February-March  2004 
Year 10    No.96

Cover Story

Justice for mass crimes

Two decades of analysing the trends in mass violence led many jurists and academics to articulate these specific demands for police and legal reform. These formed the core of the recommendations of the Concerned Citizens Tribunal –Crimes Against Humanity, and are being reproduced here due to their comprehensiveness and relevance. This forms our Charter on Justice and the Rule of Law.

Police Reform

I. Recommendations of the National Police Commission (1979-81) to establish the autonomy of the police and free it from undue political control should be accepted and implemented immediately, especially in relation to:

i) the setting up of a composite State Security Commission to deal, among other things, with 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;

ii) the evaluation of the performance of the police and receipt of complaints from police officials about illegal and irregular orders from above;

iii) recasting of the Police Act of 1861.

II.  An independent Police Complaints Authority should be created, on the lines of the British model, to hear complaints from the public against police misbehaviour. 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.

III. The urgent need of the hour is that law-enforcement is made impartial, effective and humane. The functioning of the police must be independent of political direction and interference for impartial law-enforcement. The provision of a course on human rights in the training courses of the police and the eradication of caste and communal prejudices, as well as humane riot control methods should be added in the training programme of the police and other law-enforcement agencies. The training of police personnel on the especially sensitive matter of dealing with communal violence is also necessary. The examination of video footage telecast by the local TV channels as well as by the police videos to identify and prosecute those found guilty of making provocative speeches/statements and indulging in the acts of violence should be considered.

IV. The social composition of all law-enforcement agencies should be diverse, wherein the presence of at least 25% of the personnel from 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.

V. 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.

VI. The need for the existence of the 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. .    

VII. 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 NC Saxena (1983) and VN Rai (1996), and finally, by the Justice Shrikrishna Commission on Mumbai riots (1992-93).

Such partisan role of the law-enforcement agencies has been generally attributed to the following four factors:

i] The culture of governance making police function as a subordinate body carrying out orders and directions of the political executive.

ii] Deeply entrenched communal prejudices in the minds of a section of the officials and the police personnel.

iii] Social composition of the police and of the other wings of the law-enforcement and criminal justice system, wherein minorities are persistently under-represented.

iv] 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. No political party has ever initiated the urgent need for radical police reform. Hence the recommendation 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.

VIII. 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).)

Radical Legislation

I. 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 a large-scale destruction of lives and property including caste, religious, linguistic, regional, ethnic and racial violence.

A.  A suitable Statute should be enacted for the purpose by Parliament

B. 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 seven years.

C. The members of the SNCT should be free to follow such procedure as they may find fit notwithstanding the provisions of any other law.

D. The SCNT should have the power to investigate the offences  through its own investigating agency created for the purpose. The SNCT should have for its independent use a special investigating and enforcing agency.

E. The SCNT 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 the cases within a time bound frame.

F. The SNCT will have the power to arrest, try, and punish the accused as well as to compensate, and rehabilitate the victims and their dependents.

G. 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:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated   to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.

In addition the following acts should also be punishable under the proposed statutes:

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide.

II. Crimes Against Humanity

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.

III. Gender Crimes

i] 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 assault. In situations such as that of mass rapes and gang rapes during the recent violence in Gujarat (and such carnages in the past and future) this is an impossibility because 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.

ii] In most cases, the accused might be unknown or due to the presence of a large number of people, it might 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.

iii] The concept of justice has to be widened in such cases. It is not only punishment of those found guilty of the crime,  but also reparation for the women who suffer bodily and mental injuries should be considered as such assaults further curtail women’s right to be a part of mainstream social life besides inflicting a long term damning 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.

iv] 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.

IV. Justice and the Judiciary

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.

Supreme Court

Necessary steps towards this require seeking direction from the Supreme Court and making statutory recommendation to the Government of India to (i) appoint such a Tribunal for fixing responsibility for acts and omissions of officials and political executive in the Gujarat riots of February- March 2002 and future such carnages and for making persons found derelict to make restitution, reparation and compensation for all sufferers of riots (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 & the NCM.

Constitutionalising Indian laws 

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 contained in our Constitution. While the Constitution of India was framed in 1950, after India attained Independence, the criminal laws date back to the colonial period and have not been modified to conform to the constitutional provisions in many respects. Therefore, a new law, termed the National Human Rights Law, should be formulated along a rights-based perspective. Hence,

i] The provisions of the existing criminal justice laws such as the IPC, CrPC and the Evidence Act should be suitably incorporated in the new law.

ii] A legal framework should be developed to institutionalise the rights of the victims of wanton violence to compensation and restitution from the State, along with relief and rehabilitation.

iii] A legal framework should be developed to enable the victims of violence to participate in conflict resolution.

iv] A legal framework should be developed to promote the rights of the victims of violence and underdevelopment, and to ensure their right to humane treatment and humane development and governance in the light of the UN reports on human development and in the light of the Mahbub-ul-Haq Human Development Centre reports on humane governance.

v] An independent monitoring system should be established to monitor government operations in conflict situations and to ensure the rights of the conflict affected communities to adequate protection, compensation, relief and rehabilitation.

vi] Conflict-affected communities, especially women and the most vulnerable 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. The PRIs should be empowered to deal with police functions and the DM and the SP should be placed under the Panchayat chief of the district.

b. The sections of the Commission of Inquiry Act that do not make the report of the commission statutorily binding on government need to be amended.

c. Another is the provision under the IPC that requires the government to grant sanction for the prosecution of the persons spitting venom orally and in writings that violate sections 153 A and B of the IPC.  Hence the repeal of section 197 of the IPC, which precludes any individual from criminally prosecuting persons for hate speech until the government has granted sanction is a must.) n

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