of the police chief, to ensure his autonomy, independence and professional functioning, and to confer on him the fixity of tenure to remove fear of punitive transfer and to empower him to act within the ambit of his statutory authority;
Ø the evaluation of the performance of the police and receipt of complaints from police officials about illegal and irregular orders from above;
Ø recasting of the Police Act of 1861.
7.2. An independent Police Complaints Authority should be created, on the lines of the British model, to hear complaints from the public against police isbehaviour. In the recent violent incidents in Gujarat, a large number of complaints about human rights violations by the police had to be registered with the very same police authorities who had committed the violations in the first place, creating a very bizarre situation. The creation of an Independent Police Complaints Authority is essential to obviate such a situation in the future.
7.3. The Tribunal is of the view that it is the urgent need of the hour that law-enforcement be made impartial, effective and humane. For impartial law-enforcement, the functioning of the police must be independent of political direction and interference. Courses on human rights, the eradication of caste and communal prejudices, and humane riot control methods should be included in the training programme for police and other law-enforcement agencies. Training of police personnel on the especially sensitive matter of dealing with communal violence is also necessary. The examination of video footage of telecasts by local TV channels as well as of police videos, should become mandatory, to identify and prosecute those found guilty of making provocative speeches/statements and indulging in acts of violence.
7.4. The social composition of all law-enforcement agencies should be diverse, wherein the presence of at least 25 percent of the personnel from among the minorities and women should be ensured. For this purpose, a study should be undertaken to assess the present representation of these categories in the police and the deficiency should be made up.
7.5. Recommendations of the Committee on Police Training, 1972, should be implemented, especially in relation to social justice and attitudinal reorientation of the police through appropriate training on social justice issues.
7.6. The need for the existence of centralised All India Services, such as the IAS and the IPS, should be examined in the light of increasing democratic decentralisation in the country. An Administrative Reforms Commission with a comprehensive mandate, should be set up to examine a gamut of issues that arise in this connection.
7.7. Official and NGO inquiries and investigative reporting by eminent persons have noted the partisan role of the police during riots. These reports include those of the Justice Madon Commission (1970), National Police Commission (1981), studies by Shri NC Saxena (1983) and Shri VN Rai (1996), and finally, by the Justice Shrikrishna Commission on the Mumbai riots (1992–93).
The extremely partisan role of the law-enforcement agencies has been generally attributed to the following four factors:
Ø A culture of governance which makes the police function as a subordinate body, carrying out orders and directions of the political executive.
Ø Deeply entrenched communal prejudices in the minds of a section of officials and police personnel.
Ø Social composition of the police and of the other wings of the law-enforcement and criminal justice system, wherein minorities are persistently under-represented.
Ø Lack of training in humane and effective mob control by the police. This is a state of affairs that needs to be rectified and rectified quickly. The Tribunal notes with anguish and concern that no political party has ever paid heed to the urgent need for radical police reforms. The Tribunal recommends that this be a matter that is debated and legislated upon with the utmost urgency. Let it not happen that more carnages take place and are condoned by the political class, simply because they lack the moral courage to initiate and push for an independent police authority in the country.
7.8. Legal provisions must be enacted to ensure restitution of rights and compensation to sufferers/victims of the riots. (The rationale and modalities for taking these measures have been discussed in the National Commission on Minorities Report on Communal Riots: Prevention & Control (1999).)
8. Civil Society
8.1. Joint forums of all social groups — castes, religions, etc. — should be created to discuss, debate and deliberate upon all matters of common concern.
8.2. Common festivals and festivities should be organised not only on national occasions but also to celebrate the special occasions of all religious groups.
8.3. Discourses should be held to educate people on the merits of each religion and the denigration of any religion should be statutorily banned and made punishable.
8.4. Mixed localities, housing complexes, housing societies, clubs, educational and recreational institutions should be promoted and social intercourse and interactions including voluntary inter-caste, inter–religious marriages should be encouraged.
Copyrights © 2002, Sabrang Communications & Publishing Pvt. Ltd.