Short Term Recommendations

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

Recommendations 
Short Term Recommendations

1. STATE GOVERNMENT
2. CENTRAL GOVERNMENT
3. UN/INTERNATIONAL COMMUNITY
4. MEDIA
5. RELIEF & REHABILITATION
6. CIVIL SOCIETY
7. NATIONAL HUMAN RIGHTS COMMISSION

1. STATE GOVERNMENT

1.1. Implement all the recommendations of the National Human Rights Commis-sion (NHRC).

1.2. Prosecute all those indicted in the NHRC report, including the chief ministerand his ministerial colleagues who have aided and abetted the violence by word andaction, 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 humanityand of genocide under the relevant international statutes. It is the view of the Tribu-nal that the CM and his concerned ministers are not fit to hold public office since theyare guilty of the aforesaid crimes. The Tribunal is further of the view that the interestsof the country are not safe in the hands of people like Shri Modi and of those whohold his views and have his attitude and approach in public life.

1.3. The Tribunal recommends immediate banning of the VHP and the BD underthe relevant provisions of the Unlawful Activities (Prevention) Act, 1967, for com-mitting an “unlawful activity” and “unlawful association” within the meaning of thatAct. “Unlawful activity” under section 2 of the Act relates to an individual or anyassociation and “any action taken by such individual or association (whether by com-mitting an act or by word, either spoken or written, or by sign or by visible represen-tation or otherwise)

(i) which is intended or supports any claim, to bring about, on anyground whatsoever, the cession of a part of the territory in India or the secession ofthe territory of India from the union, or which incites any individual or group ofindividuals 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 objectany unlawful activity, or which encourages or aids persons to undertake any unlawfulactivity, or of which the members undertake such activity; or (ii) “which has for its object any activitywhich is punishable under section 153-A or section 153-B of theIndian Penal Code 1860 (45 of 1860) or which encourages or aids persons to under-take any such activity; or of which the members undertake any such activity.”

1.4. By their public utterances and behaviour, which includes provoking their armedcadres through hate propaganda, they are disturbing the law and order machinery of dif-ferent states in a democratic country like ours. This publicly proclaimed hate propagandaand celebration of violent pogroms against the country’s minorities, makes public theirsecret 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 VishwaHindu Parishad and the Bajrang Dal are holding the country to ransom. Moreover, thedeclared 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 governmentsto prohibit the distribution of trishuls and swords since, by these means, attempts arebeing made to arm civil society and prepare a section of Indian society to unleashviolence against other sections; an altogether dangerous and fragile situation for peaceand internal security in the country. The Tribunal recommends that the law and ordermachinery seize and confiscate, not merely in Gujarat but in all other parts of thecountry, the trishuls and swords which have been and are being distributed for thepurpose of generating terror against other sections of the people.

The Tribunal observes that the distribution of trishuls, particularly to young men acrossthe length and the breadth of the country, have nothing to do with the traditional practicesof Hindu religion. Yet, through a government resolution, the central government has ex-empted the trishul from the purview of the Arms Act. The Tribunal recommends the with-drawal of this central government resolution, suitable amendments to the Indian Arms Actto 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 campsbeing 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 hencepose 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 politi-cians, policemen, administrative officers and all those named by the victims of theviolence, as well as others who are guilty of dereliction of duty. (The list of the accusedso named is annexed separately).

• We have evidence before us which discloses the direct complicity and activeparticipation in the carnage, of the chief minister and other ministers; of leaders ofthe VHP and Bajrang Dal at the state and local levels; of the complicity of the thencommissioner of police and several other policemen at the level of inspectors, sub-inspectors and the constabulary.
• Examination of the evidence also shows that elected representatives, includingcabinet ministers, supported and led large unlawful assemblies that indulged in large-scale arson, loot, murders and other offences, including crimes against women.
• 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 statefrom February 28 onwards. A former chief justice who appeared before us, summedup the situation succinctly. Constitutional law and authority stood suspended for sev-enty-two hours. No preventive measures were taken against the Hindu marauders.This attitude is inexplicable and unpardonable. Despite the presence of provisionsfor keeping peace and public tranquility in the Criminal Procedure Code, the provi-sions of the National Security Act, state laws providing for the preventive detentionof anti-social elements or their externment and the provisions of the Unlawful Ac-tivities (Prevention) Act 1967, none of these were applied.
• Every one of these officers should face due procedure for this culpable indiffer-ence and be charged for utter incompetence and inefficiency.
• The chief minister and his cabinet colleagues should be dismissed forthwith,even from the caretaker status he and his colleagues are enjoying now.
• As many of our political parties increasingly reflect an absence of proprieties andnon-adherence to the basic principles of democracy and the rule of law, there is needfor a law defining the constructive liability of individual ministers and the politicalgovernment collectively, when such gross crimes take place. This alone will enablepeople to hold their representatives accountable.

1.8. The Tribunal recommends the immediate detention and prosecution of ShriPraveen Togadia and Shri Ashok Singhal of the VHP, and Shri Narendra Modi of theBJP, who, repeatedly, and with impunity, do not merely incite communal hatred andviolence against the country’s minorities through their rabid armed cadres, in violationof sections 153A and B of the IPC and 295 etc. of the CrPC, which in themselves areserious enough offences, but also disrupt public peace and order, vitiate communalpeace 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 firmaction on provocative statements, which have the potential to incite communal tensions and violence. In its “Final Order on Gujarat dated 31st May, 2002”, the NHRChas stated that it “had urged that these [statements] be examined and acted upon, theburden 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 arecognised criminal offence under Indian law. Indian Statutory Law also provides ef-fective protection for the rights of minorities whether in Gujarat or in the rest of thecountry. The Indian Penal Code (IPC) prescribes criminal prosecution for “wantonlygiving provocation with intent to cause riot” (section 153); “promoting enmity be-tween different groups on grounds of religion” (section 153A); “imputations, asser-tions prejudicial to national integration” (section 153B); “uttering words with deliber-ate intent to wound the religious feelings of any person” (section 298); “statementsconducive to public mischief ” (section 505 (1), b and c); and “statements creating orpromoting 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 loath to do in these circumstances. In addition, section 108 of the Code of CriminalProcedure allows an executive magistrate to initiate action against a person violatingsection 153A or 153B of the IPC.

1.12. The “Guidelines to promote communal harmony” issued by the Indian ministryof home affairs in October 1997, specify the precise responsibility of the state machin-ery when dealing with potentially inflammatory statements in the context of communaltension. Guideline 15 states that “effective will needs to be displayed by the districtauthorities 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 shouldbe freely used to deal with individuals promoting communal enmity.”

1.13. Besides, Article 20 of the International Covenant on Civil and PoliticalRights, which India ratified in 1979, affirms that “Any advocacy ofnational, racial or religious hatred that constitutes incitement todiscrimination, hostility or violence shall be prohibited by law.” Despite the existenceof these provisions, voluminous evidence relating to the Gujarat carnage shows thatthey have been violated. The executive, the law and order machinery and the judiciaryhave 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 ad-equate security to the sections of the Muslim population of Gujarat who wish toreturn to their original places of residence and business.

1.15. The Tribunal recommends independent investigation into cases relating to theGujarat carnage under the direct supervision of the chief justice of the state. The CJ mayalso be requested to select the sessions judges and magistrates who should try these casesexclusively. Special courts should be set up to try the guilty. Inquiries must be instituted bythe 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 healthminister, Shri Ashok Bhatt — one of those who sat in the police control room inAhmedabad during the carnage in 2002 — and also against Shri Harin Pathak, are yetto begin, even after 18 years. The cases have been stayed in the wake of a High Courtorder. In the 60 cases registered against the 263 persons accused of faulty construc-tion, leading to the death of nearly 800 people in the January 2001 earthquake, trialhas still not begun in a single case, a year and a half later. This is a sorry record of thejustice delivery system).

1.16. The impartial and swift prosecution of those guilty of violence, both in theGodhra 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 ofthe state administration. Without legal and social justice, the issues of peace and theprocess 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 mat-ter of urgency and should be accomplished forthwith.

1.18. Suitable amendments need to be made in the existing laws relating to sexualassault, to incorporate the different kinds of sexual assault that occurred during the violence in Gujarat. Testimonies before us narrate that there were numerous instancesof gruesome sexual violence, which involved the insertion of a variety of objects intowomen’s bodies, and sexual mutilation of all kinds. The existing definition of rape istotally inadequate to deal with the various kinds of rape that took place in the contextof the genocide in Gujarat.

1.19. The Tribunal recommends the immediate suspension of, and action against,the district magistrates/collectors of Ahmedabad, Vadodara, Bharuch, andHimmatnagar since these officials have violated various laws and service rules.

1.20. Public prosecutors should be appointed by the chief justice and not the stategovernment. There should be adequate representation of the minority communitiesamong the public prosecutors. To this end, the Tribunal recommends an amendmentto 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 chiefjustice of the concerned High Courts, in consultation with at least five judges. (Atpresent, the appointment of government pleaders in all districts is being done by thestate government in consultation with the district judge).

1.21. The Tribunal recommends the quick manning of police stations and reliefoperations by a sizeable and significant number of representatives from the minoritycommunity (See chapter, Recommendations: Police).

1.22. On account of the brutal manner in which people were attacked, killed andburnt across the length and breadth of the state, including residents of far-flung andhitherto ‘unaffected’ rural areas, many who were killed could not be identified. Thesecould well be termed ‘missing’ persons, although they have all been killed. Formali-ties and paper work, and even post-mortem examinations have not been possible inmany cases where bodies were destroyed without a trace. Therefore, as part of itswider duty, the state government should compile and declare a list of ‘missing’ per-sons 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 atti-tude displayed by the administration, as a rule, in the matter of payment of compen-sation to victim-survivors and especially towards the relatives of the ‘missing per-sons’ 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 IndianConstitution and have not undergone a thorough revision, restructuring and ori-entation in keeping with the fundamental principles of democracy, equity, free-dom and equality as contained in our Constitution. While the Constitution ofIndia was framed in 1950, after India attained independence, our criminal lawsdate back to the colonial period and have not been modified to conform to con-stitutional provisions in many respects. Therefore, a new law, termed the Na-tional Human Rights Law, should be formulated to encompass a rights-based per-spective. To this end,

• The provisions of existing criminal justice laws such as the IPC, CrPC and theEvidence Act should be suitably incorporated in the new law.
• A legal framework should be developed to institutionalise the rights of the victims of wanton violence to compensation and restitution from the state, along withrelief and rehabilitation.
• A legal framework should be developed to enable the victims of violence toparticipate in conflict resolution.
• A legal framework should be developed to promote the rights of victims of violenceand underdevelopment, and to ensure their right to humane treatment and humane devel-opment and governance in the light of the UN reports on human development and theMahbub-ul-Haq Human Development Centre reports on humane governance.
• An independent monitoring system should be established, to monitor governmentoperations in conflict situations and to ensure the rights of the conflict-affected com-munities to adequate protection, compensation, relief and rehabilitation.

1.24. Conflict-affected communities, and especially women and other more vulner-able sections among them, should be given a voice in determining the course of ac-tion to prevent, mitigate and resolve structural and political violence. Only by revers-ing 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 RajInstitutions (PRIs), empower the PRIs to deal with specific developmental functions butleave out regulatory and police functions. PRIs should be empowered to deal with policefunctions and the DM and the SP should be placed under the Panchayat chief in each district.
• The sections of the Commission of Inquiry Act that do not make the report ofthe commission statutorily binding on the government, need to be amended.
• Another is section 197 of the IPC, a provision that requires the government togrant sanction for the prosecution of persons spitting venom orally and in writing, inviolation of section 153 A and B of the IPC. The Tribunal recommends the repeal ofthis section, which precludes any individual from criminally prosecuting persons forhate speech until the government has granted sanction.)

1.25. The Tribunal believes that no rehabilitation is possible unless the guilty arebrought to book. Wherever the accused have been named, the government needs totake necessary action so as to instil confidence in the people and enable them torestart their lives. The Tribunal condemns all measures taken by the government toforce compromises by pressurising victims to withdraw the names of the accusedfrom police complaints. Instead the Tribunal demands that:

• Proper FIRs be registered and immediate action be taken. The police should collect and investigateforensic evidence.
• Wherever possible, searches should be conducted to recover goods that havebeen looted from people’s homes or compensation be paid for the goods lost.
• In view of the extraordinary circumstances under which the crimes against womenwere 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 legalprocess into swift and speedy action.
• Wherever plots of land and properties belonging to the minority communityhave been illegally occupied by Hindu villagers, as is the case in many districts andvillages, urgent and immediate action needs to be taken to restore these lands andproperties to their rightful owners. Before this, an urgent official survey, statewide, ofsuch ‘lost lands’ needs to be undertaken at the earliest.
• Thorough procedures of investigation have been consistently ignored by thepolice. The culpability of police personnel, where they have failed to follow basicinvestigative procedures, should also be referred to the Grievances Authority. (Seechapter, Recommendations, Long Term: Police).
• The Tribunal recommends that the police and courts taken legal cognisance of,even if retrospectively, of FIRs and complaints sent by victim survivors and affectedcommunities, by registered AD immediately after the genocidal carnage, given theGujarat police’s criminal failure in accurately recording FIRs. Even though monthshave passed, this needs to be done.

1.26. The establishment and activities of peace committees in the affected areas shouldbe encouraged. All efforts must be made to prevent further ghettoisation of the Muslimcommunity. To this end, specific interest needs to be shown in the matter by the stategovernment, civil society and the central government and by their respective agencies.

1.27. The government should take the necessary steps to restore confidence amongstall communities. The state government has not addressed the issue of the betrayal of trustby various sections of the administration and the consequent sense of extreme insecurityfelt by the victims. So far, rehabilitation has been totally ignored by the state and centralgovernments, and, to date, the government has treated the post-violence scenario solelyas a matter of law and order and of maintaining the peace. It has also tried to sweep theenormity of the crimes committed under the carpet. Eight months after the attack on theSabarmati Express, the towns and villages of Gujarat continue to simmer. The govern-ment, and the party that controls the government, should not indulge in any activity whichundermines public confidence and harmonious relations between communities.

2. CENTRAL GOVERNMENT

2.1. In view of the breakdown of the constitutional machinery in Gujarat, and thepatent, concerted and systematic challenge to the secular foundation of the polity; tothe extent that it failed to protect the life, liberty, reputation and property of a sittingHigh Court judge as well as a retired High Court judge still in service of the govern-ment, both belonging to the minority community; to the extent that in the very heartof the commercial capital, the large-scale looting, arson, rape and killing to which theminority community was allowed to be subjected in a planned and systematic man-ner; to the extent that the entire criminal justice system is being polarised and per-verted, the Tribunal recommends that, under the obligations enjoined on it by Article356, 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 prop-erty. The present government, which is in power even after the dissolution of theAssembly, 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 tode-politicise and de-communalise the bureaucracy and the police at all levels. The im-partial and efficient functioning of the Gujarat administration and police force, must berestored in accordance with the provisions and injunctions of the Constitution.

2.3. The central government should ensure the criminal prosecution of those of-fice-bearers in the Gujarat government who are found guilty.

2.4. The central government must end its apathy and impassivity towards theminorities and stop the present campaign against them, in the name of the so-calledGaurav Yatras, which are nothing short of a shameless exhibition of the perversionand glorification of crimes committed against the minority community.

2.5. The deliberate attempts to communalise the polity and to generate the politicsof hate are bound to have both short term and long term impacts on national life as awhole. These impacts can be wished away but only at the cost of the unity and integ-rity of the nation. It is the solemn responsibility of the central government to keepthe 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 givenfor the reconstruction of residential, commercial and industrial establishments that weredamaged or destroyed. The relevant rules must be revised and the centre should providethe necessary financial support, to complete the task of reparation.

2.7. The centre must bring in a new legislation to implement the Genocide Conven-tion, which India has signed and ratified, and must use these measures to prosecute andpunish all those who participated in the planning and the execution of murder, sexualviolence, 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 arenothing short of Genocide and Crimes against Humanity. Hence the need to have asuitable legislative measure as required by the Genocide Convention.

2.8. The government should suitably amend electoral laws so as to disallow partiesthat espouse a particular religion, and which act or behave by word of mouth, print orin any other manner with a view to secure power through a religious policy, to contestelections to Parliament, to the Assembly, to the municipal corporation to Panchayats.

2.9. The government should appoint three high-powered commissions:

• To determine the extent of communalisation within the administration (bureau-cracy) and to suggest various measures to remedy the situation so as to ensure asecular, independent administration.
• To determine the extent of communalisation of education and educationalinstitutions, and to suggest various steps to ensure that future generations are not inany way communalised before they come out of the schools and colleges.
• To investigate and determine the activities of all organisations indulging incommunal activities, to determine whether their activities are detrimental to the interests of the country.

On December 18, 1992, the UN General Assembly passed the Declaration of Rightsof Persons Belonging to National or Ethnic, Religious or Linguistic Minorities underwhich States and Nations are bound to assure the basic rights, safety and cultural andreligious rights of minorities. While the world was taking cognisance of the acuteneed to preserve the life, security and dignity of all minorities – given the violentethnic conflicts that erupted in Europe involving minorities in this period— India,following the Babri Mosque demolition on December 6, 1992 and violent pogroms there-after, launched into a phase in its history where the lives, security and faith of minoritieshave become increasingly endangered. Article 1, 2 and 4 of this Declaration need to beborne in mind. This Declaration, taking cognisance of Article 27 of the InternationalCovenant on Civil and Political rights under Article 1, states that “1. States shall protectthe existence and the national or the ethnic, cultural, religious and linguistic identity ofminorities within their territories and shall encourage conditions for the promotion of thatidentity. 2. States shall adopt appropriate legislative and other measures to achieve thoseends.” Article 2 states that “1. Persons belonging to National,. Ethnic, Religious and Lin-guistic minorities have the right to enjoy their own culture, to profess and practise theirown religion and to use their own language in private and in public freely and without anyinterference or any form of discrimination .2. Persons belonging to such minorities havethe right to participate effectively in cultural, religious, social, economic and public life.”Article 4 states that “ States shall take measures to ensure that persons belonging to mi-norities may exercise fully and effectively all their human rights and fundamental freedomswithout any discrimination and in full equality before the law.”

2.10. To ensure impartial assessment of damages, we call on the Indian governmentto bring in the UN Special Rapporteur on Violence Against Women as also the UNSpecial Rapporteur on Religious Minorities and other UN agencies for various treatiesthat India is signatory to, for investigation and assessment

3. UN/INTERNATIONAL COMMUNITY

3.1. Until that happens, and because national legal mechanisms are extremely inad-equate to deal with crimes of this magnitude where state complicity of the very high-est 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 urgentneed for international agencies to intervene and help in the process of justice for thevictims of the Gujarat genocide.

Hence the Tribunal appeals to the International Community to use all the influenceat its command with the government of India and the Gujarat government to ensurethe speedy carriage of justice.

3.2. To impress upon the government of India, through its Parliament, to legislatemechanisms for the implementation of the Genocide Convention— which India has both signed and ratified — and to use these mechanisms to prosecute and punish allthose who participated in the planning and execution of murder, sexual violence,theft, and destruction in the state of Gujarat during recent months.

4. MEDIA

4.1. Action needs to be taken against those who gave provocative speeches on TVchannels and made statements in newspapers, as well as against the newspapers andTV channels who have published the same, as well as those that published news andgave it a communal colour, as confirmed by the report and recommendations of theEditors’ Guild of India. (See Detailed Annexures, Volume III)

4.2. The role of sections of the media, particularly the Gujarati language press, inspreading and inciting violence, should be investigated and all facilities provided toit, such as advertisements from public authorities and bodies, postal and transportconcessions, credentials, entry cards and passes, should be withdrawn.

5. RELIEF & REHABILITATION

5.1. Restoration and repair of places of worship damaged and destroyed during theviolence, 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 alsohave benches in the districts. The tribunal should be given clear guidelines for theassessment of compensation in respect of the losses suffered by every individual inthe violence. The losses would include the loss of and damage to homes and belong-ings, the loss of life and injuries sustained, the destruction of or damage to businessesand the loss of means of livelihood, as well as the impact of sexual assaults on womenand their relations. It is the view of the Tribunal that such tribunals (like those set upafter 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 victimsof the state sponsored carnage.

The benches of the Reparation Tribunal must have:

• the status of independent judicial authority to assess the losses suffered and to award and enforce thepayment of compensation.
• specific time frames within which they should function.
• the necessary infrastructure to discharge their functions.

5.3. In the meanwhile, the victims should be rehabilitated on available land, including government land, atgovernment expense.

5.4. Survey of Damage to Life and Property: The state government should immediatelyconduct a detailed survey to determine the loss of life, dignity, property, livelihoodand business suffered by the victims and the compensation, if any, that has beengiven to them so far. The findings of the survey should be made public as was done atthe time of the earthquake in 2001 . The findings should include:

• The manner in which the amount of Rs. 150 crores, provided by the central government as aid to ensurerehabilitation, has been disbursed.
• Detailed tabulations of the amounts disbursed as compensation for houses that were damaged or destroyed
• A detailed survey of the affected persons and the manner in which they have been affected.Theidentification of destitute women and orphans
• The tabulation of victim survivors who suffered serious injuries, including especiallybullet and burn injuries, and payment of compensation-reparation to them. The amountthat is paid should be astertained on the basis of not simply compensation for the medicalaid required for the injury itself, but from the cumulative impact of it, including loss oflivelihood, 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 thedamage 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 muchhigher than the ceiling. In light of the almost uniform and extensive damage to housesand shops, a minimum of Rs. 50,000 should be given to all people whose houses andshops have been damaged. These payments should be made immediately, as mini-mum 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 affectedcommunity and civil society, should ensure that all those who were affected receivecompensation.

5.5.3. The state should ensure that foodgrain rations reach the camps and, thereaf-ter, also reach people from affected communities who have tried to rehabilitate them-selves but still face the loss of livelihood and impending hunger and starvation be-cause of the economic and social boycott being faced by them.

5.5.4.The rations provided should be adequate and camps should not be closeduntil the inhabitants are properly rehabilitated.

5.5.5. The state should take complete responsibility for the running and mainte-nance of the camps in a humane manner.

In particular:

• Adequate facilities must be provided to address the health needs of pregnant women and trauma therapy toall camp residents, particularly women.
• Adequate and nutritious food should be made available to all, and in particular women and children.Lactating and pregnant women should be given extra attention.
• In the camps, provision should be made for adequate sanitation facilities, whichallow for privacy and hygiene that are particularly important for women during the menstruation period.

5.5.6. Comprehensive health care, including counselling for trauma, should be pro-vided on a regular basis and free medical aid should be given to all victim-survivors.In view of the trauma that the victims, especially women and children, have suffered,free medical aid, including psychiatric care, should be provided to them. As there hasbeen widespread rape, including that of minor girls, special counselling by medicalpersonnel as well as by social workers should be organised.

5.5.7. Surveys and panchnamas should be rapidly and properly conducted to ensuretimely disbursement of interim and other relief.

5.5.8. Interim and other relief should be handed over to women and men of afamily, jointly.

5.5.9. Ration cards and other identity cards should be provided to those who havelost such documents immediately.

5.5.10. Educational documents/certificates should be provided to those who havelost such documents immediately. Full protection should be provided to those whowish to return to their homes, and legal/ownership documentation should be pro-vided expeditiously in cases where they have been destroyed.

5.5.11. The state should allocate land for people who want to shift from camps intosafe localities of their choice, and a special rehabilitation package should be providedfor widows, single women and female-headed households.

5.5.12. The government policy regarding compensation to heirs of ‘missing’ per-sons should be changed in view of the abnormal circumstances in which the peoplewent ‘missing’.

5.5.13. A single window system should be established to complete all administra-tive formalities, including those concerning relief and rehabilitation.

5.5.14. Proper procedures should be laid down to ensure transparency and the right toinformation, 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. Eco-nomic rehabilitation should not be equated with the interim relief. Although interimrelief is crucial in the short term, the state has to address itself to the issue of long-term employment opportunities for those affected by the violence. The compensa-tion and relief package announced by the government of Gujarat does not reflect theextent of losses sustained nor does it allow for a reasonable opportunity for economicrehabilitation. The compensation package does not take the ground realities intoaccount and is, at best, mere token relief.

• The Tribunal recommends urgent and quick disbursal of interest-free loans forbusiness through a single window clearance system.
• The Tribunal recommends quick disbursal of insurance claims.
• The evidence recorded by the Tribunal from different districts of the state re veals the depth of communalpolarisation in different sectors, aided and abetted by the party in power in Gujarat. Small and bigbusinessmen and traders who deposedbefore the Tribunal testified to the communal and partisan attitude of assessment officers from the Oriental Insurance Company, and showed that even those who hadinsured their businesses and trades are being denied fair recompense by the insurancecompany. The government must look into this matter and take the guilty to task.
• Job opportunities for women and men should be encouraged by creating a poolof 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 anyother small businesses should be made.
• Steps should be taken to ensure education and employment opportunities forwomen of the minority community.

5.7. Education/Children

• Mass promotion of children who have not been able to take the annual andBoard examinations should be made to ensure that they do not lose an academic year.
• School transfers should be provided without the insistence on formal transfer certifi-cates, to facilitate the process of school transfers for those displaced by the violence;
• The Tribunal recommends the immediate withdrawal of textbooks in Gujarat andelsewhere, which distort history, sow communal discord and teach communal hatred.
• The genocide in Gujarat has had a serious impact on the young, their mental andphsyical well-being especially their schooling and education. Special attention needsto be paid to this tragic consequence of the violence on children to ensure how wedraw these children back into the system. The government should encourage andfacilitate creative, formal and non-formal interventions, governmental and non-gov-ernmental, to ensure this.

5.8 Reparation, not compensation

The devastation of a section of the population on a mass scale such as the onewitnessed in Gujarat has to be distinguished from sporadic violence against a fewindividuals resulting in the loss of life and property. In the former, an attempt ismade to uproot people through an organised plan, with the connivance and sup-port 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 peoplein question. What is needed is their complete rehabilitation, physically, psycho-logically and spiritually. In such cases, losses have to be calculated, not only in termsof the loss of men and material, but also in terms of the loss of human-self ofsurvivors who have to be resuscitated as human beings and induced to start a new lifeby overcoming the trauma of the devastation. The cost of such a revival is inesti-mable. The loss of all that is near and dear, including the lives of close relatives, thecomplete defacement of past existence, the shattering of all dreams, hopes and aspi-rations, 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 suchcircumstances is not mere rehabilitation of material existence but the dignified resto-ration 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 asa societal being. The government, therefore, is duty bound to assess these costs inhuman 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 thevictims 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 Preventionand Punishment of the Crime of Genocide, 1948, which India signed in 1948 andratified in 1958, a state that is signatory is bound to effectively act upon and legislateupon the intents of the legislation. Our country has not complied with this requisite inthe Convention although more than five decades have passed. The Tribunal has clearlyheld 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 ofthese crimes. Under the present political circumstances, the Tribunal does not expecteither 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 holdsthat the Covenant on Genocide has become part of customary law, as it does notconflict with any other existing law. Such an interpretation of the law is imperativeand binding on the NHRC. Such an approach would help the NHRC to conduct adetailed investigation into the crimes in Gujarat and submit a detailed report to thegovernment and the nation. The facts narrated in the NHRC’s Summary Report onGujarat already add upto a prima facie accusation of genocide. The Commission has apresent and urgent obligation to the people and a mandatory obligation to posterity toinquire into the Gujarat violence and record its findings so that no political party andno government in future ever resort to such brutal practices.

7.3. As part of this obligation, the NHRC must prepare a Model Statute on Geno-cide including provisions that allow for effective preventive measures to protect reli-gious, ethnic and linguistic minorities from attack. This is mandatory because, underthe International Criminal Code, genocide and crimes against humanity are declaredas offences. State actors may not follow this but Human Rights Commissions set upby various countries will have to enforce them, however limited their jurisdiction maybe. “Genocide is an attack on human diversity as such, that is upon a characteristic ofthe human status without which the very words ‘mankind’ or ‘humanity’ would bedevoid of meaning’’ (Hannah Arndt). The carnage in Gujarat was nothing short ofgenocide and needs to be dealt with in a manner befitting the gravity of the offence.