Both State and non-State actors are culpable
In two or three distinct legal actions arising out of the Gujarat carnage of 2002, the state of Gujarat, its chief minister, Narendra Modi and outfits like the BJP, the RSS and the VHP have been asked to accept financial liability for the death and destruction, injury and loss of livelihood caused during the carnage of 2002.
In the first major writ petition on the issue of compensation, (Special Civil Application No. 3217 of 2003) Citizens for Justice and Peace (CJP) and Communalism Combat helped prepare over 700 affidavits from affected victims who had not got compensation even as per the state and Centre’s scheme. The petition filed in the Gujarat high court in February 2003 also challenged the low rates of compensation laid out in the Gujarat government scheme as hopelessly inadequate. (By a circular dated March 20, 2002 the state of Gujarat fixed an outer limit of Rs. 50,000 as compensation for those whose homes and property were destroyed in the riots).
The petition also points out, with detailed documentary evidence, that although the nature and quantum of losses suffered by the minority community in the riots have in most cases been listed and substantiated in the panchnamas recorded by officials, the Gujarat government paid pathetically low sums ranging from Rs. 1,000 to 10,000. In other words, only a fraction of the total damages suffered. Besides, in a large number of cases no compensation whatever has been paid despite the losses being acknowledged and recorded in the panchnamas. The petitioners have challenged the upper limit of Rs. 50,000 and have sought that it be raised to at least Rs. 2,00,000. The petitioners have pointed out that the State was liable to compensate the persons whose homes and property were destroyed, as the government of Gujarat and its officers had totally failed to protect the lives and property of citizens. They were responsible for the total breakdown of public order, for the consequent loss of lives and property, and the deprivation of the peoples’ right to life under Article 21 of the Constitution of India.
The Gujarat high court, hearing this petition in April 2003, gave locus standi to representative teams of both petitioners to conduct statewide surveys of victim-survivors and collate these with state claims in the collector’s office. A statewide survey was thus launched by these organisations from 2003 onwards and is expected to be completed by the end of July 2005. There are substantive discrepancies between state claims and the claims documented by us (petitioners). The extensive documentation, it is hoped, would result in fairer compensation to those affected.
Meanwhile, as other petitions on issues related to the Gujarat carnage were being heard by the Supreme Court, the amicus curiae, Harish Salve asked for some directions on the issue of compensation. At that point, CJP brought its Gujarat high court petition to the notice of the apex court. On August 17, 2004, the Supreme Court directed that since the matters were already pending before the Gujarat high court, groups like CJP could ask for a modification of the compensation/reparation package at the Gujarat high court level. This was because we had argued that the compensation package did not reflect the needs of victims who were injured and affected.
"It is however pointed out to us by the learned amicus curiae and the petitioners (CJP) that while the high court is monitoring the implementation of the scheme framed by the state government for payment of compensation to the victims, the scheme itself is questionable in that many aspects of the scheme are deficient. For example, it is submitted, the scheme does not provide for a realistic compensation in respect of damage to property. It is also submitted that the scheme limits the compensation payable only to death or permanent disablement while excluding cases where the victim may have otherwise suffered grievously, for example by burning, etc. It is also submitted that the victims of sexual offences have not been brought within the purview of the scheme at all…" (Supreme Court order).
In May 2004, two widows of British citizens, Shirin and Shamima had, through a court in Himmatnagar, filed for damages worth around Rs. 22 crore against chief minister Narendra Modi and 14 others for failing to protect the lives of citizens, specifically, the killing of two British nationals of Indian origin during the post-Godhra violence in 2002. Judge MM Kayasth served notices on the respondents. In September 2004, in identical written statements before the court, Modi and former state home minister Gordhan Zadaphia said they could not be held responsible for the killing of two UK-based NRIs in the post-Godhra violence in the state. The government said "an attempt is being made to project Modi, the then minister of state for home Zadaphia and six others as anti-Muslim," and urged that the Rs. 22 crore compensation suit for the killing of Saeed Safid Dawood and Shakeel Abdul Haid on February 28, 2002 be dismissed. The matter is still pending.
Three years later, a day prior to the three-year anniversary of the Godhra arson, 21 victim families of the Gulberg massacre, residents of the Gulberg Society in Meghaninagar, Ahmedabad, including Zakiabehn Jaffri, wife of the former Member of Parliament, Ahsan Jaffri, served notice on representatives of the VHP, RSS and the BJP claiming damages of approximately Rs. 6.4 crore in all for the attack on Gulberg Society that claimed more than 68 persons lives (official figures admit to less than this number) on February 28, 2002. Damages have been claimed for loss of life, property, torture, pain and trauma caused to them when mobs unleashed terror due to the bandh call given by the VHP and supported by the RSS and the BJP on February 28, 2002 during which mayhem and carnage resulted. Three months earlier notices had been served on the respondents to which no response had been filed. This legal initiative is being supported by CJP.
Far-reaching verdict
Justice delayed may be justice denied but the Sikh victims of the November 1984 carnage will financially benefit from the verdict of Judge Gita Mittal delivered in May 2005. The extensive judgement makes inroads into the jurisprudence related to compensation for loss of life and injury in communal riots.
Excerpts
"…While considering the question of grant of compensation or ex-gratia payment to the petitioner and families of the victims killed during the riots, all the aforesaid aspects have to be kept in view. It is also noteworthy that the Supreme Court awarded Rs. 1 lakh to Rs.7.5 lakh for illegal curtailment of life as indicated in the aforesaid decisions. Therefore, obviously the compensation or ex-gratia payment as a measure of immediate relief to the victim’s family should be more than Rs. 50,000 and between Rs. 1 lakh and Rs. 7.5 lakh…
"…It has been brought to my notice by Mr. Adarsh Goel, learned counsel for the respondent – Govt. of NCT of Delhi, that widows of riot victims are being paid Rs. 1,000 per month as pension. Learned counsel has produced on record a copy of letter No. F 9 (38)/R-1/DC/88/648 dated May 17, 1996, from the deputy director (Relief-1), office of the deputy commissioner, Delhi, to the desk officer, Ministry of Home Affairs, Govt. of India, North Block, New Delhi, along with a report regarding progress of relief and rehabilitation measures in regard to riot victims of 1984. According to the report, 195 widows are getting pension. Be that as it may, the financial assistance of Rs. 20,000, which was to ameliorate the immediate effect and the long term effect of the killing of an earning hand, was highly inadequate and unfair.
"…Having regard to the aforesaid discussion and also keeping in view the decisions of the Supreme Court, I am of the opinion that the petitioner should have been paid at least a sum of Rs. 2 lakh as compensation. Since the petitioner has already been paid a sum of Rs. 20,000 the respondent is directed to pay a sum of Rs.1,80,000 to the petitioner with interest from October 1984 to the date of payment, which is quantified at Rs. 1.50 lakh. The respondent will make the payment of Rs. 3.30 lakh to the petitioner within one month.
"…This direction to pay enhanced compensation would be applicable to similar cases in order to secure parity and to alleviate the sufferings of the families of the victims who lost their lives during the Delhi riots of 1984. Accordingly, it is directed that the widows and families of the victims who lost their lives in the 1984 Delhi riots be paid a sum of Rs. 3.50 lakh (Rs. 2 lakh with interest quantified at Rs. 1.50 lakh). The payment would be made to them by the respondent after adjusting the amount, if any, paid to them as ex-gratia grant of compensation. It will also be open to the Govt. of NCT of Delhi and the Union of India to consider the grant of compensation over and above the aforesaid amount depending upon the circumstances of the families of the riot victims. I would also direct the State to constitute a committee to disburse the amount of compensation quantified as above to the families of those who were killed in riots after their proper identification. I order accordingly. The exercise should be completed within a period of four months.
"…Keeping in view the entire conspectus of facts and the nature of claim made on behalf of the petitioner and the conduct of the respondents in 1984 and thereafter, I am of the view that the ex-gratia amount of Rs. 2,000 is by no means adequate compensation for the failure to protect the limb and property of the petitioner. The petitioner has submitted that he has been an advocate by profession. On account of extreme trauma suffered by him, he has not been able to recoup his profession and suffered a lot.
"There is no reason to disbelieve such a statement. Different individuals may react differently in the same situation. There can possibly be no scale to measure the depth of the emotional wounds and trauma as a result of undergoing the experiences of the petitioner. He bore the brunt of the attack by the mob and barely escaped death. Scars so left may never heal.
"…Keeping in view the amount awarded by this court in the Bhajan Kaur case for the loss of life, in my view, the petitioner ought to be compensated by a sum of Rs. 75,000 for the injuries suffered by him and deprivation of his property on account of the riots on 2nd November, 2004.
"Since the petitioner has already been paid a sum of Rs. 2,000, the respondent is directed to pay a sum of Rs. 73,000 to the petitioner with interest from October, 1984 to the date of payment. The interest is quantified at Rs.50,000. The respondents will therefore make payment of Rs. 1,23,000 to the petitioner within one month.
"…This court in the judgement dated 5th July, 1996 reported at 1996 III AD Delhi 333 entitled Bhajan Kaur vs. Delhi Administration, directed the respondents to pay the enhanced compensation awarded to all similar cases. In order to secure parity to all persons who suffered injuries, the respondents shall pay the enhanced compensation awarded herein to all such persons to whom the respondents had disbursed the amount of Rs. 2,000 as ex gratia on account of the injuries received in the 1984 riots."
Archived from Communalism Combat, June 2005 Year 11 No.108, Cover Story 2