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On the ground in Gujarat

THE GUJARAT Government and the BJP have repeatedly accused the NHRC of bias. For the Narendra Modi Government, which is accused of complicity in the 2002 communal violence, the embarrassment value of the Commission's interventions is high, particularly as it tries to sell the State as a "vibrant" investment option to international investors.

On the ground, however, the NHRC's work does not have the same impact. In the words of a senior official who was at the heart of the Commission's Gujarat effort: "there were good intentions but there was no follow-through." Questions have also been raised about how it selects the cases it supports.

In view of the widespread allegations that FIRs had been poorly or wrongly recorded and that investigations were being influenced by extraneous considerations or players, the Commission on May 31, 2002 recommended that "certain critical cases" be entrusted to the CBI.

These were the Godhra (Sabarmati Express), the Gulbarga Society (Chamanpura), the Naroda Patiya, Best Bakery and Sadarpura cases. In the same order, it asked that Special Cells be constituted under the District Magistrates concerned to follow the progress of the investigation of cases not entrusted to the CBI; these should be monitored by the Additional Director-General (Crime).

These other cases include several mass killings. Among them are Pandarwada (21 killed), Khanpur (73 killed) and Kidyad (67 killed), Ode (26 killed) Anjanwa (11 killed), Visnagar (11 killed) Ambika Society, Kalol (13 killed) and Eral (9 killed). Two of these cases have gone to trial and ended with acquittals of all of the accused.

In one case the judge said he had no option but to acquit the accused since there was no proper investigation and the accused named by the victims had not been charged. Having selected five cases as "critical" it was expected that the NHRC would monitor their investigations and trials closely. Best Bakery was one of them. Arguing in the Supreme Court for a re-trial in the Best Bakery case and its transfer out of the State, the NHRC pointed out that the appeal filed by the Gujarat Government blamed the trial court for the failure of the case and ignored the poor investigation that had vitiated it from the start.

Lawyers say that the NHRC was best placed to focus on the investigation during the course of the trial. The Protection of Human Rights Act 1993 empowers the NHRC to intercede in an ongoing trial with the consent of the court. Why did it not do so?

Different explanations are offered: it was a matter of "timing"; the Commission had already asked for the case to be transferred to the CBI so it could not then take cognisance of the investigation by the State police; and that the Commission could not risk being party to a case in a lower court in which it might get an adverse judgment, as this would affect the standing of the institution.

As things stand the Supreme Court has undertaken supervision of this case, but it has not accepted the NHRC's plea to transfer it outside the State. At the Commission, however, they remain in expectation of "being empowered by the Supreme Court".

The excessive reliance on the Supreme Court is also curious given that it had only recently taken up cases relating to Gujarat. Several public interest petitions taken up in the last month were filed more than a year ago.

A petition of the NGO Citizens for Justice and Peace asked the apex court to direct the Gujarat Government to act on the NHRC's recommendations. It is the NGOs that are petitioning the Supreme Court to examine cases other than the ones the NHRC has selected.

The Commission had asked the Gujarat Government to explain the "discriminatory" manner in which the Prevention of Terrorism Ordinance (POTO) had been used in the State. It was applied to those allegedly involved in the Sabarmati Express incident but not to those involved in the subsequent violence.

The Commission in an order said that as the ordinance was now law (POTA), it "intends to monitor this matter further". The Gujarat Government invoked POTA in February this year, 11 months after putting POTO in abeyance on legal advice. At least 125 persons, including three minors, have been charged with offences under POTA in the Godhra case.

Fakhruddin Yusuf Sikligar, one of the 125, died in custody in April this year. Human rights organisations have documented the arbitrariness and brutality, with which the police have picked up people, subsequently charged with POTA offences.

The NHRC's silence on the subject is particularly loud, as it had made a strong case against the enactment of POTA, on the grounds that it would "provide a strong weapon capable of gross misuse and violation of human rights".

It took the view that "the main problem facing the country today related to proper investigation of crimes, efficient prosecution of criminal trials and delays in adjudication and punishments in courts. These problems could not be solved by enacting laws that do away with safeguards, designed to prevent innocent persons from being prosecuted and punished. Nor can they be solved by providing for a more drastic procedure, making confessions before police admissible in evidence, raising the presumption of guilt and creating special courts."

— A.M.

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