'The Integrity Of The Process Has To Be Restored'

'The Integrity Of The Process Has To Be Restored'
Full text of the preliminary comments and recommendations by the NHRC on the"serious failure of intelligence and action by the State Government" anddismissal of its claims of having restored normalcy.

OrdersProceedings Of The Commission
PROCEEDINGS
Preliminary Comments
Recommendations

I. Law & Order
II. Camps
III. Rehabilitation
IV. Police Reform

NATIONAL HUMAN RIGHTS COMMISSION
SARDAR PATEL BHAVAN
NEW DELHI

OrdersProceedings Of The Commission

Quorum
Chairperson, Justice Shri J.S. Verma
Justice Sujata V. Manohar, Member
Virendra Dayal, Member

The Commission considered the Report of its team headed by the Chairperson relating tothe visit to Gujarat from 19-22 March 2002 and directed that it be kept in a sealed coverfor confidentiality at present, with the Secretary General.

“(a) inquire, suo moto or on a petition presented to it by a victim or any person on his behalf, into complaint of

The term ‘human rights’ is defined to mean the right relating to life,liberty, equality and dignity of the individual guaranteed by the Constitution or embodiedin the International Covenants and enforceable by courts in India (Section 2(1)(d)),and the International Covenants are defined as the “International Covenant on Civiland Political Rights and the International Covenant on Economic, Social and CulturalRights adopted by the General Assembly of the United Nations on 16th December 1966” (Section2(1)(f)).

(ii) It is therefore in the light of this Statute that the Commission must examinewhether violations of human rights were committed, or were abetted, or resulted fromnegligence in the prevention of such violation. It must also examine whether the acts thatoccurred infringed the rights guaranteed by the Constitution or those that were embodiedin the two great International Covenants cited above.

(iii) The Commission would like to observe at this stage that it is the primary andinescapable responsibility of the State to protect the right to life, liberty, equalityand dignity of all of those who constitute it. It is also the responsibility of the Stateto ensure that such rights are not violated either through overt acts, or through abetmentor negligence. It is a clear and emerging principle of human rights jurisprudence that theState is responsible not only for the acts of its own agents, but also for the acts ofnon-State players acting within its jurisdiction. The State is, in addition, responsiblefor any inaction that may cause or facilitate the violation of human rights.

(iv) The first question that arises therefore is whether the State has discharged itsresponsibilities appropriately in accordance with the above. It has been stated in theReport of the State Government that the attack on kar sevaks in Godhra occurred in theabsence of “specific information about the return of kar sevaks from Ayodhya”(p. 12 of the Report). It is also asserted that while there were intelligence inputspertaining to the movement of kar sevaks to Ayodhya between 10-15 March 2002, there wereno such in-puts concerning their return either from the State Intelligence Branch or theCentral Intelligence Agencies (p. 5) and that the “only message” about thereturn of kar sevaks, provided by the Uttar Pradesh police, was received in Gujarat on 28February 2002 i.e., after the tragic incident of 27 February 2002 and even that did notrelate to a possible attack on the Sabarmati Express.

(v) The Commission is deeply concerned to be informed of this. It would appear toconstitute an extraordinary lack of appreciation of the potential dangers of thesituation, both by the Central and State intelligence agencies. This is the more so giventhe history of communal violence in Gujarat. The Report of the State Government itselfstates:

“The State of Gujarat has a long history of communal riots. Major riots have been occurring periodically in the State since 1969. Two Commissions of Inquiry viz., the Jagmohan Reddy Commission of Inquiry, 1969, and the Dave Commission of Inquiry, 1985, were constituted to go into the widespread communal violence that erupted in the State from time to time. Subsequently, major communal incidents all over the State have taken place in 1990 and in 1992-93 following the Babri Masjid episode. In fact, between 1970 and 2002, Gujarat has witnessed 443 major communal incidents. Even minor altercations, over trivial matters like kite flying have led to communal violence.” (p. 127).

The Report adds that the Godhra incident occurred at a time when the environment wasalready surcharged due to developments in Ayodhya and related events (also p. 127).

Indeed, it has been reported to the Commission that, in intelligence parlance, severalplaces of the State have been classified as communally sensitive or hyper-sensitive andthat, in many cities of the State, including Ahmedabad, Vadodara and Godhra, members ofboth the majority and minority communities are constantly in a state of preparedness toface the perceived danger of communal violence. In such circumstances, the police arereported to be normally well prepared to handle such dangers and it is reported to bestandard practice to alert police stations down the line when sensitive situations arelikely to develop.

(vi) Given the above, the Commission is constrained to observe that a serious failureof intelligence and action by the State Government marked the events leading to the Godhratragedy and the subsequent deaths and destruction that occurred. On the face of it, in thelight of the history of communal violence in Gujarat, recalled in the Report of the StateGovernment itself, the question must arise whether the principle of ‘res ipsaloquitur’ (‘the affair speaking for itself’) should not apply in this casein assessing the degree of State responsibility in the failure to protect the life,liberty, equality and dignity of the people of Gujarat. The Commission accordinglyrequests the response of the Central and State Governments on this matter, it being theprimary and inescapable responsibility of the State to protect such rights and to beresponsible for the acts not only of its own agents, but also for the acts of non-Stateplayers within its jurisdiction and any inaction that may cause or facilitate theviolation of human rights. Unless rebutted by the State Government, the adverse inferencearising against it would render it accountable. The burden is therefore now on the StateGovernment to rebut this presumption.

(vii) An ancilliary question that arises is whether there was adequate anticipation inregard to the measures to be taken, and whether these measures were indeed taken, toensure that the tragic events in Godhra would not occur and would not lead to seriousrepercussions elsewhere. The Commission has noted that many instances are recorded in theReport of prompt and courageous action by District Collectors, Commissioners andSuperintendents of Police and other officers to control the violence and to deal with itsconsequences through appropriate preventive measures and, thereafter, through rescue,relief and rehabilitation measures. The Commission cannot but note, however, that theReport itself reveals that while some communally-prone districts succeeded in controllingthe violence, other districts – sometimes less prone to such violence –succumbed to it. In the same vein, the Report further indicates that while the factorsunderlining the danger of communal violence spreading were common to all districts, andthat, “in the wake of the call for the ‘Gujarat Bandh’ and the possiblefall-out of the Godhra incident, the State Government took all possible precautions”(p. 128), some districts withstood the dangers far more firmly than did others. Such adevelopment clearly points to local factors and players overwhelming the district officersin certain instances, but not in others. Given the widespread reports and allegations ofgroups of well-organized persons, armed with mobile telephones and addresses, singling outcertain homes and properties for death and destruction in certain districts –sometimes within view of police stations and personnel – the further question arisesas to what the factors were, and who the players were in the situations that went out ofcontrol. The Commission requests the comments of the State Government on these matters.

(viii) The Commission has noted that while the Report states that the Godhra incidentwas “premeditated” (p. 5), the Report does not clarify as to who precisely wasresponsible for this incident. Considering its gruesome nature and catastrophicconsequences, the team of the Commission that visited Godhra on 22 March 2002 wasconcerned to note from the comments of the Special IGP, CID Crime that while two cases hadbeen registered, they were being investigated by an SDPO of the Western Railway and thatno major progress had been made until then. In the light of fact that numerous allegationshave been made both in the media and to the team of the Commission to the effect that FIRsin various instances were being distorted or poorly recorded, and that senior politicalpersonalities were seeking to ‘influence’ the working of police stations bytheir presence within them, the Commission is constrained to observe that there is awidespread lack of faith in the integrity of the investigating process and the ability ofthose conducting investigations. The Commission notes, for instance, that in Ahmedabad, inmost cases, looting was “reported in well-to-do localities by relatively richpeople” (p. 130). Yet the Report does not identify who these persons were. Theconclusion cannot but be drawn that there is need for greater transparency and integrityto investigate the instances of death and destruction appropriately and to instilconfidence in the public mind.

(ix) The Report takes the view that “the major incidents of violence werecontained within the first 72 hours.” It asserts, however, that “on account ofwidespread reporting both in the visual as well as the electronic media, incidents ofviolence on a large-scale started occurring in Ahmedabad, Baroda cities and some towns ofPanchmahals, Sabarkantha, Mehsana, etc” in spite of “all possible precautionshaving been taken” (p. 128-129). The Report also adds that various commentsattributed to the Chief Minister and Commissioner of Police, Ahmedabad, among others, weretorn out of context by the media, or entirely without foundation.

(x) As indicated earlier in these Proceedings, the Commission considers it would benaïve for it to subscribe to the view that the situation was brought under control withinthe first 72 hours. Violence continues in Gujarat as of the time of writing theseProceedings. There was a pervasive sense of insecurity prevailing in the State at the timeof the team’s visit to Gujarat. This was most acute among the victims of thesuccessive tragedies, but it extended to all segments of society, including to two Judgesof the High Court of Gujarat, one sitting and the other retired who were compelled toleave their own homes because of the vitiated atmosphere. There could be no clearerevidence of the failure to control the situation.

(xi) The Commission has, however, taken note of the views of the State Government inrespect of the media. The Commission firmly believes that it is essential to uphold theRight to Freedom of Speech and Expression articulated in Article 19(1)(a) of theConstitution, which finds comparable provision in Article 19 of the Universal Declarationof Human Rights, 1948 and Article 19 of the International Covenant on Civil and PoliticalRights, 1966. It is therefore clearly in favour of a courageous and investigative role forthe media. At the same time, the Commission is of the view that there is need for allconcerned to reflect further on possible guidelines that the media should adopt, on a‘self-policing’ basis, to govern its conduct in volatile situations, includingthose of inter-communal violence, with a view to ensuring that passions are not inflamedand further violence perpetrated. It has to be noted that the right under Article 19(1)(a)is subject to reasonable restrictions under Article 19(2) of the Constitution.

(xii) The Commission has noted the contents of the Report on two matters that raisedserious questions of discriminatory treatment and led to most adverse comment both withinthe country and abroad. The first related to the announcement of Rs. 2 lakhs ascompensation to the next-of-kin of those who perished in the attack on the SabarmatiExpress, and of Rs. 1 lakh for those who died in the subsequent violence. The secondrelated to the application of POTO to the first incident, but not to those involved in thesubsequent violence. On the question of compensation, the Commission has noted from theReport that Rs. 1 lakh will be paid in all instances, “thus establishingparity.” It has also noted that, according to the Report, this decision was taken on9 March 2002, after a letter was received by the Chief Minister, “on behalf of thekar sevaks,” saying “that they would welcome the financial help of Rs. 1 lakhinstead of Rs. 2 lakhs to the bereaved families of Godhra massacre” (see p. 115).This decision, in the view of the Commission, should have been taken on the initiative ofthe Government itself, as the issue raised impinged seriously on the provisions of theConstitution contained in Articles 14 and 15, dealing respectively with equality beforethe law and equal protection of the laws within the territory of India, and theprohibition of discrimination on grounds of religion, race, caste, sex or place of birth.The Commission has also noted the contents of the Report which state that “Noguidelines were given by the Home Department regarding the type of cases in which POTOshould or should not be used” and that, subsequent to the initial decision to applyPOTO in respect of individual cases in Godhra, the Government received legal advice todefer “the applicability of POTO till the investigation is completed” (pp.66-67). The Commission intends to monitor this matter further, POTO having since beenenacted as a law.

(xiii) The Commission has taken good note of the “Rescue, Relief andRehabilitation Measures” undertaken by the State Government. In many instances,strenuous efforts have been made by Collectors and other district officers, often actingon their own initiative. The Commission was informed, however, during the course of itsvisit, that many of the largest camps, including Shah-e-Alam in Ahmedabad, had notreceived visits at a high political or administrative level till the visit of theChairperson of this Commission. This was viewed by the inmates as being indicative of adeeper malaise, that was discriminatory in origin and character. Unfortunately, too,numerous complaints were received by the team of the Commission regarding the lack offacilities in the camps. The Commission has noted the range of activities and measurestaken by the State Government to pursue the relief and rehabilitation of those who havesuffered. It appreciates the positive steps that have been taken and commends thoseofficials and NGOs that have worked to ameliorate the suffering of the victims. TheCommission, however, considers it essential to monitor the on-going implementation of thedecisions taken since a great deal still needs to be done. The Commission has alreadyindicated to the Chief Minister that a follow-up mission will be made on behalf of theCommission at an appropriate time and it appreciates the response of the Chief Ministerthat such a visit will be welcome and that every effort will be made to restore completenormalcy expeditiously.

(xiv) In the light of the above, the Commission is duty bound to continue to followdevelopments in Gujarat consequent to the tragic incidents that occurred in Godhra andelsewhere. Under its Statute, it is required to monitor the compliance of the State withthe rule of law and its human rights obligations. This will be a continuing duty of theCommission which must be fulfilled, Parliament having established the Commission with theobjective of ensuring the “better protection” of human rights in the country,expecting thereby that the efforts of the Commission would be additional to those ofexisting agencies and institutions. In this task, the Commission will continue to count onreceiving the cooperation of the Government of Gujarat, a cooperation of which the ChiefMinister has stated that it can be assured.

Recommendations

21. The Commission now wishes to make a first set ofRecommendations for the immediate consideration of the Central and State Governments. Asindicated earlier, once a response has been received from these Governments on the reportof the visit of the Commission’s team to Gujarat, and a full analysis made of thenumerous representations received by the Commission, additional Proceedings will berecorded by the Commission on the situation in Gujarat, offering further Comments andRecommendations.

I. Law & Order

(i) In view of the widespread allegations that FIRs have been poorly or wrongly recorded and that investigations are being ‘influenced’ by extraneous considerations or players, the Commission is of the view that the integrity of the process has to be restored. It therefore recommends the entrusting of certain critical cases to the CBI. These include the cases relating to the

• Godhra incident, which is at present being investigated by the GRP;
• Chamanpura (Gulbarga Society) incident;
• Naroda Patiya incident;
• Best Bakery case in Vadodara; and the
• Sadarpura case in Mehsana district.

(ii) The Commission recommends that Special Courts should try these cases on a day-to-day basis, the Judges being handpicked by the Chief Justice of the High Court of Gujarat. Special Prosecutors should be appointed as needed. Procedures should be adopted for the conduct of the proceedings in such a manner that the traumatized condition of many of the victims, particularly women and children, is not aggravated and they are protected from further trauma or threat. A particular effort should be made to depute sensitive officers, particularly officers who are women, to assist in the handling of such cases.

(iii) Special Cells should be constituted under the concerned District Magistrates to follow the progress of the investigation of cases not entrusted to the CBI; these should be monitored by the Additional Director-General (Crime).

(iv) Specific time-frames should be fixed for the thorough and expeditious completion of investigations.

(v) Police desks should be set-up in the relief camps to receive complaints, record FIRs and forward them to Police Stations having jurisdiction.

(vi) Material collected by NGOs such as Citizen’s Initiative, PUCL and others should also be used.

(vii) Provocative statements made by persons to the electronic or print media should be examined and acted upon, and the burden of proof shifted to such persons to explain or contradict their statements.

(viii) Given the wide variation in the performance of public servants in the discharge of their statutory responsibilities, action should be initiated to identify and proceed against those who have failed to act appropriately to control the violence in its incipient stages, or to prevent its escalation thereafter. By the same token, officers who have performed their duties well, should be commended.

II. Camps

(i) Visits to camps by senior political leaders and officers should be organized in a systematic way in order to restore confidence among those who have been victimized. NGOs should be involved in the process and the management and running of the camps should be marked by transparency and accountability

III. Rehabilitation

(i) The Commission recommends that places of worship that have been destroyed be repaired expeditiously. Assistance should be provided, as appropriate, inter alia by the State.

IV. Police Reform
(i) The Commission would like to draw attention to the deeper question of PoliceReform, on which recommendations of the National Police Commission and of the NationalHuman Rights Commission have been pending despite repeated efforts to have them actedupon. The Commission is of the view that recent events in Gujarat and, indeed, in otherStates of the country, underline the need to proceed without delay to implement thereforms that have already been recommended in order to preserve the integrity of theinvestigating process and to insulate it from extraneous influences.