Gujarat riot victims court case against the VHP and BJP: precedents and implications

(The Telegraph - June 21, 2005)


Make Them Pay For It

Gujarat riot victims have claimed damages against the VHP and BJP. Tarunabh Khaitan explores the precedents and implications

Ahmedabad, February 28, 2002
The Rs 8-crore damages claimed against the Vishwa Hindu Parishad and the Bharatiya Janata Party by the relatives of the victims of the Gujarat riots raise complex issues about the role constitutional morality can play in the daily lives of citizens. The foundational values of equality, human rights, security of life and liberty, enshrined in the chapter on fundamental rights of the Indian Constitution, have traditionally been invoked by the citizens against the State. The suit filed in the Gujarat court is a wake-up call to the reality of violation of these foundational values by non-State and quasi-State actors.

These entities perform quintessentially public functions affecting the rights of citizens and include political parties, corporate bodies, non-governmental organizations, trade unions, employers, educational institutions, building societies and hospitals. The need to make non-State actors accountable to constitutional values is only more acute with the pre-liberalization State functions of producing steel, dispensing medicines and educating engineers moving into private hands. Therefore, fundamental rights should not only inform the vertical citizen-State relationship but also the horizontal citizen-citizen relationship.

Civil action claiming damages against the State for breaching its duty of care is not new. In at least three cases, various high courts have ordered the State to pay compensation to victims of riots. In R. Gandhi v. Union of India (1989), the Madras high court held that “members of the Sikh community form an integral part of Indian society whose rights have been flagrantly infringed by the inaction of the law enforcing authorities. These unfortunate victims of arson and violence are entitled to seek reasonable compensation from the State of Tamil Nadu, which has failed in its duty to protect their constitutional and legal rights.” Similar views were expressed by the Jammu and Kashmir high court in M/s Inderpuri General Stores v. Union of India (1992) and very recently by the Delhi high court in Manjit Singh Sawhney v. Union of India (2005). In all these cases, the courts ordered the State to pay compensation to the victims of the anti-Sikh riots for its inaction in protecting life and property.

By not claiming damages from the State, the Gujarat suit digresses from these cases. It embodies a realization that the responsibility for compensation of victims rests primarily with the perpetrators, and only vicariously with the tax-payers. The suit relies on the precedent set by the Kerala high court, which ordered damages to be paid by the political party whose bandh call resulted in violations of fundamental rights. The high court held that “No political party or organisation can claim that it is...entitled to prevent the citizens not in sympathy with its viewpoints, from exercising their fundamental rights.” The judgment was endorsed by the Supreme Court in Communist Party of India (M) v. Bharat Kumar (1998).

The propriety of the right to call a bandh need not, however, be called into question in the riot compensation cases. The damages are sought for acts which violate the right to life, liberty and security, whether or not they took place during a bandh. That said, however, the fact of a bandh call surely is strong evidence for causally linking the alleged acts of violations of rights to the party which gave the call.

The responsibility of quasi-State or private bodies should not be limited to preservation of the right to life, liberty and security alone. Such liability should be extended to the right against discrimination as well. Article 15 of the Constitution forbids the State from discriminating against any person on the basis of his or her race, caste, creed, sex, and so on. However, except for the Civil Rights Act, 1955, which prohibits discrimination on the basis of caste, Indian law has largely disallowed the horizontal citizen-to-citizen application of the right against discrimination.

The point was reinforced by the Supreme Court in its recent decision in Zoroastrian Co-operative Housing Society Limited v. District Registrar Co-operative Societies (2005), where it allowed a housing society to rent and sell accommodation only to members of a particular religious community. Reports of discrimination by medical establishments, private employers and educational institutions on the basis of religion, caste and HIV status are not rare. Such division of civil society into ghettoes facilitates the insularity of different groups and nurses prejudice among them, with the disastrous consequences we have witnessed too often.

Many liberal democracies which respect human rights have made discrimination by non-State actors a civil liability. The US Civil Rights Act, 1964 has helped to shape a political discourse of inclusion over the years. The South African constitution prohibits discrimination on the grounds of “age, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth” by the State as well as by any person.

In Vishaka v. State of Rajasthan (1997) the Supreme Court opened up to the horizontal application of fundamental rights and held private employers liable for sexual harassment of employees in the work place. This idea needs to be taken to its logical conclusion. However, a judicial development of any doctrine is patchy, and is dictated more by the needs of the case at hand than by the overall policy choices. While the judicial expansion of the rights of citizens by applying them horizontally is welcome, it is time parliament laid down a coherent policy embodied in a statute.

Parliament should, by law, extend the fundamental rights available in part III of the Constitution against the State to other natural and juristic persons who are capable of violating these rights as well. Such a law would need to resolve complex issues such as establishing efficient enforcement machinery and outlining the appropriate remedies available for such violations that should preferably be settled through a public debate rather than through judicial law-making.

A civil liability on non-State and quasi-State actors to respect the fundamental values of the Constitution may not see the end of communal violence in this country. But it will make it more expensive to loot, kill and discriminate. Many acts of communal violence have gone unpunished by the criminal justice system. A civil remedy has the advantage of having to satisfy a lesser standard of proof than the more demanding “beyond reasonable doubt” standard required in a criminal trial. It is also more sensitive to the restorative and remedial needs of the victim. Further, a civil remedy is driven by the victim rather than by the State officials (especially the police) who themselves might be implicated in the violations.

This is certainly not to suggest that the criminal justice system can be left in the mess it is in. A civil remedy, like the one demanded in the Gujarat cases, will complement the quest for justice. Those who reject the values of tolerance and plurality underpinning our multicultural Constitution should pay up.