Concerned Citizens Tribunal  - Gujarat 2002

National Crimes Tribunal

A Standing National Crimes Tribunal (SNCT) should be established, forthwith, to deal with all cases of

• crimes against humanity and pogroms, 
• offences in the nature of genocide, 
• cases of mass violence and genocide, 
• cases of riots and incidents where there is large-scale destruction of lives and property, including caste, religious, linguistic, regional, ethnic and racial violence.

A suitable statute should be enacted for the purpose by Parliament. The SNCT should be an independent body, the personnel of which should be selected by a committee consisting of the chief justice of India, the prime minister of India and the leader of the opposition in Parliament. People with a legal and judicial background should be appointed to the tribunal for a fixed tenure of not less than seven years.

The members of the SNCT should be free to follow such procedures as they may find fit, notwithstanding the provisions of any other law.

The SNCT should have the power to investigate offences through its own investigating agency created for the purpose. The SNCT should have for its independent use a special investigating and enforcing agency.

The SNCT should take cognisance of mass crimes as soon as they occur. Once the cognisance of such crimes is taken, no court should have the power to deal with them. The SNCT should depose of these cases within a fixed time frame.

The SNCT should have the power to arrest, try and punish the accused as well as to compensate and rehabilitate the victims and their dependants.

Jurisdiction, Admissibility and Applicable Law

For the purpose of the statute to be enacted, "mass violence and genocide" should mean, as it does in the International Convention on the Prevention and Punishment of the Crime of Genocide, any of the following acts committed with the intent to destroy in whole or in part an ethnic, racial, caste or religious group: 

• killing members of the group; 
•  causing serious bodily or mental harm to members of the group; 
•  deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 
•  imposing measures intended to prevent births within the group; 
•  forcibly transferring children of the group to another group.

In addition, the following acts should also be punishable under the proposed statutes:

• genocide;
• conspiracy to commit genocide;
• direct and public incitement to commit genocide;
• attempt to commit genocide;
• complicity in genocide.

Crimes against Humanity

Within the definition of crimes that fall under the definition of crimes against humanity, sexual crimes against women should be recognised as crimes against humanity. Sexual crimes should not include only rape in the conventional sense but should also include sexual slavery, debasing [acts], enforced pregnancy, enforced sterilisation and forcible insertion of any object into the vagina. The definition of crimes against humanity should also include attacks on the lives and dignity of a section of the people, attempted or actual obliteration of a section of the people, economic annihilation of a targeted section as well as their religious and cultural obliteration.

Gender Crimes

The definition of rape and sexual assault under the new statute should recognise that it cannot be restricted to the act, or the proof, of the penis forcibly entering a woman's vagina. Any object used to abuse a woman's body, and even verbal assault, should be considered a part of the same crime. The present laws of evidence and procedures involve a medical examination of the victim as well as of the accused as proof of such an assault. In situations such as that of mass rapes and gang rapes during the recent violence in Gujarat, this is an impossibility because in some cases where the victims have fled for days, if they have survived the assault at all, or where the police have refused to file any complaints or have deliberately filed incorrect complaints no accused may be apprehended. It is important that the onus of proof in all such cases of mass and gang rapes should rest on the accused, and the victims should not be burdened with proof of the crime. The testimonies of the witnesses in cases where women have been burnt or killed have to be given due weight as those of the victims themselves.

In most cases, the accused might be unknown; or because of the presence of a large number of people, it may be difficult to identity the persons involved. In such situations, the State has to be held responsible for the crime, for not protecting its citizens. The people holding responsible offices must be made accountable for the same.

The concept of justice has to be widened in such cases. It must deal, not only with the punishment of those found guilty of the crime, but should also consider reparations for the women who suffered physical and mental injuries since such assaults further curtail women's rights to be a part of mainstream social life as well as inflict a damning long-term impact on the coming generation. Precisely for this failure to protect the basic human rights of these citizens, the State has to provide reparations. Financial reparations are no doubt extremely important but ought not to be seen as full compensation. Since all individual women are not in a position to register their complaints, reparations should be provided to all women of the affected community.

Women and witnesses who have come forward to give testimonies should be given adequate protection by the SNCT, holding the State and offenders responsible and punishable for any harm that may be caused to them.

Justice and the Judiciary

The near collapse of the criminal justice system in our country has made the deliverance of justice an exception rather than the rule. It is a painful reality and has to be acknowledged by all. Hence, when situations like the Gujarat carnage or genocide occur, where mass-scale violence takes place, it is unrealistic to expect prompt justice from the present system. It has therefore become necessary to suggest a mechanism, such as the SNCT above, with special composition, status, power and procedures. Section 11 of the U. N. Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 envisages such a tribunal.

Supreme Court

The tribunal therefore recommends that all necessary steps be taken, including seeking direction from the Supreme Court and making a statutory recommendation to the government of India to (1) appoint such a tribunal for fixing the responsibility for acts and omissions of officials and the political executive in the Gujarat carnage of February-March 2002 and to ensure that people found derelict make restitution and reparation and to ensure compensation for all sufferers in the violence and (2) to enact a law on the Prevention and Punishment of the Crime of Genocide. Such a comprehensive law on riots and disorders should take into consideration detailed recommendations made by the National Police Commission (NPC), the National Human Rights Commission (NHRC) and the National Commission on Minorities (NCM).

Rehabilitation

A long-term and systematic plan should be worked out by the civic and town planning administrations in urban centres in Gujarat, with the assistance of the housing boards and housing financing authorities, to actively break the aggressive, violent and enforced ghettoisation of Gujarat's cities, especially Ahmedabad, Vadodara and the like. This can be ensured with adequate political and moral will, committed to the belief that enforced ghettoisation makes communities more vulnerable as target groups for mass violence and also actively prevents healthy interaction that breeds tolerance between communities.

The municipal authorities and the housing boards of cities in the state need to prepare plans that encourage mixed, interreligious, intercaste housing. This is vital for the future health of all sections of the population.

The provision of alternative housing to those who are not in a position to return to their old homes and the formation of mohalla (neighbourhood) committees to rebuild trust in mixed neighbourhoods will also go a long way in the direction of rehabilitation.

Dissemination of accurate information about the Muslim community, including their comparative socio-economic development indices, statistics on bigamy, etc., in an easily understandable form will help prevent false propaganda against them.

Dissemination of information on the history of the struggle for independence and the part played by the different communities, classes and tribes in the freedom struggle will increase awareness about the contribution of all communities to the building of India as a nation and their deep interdependence on one another.

The recruitment of a non-partisan, gender-sensitive police force and bureaucracy by building gender sensitivity and impartiality indicators into the selection process and by following it up with periodic training programmes is a must and must be followed strictly.

Police

Recommendations made by the NPC (1979-1981) in order to establish the autonomy of the police and free it from undue political control should be accepted and implemented immediately, especially in relation to:

• the setting up of a composite State Security Commission (SSC) to deal with, among other things, the selection of the police chief; to ensure his autonomy, independence and professional
  functioning; and to confer on him the fixity of tenure to remove the fear of a punitive transfer and to empower him to act within the ambit of his statutory authority;
• the evaluation of the performance of the police and the receipt of complaints from police officials about illegal and irregular orders from above;
• recasting of the Police Act of 1861.

An independent Police Complaints Authority (PCA) should be created on the lines of the British model to hear complaints from the public against police misbehaviour. In the recent violent incidents in Gujarat, a large number of complaints about human rights violations by the police had to be registered with the very same police authorities who had committed the violations in the first place, creating a very bizarre situation. The creation of an independent PCA is essential to obviate such a situation in the future.

The tribunal is of the view that it is the urgent need of the hour that law enforcement be made impartial, effective and humane. For impartial law enforcement, the functioning of the police must be independent of political direction and interference. Courses on human rights, the eradication of caste and communal prejudices and humane riot control methods should be included in the training programme for the police and other law enforcement agencies. The training of police personnel on the especially sensitive matter of dealing with communal violence is also necessary. The examination of video footage of telecasts by local TV channels as well as of police videos should become mandatory to identify and prosecute those found guilty of making provocative speeches and statements and indulging in acts of violence.

The social composition of all law enforcement agencies should be diverse wherein the presence of at least 25 percent of the personnel from among the minorities and women should be ensured. For this purpose, a study should be undertaken to assess the present representation of these categories in the police, and the deficiency should be made up.

The recommendations of the Committee on Police Training in 1972 should be implemented, especially in relation to social justice and the attitudinal reorientation of the police through appropriate training on social justice issues.

The need for the existence of a centralised All-India Services, such as the Indian Administrative Services (IAS) and Indian Police Services (IPS), should be examined in light of increasing democratic decentralisation in the country. An Administrative Reforms Commission (ARC) with a comprehensive mandate should be set up to examine a gamut of issues that arise in this connection.

Official and non-governmental organisation (NGO) inquiries and investigative reporting by eminent persons have noted the partisan role of the police during riots. These reports include those of the Justice Madon Commission in 1970, the NPC in 1981, studies by Shri N. C. Saxena in 1983 and Shri V. N. Rai in 1996 and finally by the Justice Shrikrishna Commission on the Mumbai riots in 1992-1993.

The extremely partisan role of the law enforcement agencies has been generally attributed to the following four factors:

• a culture of governance which makes the police function as a subordinate body, carrying out orders and directions of the political executive;
• deeply entrenched communal prejudices in the minds of a section of officials and police personnel;
• the social composition of the police and other wings of the law enforcement and criminal justice system wherein minorities are persistently underrepresented;
• a lack of training in humane and effective mob control by the police.

This is a state of affairs that needs to be rectified and rectified quickly. The tribunal notes with anguish and concern that no political party has ever paid heed to the urgent need for radical police reforms. The tribunal recommends that this be a matter that is debated and legislated upon with the utmost urgency. Let it not happen that more carnage takes place and is condoned by the political class simply because they lack the moral courage to initiate and push for an independent police authority in the country.

Legal provisions must be enacted to ensure restitution of rights and compensation to sufferers and victims of the riots. (The rationale and modalities for taking these measures have been discussed in the National Commission on Minorities Report on Communal Riots: Prevention and Control in 1999.)

Civil Society

Joint forums of all social groups-castes, religions, etc.-should be created to discuss, debate and deliberate upon all matters of common concern.

Common festivals and festivities should be organised, not only on national occasions, but also to celebrate the special occasions of all religious groups.

Discourse should be held to educate people on the merits of each religion, and the denigration of any religion should be statutorily banned and made punishable.

Mixed localities, housing complexes, housing societies, clubs, educational and recreational institutions should be promoted, and social intercourse and interactions, including voluntary intercaste, interreligious marriages, should be encouraged.