SHAKEEL AHMED versus UNION OF INDIA & ORS. on 4 November 2022

1. There shall be a Committee headed by the MemberSecretary of MSLSA to monitor the implementation of thedirections issued by this Judgment. The State Government shallappoint a Revenue Officer, not below the rank of Deputy

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ACollector, and a Police Officer, not below the rank of AssistantCommissioner of Police, who shall be the other two members ofthe Committee;

2. The State Government shall submit to the Committee areport containing details of 168 missing persons including theirBnames and addresses. The State Government will also placematerial regarding efforts made to trace family members of 108missing persons who have been deprived of compensation interms of the second Government Resolution. The StateGovernment shall make all possible efforts to trace the legal heirs/family members of the missing persons. The Committee shallCmonitor this exercise. The Committee shall assist the legalrepresentatives of the missing persons to complete the proceduralformalities;

3. The State Government shall also submit to the Committeethe record relating to compensation paid in terms of the AnnexureDto the First Government Resolution as well as in terms of thesecond Government Resolution by incorporating the specificdates on which the compensation was actually paid to the personsentitled to it. The State Government shall also provide a list ofvictims who have not been paid compensation in terms of bothEthe Government Resolutions;

4. The State Government shall pay compensation of Rs.2lakhs to the legal heirs of the missing persons traced out hereafter,with interest at the rate of 9% per annum from 22[nd ]January 1999i.e. from the expiry of the period of six months from the date ofFthe second Government Resolution, till actual payment;

5. The Committee consisting of the Secretary of MSLSAand the other two Government Officers appointed under thisorder, shall monitor the efforts of the State Government to traceother victims who were entitled to compensation in terms of theGAnnexure to the first Government Resolution but compensationwas not paid to them. The victims identified hereafter shall alsobe paid the compensation with interest at the rate of 9% perannum from 8[th] January 1994 i.e. from the expiry of the period ofsix months from the date of the First Government Resolution,till actual payment;H

6. To those who were paid compensation after the expiry ofthe period of six months from the date of the applicableGovernment Resolution, the State Government shall pay interestat the rate of 9% per annum on the amount of the compensationpayable from the expiry of the period of six months from the dateof the applicable Government Resolution till the date of payment.This direction will apply to those who have received compensationbefore the date of this Judgment. The Committee, after examiningthe record, shall furnish to the State Government the details ofthe victims who are entitled to receive interest as above;

7. The State Government shall comply with the requirementof submitting necessary details as aforesaid to the Committeewithin a period of two months from today. Appointment of the twoofficers, as directed above, shall be made within a period of onemonth from today. Both the Government Officers shall coordinatewith concerned Departments and ensure that necessary details,as directed by the Committee, are furnished to the Committeewithin the specified time of two months;

8. The entire exercise of payment of compensation and/orinterest shall be completed by the State Government within aperiod of nine months from today. The State Government shallreport compliance made from time to time to the Committee. Adetailed report containing details of the compliance of thedirections as aforesaid shall be filed by the Secretary of MSLSAwith this Court within a period of ten months from today;

9. The Committee shall seek necessary guidance from theExecutive Chairperson of MSLSA for implementation of thedirections issued by this order. The Committee shall be entitledto seek the assistance of Para Legal volunteers;

10. The State Government shall provide details of the onlypending riot related criminal case before the Sessions Court atMumbai to the Registrar General of the Bombay High Court whoshall bring it to the notice of the concerned Court that the caseneeds to be disposed of at the earliest;

11. The State Government shall provide details of 97 caseson dormant files to the Registrar General of the Bombay HighCourt within one month from today. On receipt of the details, the AB

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AHigh Court on the Administrative side shall issue necessarycommunication to the concerned Courts in which the cases arepending to take necessary steps to trace the accused. The StateGovernment shall immediately constitute a Special Cell to tracethe absconding /missing accused in these cases and to assist theconcerned Courts so that the Trial can proceed against them;Band

12. The State Government shall expeditiously implementall the recommendations made by the Commission on the issueof reforms in the police force which were accepted by it. [Para28][725-D-H; 726-A-H; 727-A-G]C

CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.182of 2001.

(Under Article 32 Of The Constitution of India)

Sanjay Jain, ASG, Colin Gonsalves, Sr. Adv., Dr. Nafis A. Siddiqui,DEjaz Maqbool, Saif Zia, Sadiq Noor, Ms. Jyoti Mendiratta, Ms. BinuTamta, Shivaji M. Jadhav, Brij Kishore Shah, Adarsh Kumar Pandey,Ms. Shivani Rautela, Ms. Apurva, P. Parmeswaran, B. Krishna Prasad,V. N. Raghupathy, Rahul Chitnis, Sachin Patil, Aaditya A. Pande, GeoJoseph, Ms. Shwetal Shepal, Durgesh Gupta, Ms. SwarupamaEChaturvedi, Ms. Nachiketa Joshi, T. S. Sabarish, Padmesh Mishra, ArvindKumar Sharma, Advs. for the appearing parties.

The Judgment of the Court was delivered by ABHAY S. OKA, J.

FACTUAL ASPECTSF

Facts

The Judgment of the Court was delivered by ABHAY S. OKA, J.

FACTUAL ASPECTSF

1. The city of Mumbai had a torrid time from 6[th] December 1992till 12[th] March 1993. Mumbai witnessed perhaps the worst mob frenzy,violence, communal tension and riots from 6[th] December 1992 to 10[th]December 1992 and from 6[th] January 1993 to 20[th] January 1993. Therewere many incidents of arson and violence resulting in a large-scale lossGof lives and damage to properties. The Police resorted to firing at manyplaces. Ultimately, Army was called to aid the civil administration.Thereafter, the situation was gradually brought under control. When thecitizens of Mumbai were about to breathe a sigh of relief, there wereserial bomb blasts in various parts of the city on 12[th] March 1993. InHDecember 1992 and January 1993, there were about 900 deaths, 168

persons were reported missing and about 2036 persons suffered injuries.As a result of the serial bomb blasts of 12[th] March 1993, there were 257deaths and 1400 people were injured.

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2. The Government of Maharashtra by a notification dated 25[th]January 1993 constituted a Commission under the Commissions ofInquiry Act, 1952 (for short, ‘the 1952 Act’) headed by Hon’ble ShriJustice B.N. Srikrishna, the then sitting Judge of the High Court ofJudicature at Bombay, who subsequently retired as a Judge of this Court.The Terms of Reference of the Commission were as under:

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“(i)The circumstances, events and immediate causes of theincidents which occurred in the Bombay PoliceCCommissionerate area in December 1992 on or after the6[th] December 1992 and, again in January 1993, on or afterthe 6[th] January 1993;

(ii) Whether any individual or group of individuals or any otherorganizations, were responsible for such events andcircumstances;D

(iii) The adequacy or otherwise of the precautionary andpreventive measures, taken by the Police preceding theaforesaid incidents;

(iv) Whether the steps taken by the Police in controlling theriots were adequate and proper and whether the Police firingEresulting in deaths was justified or not; and

(v) The measures, long and short term, which are required tobe taken by the administration to avoid recurrence of suchincidents, to secure communal harmony and also to suggestimprovements in law and order machinery.”

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3. Subsequently, the Terms of Reference of the Commission wereexpanded by the State Government and the following additional termswere incorporated:

“(vi) The circumstances and the immediate cause of the incidentscommonly known as the serial bomb-blasts of the 12[th] March1993, which occurred in the Bombay PoliceCommissionerate area; G

(vii) Whether the incidents referred to in term (i), have anycommon link with the incidents referred to in term (vi)above; and H

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A(viii) Whether the incidents referred to in term (i) and in term(vi) were part of a common design.”

By a notification dated 23[rd] January 1996,the State Governmentdisbanded the Commission on a very strange ground that there was aninordinate delay on the part of the Commission in submitting its report.BAs noted in the report of the Commission, the then Hon’ble Prime Ministerrequested the Chief Minister of Maharashtra to revive the Commissionand that is how it was revived by the notification dated 28[th] May 1996.The Commission submitted its report on 16[th] February 1998 whichconsisted of two volumes. Volume-I contained the conclusions andrecommendations of the Commission. Volume II contained a summaryCof the evidence recorded and analysis of the evidence.

4. The present petition invokes the jurisdiction of this Court underArticle 32 of the Constitution of India. There are five substantive prayersmade in the petition, which read thus:

“i.Declare that an enquiry conducted under the Commissionof Enquiry Act, 1952, would tantamount to an Inquiry withinthe meaning of Article 311 [2] of the Constitution of India; D

ii.Declare that a public servant found guilty/indicted underthe Commission of Enquiry Act, 1952 be liable to beEsummarily dismissed; and

iii.Issue a Writ, Order or Direction in the nature of Mandamusand/or like nature directing the Respondent-State to acceptand act on the finding of the Sri Krishna Commission ofEnquiry; and Fiv.Issue a Writ, Direction or Order in the nature of Mandamusand or like nature directing the Respondent-State ofMaharashtra that SUMMARY cases be re-opened andaction taken in accordance with the recommendations ofthe Sri Krishna Commission Report; Gv.Direct Respondents to pay compensation to the personsidentified as MISSING and the cases concerning them tobe closed;”

The Recommendations of Justice B. N. SrikrishnaCommission and the Response of the State GovernmentH

5. The entire petition revolves around the issue of implementationof the recommendations of the Commission. The recommendations whichare relevant for deciding this petition can be summarized as under:

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i.Based on the study conducted by a committee of expertsof Tata Institute of Social Sciences appointed by theCommission which dealt with the immediate causes of theBriots, the Commission opined that the causes were political,socio-economic and demographic;

ii.The precautionary and preventive measures taken by thePolice preceding the incidents of riots were inadequate. Theintelligence machinery of the Police did not give informationCin good time about the possible damage to the Babri Maszid.Moreover, there was no effort made to make an accurateassessment of the situation, which could arise due to possibledamage to the Babri Maszid. The Intelligence Departmentfailed to gather crucial information about the closed doorDmeetings held by the two different religious groups, whichwere found responsible for the riots; D

iii.The Police machinery proved to be inadequate to deal withthe situation. Moreover, the Police were hopelesslyoutnumbered as the strength of the Police staff wasinadequate even to handle day-to-day problems; E

iv.The Commission found that there was a failure to registercrimes by the Police. There was a delay in registeringcrimes. The investigation was carried out in an arbitraryand casual manner; F

v.There was a delay in the disposal of criminal casesconcerning riot-related offences;

vi.There was a lot of political interference in the functioningof the Police machinery;

vii.The commission concluded that the Police officials namedGin paragraph 1.30 of Volume-I of its report, were foundactively participating in riots, communal incidents andincidents of looting, arson, etc. The Commissionrecommended the initiation of disciplinary action againstthe said Police officials; H

Aviii.The Commission noted that the members of the police forcewere lacking physical fitness. The Commission recordedthat long and arduous working hours leave them no timefor physical exercises. The Commission recommended thatstrict standards of physical fitness be enforced; and Bix.The Commission recommended improvement of conditionsof work of the Police and also recommended that properhousing facilities be provided to the police.

6. The State Government issued a Memorandum of action to betaken by the Government on the report of the Commission (for short,C‘the Memorandum’). Most of the recommendations were accepted bythe State Government. The action proposed by the State Governmentwas incorporated in the Memorandum. The response of the StateGovernment to some of the relevant recommendations reads thus:

i.The State Government noted that the Police have classifiedDa large number of offences relating to riots in ‘A’ Summary(true but undetected). The Government decided to appointa committee comprising Officers from Home Department,Law Department and senior Police Officers to scrutinizeall ‘A’ Summary cases and carry out reinvestigation,wherever warranted;E

ii.Instructions would be issued to the Police Department toensure effective and speedy trials in offences relating toriots;

iii.The State Government has decided to pay compensation tothe victims of the riots and violence;F

iv.The State Government has decided to initiate disciplinaryproceedings against the erring police officials; and v.The State Government assured to improve the conditionsin which the police force was working.GThe State Government did not agree with some of the conclusionsdrawn by the Commission especially its findings on the causes of theriots/violence. But, the Government agreed to act upon majority ofrecommendations.

7. There are affidavits filed by both sides. The affidavits filed onHthe side of the petitioner make a grievance about the failure of the State Government to implement the recommendations of the Commission andalso the failure to bring the offenders to book.

Rival Submissions

8. Shri Colin Gonsalves, the learned senior counsel representingthe petitioner, submitted that as can be seen from the affidavits on record,the action taken by the State Government on the recommendations ofthe Commission is merely an eyewash. He pointed out that the PoliceOfficials who were found guilty of serious misconduct by the Commissionwere let off either by exonerating them or by imposing very minorpenalties. He pointed out that almost all the prosecutions ended either indischarge of the accused or in acquittal. He made a grievance that theLegal Services Authorities constituted at the State and the District levels,failed to render assistance to the victims of the offence and/or to thelegal heirs of the victims of the offence, as the case may be. Legalassistance was not provided to the victims or legal heirs of the victimsfor challenging the orders of discharge or acquittal and for filingproceedings for recovery of compensation. As a result, the victims gotno relief from the State machinery and even from the judiciary. He alsosubmitted that meagre compensation of Rs.2 lakhs was paid to the legalheirs of those who lost lives in the riots. Moreover, there was inordinatedelay in making the payment of compensation. Very few families ofmissing persons were paid compensation, though, by legal fiction, thepersons missing for more than seven years are treated as dead. Hewould, therefore, submit that the compensation deserves to be enhancedsubstantially and a direction be issued to the State Government to ensurethat compensation is paid to every eligible victim/ his or her heirs. Hesubmitted that victims be provided interest to compensate them for thedelayed payment.

9. Shri Rahul Chitnis, the learned counsel representing the StateGovernment urged that there is no default on the part of the StateGovernment. He submitted that all efforts were made to trace the familymembers of missing persons and compensation was promptly paid tothem. He submitted that disciplinary proceedings were initiated againstthe Police Officers named by the Commission and were taken to thelogical end. He submitted that it is too late in the day now for this Courtto interfere and issue directions to challenge the orders of acquittal ordischarge. He submitted that some such orders were unsuccessfullychallenged before the higher forum. His submission is that with thepassage of time, no directions are warranted in this petition.

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AConsideration of Submissions

10. We have given careful consideration to the submissions. Duringthe course of the submissions, the first two prayers were not seriouslypressed by the learned senior counsel for the petitioner. Therecommendations of a Commission appointed under the 1952 Act cannotBbind the Government. The Courts cannot compel the Government to actupon the report. But, once the Government accepts the recommendations,a Writ Court can issue a mandamus for the implementation of therecommendations as it becomes an obligation of the Government toimplement the recommendations. A perusal of the affidavits filed in thispetition as well as connected petitions which were disposed of by theCorder dated 30[th] August 2022, shows that while the State Governmentdisputed most of the conclusions drawn by the Commission regardingthe causes of the riots, most of the recommendations regarding takingcorrective measures were accepted as can be seen from theMemorandum filed by the State Government. We are conscious of theDfact that the recommendations of the Commission were submitted morethan 24 years back and most of the trials and disciplinary inquiries havebeen concluded more than 20 years back. Nevertheless, we are dealingwith submissions canvassed across the Bar.

Action Against Erring Police OfficialsE

11. Firstly, we will deal with the conduct of disciplinary proceedingsagainst the erring police officials as recommended by the Commission.The details thereof are found in the Affidavit dated 13[th] March 2020 ofShri Amitabh Gupta, the Principal Secretary, Home Department,Government of Maharashtra. In terms of the recommendations of theFCommission, FIRs were registered against nine police officials. Two ofthem were discharged and seven were acquitted. The complainants/victims filed revision applications against orders of discharge dated 16[th]April 2003 of two officials. The revision applications were dismissed.The matters were carried to this Court by way of Special Leave Petitions,which were dismissed on 4[th] July 2011. In the case of six police officials,Gorders of acquittal were passed on 18[th] November 2005, and one officerwas acquitted by an order dated 9[th] September 2014. These orders ofacquittal were not challenged. Out of nine police officials, seven havealready been superannuated. The State Government has not stated thereasons for not questioning the orders of acquittal. The State shouldHhave been vigilant and proactive in these cases. Now it is too late in the day to direct the State to examine whether the orders of acquittal deserveto be challenged.

12. Now, coming to the disciplinary inquiry initiated against variouspolice officials, we find that one official was dismissed from service.One official was made to compulsorily retire by way of punishment. Onnine other police officials, minor penalties have been imposed. Out ofthe said nine police officials, against whom minor penalties were imposed,eight officials have already retired from service. Eight other police officialswere exonerated. Out of them, five officials have since retired. Inquiryagainst one police official was dropped as he died during the pendencyof the inquiry. In view of long passage of time, as far as the disciplinaryaction is concerned, now in the year 2022, it will be inappropriate to gointo the question of the validity of the orders passed by the disciplinaryauthorities and the adequacy of the penalties imposed. In any case, in awrit petition in the nature of a Public Interest Litigation, a Writ Courtshould not normally interfere with disciplinary proceedings.

Riot Related Criminal Cases

13. The affidavit discloses the details of the fate of 253 riot relatedcriminal cases. The outcome of these cases can be summarized as under:

It is noted in the affidavit that the High Court of Judicature atBombay had nominated two learned Sessions Judges and two learnedMetropolitan Magistrates as the Special Courts for dealing with criminalcases relating to the violence in December 1992 and January 1993. Theaffidavit discloses that one case is still pending in the Sessions Court.We propose to direct the Sessions Court to dispose of the pending caseat the earliest. Ninety-seven cases are on dormant files. The reasonmust be that either the accused therein are not traceable or areabsconding. The High Court, on the administrative side, must issueappropriate directions to the concerned Courts in which these cases arepending. The High Court must ensure that the concerned Courts takeappropriate steps for tracing the accused. The State Government willhave to set up a special cell for tracing the accused.

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AFailure To Provide Legal Aid To The Victims

14. Shri Colin Gonsalves, the learned senior counsel made agrievance that the victims of the offences ought to have been providedlegal aid by the State and the District Legal Services Authoritiesestablished under the Legal Services Authorities Act, 1987 (for short,B‘the 1987 Act’) for challenging the orders of acquittal. His grievancewas that the Legal Services Authorities have not performed their duty.Though no directions can be issued at this stage to grant legal aid,nevertheless, we are examining the legal contentions.

15. Section 12 of the 1987 Act lays down the criteria for givingClegal services which reads thus:

“12. Criteria for giving legal services — Every person whohas to file or defend a case shall be entitled to legal servicesunder this Act if that person is—

(a) a member of a Scheduled Caste or Scheduled Tribe; D(b) a victim of trafficking in human beings or begar as referred toin article 23 of the Constitution;

(c) a woman or a child;

(d) a person with disability as defined in clause (i) of section 2 ofEthe Persons with Disabilities (Equal Opportunities, Protection ofRights and Full Participation) Act, 1995 (1 of 1996); (e) a person under circumstances of underserved want suchas being a victim of a mass disaster, ethnic, violence, casteatrocity, flood, drought, earthquake or industrial disaster;For (f) an industrial workman; or (g) in custody, including custody in a protective home within themeaning of clause (g) of section 2 of the Immoral Traffic(Prevention) Act, 1956 (104 of 1956), or in a juvenile home withinGthe meaning of clause (j) of section 2 of the Juvenile Justice Act,1986 (53 of 1986), or in a psychiatric hospital or psychiatric nursinghome within the meaning of clause (g) of section 2 of the MentalHealth Act, 1987 (14 of 1987); or

(h) in receipt of annual income less than rupees nine thousand orHsuch other higher amount as may be prescribed by the State Government, if the case is before a court other than the SupremeCourt, and less than rupees twelve thousand or such other higheramount as may be prescribed by the Central Government, if thecase is before the Supreme Court.”

16. Under Clause (e) of Section 12 of the 1987 Act, a person whois subjected to ethnic violence, is entitled to legal services under the1987 Act. The meaning of the adjective “ethnic” according to Merriam-Webster dictionary is “of or relating to large groups of people classedaccording to common racial, national, tribal, religious, linguistic, or culturalorigin or background”. The term “ethnic” can be narrowly construed asincluding solely “linguistic” or “racial” groups. If it is given a broadmeaning, it will include religion, tribe and caste in group distinction. Lookingat the conclusions in the report of the Commission and the response tothe recommendations of the State Government in the form of theMemorandum, there is no manner of doubt that communal disharmonybetween two religious groups was one of the main causes of the riotsand violence. There are enough indications in both documents that therewas tension between the two religious groups which is one of the majorcauses of the incidents of violence. Considering the object of the 1987Act, a broad meaning will have to be assigned to the word “ethnic” forthe purposes of considering the entitlement to grant of legal aid. Therefore,these incidents of December 1992 and January 1993 are the incidents ofethnic violence within the meaning of clause (e) of Sub-section (1) ofSection 12 of the 1987 Act. Hence, on an application being made by thevictims of the offence or their legal heirs, legal services could have beenprovided to them by appointing advocates, who could have assisted theCriminal Courts in terms of sub-Section (2) of Section 301 of the Codeof Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) during the course oftrials. Legal services could have been provided to the victims to challengethe orders of acquittal. But we must remember that those were theearly days of the Legal Services Authorities. With the passage of time,the Legal Services Authorities right from the Taluka level to nationallevel, have expanded their activities for effectively rendering legalservices. Now multiple activities are being conducted by the LegalServices Authorities at various levels. The scope of legal services hasbeen considerably widened during the last few decades. During thepandemic of COVID 19, these authorities reached the poor and needy A

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Aby providing assistance to them. We hope and trust that after 75 yearsof independence, riot-like situations will never arise. Unfortunately, ifsuch situations arise, we are sure that the Legal Services Authorities atvarious levels will come to the rescue of the victims of violence andrender legal services to them, keeping in mind the spirit of Section 12 ofthe 1987 Act. Now, it is too late in the day to direct the Legal ServicesBAuthorities to render legal aid to the victims of the 1992 and 1993 riotsfor challenging the orders of acquittal.

Failure To Make Proper Investigation

Failure To Make Proper Investigation

17. One of the grievances of the petitioner was that in large numberof riots related offences, a proper investigation was not carried out andCtherefore, about 1371 cases were closed by classifying as ‘A’ Summary(true but undetected). The affidavit of Shri Amitabh Gupta notes thatthe State Government had appointed a Committee under the chairmanshipof the Director General of Police to scrutinize all cases which wereclassified as ‘A’ Summary. In terms of the directions of the Committee,Dreinvestigation was carried out in 112 cases under the supervision of theOfficers of the rank of Deputy Commissioner of Police. Out of the 112cases, 104 were again classified as ‘A’ Summary. In the remaining eightcases, charge sheets were filed. Out of the eight cases, seven casesresulted in acquittal, and in one case, where the offence wascompoundable, the case was compounded.E

Recommendation on Police Reforms

18. The Commission in its report has made several suggestionsfor reinforcing and improving Police Force. The recommendations arevery wide and cover many aspects. The Commission recommendedthat professionalism needs to be introduced in the Police Force. TheFCommission has laid emphasis on the training and physical fitness of themembers of the Police Force. The Commission suggested improvementsin the weaponry held by the Police Force. The Commission also suggestedvast improvements in the communication systems of the Police. Thereis also a recommendation made to stop political interference in the day-Gto-day functioning of the police. We may note here that with the passageof time and with the advancement of technology, there has been aconsiderable improvement in the communication systems used by thePolice. The Commission’s suggestion of setting up Rapid Action Squadshas been implemented. The Commission suggested that various stepsshould be taken to boost the morale of the Police Force, such as providingH

proper housing facilities to them, reducing political interference in theday-to-day functioning of the Police Force, etc. The Memorandum ofthe Government records that most of these recommendations have beenaccepted by the State Government. But what remains is theimplementation part. The State Government cannot ignore therecommendations made by the Commission for the improvement andmodernization of the Police Force and the recommendations shall continueto guide the State Government.

Compensation to Victims

19. That takes us to the crucial issue of payment of compensationto the victims of the riots. We have already noted that whether due tothe violence or police firing, 900 people lost their lives and 2036 peoplegot injured in December 1992 and January 1993.

20. Article 21 of the Constitution of India confers a right on everycitizen to live with human dignity. Article 21 encompasses into itself theright to live a meaningful and dignified life. All the aspects of life whichmake a person live with human dignity, are covered by the word ‘life’used in Article 21 of the Constitution of India. If the citizens are forcedto live in an atmosphere of communal tension, it affects their right to lifeguaranteed by Article 21. The violence witnessed by Mumbai in December1992 and January 1993 adversely affected the right of the residents ofthe affected areas to lead dignified and meaningful life. It cannot bedisputed that certain groups were responsible for the large-scale violencein December 1992 and January 1993. There was a failure on the part ofthe State Government to maintain law and order and to protect the rightsof the people guaranteed under Article 21 of the Constitution of India.As noted earlier, 900 persons died and more than 2000 persons wereinjured. The houses, places of business and properties of the citizenswere destroyed. These are all violations of their rights guaranteed underArticle 21 of the Constitution of India. One of the root causes of theirsuffering was the failure of the State Government to maintain law andorder. Therefore, the affected persons had a right to seek compensationfrom the State Government. Though belatedly, by a GovernmentResolution dated 8[th] July 1993 (the first Government Resolution), adecision was taken to give financial assistance to the persons affecteddue to riots in December 1992 and January 1993 as well as due to theserial bomb blasts in the city of Mumbai. Nearly five and a half yearsafter the incidents of riots, the Government Resolution dated 22[nd] July1998 (the second Government Resolution) was issued, providing for giving AB

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Acompensation of Rs.2 Lakhs to the legal heirs of the missing persons.The eligibility criteria and procedure for disbursement were laid down inthe second Government Resolution.

21. The affidavit of Shri Amitabh Gupta dated 13[th] March 2020notes that 900 persons died in the riots and 168 persons were reportedBmissing. He claimed that compensation has been paid to the legal heirsof all 900 dead persons and family members of 60 missing persons. Adirection was issued by this Court on 30[th] August 2022, directing theState Government to disclose the details of the compensation paid to thevictims. It is necessary to quote the aforesaid order dated 30[th] August2022 of this Court, which reads thus:C“….We have heard learned counsel for parties.

In order to deal with all the aspects raised by learned counsel forthe petitioner, more specifically the aspect of compensation, werequire a better explanation of exhibit-B at page 26 of the affidavitfiled by the State of Maharashtra dated 13.3.2020. We wouldDrequire information as under:-

(i) Whether the figure of 168 persons who are stated to be missingform a part of the 900 number of victims identified;

(ii) Whether any compensation has been paid to the legal heirs ofthe persons who have been found missing; E(iii) What is the reference to the compensation paid to heirs ofvictims;

(iv) Whether any compensation has been paid for loss of property;

(v) When was these compensations paid i.e. the time lagbetween the date of the incident and the compensation beingFmade.

An affidavit be filed in terms aforesaid within two weeks.Arguments concluded.

Judgment reserved.”

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The State Government by the affidavit of Shri Mangesh ManjabhauShinde, Joint Secretary of the Home Department purported to complywith the above directions. The response of the State Government in theaffidavit of Shri Mangesh Manjabhau Shinde reads thus:

“(i) Whether the figure of 168 persons who are stated to be missingHform a part of the 900 number of victims identified.

Reply – The total number of missing persons is 168 which is notthe part of total 900 victims.

(ii) Whether any compensation has been paid to the legal heirs ofthe persons who have been found missing; Reply-The total compensation Rs.1,19,00,000/- paid to thelegal heirs of the 60 missing persons. The compensationto the legal heirs of the remaining missing persons has notyet been given for the reasons that the legal heirs were notfound, residential addresses were not found, undertakingnot submitted by the legal heirs, police case is registeredagainst the missing person, etc.

(iii) What is the reference to the compensation paid to heirs ofvictims; Reply – The compensation to legal heirs of victims and thecompensation for the loss of property is given with reference tothe Government Resolution, dated 08.07.1993. A true copy of theGovernment Resolution dated 08.07.1993 is annexed herewith andmarked as Annexure-R-2.

The compensation paid to the legal heirs of missing persons isgiven with reference to the Government Resolution, dated22.07.1998. A true copy of the Government Resolution dated22.07.1998 is annexed herewith and marked as Annexure-R-3.

(iv) Whether any compensation has been paid for loss of property;Reply – Compensation for Rs.3,31,92,658/- has been paid for lossof property. The bifurcation is as below :-

(v) When was these compensations paid i.e. the time lag betweenthe date of the incident and the compensation being made.

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AReply – After the guidelines issued by GR dated 08/07/1993 and GR dated 22/07/1998, the compensation was paidfor over the period from year 1992 to 2010 after thoroughscrutiny of the cases of compensation as per the GR norms,from time to time.”

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22. Under Section 108 of the Indian Evidence Act, 1872, there isa presumption that if a person has not been heard of for seven years ormore by those who would naturally have heard of him if he had beenalive, such a person is presumed to be dead unless the contrary is provedCby the person who affirms it. It is in view of the statutory presumptionthat the State Government has come out with the scheme to paycompensation of Rs.2 lakhs to the legal heirs/family members of themissing persons. Now, coming to the missing persons, the family membersof only 60 missing persons have been paid compensation. As regardsthe family members of remaining 108 missing persons, compensationDwas not paid for various reasons, such as, the persons concerned werenot found, their residential addresses were not found, undertakings werenot submitted by them etc. The State Government has not set out theefforts made to trace the family members of the missing persons and tomake sure that they make compliance, such as the execution of theEundertakings. We propose to constitute a Committee headed by theMember Secretary of the Maharashtra State Legal Services Authority(for short, ‘MSLSA’), to look into the records relating to the remaining108 missing persons. We propose to direct the State Government tonominate a Revenue Officer, not below the rank of Deputy Collectorand a police officer not below the rank of Assistant Commissioner ofFPolice as the other two members of the Committee. The Committeeshall monitor the efforts made by the State Government to trace thefamily members of missing persons, whose addresses are not availableand also to ensure that those eligible persons who have not madeprocedural compliances are assisted to make necessary compliance.GThe Committee will have to also monitor compliance with the directionsissued by this Court as regards payment of compensation to all categoriesof victims.

23. In the affidavit of the State Government, a stand has beentaken that compensation has been paid to those whose houses/stalls/huts were damaged or destroyed. Reliance is placed on the firstH

Government Resolution. The Resolution provided for giving followingassistance:

“Financial relief to the victims of bomb blasts in Mumbai city andMumbai suburbs on and after 12[th] March 1993.

1. Distress relief: - Every destitute person Rs. 250/-.

2. Grant for reconstruction of hut: - For each house of destroyedhut: According to the extent of damage caused to the hut Rs.5000/- whichever is less, grant should be given.

3. Renovation of houses: - For renovation of residential house,along with subsidy of Rs.5,000/- and loan of Rs.10,000/-, amaximum of Rs.15,000/- financial support.

4. Repair of Houses: - for the sake of house repairs, Rs.6000/-and Loan of Rs.5000/-, it means, grant of up to Rs.11000/-maximum.

5. For destroyed stall and shops: - for Destroyed stalls, amountshould be given as subsidy equal to the cost of damage or amaximum of Rs.5000/-.

6. Assistance for ‘burnt carts’: - to the hand cart owners, whosecarts have been destroyed by fire should be given a subsidy ofRs.2500/- each.

7. Compensation Amount of Rs.2 lakhs grant to relatives ofdeceased persons:

8. A grant of Rs.25,000/- to a person with permanent disability.

9. To give subsidy of Rs.10,000/-to a person with temporaryphysical disability.

10. Assistance of Rs.5000/- for admitted more than 24 hours inany private Hospital.

11. Medical aid for less than 24 hours hospitalization will beRs.1000/- or the exact expresses of the hospital which will less,will be given as assistance.

12. Rs.25,000/- financial assistance to the Taxi owners whosevehicle is totally burnt.

13. To the surviving Rickshaw owners, Rs.13,000/- whoserickshaw is totally burnt.”

A

B

C

D

E

F

G

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A24. In the earlier affidavit of compliance of Shri Amitabh Gupta,the State Government has not taken a stand that compensation in termsof the first Government Resolution was paid to all the victims of the1992 and 1993 riots who were eligible to receive the same. The StateGovernment was under an obligation to pay compensation to the eligiblevictims within a reasonable period which can be taken as period of sixBmonths from the dates of the respective Government Resolutions.Therefore, the Committee will have to peruse the records to ascertainwhether compensation was paid to all eligible persons. The Committeeshall ensure that compensation is paid in terms of the first GovernmentResolution to various categories of victims of the 1992 and 1993 riots.CAfter examining records, if it is revealed that some of the victims havenot been paid compensation, the Committee formed as above, will haveto ensure that compensation is paid to the victims in terms of the firstGovernment Resolution by the State Government. The interest will haveto be paid to such victims who have not been paid compensation at therate of 9% from the expiry of the period of six months from the date ofDthe first Government Resolution till the date of payment of thecompensation amount.

25. Even as regards the payment of compensation of Rs.2 lakhsto the legal heirs of 108 missing persons, the State Government will haveto pay interest at the rate of 9% from the expiry of the period of sixEmonths from 22nd July 1998 when the second Government Resolutionwas issued.

26. Though as per the order dated 30[th] August 2022, the StateGovernment was expected to give details about the time lag betweenthe date of the incident and the date of payment of compensation, theFState Government has avoided to furnish the material particulars andonly a vague statement has been made that compensation was paid interms of both the Government Resolutions between 1992 and 2010. Thisstatement shows that there was considerable delay in disbursing thecompensation amount. The State Government will have to provide allthe details expected to be furnished in terms of the order dated 30thGAugust 2022 to the Committee. The Committee will find out the caseswhere there has been a delay of more than six months in making paymentof compensation in terms of the first or the second GovernmentResolutions, as the case may be. Interest at the rate of 9% from thedate of expiry of the period of six months from the dates of the relevantHapplicable Government Resolution till the date of actual payment will have to be paid by the State Government. The Committee will have todecide the issue of entitlement to interest in terms of these directions.We cannot allow the victims to suffer only because there was a delay inthe disposal of this writ petition. The Committee can always take thehelp of the Para Legal Volunteers to reach the persons who have beendeprived of compensation and to render assistance to them to complywith the formalities.

A

B

27. Shri Colin Gonsalves, the learned senior counsel made a ferventplea for enhancing the quantum of compensation on the ground that thesame was inadequate. The quantum of compensation has been fixedway back in the years 1993 in the context of the then prevailing situation.There is no prayer made for enhancement of compensation in this writpetition of the year 2001. Therefore, it may not be appropriate to accedeto the prayer for grant enhancement after such a long passage of time.

C

28. Hence, we dispose of the petition by passing the followingorder.

D

i.There shall be a Committee headed by the MemberDSecretary of MSLSA to monitor the implementation of thedirections issued by this Judgment. The State Governmentshall appoint a Revenue Officer, not below the rank ofDeputy Collector, and a Police Officer, not below the rankof Assistant Commissioner of Police, who shall be the otherEtwo members of the Committee;ii.The State Government shall submit to the Committee areport containing details of 168 missing persons includingtheir names and addresses. The State Government will alsoplace material regarding efforts made to trace familyF

ii.The State Government shall submit to the Committee areport containing details of 168 missing persons includingtheir names and addresses. The State Government will alsoplace material regarding efforts made to trace familymembers of 108 missing persons who have been deprivedof compensation in terms of the second GovernmentResolution. The State Government shall make all possibleefforts to trace the legal heirs/family members of the missingpersons. The Committee shall monitor this exercise. TheCommittee shall assist the legal representatives of themissing persons to complete the procedural formalities;iii.The State Government shall also submit to the Committeethe record relating to compensation paid in terms of theAnnexure to the First Government Resolution as well as interms of the second Government Resolution by incorporating G

H

the specific dates on which the compensation was actuallypaid to the persons entitled to it. The State Governmentshall also provide a list of victims who have not been paidcompensation in terms of both the Government Resolutions; A

iv.The State Government shall pay compensation of Rs.2 lakhsto the legal heirs of the missing persons traced out hereafter,with interest at the rate of 9% per annum from 22[nd ]January1999 i.e. from the expiry of the period of six months fromthe date of the second Government Resolution, till actualpayment; B

v.The Committee consisting of the Secretary of MSLSA andCthe other two Government Officers appointed under thisorder, shall monitor the efforts of the State Government totrace other victims who were entitled to compensation interms of the Annexure to the first Government Resolutionbut compensation was not paid to them. The victimsDidentified hereafter shall also be paid the compensation withinterest at the rate of 9% per annum from 8[th] January 1994i.e. from the expiry of the period of six months from thedate of the First Government Resolution, till actual payment; D

vi.To those who were paid compensation after the expiry ofthe period of six months from the date of the applicableEGovernment Resolution, the State Government shall payinterest at the rate of 9% per annum on the amount of thecompensation payable from the expiry of the period of sixmonths from the date of the applicable GovernmentResolution till the date of payment. This direction will applyFto those who have received compensation before the dateof this Judgment. The Committee, after examining therecord, shall furnish to the State Government the details ofthe victims who are entitled to receive interest as above;

The State Government shall comply with the requirementof submitting necessary details as aforesaid to theCommittee within a period of two months from today.Appointment of the two officers, as directed above, shallbe made within a period of one month from today. Both theGovernment Officers shall coordinate with concernedDepartments and ensure that necessary details, as directed

vii.

G

H

by the Committee, are furnished to the Committee withinthe specified time of two months; A

viii.The entire exercise of payment of compensation and/orinterest shall be completed by the State Government withina period of nine months from today. The State Governmentshall report compliance made from time to time to theCommittee. A detailed report containing details of thecompliance of the directions as aforesaid shall be filed bythe Secretary of MSLSA with this Court within a period often months from today; B

ix.The Committee shall seek necessary guidance from theExecutive Chairperson of MSLSA for implementation ofthe directions issued by this order. The Committee shall beentitled to seek the assistance of Para Legal volunteers; C

x.The State Government shall provide details of the onlypending riot related criminal case before the Sessions Courtat Mumbai to the Registrar General of the Bombay HighDCourt who shall bring it to the notice of the concerned Courtthat the case needs to be disposed of at the earliest;

xi.The State Government shall provide details of 97 cases ondormant files to the Registrar General of the Bombay HighCourt within one month from today. On receipt of thedetails, the High Court on the Administrative side shall issuenecessary communication to the concerned Courts in whichthe cases are pending to take necessary steps to trace theaccused. The State Government shall immediately constitutea Special Cell to trace the absconding /missing accused inthese cases and to assist the concerned Courts so that theTrial can proceed against them; and E

F

xii.The State Government shall expeditiously implement all therecommendations made by the Commission on the issue ofreforms in the police force which were accepted by it.

G

29. Writ Petition is disposed of with the above directions. A copyof this judgment shall be forwarded to the Member Secretary of MSLSA.

Ankit Gyan

(Assisted by : Aarsh Choudhary, LCRA)

Writ petition disposed of.

H