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:
u Causing serious bodily or mental harm to members of the group;
u Deliberately inflicting on the group, conditions of life
calculated to bring about its physical destruction in whole or in part;
u Imposing measures intended to prevent births within the group;
u Forcibly transferring children of the group to another group.
In addition, the following acts should
also be punishable under the proposed statutes:
u Conspiracy to commit genocide;
u Direct and public incitement to commit genocide;
u Attempt to commit genocide;
u 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
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
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
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
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
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
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
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:
u the 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;
u the evaluation of the performance of the police and receipt of
complaints from police officials about illegal and irregular orders from
u 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
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
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).
(See Detailed Annexure, Volume III).
The extremely partisan role of the
law-enforcement agencies has been generally attributed to the following
u A culture of governance which makes the police function as a
subordinate body, carrying out orders and directions of the political
u Deeply entrenched communal prejudices in the minds of a section
of officials and police personnel.
u Social composition of the police and of the other wings of the
law-enforcement and criminal justice system, wherein minorities are
u 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.