Misra Commission Report
BOKARO & CHAS
CHAPTER - 15
COMPENSATION TO RIOT VICTIMS
Transformation of society from the state of nature to an orderly one came to be based on the premise that the community took over the protection of everyone inhabiting it. Individual efforts for ensuring protection of life and private property were no more necessary as the community machinery became responsible therefor.
When our Constitution was formed and fundamental rights were guaranteed to citizens under Part III thereof, Article 21 came to confer on every citizen the guarantee of not being deprived of life except according to the procedure established by law. What Article 21 envisages is not only that the State would not take away the life of any person except according to the procedure established by law, but also postulates that every person living within the community would have respect for human life and would not deprive any one of his life except by taking recourse to the process established by law. Within the community, where million of people live, the guarantee to life can work in an effective way only when not only the State but also every individual is pledge-bound to respect the life of every other person,
Non-deprivation of life is the core of rights of man. The term “life” means right to life expectation, continual normal existence of a human being without being shortened in any way such as execution,crucification or genocide. It includes life-like things such as individual personality, physical security and also includes the right to the possession of arms, legs, eyes and other component parts of the human body. Deprivation of life is forbidden except by procedure authorised by law. If the State does not have the privilege of summary deprivation of a citizen’s life, much less can a citizen have this right against a fellow citizen. The guarantee under Article 21 is, therefore, not only against the State but it is also against the entire community. As pointed out by the Supreme Court in F. C. Mullin v. Administrator , Union Territory of Delhi :
“ Every limb or faculty through which life is enjoyed is thus protected by Article 21 and a fortiorari, this would include the faculties of thinking and feeling. Now deprivation which is inhibited by the Article may be total or partial, neither any limb or faculty can be totally destroyed nor can it be partially damaged. Moreover, it is every kind of deprivation that is hit by Article 21, whether such deprivation be permanent or temporary.”
This view has received judicial acceptance. Within the community every citizen is thus entitled to integrity of his physical person and mental personality. InSunil Batra et . v.Delhi Administration & Ors. Etc. , the Supreme Court pointed out :
“ The roots of our Constitution lie deep in the finer spiritual sources of social justice , beyond the melting pot of bad politicking , feudal crudities and sublimated sadism , sustaining itself by profound faith in man and his latent divinity.”
Article 51-A of the Constitution has indicated the fundamental duties of every citizen . It is the obligation of everyone to abide by the Constitution and cherish and follow the spirit thereof . Article 51-A also requires that citizens would abjure violence . It is not necessary in the view of the Commission to refer to the catena of cases decided by the Supreme Court over the years where the dignity and importance of human life have been emphasized and the necessity of every individual within the community to honour , protect and safeguard human life has been reiterated.
The Union of India and the Delhi Administration as also the other groups represented before the Commission have unequivocally stated that the riots were totally unjustified ; the inhuman and gruesome killings were not only against the spirit of the Constitution but were against the law of the land; opposed to the sense of human morality and were a naked exhibition of low animal conduct . In a civilized democratic polity governed by Rule of Law , uncontrolled physical violence has no place . Violence and democracy do not go hand in hand . Democracy is often compared with a tender plant which for its growth requires nourishing by elements like fellow-feeling , compassion , a sense of deep understanding , abiding trust and universal respect for human life . Democracy functions appropriately only when society is on even keel . Not only should there be respect for life but also the rights of every citizen in the community have to be accepted by every one else so that each citizen may be assured of his own rights . Performance of duty is the cornerstone of the guarantee of rights to citizens . The system becomes unfailing and perfect only when the correlationship between duties and rights is properly understood and everyone willingly performs his duties while looking for fulfilment of his rights.
During November 1984 riots a great number of innocent people belonging to the Sikh community were killed at Delhi as already found by the Commission. It is perhaps true ( so stated in view of the pendency of the appeal against conviction) that the people who had killed Smt. Gandhi belonged to the community of Sikhs. From the fact that the killers were Sikhs it does not follow that every Sikh was liable to suffer vicariously for the atrocious acts of the two security guards who assassinated her. The identification of the two Sikhs with every member of that community living in India and to treat every person of that community at par with the assassins has been an unpardonable and unfortunate mistake. Even one of the assassins who was taken into custody alive was not exposed to barbaric treatment. Under the civilized system of law, even the known murderer is entitled to protection of his life and Article 21 of the Constitution extends the guarantees to him. In Sunil Batra’s case the Supreme Court had held that the condemned prisoner awaiting execution is entitled to the guarantee of Art. 21. Viewed in any manner, a section of the community was not entitled to take the law into its own hands and kill innocent people belonging to the Sikh community.
In the affidavits filed on behalf of the victims and in the statements made under oath by some of them-in particular, widows- the details of the incidents have been placed before the Commission. The Commission has elsewhere found as a fact that till about 2’o clock in the afternoon of October 31, 1984, no incident involving violence had taken place in Delhi. Similarly, till about 2 in the afternoon of that day there was no violence at Kanpur and till the evening of that day no noticeable occurrence took place at Bokaro-Chas. Several incidents, however, took place in Delhi in the afternoon, the evening and the night of October 31, 1984. Attempt was made to press before the Commission the Report published by the PUCL which is said have conducted an unofficial inquiry into the happenings during November 1984 riots at Delhi. In the inquiry so conducted a conclusion was reached that no event of consequence had happened on October 31, 1984, and only when certain individuals and agencies organised and mobilised the mobs, violent incidents took place on the following day as also a couple of days to follow. The evidence led for the victims clearly indicates that several incidents have taken place on October 31, 1984, at Delhi. These included the manhandling of Sikhs passing on public roads either on scooters, motorcycles, private cars or public transport; assault on them; burning of their scooters and vehicles as also taxis and trucks; pelting of stones at Sikh houses. That night even two or three Sikhs appear to have been killed. During the night the incidents of arson took place and there occurred certain events of brutal assault. The Commission had made it clear in course of the proceedings that it would not rely on the findings reached in the inquiry conducted by the PUCL. The inquiry by the Commission is a statutory one and it has collected its own data and got investigation conducted into the incidents and had received the reports. The Commission has, therefore, to reach its own conclusions on the material available to it. Apart from this, the Commission is of the view that the conclusion that no sizeable incident took place till the evening of October 31, 1984, reached in the inquiry conducted by PUCL is not a correct one. In fact, on the basis of the conclusion that no material event occurred on October 31, that inquiry proceeded to find that taking advantage of the situation interested parties, including certain leaders of the Congress(I) Party, organised violence. It is not for this Commission to take notice of that Report, make an analysis and either accept or reject the same. It is sufficient to indicate that the said Report has not been relied upon by the Commission for any purpose.
It is fact that the events in Delhi took a very ugly turn from November 1, 1984. More of mobs larger in size than on the previous day and suitably armed with weapons as also with material to conveniently commit arson appeared on the public roads on and from November 1, 1984. The Commission is of the view, agreeing with the submissions made by the Administrations as well as riot victims that the incidents of October 31, 1984, were a natural sequel to the killing of Smt. Indira Gandhi.
For a few years before October 31, 1984, certain unfortunate incidents had been happening in Punjab. Very often innocent people belonging to a particular non-Sikh community were being killed. The Commission has collected the information from the Punjab Government in April 1986 that their number between June 1, 1983, and October 4, 1984, was around 380( Appendix at Vol. II, page 70). This had created a stir in the minds of people living within as also outside Punjab.
According to the Indian tradition a lady cannot be killed and she is said to be Avadhya. Sikhs are reputed for their valour and valiance. When two of the Sikh guards drawn from the police and meant for providing security to the late Prime Minister opened fire on her and she succumbed to the injuries thus sustained, a sense of universal anguish was a natural reaction. The Commission, therefore, accepts the submission advanced before it that the incidents against the Sikhs an October 31, 1984, started as a natural reaction to the situation and at that stage there was no organised attempt to cause or spread violence by rioting directed against the Sikhs. The Commission, however, reiterates that the Sikhs as a community had not committed any crime and were not answerable for the abominable act of the assailants.
In a few affidavits filed by the non-Sikhs at all the three places of inquiry it had been stated that some of the Sikhs residing in certain parts of the three towns celebrated the death of the Smt. Gandhi by distributing sweets, themselves drinking and distributing drinks as also lighting their houses in the manner done on the occasion of Diwali. These allegations have been refuted by filing of affidavits and in the course of arguments by counsel appearing for the riot victims. A few of the deponents who pleaded such conduct on the part of the Sikhs were examined at length both at Kanpur as also at Delhi. There is not much of evidence which can be said to be credit-worthy to support the allegation of any large scale rejoicing in any of the three places to which the inquiry by the Commission is confined. The Investigating Agency had given attention to this aspect but apart from allegations of stray instances of such unusual and imbalanced conduct, it did not find clear evidence. It is quite likely that some misguided Sikhs have had rejoicing over the death of the late Prime Minister. Death of a great leader in the hands of her security guards was certainly not an event for celebration and the Commission cannot but condemn such conduct. But that again is no justification to resort to mass violence against the Sikh community. Every Sikh who has appeared before the commission has expressed extreme sorrow on the assassination of Smt. Gandhi. In the condolence meetings that followed her death many of the Sikhs publicly participated. In a number of affidavits of Sikh victims before the Commission there is specific mention of the fact that assault on her and her consequential death brought about generation of widespread sense of gloom and sorrow. Some of the widows who appeared before the Commission did narrate at length that they were grief-striken when they heard about the assault on Smt. Gandhi and her death. The rejoicing by some Sikhs was again no justification for mass frenzy against totality of the Sikh community.
The Commission has already recorded a finding that there was widespread lapses on the part of the Delhi Police during the November 1984 riots. The Delhi Police are governed by the Delhi Police Act ( XXXIV of 1978) which has been in force within the Union Territory from July 1, 1978. By the Act the Police Act of 1861 has ceased to have force in Delhi(see s. 149). Under s.4 of the Act,the superintendent of the Delhi Police throughout Delhi vests in, and is exercisable by the Administration and any control, direction or supervision exercisable by an officer or any member of the police force is exercisable subject to such superintendence. Sections 59 and 60 in Chapter VI of the Delhi Police Act prescribe the duties of police officers. Section 60 provides:
“It shall be the duty of every police officer-
to the best of his ability, to obtain intelligence concerning the commission of cognizable offences or designs to commit such offences and to lay such information and to take such other steps consistent with law and with the orders of his superiors as shall be best calculated to bring offenders to justice and to prevent the commission of cognizable and, within his view, of non-cognizable offences;
to prevent the breach of the public peace;
to use his best endeavours to prevent any loss or damage by fire;
to use its best endeavour to avert any accident or danger to the public;
to discharge such other duties as are imposed upon him by any law for the time being in force.”
Section 149, Code of Criminal Procedure, 1973, provides:
“Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence.”
This being a police obligation, is covered specifically by clause (r) of s. 60 of the Delhi Police Act. It is thus clear that those of the police officers who failed to comply with the requirements of s. 149, Cr. P.C. or s. 60 of the Delhi Police Act, have made themselves liable to be dealt with in accordance with law.
The allegations before the Commission about he conduct of the police are more of indifference and negligence during the riots than of any wrongful overt act. It is a fact that in some cases there have been allegations of police participation in the riots but the Commission, in the absence of categorical evidence and in view of the findings of the Investigating Agency, is not in a position to reach a conclusion that there was such police participation. But instances of non-feasance are plentiful.
The next relevant aspect to consider is as to what is the consequence of such lapse. Before going into that aspect, it has first to be considered whether the police owed a duty to the community as a whole or to individual citizens within the society in the matter of providing security for life and property. The Commission is of the view that the duty owed by the police is more to the community as a whole as also to the individuals constituting it. In that event the victims have a right to lay claim in tort against the police officers when they failed to perform their duty and such failure brings about evil consequences and suffering to them. Since these statute imposes a duty and does not provide any remedy by which the duty can be enforced, the general rule is that an action for damages can be brought provided the person suing is one of a class intended to be benefited by the duty. That was the view of Lord Campbell in Couch v. Steel. In Square v. Model Farm Dairies( Bourn Mouth) Ltd.,4 Slesser, L.J. pointed out:
“Where there is a duty imposed by statute and someone is injured by reason of a breach of that duty, in the absence of any penalty or remedy provided in the statute itself, normally an action would lie.”
While the liability of the delinquent police officer for damages in tort would be maintainable, the question for further consideration is whether the State also has liabilty for the failure of performance of duty by its officers. It has been strenuously contended on behalf of the Administration that the State would have no liability to compensate as any such action in the Courts of Law would not be maintainable in view of the immunity enjoyed by the State. The Commission proposes to briefly examine the tenability of this stand.
A Constitution Bench of the Supreme Court in the case of State of Rajasthan v. Smt. Vidyawanti & Anr.5, clearly held that the liability of the State for damages in respect of a tortuous act committed by its servants within the scope of employment and functioning as such was the same as that of any other employer. That was the case of a delinquent driver who hit a man while driving a State vehicle. It may be that on facts it may not be a comparable case and perhaps more clear authority would be necessary for making the State liable in the present set of facts. The Commission has already recorded a finding that there is a guarantee to life under Art. 21 of the Constitution and it is the obligation of the State- nay, of everyone in the community too- to effectuate this guarantee by not interfering in any manner with the life of citizens except in accordance with the procedure laid by law. That fundamental right is the most paramount of all such rights. The life a citizen is the very foundation upon which the exercise of all other rights guaranteed by Part III of the Constitution can only be exercised. Where there is a failure by the State or its appointed agency to guarantee that right, a serious situation does arise. And in examining the matter from that angle one has to keep this position in view.
The weight of opinion of jurists in America is in favor of the defence of immunity not being extended to cases of this type. In recent years the legal community has sought to encourage police respect for the constitutional rights of the citizenry through curbing overreaching police behaviour. Recent developments in tort law affecting both the public and private sectors might lead one to expect a relaxation of judicially constructed barriers to recovery. In the public sector, governmental tort liability has been significantly expanded through judicial and legislative narrowing of the scope of protection afforded by the doctrine of sovereign immunity. Collectively, the economic and social benefits of cost rationalisation, loss spreading, and corrective justice provide a cogent argument for recognising police liability for negligent failure to prevent crime. Rather than continuing to be mesmerized by fears that expanded liability would drain government coffers and unacceptably encroach on police discretion, courts should recognise the force of these countervailing considerations and abandon the antiquated no-duty rule in favour of a new liability regime, is the opinion expressed in 94 Harvard Law Review 821. Prof. Bermann in his article “ Integrating Governmental and Officer Tort Liability”, (1977) Columbia Law Review 1125, has adopted the same view. In the United States, by Federal Tort Claims Act, 1946, Congress has made the United States liable in the same manner and to the same extent as a private individual in like circumstances, for damages. In several countries, including England, immunity has been waived by legislation and special provisions have been made regulating liability.
In Kasturi Lal v. State of U.P 6., the Court accepted the test of distinction between sovereign and non-sovereign functions adopted by Peacock, C.J. in P&O Steam Navigation Co. v. Secretary of State for India, but found that the plaintiff bullion dealer could not recover damages from the Government of Uttar Pradesh for the misappropriation of the gold by the police officer. Gajendragadkar, C.J. extended the cover of immunity but simultaneously commended to Government to legislate in the manner provided in England and U.S.A. A comprehensive bill known as the Government (Liability in Tort) Bill, 1967, being Bill No.43 of 1967,was introduced in Parliament and had been sent to the Joint Select Committee of both Houses but ultimately did not get through.
The Commission does not propose to go into the tenability of the claim for damages or maintainability of the defence of immunity as such aspects are for the appropriate court to adjudicate but the Commission is of the opinion that in Welfare State every agency of the State should be made accountable to society and be liable to compensate the individual for breach in respect of fundamental rights to every citizen. When viewed from that angle, the police must be accountable not only to the State but also to the individual within the community for whose protection the police is maintained. Such accountability is bound to raise the efficiency of the police and make the police force more disciplined and utility oriented.
Without entering into legal squabbles, the Commission is of the view that the riot victims deserve to be compensated. In respect of every death the next of kin has been paid Rs. 20,000. In respect of loss to residential premises small compensation of varying standards have been given in all the three areas subjected to inquiry. For business loss or loss to commercial premises no compensation has been admitted. Under instructions of the Central Government certain Banks came forward to encourage various rehabilitation programs. It is a fact that easy loans have been provided in certain cases. The terms under which loans had been taken have been suitably modified and for rehabilitation fresh loans has also been advanced. In a separate Chapter the Commission has indicated some of the benefits the riot victims have managed to obtain through its intervention. For those ladies whose husbands were killed during the riots- they have become widows- the Delhi Administration has provided some accommodation and is striving to make provision for the remaining. Yet, it is a fact that the victims have not been totally rehabilitated. With a view to normalising the situation and giving the riot victims a sense of security, the rehabilitation program has to be continued for some more time and compensation for the loss sustained should be given. The Commission came across several instances where though the commercial premises, including stocks had been insured, the insurer had repudiated the claim on the ground that riot had not been covered. In a Welfare State, particularly in view of the social security assured by it, there should be no need for insurance against riots. In case riot insurance is necessary every insurance should ordinarily cover situations of riot and there is no necessity for making any special arrangement for it. The Commission was given to understand that the General Insurance Corporation has now decided to cover riot risk in every insurance of property. The Commission is of the view that Government should favourably consider and entertain claims of the riot victims in this regard to facilitate rehabilitation and thus ultimately make it convenient to normalise the situation.
The Commission recommends that reasonable compensation as may be decided by the State should be paid for commercial premises whether owned or occupied and loss sustained by the victims within the commercial premises should also be taken into account in such manner as may be agreed to by Government to be paid to the victims. Necessity to compensate is particularly felt in cases of small business men who have lost their assets. Reference may be made to the case of a small flour mill owner of Delhi who lost his place of business as also the equipment during the riots. This victim, Jaswant Singh, had to be provided accommodation as also a new machine for rehabilitating his business. When the Commission intervened, a nationalised Bank which was already his creditor came forward to help. An appropriate Committee may be set up in each area and expeditious steps may be taken to pay reasonable compensation in the manner indicated above. Liability has to be of the Delhi Administration to be borne by Union of India in respect of incidents at Delhi, of the Uttar Pradesh Government in respect of the incidents at Kanpur and so far as Bokaro is concerned, it would be the liability of the State of Bihar.
Perhaps it would be appropriate to liberally compensate in every case of business loss where the victim had a small business-say not exceeding assets of rupees fifty thousand and in a graded manner for higher categories. A victim who has received compensation otherwise-as in a case of insurance-need not be compensated. Affluent business men who lost some commercial assets but have been able to make up the situation may not have to be compensated. This recommendation is with the intention of facilitating rehabilitation with a view to nomalising the situation and Government would do well to keep that in view while giving effect to it.