Inadequate Compensation (Official and Independent Studies)

01, Apr 2007

The Gujarat state has paid out a mere Rs 1.5 lakh (Rs 90,000 in cash and Rs 60,000 in Narmada Bonds) as compensation to the next of kin of those killed in the violence of 2002.

A detailed memorandum to the United Progressive Alliance (UPA I) not to mention three public meetings held by victim survivors, pointed out these glaring inadequacies.

Between 2002 and 2006, CJP had been pursuing the matter legally and through advocacy with the political class. CJP and its team worked out a reasoned basis for the actual amount that should be paid as compensation for death given judicial precedents set after the 1984 anti-Sikh carnage.

They argued that the amount declared by the state of Gujarat was inadequate and arbitrary, and amounted to a failure on the part of the state to fulfil its constitutional obligations.

In April 2007, a team of representatives from various districts of Gujarat presented this data to the then union Home Minister, Shivraj Patil, and the chairman of the National Commission for Minorities (NCM). The delegation also met the general secretaries of the Communist Party of India (Marxist), Prakash Karat, and the Communist Party of India, AB Bardhan.

A significant landmark with regard to compensation for riot victims was a ruling of the Delhi High Court six years prior to the Gujarat violence. In 1996 the Delhi High Court directed the payment of Rs two lakh plus interest from 1984 onward (amounting to a total of Rs 3.5 lakh) as compensation for those killed in the anti-Sikh riots of 1984.

On that basis, and allowing for an average seven per cent annual rate of inflation from 1996 to 2002, the amount of compensation for victims of the Gujarat genocide should be approximately Rs three lakh, with the interest on this amount being around Rs one lakh. Thus the amount of compensation for those killed in the Gujarat violence of 2002 would be over Rs four lakh each.

Following this rationale, it was argued that the Gujarat government’s ceiling of Rs 1.5 lakh, and the payment of Rs 60,000 of this in bonds, was wholly illegal, arbitrary and unconstitutional. CJP and its counsel maintained that the amount should be in consonance with the state’s obligations under Article 14 (guaranteeing equality before the law) and Article 21 of the Constitution of India and should therefore be fixed at Rs four lakh as detailed above. Compensation for injuries/disabilities sustained should be pro rata or proportional to this amount.

With regards to compensation for victims of rape and other sexual offences,the actual number of rape cases far exceeds the official figures. Many victims were killed and burnt beyond recognition. Others were too terrified to record complaints. At the Shah Alam relief camp in Ahmedabad, where many refugees of the violence took shelter, accounts of victim survivors indicated that a much larger number of rapes in fact took place. The same is true of other areas in Gujarat.

To date, no compensation has been paid to the victims of such heinous attacks. In the PIL before the Gujarat High Court, CJP has argued that constitutional obligations require the state to make full and appropriate compensation, of an amount not less than that made available in the case of death (i.e. Rs four lakh), to such helpless women and children.

In March 2003, Legal Action Group, Citizens for Justice and Peace (CJP) and Communalism Combat had filed a petition in the Gujarat High Court challenging several questionable acts by the state of Gujarat with regard to compensation for the victim survivors of the genocide.

The total amount earmarked for relief by the government of Gujarat, including compensation for deaths, emergency rations in the relief camps and compensation for destroyed homes, was an abysmally low Rs 205 crore, of which the state received Rs 150 crore from the government of India.

In February 2003, the Gujarat government even announced its decision to return Rs 19.10 crore to the central exchequer, stating that adequate compensation had been made.

The CJP petition queried the arbitrary disbursal of compensation, the returning of central funds unused when, in fact, paltry amounts had been paid to victims, and also demanded an enhancement of the compensation scheme. CJP and its team was then authorised by the court to inspect records in all state districts and city collectorates since there were gross discrepancies between amounts claimed by victims and those actually disbursed by the state.

In the course of this inspection as many as 8,358 survey forms were collected from 12 districts of Gujarat between 2003 and 2006.

The position as regards compensation for houses that were damaged or destroyed is equally adverse. The Gujarat government fixed an arbitrary ceiling of Rs 50,000 as compensation for the destruction of homes and in most cases has paid only a pittance of this inadequate amount.

In its August 2002 report, the Women’s Parliamentary Committee on Empowerment of Women (WPC) noted that the Gujarat government had informed the committee that 4,954 houses (2,023 urban and 2,931 rural) had been “completely destroyed” and that the amount of compensation disbursed for the same was Rs 7.62 crore.

This would mean that an average of around Rs 15,000 was paid for each completely destroyed house. The construction of a house costs approximately Rs one lakh in rural areas and approximately Rs two to three lakh in the urban areas. As a result, nearly 5,000 families have been unable to rebuild their houses or make alternative provisions for their shelter or accommodation.

The committee recorded that it had been informed by the Gujarat government that 18,294 houses had been partially damaged (11,199 urban and 7,095 rural), for which Rs 15.55 crore had been paid as compensation. This works out to an average of a mere Rs 8,500 per house. The committee in fact noted that a number of recipients had shown them cheques made out by the state for as little as Rs 40 to Rs 200. The detailed survey conducted by CJP now corroborates this pathetic reality.

Moreover, the state government has refused to accept even those estimates of losses contained in panchnamas prepared by its own officers. Initial losses were recorded in panchnamas prepared by state officials after site visits or inspections. Although recorded by government officials in the presence of panchas, or witnesses, these panchnamas were later rejected by the state. After the panchnamas had been collected by local police stations at various relief camps in the normal course, the state asked district collectors to appoint teams that conducted their own surveys. Predictably, the losses and damage shown in these survey results were drastically reduced to protect the state’s interests and public image.

In the PIL before the Gujarat High Court, CJP has argued that the ceiling of Rs 50,000 is entirely illegal, arbitrary and unconstitutional and the amount should, in consonance with the state’s obligations under Articles 14 and 21 of the Constitution, be fixed at Rs 1.5 lakh in rural areas and Rs three lakh in the urban areas. Compensation as per losses indicated in the official panchnamas (subject to the above ceilings) should also be paid.

The Gujarat government’s denial of the panchnamas, its response to victims’ losses, only exemplifies its overall approach to a people who had suffered so grievously. It negates, yet again, the Gujarat government’s claims that it had fulfilled its constitutional obligations of compensation. On the contrary, it highlights the government’s continuing reluctance to provide just and fair compensation to those who had already lost so much.

In July 2002, the Gujarat government announced that the relief camps which sheltered thousands of displaced refugees had been voluntarily closed down by camp organisers. This was yet another example of the state’s manipulation of the truth. Even documents prepared by the state establish that the camps were forcibly closed down following threats and coercion by officers of the state. (In August 2002, the chief minister callously dubbed the relief camps “baby-making factories”.) In fact, the camps were forcibly closed down in anticipation of a visit from the Chief Election Commission, in an attempt to establish that ‘normalcy’ had been restored.

More often than not, the state’s so-called technical teams carried out ex parte visits (in the absence of victim survivors) to sundry business establishments. Their reports were never made available for public scrutiny. The compensation amounts paid on the basis of these reports are so meager and inadequate as to confer further insult or injury upon those who had already lost their livelihoods and property. Ignoring the earlier panchnamas, during the course of the PIL the Gujarat government also demanded that the victims prove their losses “conclusively” and by adopting “proceedings in civil courts”.

By the state’s own admissions to various national bodies, it is evident that the Gujarat government has spent a total of Rs 55 crore for compensation. The balance of funds came from a central government grant of Rs 150 crore, of which the sum of Rs 19.10 crore was returned unused.

Apart from the obvious lacunae in compensation awarded to victims of the genocide, which have been detailed above, the aggregate figures themselves illustrate a glaring discrepancy.

The government estimated that the total loss to property alone was well over Rs 600 crore

The total amount awarded as compensation, including compensation for deaths, rations to relief camps, etc, was in fact only Rs 185.90 crore (including Rs 119 crore spent on providing rations at refugee camps and Rs 17.90 crore awarded as compensation for those killed)

There is a pattern of behaviour that establishes that the government of Gujarat intends to deny dignified compensation to the victims of the mass carnage of 2002. What is required is an independent comparison between the discrepancies in the official records, the losses recorded in the FIRs, police statements and panchnamas, and thereafter by the technical survey team. Significantly, the government informed the WPC in August 2002 that almost 5,000 houses had been completely destroyed. In the same breath, the Gujarat government defends the ceiling of Rs 50,000 per home when far greater losses have been suffered.

In effect, the compensation paid is pitiful even where FIRs and panchnamas were dutifully recorded.

Whereas ration in the relief camps was given to 1,60,753 persons as per the Gujarat government’s own records, relief money and money for rehabilitation were given to a far reduced number. This is a gross discrepancy that appears to victimise the inmates of relief camps who were and in some cases still are internally displaced persons or refugees. And given their refugee status, it would be reasonable to assume that each one of them should have been entitled to rehabilitation or compensation.

The following method of dispensation of compensation must be adopted by the government in order to effectively rehabilitate victims of the communal carnage:

• Constitutional obligations require that compensation of at least Rs three lakh plus interest from 2002 be paid to the relatives of those killed.
• Proportional amounts should be paid as compensation for disabilities and serious injuries.
• Women who were raped or sexually abused must be given compensation equal to that awarded for persons who were killed.
• The ceiling amount for house compensation must be raised to Rs 1.5 lakh in the rural areas and Rs three lakh in the urban areas.
• Compensation based on a fair assessment of data and records, including the panchnamas contemporaneously recorded, must be paid along with the interest amount accruing from 2002.

After visiting Gujarat in October 2006, the NCM has recommended that a policy whereby in addition to providing mandatory sums agreed for immediate compensation – it should also include money for rehabilitation.

The NCM has highlighted that a specific policy dealing with internally displaced persons in the context of communal violence is important, especially in situations where the threat against minorities is perceived to be continuing, where the criminal justice system – as in Gujarat – appears not to be working and there is ongoing discrimination and exclusion.

The NCM has argued that the policy must further include provisions for those wishing to return home as well as provisions to facilitate their return and restore the displaced families to their original conditions of living. All these remain in the form of recommendations alone.