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Law on rights of riot victims
By Iqbal A Ansari

In India public discourse on riots has not paid any attention to the absence of any law on the rights of victims of riots, like the present one in Gujarat, which is the result of failure of governance resulting in loss of life, limb, shelter, property, places of worship, honour and social and professional dislocation to hundreds of thousands of people. 

Except for the victims of anti-Sikh riots in Delhi in 1984, all payment of compensation to sufferers of riots has been ex-gratia. It has not only led to variations of amount of compensation for loss of life from Rs 20,000 to two lakhs, depending upon political expediency, but the underlying arbitrariness undermines the basic principle of rule of law. Moreover damages other than life and limb undeservedly suffered by large number of people – e.g. displacement, dislocation, dispossession, causing permanent vocational and other social & educational losses, including schooling of children, do not get due recognition and attention. Rehabilitative measures are supposed to lie in the domain of charitable social work. Officially it is tokenistically being looked after by a non-statutory National Foundation For Communal Harmony, which is a part of the Home Ministry.

This neglect has happened in spite of consistent efforts of the National Commission For Minorities (NCM) in this direction since 1980, when "it strongly urged upon the Government to pass appropriate legislation and formulate schemes for giving compensation to victims of communal riots" on the ground that "the State cannot be absolved from its responsibility of protecting life and property of the citizens….."

Justice HR Khanna, whose opinion on the matter was sought by the Commission, noted "the rising trend in some countries to pay compensation to victims of violent crimes e.g. New Zealand (1963), Britain (1964) and subsequently in Canada, Northern Ireland and USA and Australia". (NCM Report, 1980)

In its Sixth Report (1981) the National Police Commission (NPC) observed that "it is the duty of the administration to compensate these unfortunate sufferers (of communal riots) for the loss and suffering undergone by them and to assist them in their rehabilitation".

The 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power requires the governments to establish and strengthen judicial and administrative mechanisms to enable victims to obtain redress – expeditious, fair, inexpensive and accessible. It considers fair restitution of victims an obligation of offenders or third parties responsible for their behaviour. Clause 11 provides that "victims should receive restitution from the State whose officials or agents were responsible for the harm inflicted".

Successive Indian governments ignored their obligation in the matter as the political and intellectual classes confined their discussion exclusively in secular – communal terms. The human rights perspective was not brought to bear upon riot-related issues.

It is Justice Anil Dev Singh of Delhi High Court’s classic judgment on the Civil Writ Petition No. 1429 (Smt. Bhajan Kaur Vs Delhi Administration) which proved path breaking in holding the State liable to pay adequate compensation for having failed to protect the life of citizens guaranteed under Article 21.

In the event of failure of the State to act in time to prevent loss of innocent lives, "it cannot escape the liability to pay adequate compensation to the family of persons killed during riots……….."

The line of argument of the judgment is based on the view that "it is not open to the State to say that the violations are being committed by private persons for which it cannot be held accountable. Riots more often than not take place due to weakness, laxity and indifference of the administration in enforcing law and order. If the authorities act in time and act effectively and efficiently, riots can surely be prevented. Message must go to the mischief mongers that the administration means business and their nefarious designs would be thwarted with an iron hand". 

It is a view universally supported by experienced district officials and senior police officers including NC Saxena, VN Rani, Padam Rosha and KF Rustamji.

Though the BJP Government of Delhi paid the compensation of Rs 3.50 lakhs, no heed was, however, paid to the learned Court’s crucial advice to the Union and State Governments to enact laws "to locate the responsibility for the riots whenever and wherever they occur and the persons held responsible for confiscation of their properties so as to secure payment of compensation out of the assets so confiscated. In case it is found that an official or officials of the State did not act in time or were indifferent to mob violence, they should also be required to make reparations to the victims and face disciplinary proceedings". 

The Minorities Council, represented to the NCM in August in 1997 and subsequently to the NHRC for direction to the Union & State Governments for application of the judgement for victims of other major riots in the country and for enactment of a law on compensation, which resulted in the NCM making a statutory resolution for treating Delhi High Court judgement as the general law for awarding proper compensation to all the victims of all communal riots.

Though the NHRC indirectly endorsed this resolution of the NCM, it evaded responsibility under the cover that the Supreme Court was seized of the issue. The matter then pending before the Supreme Court related only to the limited issue of i) enhancement of the amount paid to Sikh victims from Rs 2 lakhs with interest to Rs 7.5 lakhs, ii) payment of compensation to other Sikh victims in Kanpur, Jabalpur & Bokaro, etc.

In December 1997 the NCM appointed a Committee on communal riots headed by Justice VM Tarkunde for which this writer, as Convener of the Committee, submitted a comprehensive report. It was adopted by the NCM and sent to the Government for action in March 1999. While there is a need to effect reforms in the entire law-enforcement machinery, one measure which is urgently required is enactment of a comprehensive law on the Rights of Victims of Riots, providing for a Tribunal/Commission of Inquiry for fixing responsibility and determining losses and restitution and compensation. The Government will neither have the power to appoint the Commission nor to reject its findings. It is to be appointed by an independent panel. It will have the power to initiate legal proceedings against erring officials and police personnel, for which their service rules will be suitably amended.

It is this fear of accountability and liability to pay compensation which will have a catalytic effect in starting a process of reforms of the system. The chances of punishment (not just transfer) and of substantial pecuniary loss will instill fear of law in the bureaucracy and the police which will make them keep their passions and prejudices in leash and will make them do their duty in accordance with law and not wait for the "order from above". It will be the duty of the law makers to simultaneously provide protection to officials, so that legitimate rights and interests of their career do not get adversely affected for being independent and upright.

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