A decisive indictment

The National Human Rights Commission indicts the Gujarat government for its failure to contain communal violence in the State.

ON April 1, the National Human Rights Commission (NHRC) released its proceedings on the Gujarat situation, with its preliminary comments and recommendations. Its report, prepared after an NHRC team visited Gujarat from March 19 to 22, is kept confidential for the time being. The Commission is awaiting the State and Central governments' responses to the report, which it has asked them to submit within two weeks. The team was led by NHRC Chairperson Justice J.S. Verma and included Secretary-General P.C.Sen, Special Rapporteur Chaman Lal and Justice Verma's private secretary Y.S.R. Murthy. It visited Ahmedabad, Vadodara and Godhra and held discussions with Chief Minister Narendra Modi, senior State government officials, eminent citizens, including retired Chief Justices and Judges of the High Court, former civil servants, the leaders of political parties, representatives of non-governmental organisations (NGOs) and the business community, private citizens and, most important, the victims of the communal violence.

Justice Verma, who is a former Chief Justice of the Supreme Court, told the State officials that normalcy had not been restored in the State even three weeks after the Godhra incident. He reminded them that the NHRC served as a facilitator to improve the quality of governance, which was essential to ensure that human rights were respected.

It was perhaps the first time that the NHRC has intervened in a decisive manner in a situation of this kind since its inception in 1993. It had intervened in a limited way in Orissa after a 'super cyclone' struck the State in 1999 and in Gujarat following the earthquake in 2001, to ensure that the victims were rehabilitated expeditiously and that their dignity was restored. The Commission noted that in these instances the human tragedy was caused by natural disasters and its intervention was aimed at ensuring that the rights of all, particularly the most vulnerable sections, were respected. "In the present instance, however, the death and destruction sadly resulted from the inhumanity of human beings towards other human beings, and the large-scale violation of human rights. This, therefore, requires a response from the Commission of a qualitatively different kind," it observed.

In its preliminary comments, the NHRC has not explicitly held the Narendra Modi government guilty of complicity in the violence against Muslims. This was perhaps in keeping with the need to maintain propriety and objectivity as it wanted to give an opportunity to the State government to reply to its comprehensive report. However, the preliminary comments suggest that there was prima facie reason to hold the Modi government guilty of complicity.

The comments are based on the State government's response to its suo motu notice that was sent on March 1. In its proceedings on March 1, the NHRC observed that the situation in Gujarat, as reported in the media, warranted its intervention to prevent any negligence in protecting the human rights of the people irrespective of their religion. On March 6, the NHRC observed that media reports suggested that the administration had not done the needful. It also noted that media reports attributing certain statements to the Police Commissioner of Ahmedabad and the Chief Minister raised serious questions about some aspects of governance that affected human rights.

The NHRC rejected the State government's preliminary report that was sent to it on March 11 on the grounds that it was a perfunctory one. The government apparently did not treat the NHRC with due deference and even obliquely questioned its locus standi in the matter. The NHRC's preliminary comments indicate that it was not at all satisfied with the State government's March 28 response too.

The Commission made it clear that it was the primary and inescapable responsibility of the state to protect the right to life, liberty, equality and dignity of all those who constitute it. "It is also the responsibility of the state to ensure that such rights are not violated either through overt acts or through abetment or negligence; the state is responsible not only for the acts of its own agents, but also for the acts of non-state players acting within its jurisdiction. The state is, in addition, responsible for any inaction that may cause or facilitate the violation of human rights," it noted.

Based on these broad principles, the NHRC assessed the role of the Gujarat government. The first question was whether the State government had failed to collect intelligence relating to the Godhra incident and the carnage that followed. In its report to the NHRC, the government admitted that the attack on kar sevaks in Godhra occurred in the absence of "specific information about the return of kar sevaks from Ayodhya". (Although it is not clear whether the victims were kar sevaks or pilgrims returning from Ayodhya, the State government appears to assume that they were indeed kar sevaks.)

The NHRC described this as an "extraordinary lack of appreciation of the potential dangers of the situation, both by the Central and State intelligence agencies", given the history of communal violence in the State. It observed that a serious failure of intelligence and the State government's inaction marked the events leading to the Godhra tragedy and the death and destruction that followed. It held that the adverse inference drawn against the State government would render it accountable unless it was rebutted by the government. "The burden is, therefore, now on the State government to rebut this presumption," it said.

The Commission specifically asked the State government to identify the factors and the players responsible for the deterioration of the situation in some districts. The State government's preliminary response was that media reports provoked middle-class citizens to defy the curfew in these districts.

The Commission noted that in most cases in Ahmedabad, looting was "reported in well-to-do localities by relatively rich people" and expressed its disappointment over the State government's failure to identify these persons in its March 28 response. Observing that there was "widespread lack of faith in the integrity of the investigating process and the ability of those conducting investigations," the Commission urged the government to investigate the instances of death and destruction with greater transparency and integrity and instil confidence in the public. In view of widespread allegations of bias against the investigative agencies, it recommended that some critical cases, including those relating to the incidents at Godhra, the Gulbarga Society and Naroda Patiya, could be entrusted to the Central Bureau of Investigation (CBI). It also suggested that special courts consisting of Judges hand-picked by the Chief Justice of the Gujarat High Court be set up and that they conduct hearings on a daily basis.

Challenging the State government's claim that the situation was brought under control within 72 hours of the Godhra incident, the NHRC said that its team noted a sense of insecurity all over the State. All segments of society had this fear, it said, pointing out that a sitting Judge and a retired Judge of the Gujarat High Court had to stay away from their homes because of the vitiated atmosphere. There could be no clearer evidence of the government's failure to control the situation, it observed.

The State government claimed that on March 9 it decided to pay Rs.1 lakh as compensation to the next of kin of those who died in the attack on the Sabarmati Express and in the subsequent violence, after the Chief Minister received a letter "on behalf of the kar sevaks" stating that they would welcome a financial help of Rs.1 lakh instead of Rs.2 lakhs to the bereaved families of the Godhra massacre. The Commission said that the government should have taken the decision on its own as it impinged seriously on the constitutional provisions on equality before the law and equal protection of the laws and the prohibition of discrimination on the grounds of religion, race, caste, sex or place of birth.

THE National Democratic Alliance government at the Centre and the Narendra Modi government have always treated the NHRC, a statutory body, with contempt. If the Centre rejected the NHRC's recommendation to drop the Prevention of Terrorism Ordinance, the Gujarat government was apparently not comfortable with the NHRC's intervention in the State. It is believed that organisations close to the Sangh Parivar are behind a public interest petition filed in the Gujarat High Court questioning the NHRC's jurisdiction on the grounds that a Commission of Inquiry appointed by the State government was already seized of the matter. The NHRC, however, secured a Supreme Court order staying the proceedings relating to the petition before the High Court.

Meanwhile, the National Commission of Minorities (NCM), also a statutory body, has found the Gujarat government guilty of failure to contain the communal violence. After a three-hour meeting in New Delhi with senior government officials from Gujarat, the NCM said on April 6 that it was dissatisfied with the action taken by the State government.

In its interim comments, the NCM has recommended the enhancement of the compensation to the next of kin of persons killed in the violence from Rs.50,000 to Rs.1 lakh, in addition to the compensation from the Prime Minister's Relief Fund (PMRF). The State government had apparently reduced the amount from Rs.1 lakh to Rs.50,000 after the Centre's promise of additional compensation from the PMRF. The NCM also urged the State government to withdraw the orders transferring police officers who played a key role in containing the violence in some districts. It asked the State to seek the services of police officers belonging to minority communities from other States in order to instil confidence among the victims.

The NCM made it clear that the State government's description of the violence as "communal riots" amounted to trivialisation of the issue, indicating that the violence ought to be considered a pogrom. The Commission indicted the State government for its insensitivity towards the demand for the postponement and reordering of Class X and XII examinations.

The NCM echoed the general lack of confidence in the K.G. Shah Commission of Inquiry set up by the State Government. "A partisan approach in this regard will be fatal because of the magnitude of the problem and the residual threats abounding," it cautioned. It criticised the State administration for its failure to take timely action against the culprits.

During its interaction with State officials, the NCM reportedly expressed serious concern over the State government's indifferent attitude towards the Commission. Its Chairpe- rson, Justice Mohammad Shamim, reportedly pointed out to the officials that the State government had not heeded its suggestion on March 14 to convene a meeting of religious leaders. He was also upset that the government did not bother to acknowledge the NCM's letter seeking its response. He warned that if the Gujarat situation was not controlled, it would lead to a holocaust at the national level.

The Sangh Parivar should apparently have no doubts about the NCM's neutrality, for, it was Justice Shamim who, as a Judge in the Delhi High Court, acquitted Union Home Minister L.K. Advani in the hawala case. Advani loyalists pointed out then that he had reasons to be doubly happy because he had been relieved of the charge of moral turpitude and the verdict was given by a Judge belonging to a minority community. However, no amount of indictment by neutral agencies seems to make a difference to the insensitivity of the Vajpayee dispensation.

Nor do the Gujarat administration and the Sangh Parivar seem deterred by such indictments. A peace meeting organised by some non-governmental organisations on April 7 at Sabarmati Ashram was disrupted by members of the BJP's youth wing who allegedly assaulted Narmada Bachao Andolan leader Medha Patkar. And the police unleashed violence against journalists covering the event. The incident evoked widespread condemnation. Even the Samata Party and the Trinamul Congress, both allies of the BJP at the Centre, demanded Narendra Modi's removal. But the demand is unlikely to grow louder given the nature of the coalition of mutual convenience that rules at the Centre.