Long Term Recommendations

Crime Against Humanity 
Volume 2 An inquiry into the carnage in Gujarat -- Findings And Recommendations  by Concerned Citizens Tribunal -Gujarat 2002

Recommendations
Long Term Recommendations

1. NATIONAL CRIMES TRIBUNAL
2. CRIMES AGAINST HUMANITY
3. GENDER CRIMES
4. JUSTICE AND THE JUDICIARY
5. SUPREME COURT
6. REHABILITATION
7. POLICE
8. CIVIL SOCIETY

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, includingcaste, 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 independentbody, the personnel of which should be selected by a committee consisting of theChief Justice of India, the Prime Minister of India and the Leader of the Oppositionin Parliament. Persons with legal and judicial background should be appointed on thetribunal 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 theymay find fit notwithstanding the provisions of any other law.

1.4. The SNCT should have the power to investigate offences through its owninvestigating agency, created for the purpose. The SNCT should have, for its inde-pendent use, a special investigating and enforcing agency.

1.5. The SNCT should take cognisance of mass crimes as soon as they occur. Oncethe cognisance of such crimes is taken, no court should have the power to deal withthem. 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, aswell as to compensate, and rehabilitate the victims and their dependents.

1.7. Jurisdiction, Admissibility and Applicable LawFor the purpose of the statute to be enacted, “mass violence and genocide” shouldmean, as it does in the International Convention on Prevention and Punishment of theCrime of Genocide, any of the following acts committed with intent to destroy in wholeor in part an ethnic, racial caste or religious group:

• Killing members of the group;
• Causing serious bodily or mental harm to members of the group;
• Deliberately inflicting on the group, conditions of life calculated to bring about its physicaldestruction in whole or in part;
• Imposing measures intended to prevent births within the group;
• Forcibly transferring children of the group to another group.

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

• Genocide;
• Conspiracy to commit genocide;
• Direct and public incitement to commit genocide;
• Attempt to commit genocide;
• Complicity in genocide.

2. CRIMES AGAINST HUMANITY

2.1. Within the definition of crimes that fall under the definition of crimes againsthumanity, sexual crimes against women should be recognised as crimes against hu-manity. Sexual crimes should not include only rape in the conventional sense; butshould also include sexual slavery, debasing, enforced pregnancy, enforced sterilisation,forcible insertion of any object into the vagina. The definition of crimes against hu-manity 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 ofa 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 recognisethat it cannot be restricted to the act, or the proof, of the penis forcibly entering awoman’s vagina. Any object used to abuse a woman’s body, and even verbal assaultshould be considered a part of the same crime. The present laws of evidence and proce-dures involve medical examination of the victim as well as of the accused, as proof ofsuch an assault. In situations such as that of mass rapes and gang rapes during the recentviolence in Gujarat, this is an impossibility because in some cases, where the victimshave fled for days on end if they have survived the assault at all, or where the police hasrefused to file any complaints, or have deliberately filed incorrect complaints, no ac-cused may be apprehended. It is important that the onus of proof, in all such cases ofmass and gang rapes, should rest on the accused and the victims should not be burdenedwith proof of the crime. The testimonies of the witnesses, in cases where women havebeen 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 largenumber 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 itscitizens. 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 repa-ration for the women who suffered physical and mental injuries, since such assaultsfurther curtail women’s rights to be a part of mainstream social life, besides inflicting adamning long term impact on the coming generation. Precisely for this failure to protectthe basic human rights of these citizens, the state has to provide reparation. Financialreparations are no doubt extremely important, but ought not to be seen as full compen-sation. 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 begiven 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 thedeliverance of justice an exception rather than the rule. It is a painful reality and hasto be acknowledged by all. Hence, when situations like the Gujarat carnage/genocideoccur, where mass scale violence takes place, it is unrealistic to expect prompt justicefrom the present system. It has, therefore, become necessary to suggest a mechanismsuch 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 Crimeand Abuse of Power, 1985 envisages such a tribunal.

5. SUPREME COURT

5.1. The Tribunal therefore recommends that all necessary steps including seekingdirection from the Supreme Court and making a statutory recommendation to thegovernment of India to (i) appoint such a Tribunal for fixing the responsibility for actsand omissions of officials and the political executive in the Gujarat carnage of Febru-ary-March 2002, and to ensure that persons found derelict make restitution and repa-ration, and to ensure compensation for all sufferers in the violence (ii) enact a law onthe Prevention and Punishment of the Crime of Genocide. (iii) Such a comprehen-sive law on riots and disorders should take into consideration detailed recommenda-tions made by the National Police Commission, the NHRC and the NCM.

6. REHABILITATION

6.1 A long term and systematic plan should be worked out by the civic and townplanning administrations in urban centres in Gujarat, with the assistance of thehousing 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 vul-nerable as target groups for mass violence and also actively prevents healthy inter-action that breeds tolerance between communities.

The municipal authorities and the housing boards of cities in the state need toprepare plans that encourage mixed, inter-religious, inter-caste housing. This is vitalfor 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 totheir old homes, and the formation of mohalla committees, to rebuild trust in mixedneighbourhoods, will also go a long way in the direction of rehabilitation.

6.3. Dissemination of accurate information about the Muslim community, includ-ing 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 indepen-dence, and the part played by the different communities, classes and tribes in thefreedom struggle, will increase awareness about the contribution of all communi-ties to the building of India as a nation and their deep interdependence on oneanother.

6.5. Recruitment of a non-partisan, gender-sensitive police force and bureau-cracy, by building gender sensitivity and impartiality indicators into the selectionprocess and following it up with periodic training programmes, is a must and mustbe followed strictly.

7. POLICE

7.1. Recommendations made by the National Police Commission [1979-81], in or-der to establish the autonomy of the police and free it from undue political control,should be accepted and implemented immediately, especially in relation to:

• the setting up of a composite State Security Commission to deal with, among otherthings, the selection of the police chief, to ensure his autonomy, independence andprofessional functioning, and to confer on him the fixity of tenure to remove fear ofpunitive transfer and to empower him to act within the ambit of his statutory authority;
• the evaluation of the performance of the police and receipt of complaints frompolice officials about illegal and irregular orders from above;
• recasting of the Police Act of 1861.

7.2. An independent Police Complaints Authority should be created, on the linesof the British model, to hear complaints from the public against police isbehaviour. Inthe recent violent incidents in Gujarat, a large number of complaints about humanrights violations by the police had to be registered with the very same police authori-ties 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 inthe future.

7.3. The Tribunal is of the view that it is the urgent need of the hour thatlaw-enforcement be made impartial, effective and humane. For impartial law-enforcement, the functioning of the police must be independent of politicaldirection and interference. Courses on human rights, the eradication of casteand 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 alsonecessary. The examination of video footage of telecasts by localTV channels as well as of police videos, should become mandatory, to identify andprosecute those found guilty of making provocative speeches/statements and indulg-ing in acts of violence.

7.4. The social composition of all law-enforcement agencies should be diverse, whereinthe presence of at least 25 percent of the personnel from among the minorities and womenshould be ensured. For this purpose, a study should be undertaken to assess the presentrepresentation 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 thepolice through appropriate training on social justice issues.

7.6. The need for the existence of centralised All India Services, such as the IASand the IPS, should be examined in the light of increasing democratic decentralisationin the country. An Administrative Reforms Commission with a comprehensive man-date, 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 per-sons have noted the partisan role of the police during riots. These reports includethose of the Justice Madon Commission (1970), National Police Commission(1981), studies by Shri NC Saxena (1983) and Shri VN Rai (1996), and finally, bythe Justice Shrikrishna Commission on the Mumbai riots (1992-93). (See DetailedAnnexure, Volume III).

The extremely partisan role of the law-enforcement agencies has been generallyattributed to the following four factors:

• A culture of governance which makes the police function as a subordinate body,carrying out orders and directions of the political executive.
• Deeply entrenched communal prejudices in the minds of a section of officialsand police personnel.
• Social composition of the police and of the other wings of the law-enforcementand criminal justice system, wherein minorities are persistently under-represented.
• Lack of training in humane and effective mob control by the police. This is a stateof affairs that needs to be rectified and rectified quickly. The Tribunal notes with an-guish and concern that no political party has ever paid heed to the urgent need for radicalpolice reforms. The Tribunal recommends that this be a matter that is debated andlegislated upon with the utmost urgency. Let it not happen that more carnages takeplace and are condoned by the political class, simply because they lack the moral cour-age 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 compen-sation to sufferers/victims of the riots. (The rationale and modalities for taking thesemeasures have been discussed in the National Commission on Minorities Report onCommunal Riots: Prevention & Control (1999).)

8. CIVIL SOCIETY

8.1. Joint forums of all social groups -castes, religions, etc. -should be created todiscuss, debate and deliberate upon all matters of common concern.

8.2. Common festivals and festivities should be organised not only on nationaloccasions 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 andthe denigration of any religion should be statutorily banned and made punishable.

8.4. Mixed localities, housing complexes, housing societies, clubs, educational andrecreational institutions should be promoted and social intercourse and interactionsincluding voluntary inter-caste, inter-religious marriages should be encouraged.