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EPW Commentary February 26, 2005

The promised enactment of a comprehensive law on communal violence by the UPAgovernment should not be treated as a partisan issue, in spite of the fact that the genocidalnature of the Gujarat carnage played a role in making large sections of civil societyorganisations mobilise opinion against the NDA government. It would be better if a nationalconsensus was arrived at on permanent legal institutional reform measures required forimpartial, effective and humane law enforcement for the prevention and control of all inter-

group riots, for speedily bringing the guilty to justice and rehabilitating and compensating thevictims. Such a consensus needs to be developed on the basis of the recommendations ofvarious commissions, including those related to police reorganisation, independent of thecynical political directions of the ruling party and for an effective preventive mechanism for

conflict resolution.

The essential requirement of a national consensus is based on the realisation that it is notonly the victims of the Gujarat carnage who deserve justice and it is not only Modigovernment which is responsible for crimes against humanity. Justice needs to be done in allother major riot cases, especially for the anti-Sikh pogrom of 1984. That the pogroms of Delhi1984, Hashimpura 1987 and Gujarat 2002 are genocides have been testified by responsible

national and international jurists and human rights and peace workers.

There is a need for human rights activists and groups in the country to vigorously exertthemselves to make the present government rise to the occasion and enact and implementthe promised law against friend and foe, in Delhi as well as Gujarat, Nellie and Bhagalpur. Inthis regard the important issue that needs to be addressed is the relative roles of the stateand central governments. Major communal riots, which on occasions spread over severalstates and require assistance from central forces including the army, cannot be treated asroutine law and order problems to be dealt with exclusively by the states. It needs to be keptin mind that most inquiry reports, official as well as NGO, of riots from Jabalpur (1961) toGujarat (2002) reveal that it is the states failure of governance, caused by partisan lawenforcement based on cynical political calculations or inefficiency or both, which resulted in

the massive destruction of life and property.

Given such a recurring pattern of communal violence it will not be fair to give exclusivejurisdiction to the same government of the state to institute inquiries to fix responsibility,register cases, undertake investigation and prosecution of accused persons. As it is thesevery agencies whose roles are tainted, would it be possible to leave the victims of violence to

its mercy for adequate relief, compensation and rehabilitation?

Examples of the gross distortion of the course of law in riot cases are provided by the 1984anti-Sikh massacre in Delhi, and more prominently, by the trial of 19 accused Provincial

Armed Constabulary (PAC) men who were found responsible by the UP governments CrimeBranch Central Investigation Department (CBCID) inquiry for conspiracy and killing of 42Muslims in Hashmipura, Meerut in May 1987. After filing the charge sheet against them in thecourt of the chief judicial magistrate, Ghaziabad in May 1996, the public prosecutor seems tohave colluded with the accused to escape the law. It was only after the publication of the story

of the nefarious role of the UP government by Siddhartha Varadarajan prominently in TheTimes of India on May 17, 2000, that the accused started surrendering in June-July 2000 and

Law on Mass Crimes and Victims' RightsGiven the state's failure of governance in major communal riots, either due to partisan law enforcement orinefficiency, a central law under the provision of 'internal disturbance' in Article 355, holding the stategovernment responsible for maintaining communal peace, is required. The state should be liable to dismissal

under Article 356 if the rioting continues for, say, more than five days resulting in the loss of more than, say, 100lives. There is also a strong case for a separate law on the protection and compensation for victims of crime andviolence.

Iqbal A Ansari


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secured bail. In view of these circumstances, the case was transferred by the Supreme Courtto Delhi in September 2002. Till the Best Bakery case, even the judiciary (subordinate andhigher) has been dealing with riot related cases in a routine manner, which has encouraged a

pervasive climate of impunity.

The situation calls for a central law under the provision of internal disturbance in Article 355

holding the state government responsible for maintaining communal peace and liable todismissal under Article 356 if the rioting continued for, say, more than five days resulting inthe loss of more than, say, 100 lives. Such a comprehensive law should provide for aStatutory National Crimes Tribunal (SNCT) empowered to fix responsibility for the failure ofgovernance and to undertake investigation and prosecution, as well as to determine losses,reparation and rehabilitation of victims.

It needs to be kept in view that the National Police Commissions Report VI(1981) dealingwith communal riots, expressed the opinion that the trial of cases related to riots required notonly special courts and prosecutors but also special procedure. No justice can be done in theabsence of the provision for special procedure for trial and punishment, if riots acquire thenature and dimensions of a pogrom, a genocide. The government of India is committed toenact a law for the prevention and punishment of genocide under Article V of the GenocideConvention 1948 to which the country acceded in August 1959. Article 51(c) of the IndianConstitution directs the state, to foster respect for international law and treaty obligations.

Article 253 empowers the parliament to make any law for the whole or any part of theterritory of India for implementing any treaty, agreement or convention. Moreover, Article 20of the International Covenant on Civil and Political Rights (ICCPR), which has been accededto by India in 1979 binds the Indian state to prohibit by law any advocacy of national, racial orreligious hatred that constitutes incitement to discrimination, hostility or violence. Merelytransferring cases from Gujarat to Maharashtra is not enough, as is obvious from the fact thateven the appointment of the public prosecutor in the transferred Best Bakery case lay in an

unsettled area of jurisprudence.

Such a central law cannot be treated as only a model for states to enact their own laws under

the plea that law and order is a state subject. It should be enforceable under the overridingimperative of the protection of the life, dignity and freedom of citizens of all classes andcommunities and especially of vulnerable sections, when they are under attack fromorganised groups motivated by hate and revenge. It is an absolute obligation of the Indian

state to its citizens belonging to weaker sections and vulnerable minorities.

Safeguards

However, such a law should have a built-in provision of safeguards against the abuse ofpower by the central government. For this reason, the authority to decide on the applicabilityof the law should vest in a body which may ensure its independence from the politicalcalculations of the ruling party/parties. The other issue which requires national attentionrelates to rights of victims both to reparation and protection as witness. It is the absence of

such a law which has been a major factor in the subversion of the course of justice in Gujaratas noted by the apex court.

While the Supreme Court preferred to expend all its wisdom and energy on getting the riotcases transferred and retried in the state of Maharashtra, it looked askance at the plea of thepetitioners for the provision of adequate compensation to victims, and directed the issue to besettled by the High Court of Gujarat. Time was ripe for the Supreme Court to settle the

jurisprudence of victim-compensation in the light of the UN Basic Principles of Justice ForVictims of Crime and Abuse of Power, 1985, which finds full endorsement by the Justice V SMalimath Committee on Criminal Justice Reforms. We agree with the considered view of thecommittee that criminal justice administration will assume a new direction towards better andquicker justice, once the rights of victims are recognised by law and restitution of life, limb andproperty are provided for in the system. Besides compensation, the rights of victims include

their protection and participation in the entire process of justice.


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The National Commission For Minorities (NCM) has been raising the issue of adequatecompensation to victims under the law since 1980, with a supportive note from Justice H RKhanna, who cited examples of Britain, New Zealand, Canada, US, and Australia, where theprovision for payment of compensation to victims of violent crimes existed since the 1960s.The Malimath Committee also cited examples of the European Convention on theCompensation of Victims of Violent Crimes (1983), and subsequent legislation in various

countries, including the United Kingdoms Criminal Injuries Compensation Act, 1995. In theUS, there is a Victims Rights and Restitution Act (1999). Further, in the light of its reportCriminal Justice: The Way Ahead(2001) the British government proposes to make provisionsunder law putting the needs of victims and witnesses at the heart of the Criminal Justice

System.

In India, a draft bill on the subject was submitted to the government in 1995 by the IndianSociety of Victimology. In July 1996, Justice Anil Dev Singh of the Delhi High Court, duringthe course of his judgment, in civil writ petition no 1429 of 1996, held the state liable to payadequate compensation to victims of the anti-Sikh pogrom of 1984 and made a strong pleafor the enactment of such a law. In the NCM report on Criminal Riots Prevention and Control(1999) written by this author as convener of its committee, the recommendation for such a law

was again forcefully made.

In our view, given the absence of a specific law on the subject, the Supreme Court should nothave abdicated its responsibility to provide justice to victims in terms of reparation, restitution,and rehabilitation, besides the physical protection of witnesses and their participation in

prosecution that it directed.

It needs to be noted that while disposing of civil writ petition no 232 of 1997 (S S Ahluwalia vsUnion of India), praying for the extension of the benefits of the Delhi High Court judgment inthe Smt Bhajan Kaur vs Delhi Administration case to the entire country, the Supreme Court inits direction of March 16, 2001 did not overrule the rationale of the recognition of the victimsright, under given circumstances, to get compensation from the state. It noted the basicargument of the judgment in paragraph 1, without any adverse comment. Its direction to the

high courts of respective states to make detailed examinations of the circumstances arising ineach case was based on the plea that such examination cant be done by us. Tacitly, theapex court has accepted the principle of state liability under Article 21 of the Constitution inthe event of the failure of governance leading to the violation of victims rights. It is only theissue of applicability based on the nature of circumstances in each case that is to be decided

by the respective high courts.

It is unfortunate that NHRC, whose final report on Gujarat (May 2002) had held the stategovernment responsible for the comprehensive failure of governance, did not approach theSupreme Court for direction to determine under an independent judicial authority and not the

state government, the compensation to victims for all losses suffered.

In our two post-Gujarat (2002), representations to the NHRC, during Justice Vermas

chairmanship, we had pointed out the need for such a mechanism on victims rights and tosuggest a model law on genocide to the government. This is because the NHRC has beenempowered to seek effective implementation of treaties and international human rightsinstruments under clause 12 (f) of its act. It is a pity that even during his more illustrioussuccessors chairmanship, and in spite of the NHRCs laudable role, these issues did not get

the priority they deserved.

While there is a need for a comprehensive law to deal with the prevention and control of massinter-group violence and to speedily punish the guilty, there is a strong case for a separatelaw on the protection and compensation for victims of crime and violence, for individuals orany class of citizens. Such a law may provide for the consideration of the collective hatemotive as an aggravating factor, in accordance with the Durban Declaration and Programmeof Action (POA 2001). The proposed law on communal violence may also have a provision forestablishing an authority to determine all losses suffered by victims of mass hate and to settleclaims of compensation.


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The law on victims rights should include the protection and participation of victim-witnesses inthe process of justice. It is the absence of such a law that has made even the worst victims ofthe Gujarat carnage feel insecure and turn hostile under threat or allurement. The abandonedvictims concern for survival and rehabilitation makes them succumb to the temptation of the

handsome amounts offered by their tormentors.

ansari, iqbal

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