1. State Government
1.1. Implement all the recommendations of the National Human Rights Commission (NHRC).
1.2. Prosecute all those indicted in the NHRC report, including the chief minister and his ministerial colleagues who have aided and abetted the violence by word and action, under the relevant provisions of Indian law — the Indian Penal Code (IPC), Prevention of Terrorism Act (POTA) and the Unlawful Activities (Prevention) Act. The Tribunal is also of the view that Shri Modi is guilty of crimes against humanity and of genocide under the relevant international statutes. It is the view of the Tribunal that the CM and his concerned ministers are not fit to hold public office since they are guilty of the aforesaid crimes. The Tribunal is further of the view that the interests of the country are not safe in the hands of people like Shri Modi and of those who hold his views and have his attitude and approach in public life.
1.3. The Tribunal recommends immediate banning of the VHP and the BD under the relevant provisions of the Unlawful Activities (Prevention) Act, 1967, for committing an "unlawful activity" and "unlawful association" within the meaning of that Act. "Unlawful activity" under section 2 of the Act relates to an individual or any association and "any action taken by such individual or association (whether by committing an act or by word, either spoken or written, or by sign or by visible representation or otherwise) (i) which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory in India or the secession of the territory of India from the union, or which incites any individual or group of individuals to bring about such cession or secession; (ii) which disclaims, questions, disrupts or is intended to disrupt the sovereignty and territorial integrity of India. "Unlawful association" means under section 2g of the Act (i) which has for its object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or (ii) "which has for its object any activity which is punishable under section 153-A or section 153-B of the Indian Penal Code 1860 (45 of 1860) or which encourages or aids persons to undertake any such activity; or of which the members undertake any such activity."
1.4. By their public utterances and behaviour, which includes provoking their armed cadres through hate propaganda, they are disturbing the law and order machinery of different states in a democratic country like ours. This publicly proclaimed hate propaganda and celebration of violent pogroms against the country’s minorities, makes public their secret agenda –– an agenda, moreover, that is not contained in the written constitution(s) of these outfits. Through this public agenda, which clearly violates the Act, the Vishwa Hindu Parishad and the Bajrang Dal are holding the country to ransom. Moreover, the declared agenda is being promoted by senior office-bearers who travel all over world.
1.5. Immediate steps must be taken by both the central and the state governments to prohibit the distribution of trishuls and swords since, by these means, attempts are being made to arm civil society and prepare a section of Indian society to unleash violence against other sections; an altogether dangerous and fragile situation for peace and internal security in the country. The Tribunal recommends that the law and order machinery seize and confiscate, not merely in Gujarat but in all other parts of the country, the trishuls and swords which have been and are being distributed for the purpose of generating terror against other sections of the people.
The Tribunal observes that the distribution of trishuls, particularly to young men across the length and the breadth of the country, have nothing to do with the traditional practices of Hindu religion. Yet, through a government resolution, the central government has exempted the trishul from the purview of the Arms Act. The Tribunal recommends the withdrawal of this central government resolution, suitable amendments to the Indian Arms Act to include small but deadly weapons like the trishul and the seizure of all trishuls forthwith.
1.6. The government of Gujarat should crack down on the arms training camps being conducted by the RSS/VHP and BD, as these are breeding grounds for home- bred terrorists who propagate violence against sections of Indian society and hence pose a threat to internal peace and security.
1.7. The Tribunal recommends the arrest of, and immediate criminal action against, those guilty of violence and of incitement to violence in Gujarat, including politicians, policemen, administrative officers and all those named by the victims of the violence, as well as others who are guilty of dereliction of duty. (The list of the accused so named is annexed separately).
ØWe have evidence before us which discloses the direct complicity and active participation in the carnage, of the chief minister and other ministers; of leaders of the VHP and Bajrang Dal at the state and local levels; of the complicity of the then commissioner of police and several other policemen at the level of inspectors, sub- inspectors and the constabulary.
Ø Examination of the evidence also shows that elected representatives, including cabinet ministers, supported and led large unlawful assemblies that indulged in large-scale arson, loot, murders and other offences, including crimes against women.
Ø Our inquiry shows that the entire bureaucracy of the state, barring a few exceptions, exhibited a callous and culpable indifference to what was going on in the state from February 28 onwards. A former chief justice who appeared before us, summed up the situation succinctly. Constitutional law and authority stood suspended for seventy-two hours. No preventive measures were taken against the Hindu marauders. This attitude is inexplicable and unpardonable. Despite the presence of provisions for keeping peace and public tranquility in the Criminal Procedure Code, the provisions of the National Security Act, state laws providing for the preventive detention of anti-social elements or their externment and the provisions of the Unlawful Activities (Prevention) Act 1967, none of these were applied.
Ø Every one of these officers should face due procedure for this culpable indifference and be charged for utter incompetence and inefficiency.
Ø The chief minister and his cabinet colleagues should be dismissed forthwith, even from the caretaker status he and his colleagues are enjoying now.
Ø As many of our political parties increasingly reflect an absence of proprieties and non-adherence to the basic principles of democracy and the rule of law, there is need for a law defining the constructive liability of individual ministers and the political government collectively, when such gross crimes take place. This alone will enable people to hold their representatives accountable.
1.8. The Tribunal recommends the immediate detention and prosecution of Shri Praveen Togadia and Shri Ashok Singhal of the VHP, and Shri Narendra Modi of the BJP, who, repeatedly, and with impunity, do not merely incite communal hatred and violence against the country’s minorities through their rabid armed cadres, in violation of sections 153A and B of the IPC and 295 etc. of the CrPC, which in themselves are serious enough offences, but also disrupt public peace and order, vitiate communal peace and harmony and create an atmosphere of insecurity, tension and active conflict.
1.9. The National Human Rights Commission (NHRC) noted the need to take firm action on provocative statements, which have the potential to incite communal tensions and violence. In its "Final Order on Gujarat dated 31st May, 2002", the NHRC has stated that it "had urged that these [statements] be examined and acted upon, the burden of proof being shifted to such persons to explain or contradict their statements."
1.10. The promotion of enmity between different groups on grounds of religion is a recognised criminal offence under Indian law. Indian Statutory Law also provides effective protection for the rights of minorities whether in Gujarat or in the rest of the country. The Indian Penal Code (IPC) prescribes criminal prosecution for "wantonly giving provocation with intent to cause riot" (section 153); "promoting enmity between different groups on grounds of religion" (section 153A); "imputations, assertions prejudicial to national integration" (section 153B); "uttering words with deliberate intent to wound the religious feelings of any person" (section 298); "statements conducive to public mischief" (section 505 (1), b and c); and "statements creating or promoting enmity, hatred or ill-will between classes" (section 505(2)).
1.11. The Judiciary is also empowered to initiate suo motu action, which it has been loth to do in these circumstances. In addition, section 108 of the Code of Criminal Procedure allows an executive magistrate to initiate action against a person violating section 153A or 153B of the IPC.
1.12. The "Guidelines to promote communal harmony" issued by the Indian ministry of home affairs in October 1997, specify the precise responsibility of the state machinery when dealing with potentially inflammatory statements in the context of communal tension. Guideline 15 states that "effective will needs to be displayed by the district authorities in the management of such situations so that ugly incidents do not occur. Provisions in section 153A, 153B, 295 to 298 and 505 of IPC and any other Law should be freely used to deal with individuals promoting communal enmity."
1.13. Besides, Article 20 of the International Covenant on Civil and Political Rights, which India ratified in 1979, affirms that "Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law." Despite the existence of these provisions, voluminous evidence relating to the Gujarat carnage shows that they have been violated. The executive, the law and order machinery and the judiciary have shown a marked reluctance to haul up offenders who are guilty of mass crimes.
1.14. The Tribunal recommends that the state government urgently provide adequate security to the sections of the Muslim population of Gujarat who wish to return to their original places of residence and business.
1.15. The Tribunal recommends independent investigation into cases relating to the Gujarat carnage under the direct supervision of the chief justice of the state. The CJ may also be requested to select the sessions judges and magistrates who should try these cases exclusively. Special courts should be set up to try the guilty. Inquiries must be instituted by the CBI against senior police officers and bureaucrats suspected of dereliction of duty.
(Note: Trials in the 1985 riot cases in Gujarat, registered against the then health minister, Shri Ashok Bhatt — one of those who sat in the police control room in Ahmedabad during the carnage in 2002 — and also against Shri Harin Pathak, are yet to begin, even after 18 years. The cases have been stayed in the wake of a High Court order. In the 60 cases registered against the 263 persons accused of faulty construction, leading to the death of nearly 800 people in the January 2001 earthquake, trial has still not begun in a single case, a year and a half later. This is a sorry record of the justice delivery system).
1.16. The impartial and swift prosecution of those guilty of violence, both in the Godhra massacre and in the incidents that took place throughout the state thereafter, would go a long way in building confidence in and in reestablishing the credibility of the state administration. Without legal and social justice, the issues of peace and the process of healing for the traumatised survivors, will, simply, not be addressed.
1.17. The establishment of a State Human Rights Commission in Gujarat is a matter of urgency and should be accomplished forthwith.
1.18. Suitable amendments need to be made in the existing laws relating to sexual assault, to incorporate the different kinds of sexual assault that occurred during the violence in Gujarat. Testimonies before us narrate that there were numerous instances of gruesome sexual violence, which involved the insertion of a variety of objects into women’s bodies, and sexual mutilation of all kinds. The existing definition of rape is totally inadequate to deal with the various kinds of rape that took place in the context of the genocide in Gujarat.
1.19. The Tribunal recommends the immediate suspension of, and action against, the district magistrates/collectors of Ahmedabad, Vadodara, Bharuch, and Himmatnagar since these officials have violated various laws and service rules.
1.20. Public prosecutors should be appointed by the chief justice and not the state government. There should be adequate representation of the minority communities among the public prosecutors. To this end, the Tribunal recommends an amendment to the CrPC, as has been made in the Civil Procedure Code with effect from July 1, 2002, to ensure that the appointment of public prosecutors is carried out by the chief justice of the concerned High Courts, in consultation with at least five judges. (At present, the appointment of government pleaders in all districts is being done by the state government in consultation with the district judge).
1.21. The Tribunal recommends the quick manning of police stations and relief operations by a sizeable and significant number of representatives from the minority community (See chapter, Recommendations: Police).
1.22. On account of the brutal manner in which people were attacked, killed and burnt across the length and breadth of the state, including residents of far-flung and hitherto ‘unaffected’ rural areas, many who were killed could not be identified. These could well be termed ‘missing’ persons, although they have all been killed. Formalities and paper work, and even post-mortem examinations have not been possible in many cases where bodies were destroyed without a trace. Therefore, as part of its wider duty, the state government should compile and declare a list of ‘missing’ persons and expedite the payment of compensation to family members who are eligible. In cities like Ahmedabad, Vadodara, Bharuch, Ankleshwar, Anand and elsewhere, victims deposing before the Tribunal complained of the completely indifferent attitude displayed by the administration, as a rule, in the matter of payment of compensation to victim-survivors and especially towards the relatives of the ‘missing persons’ who were mute witness to the brutal killing of their near and dear ones and, yet, have no proof (such as a post-mortem or any other record) of their deaths.
1.23. Many sections of the IPC, the CrPC and other laws pre–date the Indian Constitution and have not undergone a thorough revision, restructuring and orientation in keeping with the fundamental principles of democracy, equity, freedom and equality as contained in our Constitution. While the Constitution of India was framed in 1950, after India attained independence, our criminal laws date back to the colonial period and have not been modified to conform to constitutional provisions in many respects. Therefore, a new law, termed the National Human Rights Law, should be formulated to encompass a rights-based perspective. To this end,
1.24. Conflict-affected communities, and especially women and other more vulnerable sections among them, should be given a voice in determining the course of action to prevent, mitigate and resolve structural and political violence. Only by reversing the process of disempowerment engendered by structural violence and conflict, can sustainable strategies for development be achieved.
(Note: a) The newly enacted constitutional amendments to institutionalise Panchayati Raj Institutions (PRIs), empower the PRIs to deal with specific developmental functions but leave out regulatory and police functions. PRIs should be empowered to deal with police functions and the DM and the SP should be placed under the Panchayat chief in each district.
Ø The sections of the Commission of Inquiry Act that do not make the report of the commission statutorily binding on the government, need to be amended.
Ø Another is section 197 of the IPC, a provision that requires the government to grant sanction for the prosecution of persons spitting venom orally and in writing, in violation of section 153 A and B of the IPC. The Tribunal recommends the repeal of this section, which precludes any individual from criminally prosecuting persons for hate speech until the government has granted sanction.)
1.25. The Tribunal believes that no rehabilitation is possible unless the guilty are brought to book. Wherever the accused have been named, the government needs to take necessary action so as to instil confidence in the people and enable them to restart their lives. The Tribunal condemns all measures taken by the government to force compromises by pressurising victims to withdraw the names of the accused from police complaints. Instead the Tribunal demands that:
Ø Proper FIRs be registered and immediate action be taken. The police should collect and investigate forensic evidence.
Ø Wherever possible, searches should be conducted to recover goods that have been looted from people’s homes or compensation be paid for the goods lost.
Ø In view of the extraordinary circumstances under which the crimes against women were committed, and the evidence that the state machinery was not accessible to victims, there is a need to relax some normal requirements of the law to goad the legal process into swift and speedy action.
Ø Wherever plots of land and properties belonging to the minority community have been illegally occupied by Hindu villagers, as is the case in many districts and villages, urgent and immediate action needs to be taken to restore these lands and properties to their rightful owners. Before this, an urgent official survey, statewide, of such ‘lost lands’ needs to be undertaken at the earliest.
Ø Thorough procedures of investigation have been consistently ignored by the police. The culpability of police personnel, where they have failed to follow basic investigative procedures, should also be referred to the Grievances Authority. (See chapter, Recommendations, Long Term: Police).
Ø The Tribunal recommends that the police and courts taken legal cognisance of, even if retrospectively, of FIRs and complaints sent by victim survivors and affected communities, by registered AD immediately after the genocidal carnage, given the Gujarat police’s criminal failure in accurately recording FIRs. Even though months have passed, this needs to be done.
1.26. The establishment and activities of peace committees in the affected areas should be encouraged. All efforts must be made to prevent further ghettoisation of the Muslim community. To this end, specific interest needs to be shown in the matter by the state government, civil society and the central government and by their respective agencies.
1.27. The government should take the necessary steps to restore confidence amongst all communities. The state government has not addressed the issue of the betrayal of trust by various sections of the administration and the consequent sense of extreme insecurity felt by the victims. So far, rehabilitation has been totally ignored by the state and central governments, and, to date, the government has treated the post-violence scenario solely as a matter of law and order and of maintaining the peace. It has also tried to sweep the enormity of the crimes committed under the carpet. Eight months after the attack on the Sabarmati Express, the towns and villages of Gujarat continue to simmer. The government, and the party that controls the government, should not indulge in any activity which undermines public confidence and harmonious relations between communities.
2. Central Government
2.1. In view of the breakdown of the constitutional machinery in Gujarat, and the patent, concerted and systematic challenge to the secular foundation of the polity; to the extent that it failed to protect the life, liberty, reputation and property of a sitting High Court judge as well as a retired High Court judge still in service of the government, both belonging to the minority community; to the extent that in the very heart of the commercial capital, the large-scale looting, arson, rape and killing to which the minority community was allowed to be subjected in a planned and systematic manner; to the extent that the entire criminal justice system is being polarised and perverted, the Tribunal recommends that, under the obligations enjoined on it by Article 356, the union government should immediately impose President’s Rule and assure the minorities of the safety and the security of their life, liberty, reputation and property. The present government, which is in power even after the dissolution of the Assembly, is an irresponsible government, not answerable to anyone. It is an anti-democratic government.
2.2. During President’s Rule, stringent and extensive measures may be undertaken to de-politicise and de-communalise the bureaucracy and the police at all levels. The impartial and efficient functioning of the Gujarat administration and police force, must be restored in accordance with the provisions and injunctions of the Constitution.
2.3. The central government should ensure the criminal prosecution of those office-bearers in the Gujarat government who are found guilty.
2.4. The central government must end its apathy and impassivity towards the minorities and stop the present campaign against them, in the name of the so-called Gaurav Yatras, which are nothing short of a shameless exhibition of the perversion and glorification of crimes committed against the minority community.
2.5. The deliberate attempts to communalise the polity and to generate the politics of hate are bound to have both short term and long term impacts on national life as a whole. These impacts can be wished away but only at the cost of the unity and integrity of the nation. It is the solemn responsibility of the central government to keep the nation intact, a duty, which it has quite patently, chosen to ignore.
2.6. The centre should take a specific and special interest in measures of reparation, to enable the rehabilitation of affected persons. Adequate compensation should be given for the reconstruction of residential, commercial and industrial establishments that were damaged or destroyed. The relevant rules must be revised and the centre should provide the necessary financial support, to complete the task of reparation.
2.7. The centre must bring in a new legislation to implement the Genocide Convention, which India has signed and ratified, and must use these measures to prosecute and punish all those who participated in the planning and the execution of murder, sexual violence, theft and destruction in the state of Gujarat during the communal carnage. The Tribunal finds that the state sponsored crimes committed in the state of Gujarat are nothing short of Genocide and Crimes against Humanity. Hence the need to have a suitable legislative measure as required by the Genocide Convention.
2.8. The government should suitably amend electoral laws so as to disallow parties that espouse a particular religion, and which act or behave by word of mouth, print or in any other manner with a view to secure power through a religious policy, to contest elections to Parliament, to the Assembly, to the municipal corporation to Panchayats.
2.9. The government should appoint three high-powered commissions:
Ø To determine the extent of communalisation within the administration (bureaucracy) and to suggest various measures to remedy the situation so as to ensure a secular, independent administration.
Ø To determine the extent of communalisation of education and educational institutions, and to suggest various steps to ensure that future generations are not in any way communalised before they come out of the schools and colleges.
Ø To investigate and determine the activities of all organisations indulging in communal activities, to determine whether their activities are detrimental to the interests of the country.
2.10. To ensure impartial assessment of damages, we call on the Indian government to bring in the UN Special Rapporteur on Violence Against Women as also the UN Special Rapporteur on Religious Minorities and other UN agencies for various treaties that India is signatory to, for investigation and assessment
3. UN/International Community
3.1. Until that happens, and because national legal mechanisms are extremely inadequate to deal with crimes of this magnitude where state complicity of the very highest level has been found; and where there are no laws to deal with issues of genocide, sexual violence against women in these circumstances; and so on — there is an urgent need for international agencies to intervene and help in the process of justice for the victims of the Gujarat genocide.
Hence the Tribunal appeals to the International Community to use all the influence at its command with the government of India and the Gujarat government to ensure the speedy carriage of justice.
3.2. To impress upon the government of India, through its Parliament, to legislate mechanisms for the implementation of the Genocide Convention— which India has both signed and ratified — and to use these mechanisms to prosecute and punish all those who participated in the planning and execution of murder, sexual violence, theft, and destruction in the state of Gujarat during recent months.
4.1. Action needs to be taken against those who gave provocative speeches on TV channels and made statements in newspapers, as well as against the newspapers and TV channels who have published the same, as well as those that published news and gave it a communal colour, as confirmed by the report and recommendations of the Editors’ Guild of India.
4.2. The role of sections of the media, particularly the Gujarati language press, in spreading and inciting violence, should be investigated and all facilities provided to it, such as advertisements from public authorities and bodies, postal and transport concessions, credentials, entry cards and passes, should be withdrawn.
5. Relief & Rehabilitation
5.1. Restoration and repair of places of worship damaged and destroyed during the violence, in consultation with the community concerned.
5.2. Constitution of a tribunal for compensation/reparation to victims. This tribunal should have enough benches spread over an entire city like Ahmedabad and also have benches in the districts. The tribunal should be given clear guidelines for the assessment of compensation in respect of the losses suffered by every individual in the violence. The losses would include the loss of and damage to homes and belongings, the loss of life and injuries sustained, the destruction of or damage to businesses and the loss of means of livelihood, as well as the impact of sexual assaults on women and their relations. It is the view of the Tribunal that such tribunals (like those set up after the Dockyard Explosion in Bombay in 1944 by the colonial power at the time) should be set up without any further delay to restore a feeling of justice in the victims of the state sponsored carnage.
The benches of the Reparation Tribunal must have:
Ø the status of independent judicial authority to assess the losses suffered and to award and enforce the payment of compensation.
Ø specific time frames within which they should function.
Ø the necessary infrastructure to discharge their functions.
5.3. In the meanwhile, the victims should be rehabilitated on available land, including government land, at government expense.
5.4. Survey of Damage to Life and Property: The state government should immediately conduct a detailed survey to determine the loss of life, dignity, property, livelihood and business suffered by the victims and the compensation, if any, that has been given to them so far. The findings of the survey should be made public as was done at the time of the earthquake in 2001 . The findings should include:
Ø The manner in which the amount of Rs. 150 crores, provided by the central government as aid to ensure rehabilitation, has been disbursed.
Ø Detailed tabulations of the amounts disbursed as compensation for houses that were damaged or destroyed.
Ø A detailed survey of the affected persons and the manner in which they have been affected.
Ø The identification of destitute women and orphans.
Ø The tabulation of victim survivors who suffered serious injuries, including especially bullet and burn injuries, and payment of compensation-reparation to them. The amount that is paid should be astertained on the basis of not simply compensation for the medical aid required for the injury itself, but from the cumulative impact of it, including loss of livelihood, physical handicaps suffered and the mental trauma that resulted.
5.5. Quick disbursal of Relief:
5.5.1. The government has put a low ceiling of Rs. 50,000 in assessment of the damage to houses. The vast majority of payments made are well below this amount; some assessments and surveys claim that the damages are as low as 5,000 and 10,000. A cursory glance reveals that in the majority of cases, the damages caused are much higher than the ceiling. In light of the almost uniform and extensive damage to houses and shops, a minimum of Rs. 50,000 should be given to all people whose houses and shops have been damaged. These payments should be made immediately, as minimum compensation pending detailed assessment by the tribunal as suggested above. There should be no ceiling on the compensation awarded.
5.5.2. The state, along with groups and organisations from among the affected community and civil society, should ensure that all those who were affected receive compensation.
5.5.7. Surveys and panchnamas should be rapidly and properly conducted to ensure timely disbursement of interim and other relief.
5.5.8. Interim and other relief should be handed over to women and men of a family, jointly.
5.5.9. Ration cards and other identity cards should be provided to those who have lost such documents immediately.
5.5.10. Educational documents/certificates should be provided to those who have lost such documents immediately. Full protection should be provided to those who wish to return to their homes, and legal/ownership documentation should be provided expeditiously in cases where they have been destroyed.
5.5.11. The state should allocate land for people who want to shift from camps into safe localities of their choice, and a special rehabilitation package should be provided for widows, single women and female-headed households.
5.5.12. The government policy regarding compensation to heirs of ‘missing’ persons should be changed in view of the abnormal circumstances in which the people went ‘missing’.
5.5.13. A single window system should be established to complete all administrative formalities, including those concerning relief and rehabilitation.
5.5.14. Proper procedures should be laid down to ensure transparency and the right to information, and this should also apply to arrests, relief and rehabilitation measures.
5.5.15. Outstanding dues to managers of camps should be paid by government.
5.6. Economic rehabilitation needs to be undertaken on an urgent footing. Economic rehabilitation should not be equated with the interim relief.
Ø The Tribunal recommends urgent and quick disbursal of interest–free loans for business through a single window clearance system.
Ø The Tribunal recommends quick disbursal of insurance claims.
Ø The evidence recorded by the Tribunal from different districts of the state reveals the depth of communal polarisation in different sectors, aided and abetted by the party in power in Gujarat. Small and big businessmen and traders who deposed before the Tribunal testified to the communal and partisan attitude of assessment officers from the Oriental Insurance Company, and showed that even those who had insured their businesses and trades are being denied fair recompense by the insurance company. The government must look into this matter and take the guilty to task.
Ø Job opportunities for women and men should be encouraged by creating a pool of information, particularly for those on daily wages. The provision of small, interest-free loans for those wishing to set up laaris (handcarts), stalls and small shops or any other small businesses should be made.
Ø Steps should be taken to ensure education and employment opportunities for women of the minority community.
Ø Mass promotion of children who have not been able to take the annual and Board examinations should be made to ensure that they do not lose an academic year.
Ø School transfers should be provided without the insistence on formal transfer certificates, to facilitate the process of school transfers for those displaced by the violence;
Ø The Tribunal recommends the immediate withdrawal of textbooks in Gujarat and elsewhere, which distort history, sow communal discord and teach communal hatred.
Ø The genocide in Gujarat has had a serious impact on the young, their mental and phsyical well-being especially their schooling and education. Special attention needs to be paid to this tragic consequence of the violence on children to ensure how we draw these children back into the system. The government should encourage and facilitate creative, formal and non-formal interventions, governmental and non-governmental, to ensure this.
5.8 Reparation, not compensation
The devastation of a section of the population on a mass scale such as the one witnessed in Gujarat has to be distinguished from sporadic violence against a few individuals resulting in the loss of life and property. In the former, an attempt is made to uproot people through an organised plan, with the connivance and support of the state, with a view to wiping them out without a trace. In such cases, the usual compensation doles cannot recuperate the losses suffered by the people in question. What is needed is their complete rehabilitation, physically, psychologically and spiritually. In such cases, losses have to be calculated, not only in terms of the loss of men and material, but also in terms of the loss of human-self of survivors who have to be resuscitated as human beings and induced to start a new life by overcoming the trauma of the devastation. The cost of such a revival is inestimable. The loss of all that is near and dear, including the lives of close relatives, the complete defacement of past existence, the shattering of all dreams, hopes and aspirations, and the cruel uncertainties of the future are all that the survivor is left with. He or she has to live with it every moment of his or her life. What is needed in such circumstances is not mere rehabilitation of material existence but the dignified restoration of all the survivors in all aspects of societal life. Hence, what is needed to be paid is not only compensation for the material loss but also the cost of reparation as a societal being. The government, therefore, is duty bound to assess these costs in human terms as well, while calculating the losses suffered by the victims.
6. Civil Society
Peace committees must be set up in all localities, including the unaffected ones. These committees should be involved in creating a conducive atmosphere for the victims to return home once their places of residence are reconstructed.
7. National Human Rights CommisSion
7.1. In compliance with Article V of the International Convention on the Prevention and Punishment of the Crime of Genocide, 1948, which India signed in 1948 and ratified in 1958, a state that is signatory is bound to effectively act upon and legislate upon the intents of the legislation. Our country has not complied with this requisite in the Convention although more than five decades have passed. The Tribunal has clearly held that the crimes in Gujarat were Crimes against Humanity and Genocide. To date, however, there is no law in force to ensure the punishment of those who are guilty of these crimes. Under the present political circumstances, the Tribunal does not expect either the state of Gujarat or the union of India to enact such a much-needed law.
7.2. Despite the fact that there is no law on genocide at present, the Tribunal holds that the Covenant on Genocide has become part of customary law, as it does not conflict with any other existing law. Such an interpretation of the law is imperative and binding on the NHRC. Such an approach would help the NHRC to conduct a detailed investigation into the crimes in Gujarat and submit a detailed report to the government and the nation. The facts narrated in the NHRC’s Summary Report on Gujarat already add upto a prima facie accusation of genocide. The Commission has a present and urgent obligation to the people and a mandatory obligation to posterity to inquire into the Gujarat violence and record its findings so that no political party and no government in future ever resort to such brutal practices.
7.3. As part of this obligation, the NHRC must prepare a Model Statute on Genocide including provisions that allow for effective preventive measures to protect religious, ethnic and linguistic minorities from attack. This is mandatory because, under the International Criminal Code, genocide and crimes against humanity are declared as offences. State actors may not follow this but Human Rights Commissions set up by various countries will have to enforce them, however limited their jurisdiction may be. "Genocide is an attack on human diversity as such, that is upon a characteristic of the human status without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning’’ (Hannah Arndt). The carnage in Gujarat was nothing short of genocide and needs to be dealt with in a manner befitting the gravity of the offence.
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