EPW Commentary

February 26, 2005

Law on Mass Crimes and Victims' Rights

Given the state's failure of governance in major communal riots, either due to partisan law enforcement or inefficiency, a central law under the provision of 'internal disturbance' in Article 355, holding the state government 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, 100 lives. There is also a strong case for a separate law on the protection and compensation for victims of crime and violence.

Iqbal A Ansari

The promised enactment of a comprehensive law on communal violence by the UPA government should not be treated as a partisan issue, in spite of the fact that the genocidal nature of the Gujarat carnage played a role in making large sections of civil society organisations mobilise opinion against the NDA government. It would be better if a national consensus was arrived at on permanent legal institutional reform measures required for impartial, effective and humane law enforcement for the prevention and control of all intergroup riots, for speedily bringing the guilty to justice and rehabilitating and compensating the victims. Such a consensus needs to be developed on the basis of the recommendations of various commissions, including those related to police reorganisation, independent of the cynical 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 not only the victims of the Gujarat carnage who deserve justice and it is not only Modi government which is responsible for crimes against humanity. Justice needs to be done in all other major riot cases, especially for the anti-Sikh pogrom of 1984. That the pogroms of Delhi 1984, 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 exert themselves to make the present government rise to the occasion and enact and implement the promised law against friend and foe, in Delhi as well as Gujarat, Nellie and Bhagalpur. In this regard the important issue that needs to be addressed is the relative roles of the state and central governments. Major communal riots, which on occasions spread over several states and require assistance from central forces including the army, cannot be treated as routine law and order problems to be dealt with exclusively by the states. It needs to be kept in mind that most inquiry reports, official as well as NGO, of riots from Jabalpur (1961) to Gujarat (2002) reveal that it is the states failure of governance, caused by partisan law enforcement 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 exclusive jurisdiction 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 these very 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 1984 anti-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 Crime Branch Central Investigation Department (CBCID) inquiry for conspiracy and killing of 42 Muslims in Hashmipura, Meerut in May 1987. After filing the charge sheet against them in the court of the chief judicial magistrate, Ghaziabad in May 1996, the public prosecutor seems to have 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 The Times of India on May 17, 2000, that the accused started surrendering in June-July 2000 and

secured bail. In view of these circumstances, the case was transferred by the Supreme Court to Delhi in September 2002. Till the Best Bakery case, even the judiciary (subordinate and higher) 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 to dismissal under Article 356 if the rioting continued for, say, more than five days resulting in the loss of more than, say, 100 lives. Such a comprehensive law should provide for a Statutory National Crimes Tribunal (SNCT) empowered to fix responsibility for the failure of governance 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) dealing with communal riots, expressed the opinion that the trial of cases related to riots required not only special courts and prosecutors but also special procedure. No justice can be done in the absence of the provision for special procedure for trial and punishment, if riots acquire the nature and dimensions of a pogrom, a genocide. The government of India is committed to enact a law for the prevention and punishment of genocide under Article V of the Genocide Convention 1948 to which the country acceded in August 1959. Article 51(c) of the Indian Constitution 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 the territory of India for implementing any treaty, agreement or convention. Moreover, Article 20 of the International Covenant on Civil and Political Rights (ICCPR), which has been acceded to by India in 1979 binds the Indian state to prohibit by law any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. Merely transferring cases from Gujarat to Maharashtra is not enough, as is obvious from the fact that even 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 overriding imperative of the protection of the life, dignity and freedom of citizens of all classes and communities and especially of vulnerable sections, when they are under attack from organised 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 of power by the central government. For this reason, the authority to decide on the applicability of the law should vest in a body which may ensure its independence from the political calculations of the ruling party/parties. The other issue which requires national attention relates 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 Gujarat as noted by the apex court. While the Supreme Court preferred to expend all its wisdom and energy on getting the riot cases transferred and retried in the state of Maharashtra, it looked askance at the plea of the petitioners for the provision of adequate compensation to victims, and directed the issue to be settled 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 For Victims of Crime and Abuse of Power, 1985, which finds full endorsement by the Justice V S Malimath Committee on Criminal Justice Reforms. We agree with the considered view of the committee that criminal justice administration will assume a new direction towards better and quicker justice, once the rights of victims are recognised by law and restitution of life, limb and property are provided for in the system. Besides compensation, the rights of victims include their protection and participation in the entire process of justice.

The National Commission For Minorities (NCM) has been raising the issue of adequate compensation to victims under the law since 1980, with a supportive note from Justice H R Khanna, who cited examples of Britain, New Zealand, Canada, US, and Australia, where the provision for payment of compensation to victims of violent crimes existed since the 1960s. The Malimath Committee also cited examples of the European Convention on the Compensation of Victims of Violent Crimes (1983), and subsequent legislation in various countries, including the United Kingdoms Criminal Injuries Compensation Act, 1995. In the US, there is a Victims Rights and Restitution Act (1999). Further, in the light of its report Criminal Justice: The Way Ahead (2001) the British government proposes to make provisions under 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 Indian Society of Victimology. In July 1996, Justice Anil Dev Singh of the Delhi High Court, during the course of his judgment, in civil writ petition no 1429 of 1996, held the state liable to pay adequate compensation to victims of the anti-Sikh pogrom of 1984 and made a strong plea for 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 not have 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 vs Union of India), praying for the extension of the benefits of the Delhi High Court judgment in the Smt Bhajan Kaur vs Delhi Administration case to the entire country, the Supreme Court in its direction of March 16, 2001 did not overrule the rationale of the recognition of the victims right, under given circumstances, to get compensation from the state. It noted the basic argument 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 in each case was based on the plea that such examination cant be done by us. Tacitly, the apex court has accepted the principle of state liability under Article 21 of the Constitution in the event of the failure of governance leading to the violation of victims rights. It is only the issue 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 state government responsible for the comprehensive failure of governance, did not approach the Supreme 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 to suggest a model law on genocide to the government. This is because the NHRC has been empowered to seek effective implementation of treaties and international human rights instruments under clause 12 (f) of its act. It is a pity that even during his more illustrious successors 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 mass inter-group violence and to speedily punish the guilty, there is a strong case for a separate law on the protection and compensation for victims of crime and violence, for individuals or any class of citizens. Such a law may provide for the consideration of the collective hate motive as an aggravating factor, in accordance with the Durban Declaration and Programme of Action (POA 2001). The proposed law on communal violence may also have a provision for establishing an authority to determine all losses suffered by victims of mass hate and to settle claims of compensation.

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