In two or three distinct legal actions arising out of the
Gujarat carnage of 2002, the state of Gujarat, its
chief minister, Narendra Modi and outfits like the BJP, the RSS and the VHP have
been asked to accept financial liability for the death and destruction, injury
and loss of livelihood caused during the carnage of 2002.
In the first major writ petition on the issue of compensation,
(Special Civil Application No. 3217 of 2003) Citizens for Justice and Peace (CJP)
and Communalism Combat helped prepare over 700 affidavits from affected
victims who had not got compensation even as per the state and Centre’s scheme.
The petition filed in the Gujarat high court in February 2003 also challenged
the low rates of compensation laid out in the Gujarat government scheme as
hopelessly inadequate. (By a circular dated March 20, 2002 the state of Gujarat
fixed an outer limit of Rs. 50,000 as compensation for those whose homes and
property were destroyed in the riots).
The petition also points out, with detailed documentary
evidence, that although the nature and quantum of losses suffered by the
minority community in the riots have in most cases been listed and substantiated
in the panchnamas recorded by officials, the Gujarat government paid
pathetically low sums ranging from Rs. 1,000 to 10,000. In other words, only a
fraction of the total damages suffered. Besides, in a large number of cases no
compensation whatever has been paid despite the losses being acknowledged and
recorded in the panchnamas. The petitioners have challenged the upper
limit of Rs. 50,000 and have sought that it be raised to at least Rs. 2,00,000.
The petitioners have pointed out that the State was liable to compensate the
persons whose homes and property were destroyed, as the government of Gujarat
and its officers had totally failed to protect the lives and property of
citizens. They were responsible for the total breakdown of public order, for the
consequent loss of lives and property, and the deprivation of the peoples’ right
to life under Article 21 of the Constitution of India.
The Gujarat high court, hearing this petition in April 2003,
gave locus standi to representative teams of both petitioners to conduct
statewide surveys of victim-survivors and collate these with state claims in the
collector’s office. A statewide survey was thus launched by these organisations
from 2003 onwards and is expected to be completed by the end of July 2005. There
are substantive discrepancies between state claims and the claims documented by
us (petitioners). The extensive documentation, it is hoped, would result in
fairer compensation to those affected.
Meanwhile, as other petitions on issues related to the Gujarat
carnage were being heard by the Supreme Court, the amicus curiae, Harish
Salve asked for some directions on the issue of compensation. At that point, CJP
brought its Gujarat high court petition to the notice of the apex court. On
August 17, 2004, the Supreme Court directed that since the matters were already
pending before the Gujarat high court, groups like CJP could ask for a
modification of the compensation/reparation package at the Gujarat high court
level. This was because we had argued that the compensation package did not
reflect the needs of victims who were injured and affected.
"It is however pointed out to us by the learned amicus curiae
and the petitioners (CJP) that while the high court is monitoring the
implementation of the scheme framed by the state government for payment of
compensation to the victims, the scheme itself is questionable in that many
aspects of the scheme are deficient. For example, it is submitted, the scheme
does not provide for a realistic compensation in respect of damage to property.
It is also submitted that the scheme limits the compensation payable only to
death or permanent disablement while excluding cases where the victim may have
otherwise suffered grievously, for example by burning, etc. It is also submitted
that the victims of sexual offences have not been brought within the purview of
the scheme at all…" (Supreme Court order).
In May 2004, two widows of British citizens, Shirin and Shamima
had, through a court in Himmatnagar, filed for damages worth around Rs. 22 crore
against chief minister Narendra Modi and 14 others for failing to protect the
lives of citizens, specifically, the killing of two British nationals of Indian
origin during the post-Godhra violence in 2002. Judge MM Kayasth served notices
on the respondents. In September 2004, in identical written statements before
the court, Modi and former state home minister Gordhan Zadaphia said they could
not be held responsible for the killing of two UK-based NRIs in the post-Godhra
violence in the state. The government said "an attempt is being made to project
Modi, the then minister of state for home Zadaphia and six others as
anti-Muslim," and urged that the Rs. 22 crore compensation suit for the killing
of Saeed Safid Dawood and Shakeel Abdul Haid on February 28, 2002 be dismissed.
The matter is still pending.
Three years later, a day prior to the three-year anniversary of
the Godhra arson, 21 victim families of the Gulberg massacre, residents of the
Gulberg Society in Meghaninagar, Ahmedabad, including Zakiabehn Jaffri, wife of
the former Member of Parliament, Ahsan Jaffri, served notice on representatives
of the VHP, RSS and the BJP claiming damages of approximately Rs. 6.4 crore in
all for the attack on Gulberg Society that claimed more than 68 persons lives
(official figures admit to less than this number) on February 28, 2002. Damages
have been claimed for loss of life, property, torture, pain and trauma caused to
them when mobs unleashed terror due to the bandh call given by the VHP
and supported by the RSS and the BJP on February 28, 2002 during which mayhem
and carnage resulted. Three months earlier notices had been served on the
respondents to which no response had been filed. This legal initiative is being
supported by CJP.
Justice delayed may be justice denied but the Sikh victims of
the November 1984 carnage will financially benefit from the verdict of Judge
Gita Mittal delivered in May 2005. The extensive judgement makes inroads into
the jurisprudence related to compensation for loss of life and injury in
"…While considering the question of grant of compensation or
ex-gratia payment to the petitioner and families of the victims killed
during the riots, all the aforesaid aspects have to be kept in view. It is also
noteworthy that the Supreme Court awarded Rs. 1 lakh to Rs.7.5 lakh for illegal
curtailment of life as indicated in the aforesaid decisions. Therefore,
obviously the compensation or ex-gratia payment as a measure of immediate
relief to the victim’s family should be more than Rs. 50,000 and between Rs. 1
lakh and Rs. 7.5 lakh…
"…It has been brought to my notice by Mr. Adarsh Goel, learned
counsel for the respondent – Govt. of NCT of Delhi, that widows of riot victims
are being paid Rs. 1,000 per month as pension. Learned counsel has produced on
record a copy of letter No. F 9 (38)/R-1/DC/88/648 dated May 17, 1996, from the
deputy director (Relief-1), office of the deputy commissioner, Delhi, to the
desk officer, Ministry of Home Affairs, Govt. of India, North Block, New Delhi,
along with a report regarding progress of relief and rehabilitation measures in
regard to riot victims of 1984. According to the report, 195 widows are getting
pension. Be that as it may, the financial assistance of Rs. 20,000, which was to
ameliorate the immediate effect and the long term effect of the killing of an
earning hand, was highly inadequate and unfair.
"…Having regard to the aforesaid discussion and also keeping in
view the decisions of the Supreme Court, I am of the opinion that the petitioner
should have been paid at least a sum of Rs. 2 lakh as compensation. Since the
petitioner has already been paid a sum of Rs. 20,000 the respondent is directed
to pay a sum of Rs.1,80,000 to the petitioner with interest from October 1984 to
the date of payment, which is quantified at Rs. 1.50 lakh. The respondent will
make the payment of Rs. 3.30 lakh to the petitioner within one month.
"…This direction to pay enhanced compensation would be
applicable to similar cases in order to secure parity and to alleviate the
sufferings of the families of the victims who lost their lives during the Delhi
riots of 1984. Accordingly, it is directed that the widows and families of the
victims who lost their lives in the 1984 Delhi riots be paid a sum of Rs. 3.50
lakh (Rs. 2 lakh with interest quantified at Rs. 1.50 lakh). The payment would
be made to them by the respondent after adjusting the amount, if any, paid to
them as ex-gratia grant of compensation. It will also be open to the
Govt. of NCT of Delhi and the Union of India to consider the grant of
compensation over and above the aforesaid amount depending upon the
circumstances of the families of the riot victims. I would also direct the State
to constitute a committee to disburse the amount of compensation quantified as
above to the families of those who were killed in riots after their proper
identification. I order accordingly. The exercise should be completed within a
period of four months.
"…Keeping in view the entire conspectus of facts and the nature
of claim made on behalf of the petitioner and the conduct of the respondents in
1984 and thereafter, I am of the view that the ex-gratia amount of Rs.
2,000 is by no means adequate compensation for the failure to protect the limb
and property of the petitioner. The petitioner has submitted that he has been an
advocate by profession. On account of extreme trauma suffered by him, he has not
been able to recoup his profession and suffered a lot.
"There is no reason to disbelieve such a statement. Different
individuals may react differently in the same situation. There can possibly be
no scale to measure the depth of the emotional wounds and trauma as a result of
undergoing the experiences of the petitioner. He bore the brunt of the attack by
the mob and barely escaped death. Scars so left may never heal.
"…Keeping in view the amount awarded by this court in the Bhajan
Kaur case for the loss of life, in my view, the petitioner ought to be
compensated by a sum of Rs. 75,000 for the injuries suffered by him and
deprivation of his property on account of the riots on 2nd November, 2004.
"Since the petitioner has already been paid a sum of Rs. 2,000,
the respondent is directed to pay a sum of Rs. 73,000 to the petitioner with
interest from October, 1984 to the date of payment. The interest is quantified
at Rs.50,000. The respondents will therefore make payment of Rs. 1,23,000 to the
petitioner within one month.
"…This court in the judgement dated 5th July, 1996 reported at
1996 III AD Delhi 333 entitled Bhajan Kaur vs. Delhi Administration,
directed the respondents to pay the enhanced compensation awarded to all similar
cases. In order to secure parity to all persons who suffered injuries, the
respondents shall pay the enhanced compensation awarded herein to all such
persons to whom the respondents had disbursed the amount of Rs. 2,000 as ex
gratia on account of the injuries received in the 1984 riots."