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Memorandum on a Riot Free India

The Milli Gazette Online

27 November 2005

[Draft prepared by Inter-Community Peace Initiative (ICPI), Aligarh to be presented to the Prime Minister, Union Home Minister and State Chief Ministers with copy to the President of India jointly by the ICPI along with minority organizations and human rights groups and concerned citizens of the country.]

[Readers wishing to add their names to this memorandum may write to Professor Iqbal A. Ansari at iqbalansari2001@hotmail.com - editor]

We, the following signatories, hold that:

(b) An empowered Community Relations Commission (CRC) is required both for promoting peaceful resolution of disputes as well as for taking preventive legal-administrative measures regarding hate speech and vicious communal propaganda and audio-visual media and educational material and menacing processions.

(c) All those entrusted with the responsibility of law-enforcement must be held accountable for acts and omissions which lead to violation of right to life, limb, dignity, and property of citizens and communities on a large scale.

(d) All those who suffer losses must be restored their rights and get completely rehabilitated and next of kin of those killed must get adequate compensation.

(e) Impunity which is a major source of recurrence of communal violence must end--- which requires reform of the criminal justice system and the judiciary becoming more sensitive, alert and proactive, like it once did in Best Bakery case.

(f) To be able to effectively deal with situations of genocide and crimes against humanity a separate law must be enacted in accordance with international human rights norms. 

In view of the above we consider that the following measures must be taken by the Union and State Governments and Union Territories to heal the festering wounds of the past and to prevent and suppress any incident of communal violence in future. 

1. Establishing a statutory Community Relations Commission (CRC) for prevention, resolution and management of all inter-group ethnic, linguistic and religious conflicts/ disputes (as recommended by the report on ‘Communal Riots: Prevention and Control’ by the National Commission for Minorities (NCM) which  it adopted and sent to Union and State Governments for action in 1999).  ¹

1.1 The CRC to have a research wing, monitoring mechanism and empowered to bring about conciliation through dialogue and also empowered to start legal proceedings against erring parties.

1.2  The CRC to be entrusted with the responsibility of enforcing laws on hate speech and taking other preventive measures like regulation of activities of political parties, and taking out processions etc.

1.3 .The CRC to be entrusted with the responsibility of reviewing all teaching material and media coverage on issues related to communal discord and representation of religion, history and culture of all segments of Indian society and taking steps for necessary rectification and action under law if and when required.

2.1 Training of the police to eradicate its communal biases and prejudices inculcating values, attitudes and conduct in accordance with secular human rights norms.  ³

2.2 Training of the police in intelligent, humane and effective riot control methods, appropriate to any given situation, seeking cooperation of the civil society organizations especially Mohalla and Zila Ekta/ Peace/ Sadbhavna committees. ⁴

3.  Provision in the service rules of the D.M. and other senior personnel of the district administration and the S.P. and other police officers making them responsible for prevention and timely control of any rioting/ social disorder, failure of which should attract penal provisions including liability to pay compensations. Such action to be taken only after due inquiry by the Standing Inquiry Commission and appeal to the State Security Commission.  ⁶

4. A Standing Inquiry Commission appointed by a panel of  (i) Chairman NHRC (ii) Chairman NCM (iii) Chairman CRC-for fixing responsibility of the political executive, the administration and the police for failure to prevent and control any riot / inter-group mass violence.

5. Making existing laws on hate speech and writings more effective and universally applicable.  ⁷

5.1 Enactment of a law regulating activities of political parties and social/ cultural organizations for prevention of communal discord.  ⁸

5.3 Making the existing provisions under the law regulating processions more effective, especially those which are likely to disturb communal peace.  ¹⁰

6. Enactment of a law on the rights of victims of all violence to reparation and complete rehabilitation, and their protection and participation in trial, providing for hate motive for violence /crime as an aggravating factor in sentencing.  ¹¹

7. Amending the Inquiry Commission Act as applicable to (i) minor communal violence (ii) major communal violence and social disorder.

7.1  In the event of major riots and disturbances, the appointing authority should be a panel comprising the (i) Prime Minister (ii) Leader of the opposition (iii) Chairman of the NHRC (iv) Chairman NCM (v) Chairman CRC.  ¹²

7.2 The findings of the inquiry commission must be (a) time bound and (b) binding on the government and legal proceedings to be undertaken by the commission, including settlement of compensation and rehabilitative measures.

8 . Enactment of a central law on Genocide and Crimes Against Humanity under Articles 355, 51 (c) and 253 of the Indian Constitution and Article V of the Convention on the Prevention and Punishment of the Crime of Genocide and Article 20 of the International Covenant on Civil and Political Rights, that India has acceded to providing for (i) accountability of the political executive, the administration and the police, (ii) independent investigating agency (iii) independent directorate of prosecutors (iv) special Courts and special procedure (v) rights of the victims to restitution / reparation and complete rehabilitation and for their protection and participation in the trial as witnesses.  ¹³

9. The justice administration system to become more sensitive, responsible and accountable while dealing with cases related to communal conflicts/disputes and crimes.

9.1 The system to provide for special/specially designated Courts for speedy disposal of cases in a manner that inspires confidence in all sections of the public, especially the weak and vulnerable groups.

9.2 The composition of all the wings and components of the justice administration system to be socially diverse with adequate minority representation.

9.3 Training of the judicial officers, especially at the lower levels in the expanding body of human rights law and norms applicable to domestic situations, which require commitment of the institutions of governance including the judiciary to end xenophobia, neglect, discrimination and intolerance on the basis of race, ethnicity and religion.

10. The Chief Justice of India to be requested to appoint a Commission to review the functioning and record of the Judiciary at both subordinate and higher levels to ascertain to what extent it has been responsible for the pervasive climate of impunity obtaining in the country.  ¹⁴

We welcome the assurance given by the Prime Minister to bring the guilty to justice and to take measures for full rehabilitation of all the sufferers of the pogrom and to take action against politicians and officers indicted by Justice Nanavati Commission. We note with satisfaction that Shri Jagdish Tytler was made to resign from Union Ministership and Sajjan Kumar had to step down from the Chairmanship of Rural Development Board of the Delhi Government.

Though we note with satisfaction that payment of compensation of rupees three lakhs and fifty thousand was made to the next of kin of all those who were killed in Delhi in 1984 in compliance with the judgment of Justice Anil Dev Singh of the Delhi High Court on 5 July 1996, ¹⁵ the cases of similar compensation for those killed in Kanpur, Bokaro and Jabalpur etc. in 1984 are still pending. We urge the Government of India to get compensation paid uniformly to all sufferers of the Sikh Community in 1984 in all parts of the country. Moreover there is a need for raising the amount of compensation to at least five lakh rupees. We also note with satisfaction that in compliance with the recent orders of the Delhi High Court, the Government of Delhi Administration has agreed to increase ex-gratia compensation to those injured in 1984 violence to Rs. 1.25 lakhs, besides taking other rehabilitative measures like compensation for destroyed houses and commercial property, stipends to children and employment to the victims.

On this occasion we cannot refrain from expressing our anguish and concern on the continuing denial of justice to the victims of other riots and pogroms where largely Muslims have been the sufferers, like those in Jabalpur (1961), Ranchi (1967), Ahmedabad (1969), Bhiwandi (1970), Jamshedpur (1979), Moradabad (1980), Nellie (1983), Meerut (1982 & 1987),Bhagalpur (1989), Aligarh (1978 and 1990) and Mumbai and other places (1992-93) and finally in Gujrat 2002.

It is not only that the guilty have been very rarely punished, ex-gratia compensation paid to those who suffered loss of life and property have ranged between a few thousand rupees to a lakh or so.

The nation need to feel ashamed of the shocking reality that the next of kin of all those forty one Muslims brutally killed by the PAC in Hashimpura, Meerut (1987) have been paid   a mere Rs. 40,000/- each. The writ petition for adequate compensation filed by victims in 1995 is still lying in the Court and the trial of the indicted PAC personnel is yet to start.

In case of Gujrat the Apex Court has directed the petitioners to approach the High Court for settling claims of compensation, although it has not set aside Justice Anil Dev Singh’s judgment holding the State liable to pay adequate compensation to the victims.

The statutory recommendation of the National Commission for Minorities (1997)¹⁶ to uniformly apply the ratio of Justice Anil Dev Singh’s judgment and its direction to pay all victims of similar violence the same amount of compensation has been disregarded by most states.

Moreover no action was ever taken against politicians and officers indicted by various Inquiry Commissions like Justice Madon Commission on Bhiwandi riots (1970) Justice J.Narain, S.K.Ghosh and S.Q.Rizvi Commission on Jamshedpur riots (1979), Justice Ram Chandra Prasad and Justice Shamsul Hasan’s Report on Bhagalpur riots (1989) and Justice Srikrishna Commission on Mumbai riots (1992-93) ^17.  This has been a frustrating experience for the Muslim community.  They are made to feel that they do not enjoy equality of status as citizens and equal protection of the laws, as guaranteed under the Constitution. It is bound to cause the greater alienation in general and desperation in some sections, who may feel tempted to seek desperate remedies. 

In view of this we urge the Government of India and of the States and Union Territories to appoint a Judicial Tribunal through an Ordinance to urgently address the two issues of:
(i) Adequate and equal compensation to sufferers of all riots.
Secular justice requires paying compensation and taking measures for rehabilitation of surviving sufferers according to uniform standards irrespective of faith.
(ii) Action against officials and political leaders indicted by all judicial inquiries.

1.1 In case appointing Judicial Tribunal by the Central Government appears problematic, the responsibility of settling compensation and legal proceedings against indicted persons may be entrusted upon the National Human Rights Commission (NHRC).

2. Without waiting for the Report of Justice Nanavati Commission on Gujarat, 2002 the Modi Government of Gujarat needs to be dismissed on the following grounds.

(a) The NHRC’s final report (May 2002) holding the State Government of Gujarat responsible for failure of governance leading to massive destruction of life, honour and property during February-March 2002. ¹⁸

It needs to be kept in view that all the then opposition parties, now constituting the UPA and its supporters had stalled the proceedings of the Parliament for a number of days demanding such dismissal under Article 356.

After imposition of President’s rule in Gujarat, the proposed model law should be enforced through a Presidential ordinance for compensating the victims and punishing the guilty.

1. See Appendices I and II; the Summary of the Recommendations of the Report on Communal Riots: Prevention and Control. Iqbal A. Ansari, Minorities Council New Delhi; (1999) and a note on ‘Community Relations Commission’.

3. Emphasis on secular attitudes and conduct of the police has obviously figured in recommendations of all reports and guidelines from National Integration Committee 1961 to Home Ministry’s ‘Guidelines to Promote Communal Harmony’, New Delhi 1997, but it is advisable to focus on norms of human rights of all persons and citizens and communities to equality and non-discrimination, freedom and dignity--- It will require educational inputs for destereotyping groups and communities.

4. If attempt is made during normal peaceful times to involve local people of all strata and communities and dedicated social workers whose stakes in peace are high, cooperative linkages can be effectively used for prevention of aggravation of tension.

5.(i) Justice D. Madon in his report on Communal Disturbances at Bhiwandi etc. in 1970 observed that it was necessary that in recruitment to the police adequate representation was given to the minorities.

(ii) In their report on Communal Disturbances at Jamshedpur (1979) Justice J. Narain and others made the observation that the composition, training, discipline and leadership in the Bihar Military Police (BMP) left much to be desired. It advised the Government to review the composition of BMP and to make it a more discipline force.

(iii) The National Police Commission headed by Dharam Vira in its sixth Report (1981) reiterated its observations made in the Third Report that “the composition of the personnel in the police system as a whole should reflect the general mix of communities as exists in society so that the system should function impartially without any slant in favour of any community.”

The report agreed that “there is a strong case for encouraging the recruitment of members of the minority community and other weaker sections at various levels in the police force….”

(iv) The P.M.’s Fifteen Point Programme on Minorities, 1983 also recommends giving special consideration to minorities in the recruitment of police personnel by States and central Governments and suggests that for this purpose the composition of Selection Committees should be representative. 

(vi) The Home Ministry’s Guidelines to Promote Communal Harmony issued on 22 October, 1997 makes the following recommendations.

It has been commonly observed that the presence of minority community members in the police force deployed in communally sensitive areas goes a long way in winning the confidence of the minority communities. This is of vital importance. The following steps which were recommended from time to time, should be taken earnestly:-

Launching of Special Campaigns to recruit more members of minorities in the State Police Force.

Creation of composite battalions of armed police which should include members of all religious communities including SCs/ STs. for exclusive use in maintaining communal peace and amity in the sensitive areas.

Starting of special training/ orientations programmes for State Police Force with a view to maintaining communal harmony.   

6. The recommendation for fixing administrative responsibility of the D.M and the S.P figured in 1961 NIC report, which was made more specific in the NIC’s recommendations of June 1968 which says that “the District Magistrates and Superintendents of Police should be made personally responsible for prompt action to prevent or stop communal disturbances” and that “failure to take prompt and effective action should be considered a dereliction of duty and the officers concerned should be dealt with accordingly. Service Rules should be amended, if necessary”. The principle has been reiterated ever since in most official pronouncements including the Prime Minister’s Fifteen Point Programme on Minorities, 1983.

See discussion of desirability of such legal provisions in the NCM Report Communal Riots: Prevention and Control, 1999, written by Iqbal A. Ansari.

12. As the pattern of most major riots in the past reveals that it is failure of governance that results in mass communal crimes, the same Government of the State should not have the power to appoint theinquiry commission deciding its composition and terms of reference and the authority to reject its findings and recommendations.

13. See relevant Appendices on the Draft Bills on Genocide/ Communal Crimes and the article “Law on Mass Crimes and Victims Rights” by Iqbal A. Ansari.

14. This will get illustrated by subjecting to critical scrutiny the role of the judiciary in Ayodhya related cases from 1949 attachment order to the judgment of 1994, and cases related to the demolition of Babri Masjid.

Moreover the pattern of dealing with a large number of cases under 153A, including dismissal by the Bombay High Court and the Supreme Court of the PIL against Bal Thackeray and many cases of contempt of court and readiness of law courts to let cases against rioters be withdrawn by the governments under the plea of communal harmony, would be revealing and instructive.

15. Civil Writ Petition No. 1429 of 1996.

16. The National Commission For Minorities adopted the following statutory resolution in November 1997: “The Ratio of the Delhi High Court Judgment 1996 be treated as the general law for awarding proper compensation to all the victims of all communal riots, whenever in point of time, and wherever in the country, they may have occurred.”

The Chairman, NCM addressed a letter dated 13 November, 1997 on the subject to the Union Home Minister and Chief Ministers of the State.

18. In its final report on Gujarat 2002 carnage released on 31 May 2002, the NHRC makes the following observations:

There was a comprehensive failure of the State to protect the Constitutional rights of the people of Gujarat, starting with the tragedy in Godhra on 27 February 2002 and continuing with the violence that ensued in the weeks that followed. The Commission has also noted in this connection that, on 6 May 2002, Rajya Sabha adopted with one voice the motion stating “That this house expresses its deep sense of anguish at the persistence of violence in Gujarat for over six weeks, leading to loss of lives of a large number of persons, destruction of property worth crores of rupees and urges the Central Government to intervene effectively under article 355 of the Constitution to protect the lives and property of the citizens and to provide effective relief and rehabilitation to the victims of violence.”

The tragic events in Gujarat, starting with the Godhra incident and continuing with the violence that rocked the State for over two months, have greatly saddened the nation. There is no doubt, in the opinion of this Commission, that there was a comprehensive failure on the part of the State Government to control the persistent violation of the rights to life, liberty, equality and dignity of the people of the State. It is, of course, essential to heal the wounds and to look to a future of peace and harmony. But the pursuit of these high objectives must be based on justice and the upholding of the values of the Constitution of the Republic and the laws of the land. That is why it remains of fundamental importance that the measures that require to be taken to bring the violators of human rights to book are indeed taken. 

19. The following are some of the observations of the Supreme Court’s bench comprising Justice Arijit Pasayat and Justice Doraiswami Raju made in the judgment delivered on 12 April 2004 on Criminal Appeal NOS 446-449/2004 arising out of the SLP (Cel.) No. 538-541/2004 regarding transfer and retrial of Best-Bakery case of Vadodra, Gujarat 2002.

If one even cursorily glances through the records of the case, one gets a feeling that the justice delivery system was being taken for a ride and literally allowed to be abused, misused and mutilated by subterfuge. The investigation appears to be perfunctory and anything but impartial without any definite object of finding out the truth and bringing to book those who were responsible for the crime. The public prosecutor appears to have acted more as a defence counsel than one whose duty was to present the truth before the Court. The Court in turn appeared to be a silent spectator, mute to the manipulations and preferred to be indifferent to sacrilege being committed to justice. The role of the State Government also leaves much to be desired. One gets a feeling that there was really no seriousness in the State’s approach in assailing the Trial Court’s judgment. This is clearly indicated by the fact that the first memorandum of appeal filed was an apology for the grounds. A second amendment was done, that too after this Court expressed its unhappiness over the perfunctory manner in which the appeal was presented and challenge made. That also was not the end of the matter. There was a subsequent petition for amendment. All this sadly reflects on the quality of determination exhibited by the State and the nature of seriousness shown to pursue the appeal. Criminal trials should not be reduced to be the mock trials or shadow boxing of fixed trials. Judicial Criminal Administration System must be kept clean and beyond the reach of whimsical political wills or agendas and properly insulated from discriminatory standards or yardsticks of the type prohibited by the mandate of the Constitution.

Those who are responsible for protecting life and properties and ensuring that investigation is fair and proper seem to have shown no real anxiety. Large number of people had lost their lives. Whether the accused persons were really assailants or not could have been established by a fair and impartial investigation. The Modern day “Neros” were looking elsewhere when Best Bakery and innocent children and women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become files in the hands of these “wanton boys”. When fences start to swallow the crops, no scope will be left for survival of law and order or truth and justice. Public order as well as public interest become martyrs and monuments.      

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