Monday, October 24, 2011

Prosecute Modi, Step Down from Public Office

It has taken nine and a half long years for judicial acknowledgement of the depth of abdication of Constitutional Responsibility by an elected chief minister in Gujarat in 2002. This abdication has elements of criminal vicarious responsibility. In 2002, in the wake of state wide genocidal pogrom, two Retired Judges of the Supreme Court of India and one retired Judge of the Bombay High Court (Justices VR Krishna Iyer. PB Sawant and Hosbet Suresh) had in the Findings and Recommendations of the Concerned Citizens Tribunal Crimes Against Humanity--Gujarat 2002 clearly recommended that a) CM Modi should be prosecuted; b) Both he and his ministerial colleagues should step down from public office.

The recent developments in the Zakia Jafri and Citizens for Justice and Peace Criminal Complaint against Modi and 61 others is a vindication of this report of the Tribunal. We urge you to re-visit the Tribunal's Findings and Recommendations that had been published in 2002 itself.

They are available at :



State Complicity

Government of Gujarat

1. The post-Godhra carnage in Gujarat was an organised crime perpetrated by the state's chief minister and his government. The state's complicity is evident from the various acts of commission and omission of the government and its officials.

1.1. It was the chief minister who declared that the Godhra incident was pre-planned when the investigating agencies had not reached such a conclusion. Shri Modi's cabinet, notably the minister for home, Shri Gordhan Zadaphiya, reiterated strongly that Pakistani hands were behind the Godhra act. These statements were irresponsible, given the sensitivity of the situation and the anger that they generated. Once they generated a climate ripe for apportioning blame, for the acts of a few criminals, the entire Ghanchi Muslim community of Godhra was branded. This led to a feeling of justifying the systematic massacre, plunder, loot and cultural decimation of the entire Muslim community in Gujarat thereafter.

1.2. It was the chief minister who decided that the charred, unidentifiable dead bodies be taken from Godhra to Ahmedabad in a motor cavalcade. As the cavalcade headed for Ahmedabad, senior members of his party and organisations affiliated to it shouted slogans and incited mobs to retaliate. The CM's role in condoning this behaviour, and in using official machinery to propagate the unsubstantiated view that the Godhra tragedy was a sinister conspiracy, is condemnable. Thus, it was the chief minister who was primarily responsible for the spread of violence, post-Godhra, in the rest of Gujarat.

1.3. The VHP gave a call for a Gujarat Bandh on February 28 and for a Bharat Bandh on March 1. The Gujarat BJP president, Shri Rajendrasinh Rana, was quick to announce the state BJP's support for both the bandh calls, giving a clear signal to the administration that it need not take a hard line against those who enforce the bandh. The state government's reluctance to take adequate steps in the wake of the proposed bandhs amounted to an abdication of all its responsibilities and an open invitation to anarchy.

1.4. Shri Modi played an active role, along with at least three cabinet colleagues, in instructing senior police personnel and civil administrators that a "Hindu reaction was to be expected and this must not be curtailed or controlled."

1.5. On the evening of February 27, two cabinet colleagues of the chief minister, Shri Ashok Bhatt and Shri Pratap Singh Chauhan, met at Lunavada in Panchmahal district along with others. In this meeting, the manner and methods of unleashing violence on Muslims were planned in detail.

1.6. It is clear from what happened in Ahmedabad and its environs on February 28 and all over the state on March 1-3 and thereafter, that there was deliberate connivance and support of the government.

1.7. The sectarian approach of the government and the inaction on the part of the administration allowed the violence to spread. According to dozens of testimonies before the Tribunal, even some ministers of the Gujarat government led the carnage and rapes, in many cases. The CM did not take adequate preventive measures, nor did he keep the army on stand-by. Though the situation was grim, and tension was at its peak, Shri Modi falsely claimed on March 2 (Newshour, Star News, 2/03/2002): "Gujarat mein bahut tezi se shanti prasthapit ho rahi hai, normalcy aa rahi hai… Ahmedabad ek prakar se kal raat ke baad, puri taraha incident-free raha hai." ("Gujarat is well on the road to peace and normalcy is slowly returning here… Ahmedabad too has been largely peaceful since last night.") This, while the attacks in Panchmahal district, Mehsana, Kheda, Nadiad, Bhavnagar – which included hacking, lynching and burning alive of people— continued. This was done deliberately to mislead the rest of the country and the world, though what was going on in Gujarat was clear to the whole world through the print media, radio and TV.

1.8. Shri Modi claimed on March 3 (Talking Heads, Star News, 3/03/2002), that the Army was called for on the evening of February 28, and joined duty from the morning of 1st March.

(Although 12 columns of the Army (approximately 600 troops) had reached Ahmedabad and other sensitive areas on March 1, they were kept on standby. Military intelligence puts the blame on the state government. News reports maintained that the initial delay was due to the absence of clear instructions from the Gujarat government. (The Times of India, Ahmedabad, March 11, Pg. 7). (See chapter on Godhra, Volume II).

1.9. In the past, communal riots had been mostly an urban phenomena that did not spread to the villages. But this time, due to the sectarian politics of religion, it spread to the villages as well. One of the worst incidents was at Sardarpura village where 38 villagers were hacked and torched. This is what Shri Modi had to say about the gruesome killings on March 1: "In some villages, especially in one village of Mehsana district, due to rumours, due to suspicion, due to mistrust, due to tension on both sides, there was an incident (emphasis added) in the Sardarpura village." He took no steps to nip the rumours in the bud.

1.10. Other ministers in the state cabinet displayed the same attitude. Electoral constituencies of ministers in the state cabinet were more prone to violence; in some cases, ministers themselves were leading the mobs. It may not be a mere coincidence that Bapunagar, home constituency of the minister of state for home, Shri Gordhan Zadaphiya, witnessed one of the worst communal scenes since the 1969 riots, when the area was the hardest hit. Some of the senior BJP leaders and ministers in Shri Modi's cabinet were also alleged to have participated in the destruction of minority places of worship. Minister for revenue, Shri Haren Pandya and health minister, Shri Ashok Bhatt led the mobs enthusiastically in Ahmedabad. Shri Bharat Barot, a sitting MLA, was also at the forefront. Residents of Paldi, from where Shri Pandya was elected, actually saw him lead arson attacks. Shri Pandya's election promise the last time was "to wipe any trace of Muslims out of Paldi." Smt. Maya Kotdani, an MLA, has also been named by a few dozen witnesses as an active participant in the violence. Gujarat ministers Shri Nitin Patel and Shri Narayan Laloo Patel led violence, arson and even sexual violence against women in Kadi and Unja in Mehsana respectively.

1.11. The utter disregard for the loss of life and property and the anguish that a section of the citizenry suffered due to unprecedented violence could be seen in the fact that until Prime Minister Shri Atal Behari Vajpayee flew into Ahmedabad and visited the Shah-e-Alam Camp, Shri Modi had not visited a single one. This, despite the fact that there were as many as 66,000 persons, according to collector's figures, huddled in camps in Ahmedabad, while independent assessments put the figure at close to 98,000. Instead of providing succour and assistance, which is the fundamental duty of a government towards its citizens, terror tactics through lathi-wielding policemen were employed with the residents of these camps. In areas of Gujarat outside Ahmedabad, too, there were as many as 60,000 persons internally displaced, living in terrible conditions. But the government and the administration did precious little to give them prompt and adequate relief.

1.12. The attitude of the government showed it had no regard for the life, well-being and future of students from the minority community. Traumatised and distressed students had requested a postponement of the annual examinations. But the state government, and later even the Gujarat High Court, rejected their plea. On April 10, the Gujarat government took a decision to shift out all centres located in the minority dominated areas, out of concern for the lives of students belonging to the majority community. However, minority community children were still expected to travel to examination centres located in majority dominated areas.

1.13. The CM announced Rs. 2 lakh as compensation for the victims/survivors of the Godhra tragedy. But the compensation declared by the CM for the survivors of the carnage that followed was Rs. 1 lakh for the family members of each victim. (When widespread criticism was made about the discriminatory stand of the state, the amount was equalised by reducing the compensation to the Godhra victims' families to Rs 1 lakh, rather than by increasing the amount to Rs 2 lakh in all cases.) As of now, there is no information on how many families concerned have been paid the compensation amount. As regards the injured, the government decided to pay compensation amounts ranging from Rs. 2,000 to Rs. 50,000. This compensation amount was decided in accordance with the norms fixed for the victims of the earthquake on January 26, 2001, a government notification said. Here, again, there is no statistical data offered. As regards the destruction of homes, properties and businesses, the state government has been perfunctory and callous in announcing compensation. There are no clear guidelines; some have been paid paltry sums ranging from Rs. 500 to a few thousand rupees, without any proper assessment of the loss suffered.

1.14. On March 1, the CM announced a judicial commission of inquiry into the Godhra tragedy alone, appointing retired judge, Shri KG Shah at its head. Again, only after widespread protests, did he announce the inclusion, in the terms of reference of inquiry of the judicial commission, of the post–Godhra carnage. (On March 5.) The appointment of the KG Shah Commission was the subject matter of serious controversy because of the conduct of this particular judge in an earlier matter and also on the simple ground that due to the situation in Gujarat, where judges, academics, professionals and others live under threat of fanatic groups who have become a law unto themselves, the criteria of a free, fair and independent inquiry demands the appointment of a senior judge (preferably judges) from outside the state. Now, the government has included Justice GT Nanavaty (former judge of the SC) as an additional member, without specifying as to what would happen if the two judges differ on any matter.

The terms of reference of the KG Shah Commission are also controversial. They do not refer to the need to look into the causes of the disturbances/events/killings as also the need to pinpoint the groups, individuals and organisations behind the violent provocation, and also the role of the police and the administration in controlling the spread of riots and on the failure of the state government in taking prompt and effective relief measures for the victims of the riots.

1.15. The RSS and the VHP control key functionaries in the State. Chief minister Shri Modi is an RSS pracharak. Minister of state for home, Shri Zadaphiya, is a VHP activist. Shri SS Bhandari, the governor of Gujarat, who has not deemed it fit to send a true report on what is happening in the state to the centre, is also an RSS leader. As a consequence of all these factors, the Gujarat government has functioned not as a constitutionally bound, non-partisan and independent body, but one controlled by, and answerable to, the Sangh Parivar. The role and the functioning of the Gujarat government, therefore, is directly determined by its penetration by the Sangh Parivar including its most extreme elements, the VHP and Bajrang Dal. This fact underlies the conduct of the Gujarat government before, during and after the peak period of communal violence in the state during February-March 2002. As a result, while the Government had made certain arrests, no arrests of Bajrang Dal/VHP and BJP workers were undertaken. The arrests of at least 150 such accused, whose names figure in FIRs, are being avoided by the state government.

1.16. Not only the criminal justice system, the entire Administration has failed. IAS and IPS officers who are supposed to be independent, have succumbed to the pressure of the Sangh Parivar. "There is no civil service left in Gujarat," said the former Indian cabinet secretary Shri TSR Subramanian (The Indian Express, April 10).''What has happened is something much more fundamental than Gujarat: The civil service is gone. There is no such thing left. Over the years, the civil service has turned from a steelframe to non-existent. And that is a shattering thought.

"When the government wants something done it has the ability, it has the takat (strength). It can do it in village after village, town after town. That it has not done so in Gujarat is a telling indictment not only of the way of the present government, but also the collapse of the police and civil magistracy,'' he says.

1.17. The government of Gujarat has been utterly secretive about the disbursal of the Rs. 150 crores promised by the Prime Minister Shri Atal Bihari Vajpayee for rehabilitation on April 4, 2002. In all this, the conduct of the chief minister Shri Narendra Modi, has not simply violated the spirit and the law as laid down by the Indian Constitution. He has, in effect, blatantly defied every constitutional institution, including that of the Prime Minister. Shri Narendra Modi is accountable for criminal negligence of duty in failing to provide any relief and rehabilitation to the victims of carnage in Gujarat.

2. Role of Chief Minister and His Ministerial Colleagues

2.1. The facts mentioned in this report clearly establish that chief minister Shri Narendra Modi is the chief Author and Architect of all that happened in Gujarat after the arson of February 27, 2002. It is amply clear from all the evidence placed before the Tribunal that what began in Godhra, could have, given the political will, been controlled promptly at Godhra itself. Instead, the state government under chief minister Shri Narendra Modi took an active part in leading and sponsoring the violence against minorities all over Gujarat. His words and actions throughout the developments in Gujarat show that he has been openly defying the Constitution and indulging in actions which are positively detrimental to the interests of the country.

2.2. Shri Modi was the one who took Godhra to the rest of Gujarat. He was the one who directed the police and the administration not to act. He was the one who refused to help the likes of former member of Parliament, Shri Ahsan Jafri and the large number of people in Shri Jafri 's home, who were all butchered later on.

2.3. He refused shelter and succour to the victims of the carnage.

He refused, and continues to refuse, basic human amenities and was using coercion and other tactics to wind up refugee relief camps.

2.4. He has refused to buy land and rehabilitate persons in new locations or to give transparent accounts of the Rs. 150 crore rehabilitation package announced by Prime Minister Shri Atal Behari Vajpayee during his visit to the state on April 4, 2002. He has no remorse for the rapes, the butcherings, the loss of properties, the agony of displacement and the acute insecurity and lack of belonging felt by large numbers of the people of Gujarat.

2.5. As late as September 3, 2002, the international working president of the Vishwa Hindu Parishad, Shri Ashok Singhal made a shocking statement that received wide publicity, in which he described Gujarat as a "successful experiment" and warned that it would be repeated all over India. Shri Singhal further stated that the success of the Gujarat exepriment lay in the fact that entire villages were "purged" of Islam and Muslims. This outrageous and pathetic statement was not only anti-constitutional but also in violation of the law itself, for which he could be prosecuted. But Shri Modi, by not expressing any outrage at Shri Singhal's remarks, and by indulging in blatant minority-bashing himself, appears to have accepted Shri Singhal's warning that whatever happened in Gujarat was an experiment, a precursor of things to come in the rest of the country. He has made no secret of his hatred for the minorities, and his utterances from time to time keep emphasising that he is still an RSS pracharak (propagator) with a hostile attitude. His role as CM is nothing short of an extension of his functioning as an RSS pracharak.

2.6. It is unfortunate that all his ministerial colleagues have toed his line with no regard to the oath that they took under the Indian Constitution. They are, therefore, equally guilty of the commissions and omissions committed by the chief minister. These rabid, communal, anti-national and anti-constitutional statements and conduct on the part of the chief minister of Gujarat, Shri Narendra Modi and his cabinet colleagues make them unfit to hold any public office. The interests of the people of this country are not safe in their hands.

Published by: Citizens for Justice and Peace


Short Term

1. State Government

1.1. Implement all the recommendations of the National Human Rights Commission (NHRC).

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

1.3. The Tribunal recommends immediate banning of the VHP and the BD under the relevant provisions of the Unlawful Activities (Prevention) Act, 1967, for committing an "unlawful activity" and "unlawful association" within the meaning of that Act. "Unlawful activity" under section 2 of the Act relates to an individual or any association and "any action taken by such individual or association (whether by committing an act or by word, either spoken or written, or by sign or by visible representation or otherwise) (i) which is intended or supports any claim, to bring about, on any ground whatsoever, the cession of a part of the territory in India or the secession of the territory of India from the union, or which incites any individual or group of individuals 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 object any unlawful activity, or which encourages or aids persons to undertake any unlawful activity, or of which the members undertake such activity; or (ii) "which has for its object any activity which is punishable under section 153-A or section 153-B of the Indian Penal Code 1860 (45 of 1860) or which encourages or aids persons to undertake any such activity; or of which the members undertake any such activity."

1.4. By their public utterances and behaviour, which includes provoking their armed cadres through hate propaganda, they are disturbing the law and order machinery of different states in a democratic country like ours. This publicly proclaimed hate propaganda and celebration of violent pogroms against the country's minorities, makes public their secret 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 Vishwa Hindu Parishad and the Bajrang Dal are holding the country to ransom. Moreover, the declared 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 governments to prohibit the distribution of trishuls and swords since, by these means, attempts are being made to arm civil society and prepare a section of Indian society to unleash violence against other sections; an altogether dangerous and fragile situation for peace and internal security in the country. The Tribunal recommends that the law and order machinery seize and confiscate, not merely in Gujarat but in all other parts of the country, the trishuls and swords which have been and are being distributed for the purpose of generating terror against other sections of the people.

The Tribunal observes that the distribution of trishuls, particularly to young men across the length and the breadth of the country, have nothing to do with the traditional practices of Hindu religion. Yet, through a government resolution, the central government has exempted the trishul from the purview of the Arms Act. The Tribunal recommends the withdrawal of this central government resolution, suitable amendments to the Indian Arms Act to 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 camps being 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 hence pose 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 politicians, policemen, administrative officers and all those named by the victims of the violence, as well as others who are guilty of dereliction of duty. (The list of the accused so named is annexed separately).

u We have evidence before us which discloses the direct complicity and active participation in the carnage, of the chief minister and other ministers; of leaders of the VHP and Bajrang Dal at the state and local levels; of the complicity of the then commissioner of police and several other policemen at the level of inspectors, sub- inspectors and the constabulary.

u Examination of the evidence also shows that elected representatives, including cabinet ministers, supported and led large unlawful assemblies that indulged in large-scale arson, loot, murders and other offences, including crimes against women.

u 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 state from February 28 onwards. A former chief justice who appeared before us, summed up the situation succinctly. Constitutional law and authority stood suspended for seventy-two hours. No preventive measures were taken against the Hindu marauders. This attitude is inexplicable and unpardonable. Despite the presence of provisions for keeping peace and public tranquility in the Criminal Procedure Code, the provisions of the National Security Act, state laws providing for the preventive detention of anti-social elements or their externment and the provisions of the Unlawful Activities (Prevention) Act 1967, none of these were applied.

u Every one of these officers should face due procedure for this culpable indifference and be charged for utter incompetence and inefficiency.

u The chief minister and his cabinet colleagues should be dismissed forthwith, even from the caretaker status he and his colleagues are enjoying now.

u As many of our political parties increasingly reflect an absence of proprieties and non-adherence to the basic principles of democracy and the rule of law, there is need for a law defining the constructive liability of individual ministers and the political government collectively, when such gross crimes take place. This alone will enable people to hold their representatives accountable.

1.8. The Tribunal recommends the immediate detention and prosecution of Shri Praveen Togadia and Shri Ashok Singhal of the VHP, and Shri Narendra Modi of the BJP, who, repeatedly, and with impunity, do not merely incite communal hatred and violence against the country's minorities through their rabid armed cadres, in violation of sections 153A and B of the IPC and 295 etc. of the CrPC, which in themselves are serious enough offences, but also disrupt public peace and order, vitiate communal peace 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 firm action on provocative statements, which have the potential to incite communal tensions and violence. In its "Final Order on Gujarat dated 31st May, 2002", the NHRC has stated that it "had urged that these [statements] be examined and acted upon, the burden 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 a recognised criminal offence under Indian law. Indian Statutory Law also provides effective protection for the rights of minorities whether in Gujarat or in the rest of the country. The Indian Penal Code (IPC) prescribes criminal prosecution for "wantonly giving provocation with intent to cause riot" (section 153); "promoting enmity between different groups on grounds of religion" (section 153A); "imputations, assertions prejudicial to national integration" (section 153B); "uttering words with deliberate intent to wound the religious feelings of any person" (section 298); "statements conducive to public mischief" (section 505 (1), b and c); and "statements creating or promoting 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 loth to do in these circumstances. In addition, section 108 of the Code of Criminal Procedure allows an executive magistrate to initiate action against a person violating section 153A or 153B of the IPC.

1.12. The "Guidelines to promote communal harmony" issued by the Indian ministry of home affairs in October 1997, specify the precise responsibility of the state machinery when dealing with potentially inflammatory statements in the context of communal tension. Guideline 15 states that "effective will needs to be displayed by the district authorities 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 should be freely used to deal with individuals promoting communal enmity."

1.13. Besides, Article 20 of the International Covenant on Civil and Political
Rights, which India ratified in 1979, affirms that "Any advocacy of
national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law." Despite the existence of these provisions, voluminous evidence relating to the Gujarat carnage shows that they have been violated. The executive, the law and order machinery and the judiciary have 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 adequate security to the sections of the Muslim population of Gujarat who wish to return to their original places of residence and business.

1.15. The Tribunal recommends independent investigation into cases relating to the Gujarat carnage under the direct supervision of the chief justice of the state. The CJ may also be requested to select the sessions judges and magistrates who should try these cases exclusively. Special courts should be set up to try the guilty. Inquiries must be instituted by the 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 health minister, Shri Ashok Bhatt — one of those who sat in the police control room in Ahmedabad during the carnage in 2002 — and also against Shri Harin Pathak, are yet to begin, even after 18 years. The cases have been stayed in the wake of a High Court order. In the 60 cases registered against the 263 persons accused of faulty construction, leading to the death of nearly 800 people in the January 2001 earthquake, trial has still not begun in a single case, a year and a half later. This is a sorry record of the justice delivery system).

1.16. The impartial and swift prosecution of those guilty of violence, both in the Godhra 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 of the state administration. Without legal and social justice, the issues of peace and the process 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 matter of urgency and should be accomplished forthwith.

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

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

1.20. Public prosecutors should be appointed by the chief justice and not the state government. There should be adequate representation of the minority communities among the public prosecutors. To this end, the Tribunal recommends an amendment to 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 chief justice of the concerned High Courts, in consultation with at least five judges. (At present, the appointment of government pleaders in all districts is being done by the state government in consultation with the district judge).

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

1.22. On account of the brutal manner in which people were attacked, killed and burnt across the length and breadth of the state, including residents of far-flung and hitherto 'unaffected' rural areas, many who were killed could not be identified. These could well be termed 'missing' persons, although they have all been killed. Formalities and paper work, and even post-mortem examinations have not been possible in many cases where bodies were destroyed without a trace. Therefore, as part of its wider duty, the state government should compile and declare a list of 'missing' persons 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 attitude displayed by the administration, as a rule, in the matter of payment of compensation to victim-survivors and especially towards the relatives of the 'missing persons' 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 Indian Constitution and have not undergone a thorough revision, restructuring and orientation in keeping with the fundamental principles of democracy, equity, freedom and equality as contained in our Constitution. While the Constitution of India was framed in 1950, after India attained independence, our criminal laws date back to the colonial period and have not been modified to conform to constitutional provisions in many respects. Therefore, a new law, termed the National Human Rights Law, should be formulated to encompass a rights-based perspective. To this end,

u The provisions of existing criminal justice laws such as the IPC, CrPC and the Evidence Act should be suitably incorporated in the new law.

u A legal framework should be developed to institutionalise the rights of the victims of wanton violence to compensation and restitution from the state, along with relief and rehabilitation.

u A legal framework should be developed to enable the victims of violence to participate in conflict resolution.

u A legal framework should be developed to promote the rights of victims of violence and underdevelopment, and to ensure their right to humane treatment and humane development and governance in the light of the UN reports on human development and the Mahbub-ul-Haq Human Development Centre reports on humane governance.

u An independent monitoring system should be established, to monitor government operations in conflict situations and to ensure the rights of the conflict-affected communities to adequate protection, compensation, relief and rehabilitation.

1.24. Conflict-affected communities, and especially women and other more vulnerable sections among them, should be given a voice in determining the course of action to prevent, mitigate and resolve structural and political violence. Only by reversing 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 Raj Institutions (PRIs), empower the PRIs to deal with specific developmental functions but leave out regulatory and police functions. PRIs should be empowered to deal with police functions and the DM and the SP should be placed under the Panchayat chief in each district.

u The sections of the Commission of Inquiry Act that do not make the report of the commission statutorily binding on the government, need to be amended.

u Another is section 197 of the IPC, a provision that requires the government to grant sanction for the prosecution of persons spitting venom orally and in writing, in violation of section 153 A and B of the IPC. The Tribunal recommends the repeal of this section, which precludes any individual from criminally prosecuting persons for hate speech until the government has granted sanction.)

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

u Proper FIRs be registered and immediate action be taken. The police should collect and investigate forensic evidence.

u Wherever possible, searches should be conducted to recover goods that have been looted from people's homes or compensation be paid for the goods lost.

u In view of the extraordinary circumstances under which the crimes against women were 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 legal process into swift and speedy action.

u Wherever plots of land and properties belonging to the minority community have been illegally occupied by Hindu villagers, as is the case in many districts and villages, urgent and immediate action needs to be taken to restore these lands and properties to their rightful owners. Before this, an urgent official survey, statewide, of such 'lost lands' needs to be undertaken at the earliest.

u Thorough procedures of investigation have been consistently ignored by the police. The culpability of police personnel, where they have failed to follow basic investigative procedures, should also be referred to the Grievances Authority. (See chapter, Recommendations, Long Term: Police).

u The Tribunal recommends that the police and courts taken legal cognisance of, even if retrospectively, of FIRs and complaints sent by victim survivors and affected communities, by registered AD immediately after the genocidal carnage, given the Gujarat police's criminal failure in accurately recording FIRs. Even though months have passed, this needs to be done.

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

1.27. The government should take the necessary steps to restore confidence amongst all communities. The state government has not addressed the issue of the betrayal of trust by various sections of the administration and the consequent sense of extreme insecurity felt by the victims. So far, rehabilitation has been totally ignored by the state and central governments, and, to date, the government has treated the post-violence scenario solely as a matter of law and order and of maintaining the peace. It has also tried to sweep the enormity of the crimes committed under the carpet. Eight months after the attack on the Sabarmati Express, the towns and villages of Gujarat continue to simmer. The government, and the party that controls the government, should not indulge in any activity which undermines public confidence and harmonious relations between communities.


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