Make reparation for victims of communal violence constitutional right 

Two Muslim boys pray for the afterlife of the deceased in Mustafabad Qabristan in North East Delhi. The graveyard adjacent to Eidgah relief camp buried twenty people killed in the Muslim carnage last February. Official records says 53 people got killed in the violence in Northeast Delhi injuring more than 450 people. Photo: Shaheen Abdulla/Maktoob

November brings memories of the gruesome pogrom that ensued in the country, particularly in the capital in 1984. An estimated three thousand Sikhs were killed in what is often described as state-sanctioned, orchestrated terror unleashed in the capital city of the world’s largest democracy. As we complete 38 years of the pogrom this November, one of the toughest battles that victims of the violence had to fight was to ensure proper compensation for themselves from a state that is hostile to its minorities. I say hostile because, even after 38 years of anti-Sikh pogroms, several Indian states have not yet completed the process of compensation payment. There are multiple cases where victims have had to approach courts on multiple occasions to demand increased compensation in conformity with today’s standards. And then we have compensations being flaunted and presented as the large-heartedness of the people in power.

The recent 2020 Delhi pogrom also exemplifies the failure of the state, including the courts in India, in giving proper compensation, which tells us how little we learn from such events of the past. This is telling of how the Indian state has transformed itself from being the “protector” of its citizens to the abdicator of its responsibility when it comes to compensation and restitution. Time demands, therefore, an urgent need to reflect on the meaning of reparation and compensation as stated in our law. This article takes 1984 as an occasion to revisit the compensation jurisprudence in India and look at why it should not be seen just as a moral obligation but also as a legal obligation of the state.

Securing Right to Life and Liberty of Religious Minorities

“We, the People of India,” as the preamble to the Indian Constitution states, gave ourselves the Constitution of India, which guarantees equal citizenship and equal rights to all people regardless of gender, caste, class, or faith. The Constitution is a “social contract” in which the people of India have placed their faith in order to realise the promise of Indian democracy.

A violation of this commitment occurs with incidents of communal violence, mob attacks, killings of religious minorities, damage to their property and everything that makes them feel insecure. One saw this commitment reiterated by the Delhi High Court in its landmark judgement in Bhajan Kaur vs. Delhi Administration(1996),filed by a widow of a victim who was killed in the 1984 massacre, seeking enhancement of the amount of compensation paid to her, which held the state’s duty to prevent instances of riot/communal violence and held that the state could not escape the liability to pay adequate compensation to the victims of riot/communal violence.

The court made an analogy to disease to assert how the state must make all preparations and take precautions in its full capacity to prevent the outbreak of communal violence just like it is done in disease outbreaks. It further stated that the rights conferred under Article 21 would be of no use if the state failed to exact compliance with the same from its officials and private persons. The oft-repeated argument put forward by the state wherein it refuses to take ownership and responsibility for the violence by blaming the private individuals and random ‘anti-social’ mobs as orchestrators of the violence fall flat on its face when we look at the aforesaid judgment.

The state cannot escape its liability and deny accountability by shifting the onus onto private people who take part in it. Incidents of communal violence are not “private wrongs’ committed against individual victims but are “public wrongs’ committed against the people, and their remedy lies in their public law. Therefore, compensation in such cases seeks enforcement and protection of the fundamental rights under public law. Compensation entails admitting and correcting the state’s public wrongdoing in failing to keep its constitutional promise.

My own experiences of closely seeing familiar compensation matters of 1984 and now of representing compensation cases in the Delhi violence of 2020 suggest an enormous challenge in the project of securing justice for the victims of communal violence.

The Delhi violence was a clear case of the complete laxity and indifference of the state, whose victims, especially the Muslim community, are fighting long and lonely battles for compensation with governments at the helm. The Delhi government, initially, showed a proactive approach and immediately formulated The Delhi Government Assistance Schemefor the help of the victims. It announced a compensation package that included an ex-gratia payment of Rs. ten lakhs to the next kin of the deceased people. However, to pay Rs. ten lakhs for the loss of life in a communal massacre with the state’s connivance is farcical and corresponds to the amount of compensation paid three decades ago. The scheme fails to pass the test of adequacy and sufficiency as it does not make any effort to put the victim’s life back on track. The amount in the scheme is mechanically fixed and is not based on the real financial loss and trauma suffered by the victims. This happens because the ‘ex gratia’ compensation for victims after incidents of communal violence is seen as a moral obligation, not a legal and constitutional one.

In current times, when compensation sums should be modernised in accordance with contemporary norms, the Delhi government, in its affidavits filed before the Delhi High court, has argued that awarding compensation to victims of communal pogroms is a moral obligation, not a legal remedy. Additionally, it added that it is not the responsibility of the state to return the victims to their prior positions, nor do they have the funds to do so. A victim of a communal pogrom who lost his house, store, and right to livelihood, witnessed his neighbours attacking him, and is now without a source of income and a house denied cover for even his losses, let alone taking him to his previous position. Such schemes unrealistically demand that the victims who have been abandoned or fled their homes for protection provide documentation of their losses before the courts and commission.

There are also wide disparities in the assessment of the value of the damaged and destroyed houses and their classification by the Delhi government in the scheme. The compensation amount fails to put the victims of the violence back to their previous positions. In Md. Shahabaj vs. the Government of NCT and Ors., which is represented by our team, had his entire house burnt in Khajoori Khas. The victim narrowly escaped with his family and sustained injuries. The victim received only a total compensation of Rs. 10,000 from the government as he stayed on rent.

This was the compensation amount allocated to him under the ex gratia scheme for the loss of his “house”. However, his total tangible loss suffered was around Rs. 10 lacs. This mechanical assessment failed to recognise that most of the victims in the Northeast Delhi region were migrant workers living in rented accommodations. This demonstrates how callous policies are constructed, which are never designed to bring victims justice or restore them to their prior economic, social, or psychological standing; rather, they are made to appear like a state-sponsored charity.

Role of courts: Secure reparation for victims

Reparation, as defined by the United Nations Human Rights Office of the High Commissioner, refers to measures to redress violations of human rights by providing a range of material and symbolic benefits to victims or their families as well as affected communities. International jurisprudence recognises “restitution, compensation, and satisfaction” as three major components of reparation while talking about the reparation of the victims of violence and riots. It guarantees rehabilitation and non-repetition as valid forms of reparation for the victims of human rights violations. In the Cotton Field case in Mexico City, the court set precedent in terms of compensating the victims of sexual violence in which three women were killed. After the failure of the Mexican government to secure justice in the case, the Inter-American court of Human Rights delivered a landmark judgement and awarded “satisfaction” measures to the victims of the violence by acknowledging the limitation of monetary compensation in compensating for the non-material loss.

Courts in India can learn from it by not just restricting monetary compensation but also the non-pecuniary ones that include physical and mental health measures, rehabilitation, and livelihood programmes for the victims, and apologies from the state. The compensation must include separate benefits for the children of the deceased, the spouse, and the parents and must include housing, land, employment, education, food, health care, and counselling so that the family is restored to a better situation than before the incident happened.

For the victims of the 2020 Delhi pogrom, the Delhi High Court directed the formation of the North East Delhi Riots Claims Commission (NEDRCC) to review victims’ claims and distribute compensation. Cases brought before the Delhi High court by victims seeking compensation and, in some cases, demanding increased compensation over what the Delhi government is providing reveals a tragic scenario. Such cases are moving at the slowest possible speed. A recent statement by a commission employee stated that even after one and a half years, the commission could only process 200 of the 2,775 claims received, accounting for only 7% of the total, which was also admitted by the commission in August this year.

It is time for Indian courts to acknowledge the importance of these instances. This is not a regular issue but an issue crucial for the survival of Indian democracy and its constitutional guarantee to its citizens, particularly religious minorities. By tolerating delays and failing to hear the cases, the courts give victims of violence the impression that they are on their own in their fight for justice with the government and that the courts have abandoned them.

Response of the Union government to the Delhi pogrom 

It is quite distressing to see that the Union government, which controls the “law and order” of Delhi, has announced no monetary package or scheme for the victims of Delhi violence. It has pulled its hands away from all the constitutional obligations towards the victims despite being in charge of maintaining law and order. On the other hand, the Delhi government’s scheme fails to address the disparity between the amount of loss suffered by the victims and the compensation amount being paid to them. Even though the lived experiences of the loss cannot be understood in a purely material sense, compensating for the material loss is still possible. Compensation for victims is the bare minimum that the state could do to maintain trust in the social contract and the state. The path to justice is long, but one could begin by recognising the state’s obligation, its constitutional commitment, and the necessity of holding it accountable. It’s time to make sure that each victim of communal violence is reinstated in their prior positions and that the state is held accountable for reparations under the constitution, the court proceedings are expedited early, and victims are provided with some comfort until their wounds are completely healed.

Kawalpreet Kaur is a practising advocate who works with the Human Rights Law Network in Delhi.