31 May 2002

NHRC WANTS CBI AND SPECIAL CELLS TO PROBE GUJARAT VIOLENCE

From Jal Khambata

( For viewing Final Order, Visit www.nhrc.nic.in/guj_finalorder.htm )

NEW DELHI: Describing communal violence in Gujarat as "a comprehensive failure on the part of the State Government," the National Human Rights Commission on Friday ordered not to close down any relief camp of victims without a clear recommendation of a specific committee.

It has asked the Centre to order CBI inquiry into "critical cases" even if the state government does not agree and expressed concern at the state government's silence to its recommendation to set up special cells headed by district magistrates to follow progress of cases not entrusted to CBI.

In its 53-page "final report" passed by the 4-member Bench presided over by Chairman Justice J S Verma, the NHRC says the committee shall comprise "the collector, a representative of a reputed NGO, a representative of the camp, and the Special Representative of the Commission in Gujarat or a nominee of his." Others forming the coram were members Justice K Ramaswamy, Justice Mrs Sujata V Manohar and Virendra Dayal.

Former Gujarat Director-General of Police P G J Nampoothiri is the special representative appointed by the NHRC to monitor the situation on its behalf and one of his reports has been extensively quoted in Friday's order to debunk the unsatisfactory reply of the Gujarat Government.

CBI PROBE: The Commission has also reiterated to hand over to the CBI the critical cases it had referred in its April 1 order, disagreeing with the Centre's contention that "it is not possible for the Central Government to direct the CBI to take up the investigation of the cases" since the State Government has expressed the opinion that investigation into the cases is not required by the CBI at this stage.

Urging the Centre to entrust these specific cases to the CBI, the NHRC said the Centre should "ensure that this is done, not least in view of the Rajya Sabha resolution referring to its responsibilities under Article 355 of the Constitution." It has also referred to the unanimous Rajya Sabha resolution in this regard.

Advocating CBI investigations, the NHRC underlined that "it is a central principle in the administration of criminal justice that those against whom allegations are made should not themselves be entrusted with the investigations of those allegations. To depart from that principle would, therefore, be to invite a failure of justice."

Referring to the Rajya Sabha resolution, the NHRC said: "The Commission is emphatically of the view that the role of the Central Government in respect of the investigation of the cases identified by the commission should go beyond a mere invocation of the 'existing rules' in respect of when the CBI can take up a case for investigation and a statement to the effect that 'it is not possible' for it to direct the CBI to take up the investigation of these cases given the position taken by the state government.

SPECIAL COURTS, SPECIAL CELLS: The Commission also pulled up the Gujarat Government for not responding to its recommendation to set up the special courts to try the most critical cases on a day-to-day basis, the judge being hand-picked by the Chief Justice of the Gujarat High Court, with special prosecutors being appointed as needed and sensitive officers, particularly women, be deputed to assist in handling the cases.

The NHRC also pointed out that the state government is silent to the need for special cells under the concerned district magistrates to follow the progress of cases not entrusted to the CBI and that these should be monitored by the Additional Director General (Crime). In its response, the state government has accepted the role proposed to ADG but does not confirm if appropriate action has been taken, the NHRC said.

Criticising the police desks set up only as a token step in only nine out of 35 relief camps then in existence in Ahmedabad on April 24 and that too working only for a few days and only for two hours on an average, the NHRC calls for "greater transparency on the part of police commissioners and police superintendents who should establish a system whereby NGOs and others can know precisely what action has been taken in respect of material provided by them."

SURVEY: The Commission has also laid stress again on survey of all affected persons and publish the data on a district-wise basis to remove discrepancy between official and unofficial figures of all sorts. It also wants the government to investigate material collected by NGOs.

THE NHRC has also regretted that the state government's April 12 response just states that provocative statements of persons "will be examined and acted upon appropriately" and says it would like to receive all relevant details of persons or organisations identified by the government in this connection.

Referring to the government's plea that it will await the Inquiry Commission report with regard to identification of delinquent public servants, NHRC says action "need not, in all instances, await the outcome of the Commission of Inquiry."

It stressed that "swiftness and effectiveness of the action taken against delinquent public servants itself acts as a major deterrent to misconduct or negligence in the performance of duty and it also acts as a catalyst to the restoration of public confidence and as an indication of the good faith of the administration." Failure to take promot action has the opposite effect, it added.

The Commission has also made 11 kind of recommendations with regard to the conditions in the relief camps and five other recommendations on rehabilitation of the victims and publication of the full list of damaged and destroyed sites and monuments district wise as "an essential confidential building measure as certain historical sites have not only been destroyed but efforts have been made to erace any trace of them."

CONFIDENTIAL REPORT: The NHRC has also pulled up the Gujarat Government for repeatedly seeking time but not responding to the confidential report containing serious allegations.

The Commission "will not wait any longer for the response of the Government of Gujarat to the Confidential report that was sent to it on 1 April 2000, enough time and opportunity having been provided to comment on it," the order said while stating that "the Commission now considers it to be its duty to release the Confidential Report in totality."

It was withheld earlier only to give a full opportunity to the State Government to comment on its contents. "As and when the response of the Stte Government to that Confidential Report is received, the Commission will also make that public, together with the Commission's views thereon," the order said. The confidential report contains serious allegations made by various parties to the NHRC during its Gujarat visit.

Pointing out that the burden of proof to rebut the charge of the state government's failure to protect the rights of the people rested with itself, the NHRC said the State Government had submitted a report on April 12 but nothing in the report rebuts the charge.

Hence, the NHRC holds that "there was a comprehensive failure of the state to protect the constitutonal 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."

It said appointment of the security advisor to the Chief Minister to assist in dealing with the situation "implicitly confirms that a failure had occured earlier to bring under control the persisting violation of the rights to life, liberty, equality and dignity of the people of the stte."

The Friday order also "definitively concludes that there was a major failure of intelligence (for timely anticipatory steps) and that the response of the state government has been unable to rebutt this presumption."

SALIENT POINTS: Here are some other salient points of the lengthy order released late in the evening by the Commission on concluding its sitting:

-- Failure to take appropriate action as the government's response proved to be unequal to the challenge.

-- Failure to identify local factors and players as the government reply makes no effort to rebutt the charges made against persons involved in the carnage, sometimes within the view of police station and personnel nor indicate any action against those violating human rights or inciting violence resulting in murder, arson, rape and destruction.

-- Pattern of arrests of 27,780 persons has been ridiculed on the basis of Nampoorthiri's report that almost 90 per cent of those arrested even in heinous offences managed to get bails almost as soon as they were arrested.

-- Uneven handling of major cases and distorted FIRS as the accused persons are shown as "unknown" by the police officers by no recording names of the offenders given by the victims. The Commission warned that "the danger persists of a large-scale and unconscionable miscarriage of justice if the effort to investigate and prosecute the crimes is not directed with greater skill and determination.

-- Pervasive insecurity as seen from the way Justice Kadri and retired Justice Divecha had to run from place to place as the Commission says if the state government's response to the security needs of two justices of the High Court was "so hopelessly inadequate", it must be inferred that response to the needs of others, who were far less prominent, was even worse.

The Commission also asks the Centre and the State Governments to take the Gujarat situation as a warning and catalyst to act with determination to implement the various police reforms recommended by the National Police Commission and NHRC.

It has also chosen to list existing statutory provisions, circulars and guidelines issued from time to time in dealing with communal situations and refers in particular the following from the Home Ministry's "Guidelines to promote communal harmony":

"Ministers and office bearers of political parties should exercise maximum restraint and self-discipline in making public utterances on any issue concerning the communal disturbance. ... No minister or an office bearer of a political party should participate in any function or a meeting or a procession which may have a bearing o religious or communal issues. It would be best if the District Magistrate is consulted before participating therein." END