~By Colonel R
Hariharan | India Legal | December 22, 2018| http://www.indialegallive.com/
The sentencing of Congress leader Sajjan Kumar to life
imprisonment for his role in the 1984 anti-Sikh riots, where more than 2,700
were killed in the capital, is not the first case of mass killing. Nor is it
the first time when the long arm of the law was not strong enough to deliver
justice as the accused had the right political connections.
This is an apt case study for a host of things that are wrong
with our law enforcement, judicial system, criminal prosecution, et al. When
it comes to handling real life cases, particularly mass killings like the 1984
anti-Sikh massacre, politics seems to take precedence over all other
considerations.
In this context, the observations of the Delhi High Court bench
of Justices S Muralidhar and Vinod Goel while convicting Sajjan Kumar are
relevant. They said “cases like these are to be viewed in the larger context of
mass crimes that require a different approach”. Noting that in Delhi alone,
2,733 Sikhs were killed and nearly 3,350 Sikhs done to death all over the country,
the judges said
this was “neither the first instance of mass crime, nor tragically, the last”.
They indicated a
familiar pattern of killings in Mumbai in 1993, Gujarat in 2002, Kandhamal,
Odisha, in 2008 and Muzaffarnagar in UP in 2003. The common link in such crimes
was targeting of minorities and “attacks spearheaded by dominant political
actors being facilitated by law enforcement agencies”.
While they were stating the obvious, this is not the first time
judges have made such a statement. On August 21, 2009, additional sessions
judge Surinder S Rathi in Delhi had found three persons guilty of rioting,
attempt to murder and arson. He had observed: “Though we boast being the
world’s largest democracy and Delhi the national capital, the sheer mention of
the incidents of 1984 anti-Sikh riots in general and the role played by Delhi
Police and state machinery in particular makes our heads hang in shame in the
eyes of the world polity.”
In a way, the
1984 riots were a watershed in Indian politics. Delhi-based lawyer HS Phoolka,
who represented the 1984 victims, had said it showed the creeping
criminalisation of Indian politics. “Before the 1984 riots, there were no
criminals in politics. Criminals followed politicians. But 1984 made them
realise people leading mobs and killing others could get elected and become
leaders. So a way was opened for criminals to make politics a profession,” he
said.
This probably sums up the problem in handling mass
killings—political actors and subservient law enforcement agencies conniving to
protect criminal elements. Politics rides on the back of governance like King
Vikram’s Vetala, a spirit that would not get off, until the King solved the
riddle. Unfortunately, governance is not the king in our case, so it is the
politician, the Vetala, who solves the riddle to suit his end.
The judges also called for changes in criminal law to include
specific offences for “crimes against humanity” and “genocide”. Such a loophole
allowed the accused responsible for mass crimes to evade prosecution and
punishment. The bottomline is that India has not defined genocide by law,
though the UN convention on genocide ratified it in 1959. “Genocide” does not
find a place in the Indian Penal Code.
The UN General Assembly adopted the Convention on the Prevention
and Punishment of the Crime of Genocide on December 9, 1948, as Resolution 260.
It came into force on January 12, 1951. And on December 2017, 149 states
ratified or acceded to the treaty. India had participated in the 1948 genocide
convention and contributed to its drafting. India ratified it on August 27,
1959.
Actually, by ratifying the convention, India has recognised
genocide as an international crime, which it has undertaken to prevent and
punish as per Article I of the Convention. It has also undertaken to enact the
necessary legislation “to give effect to the provisions” of the Convention, to
provide effective penalties for persons guilty of genocide or any other acts
related to genocide through a competent tribunal.
The Convention in
Article II defines genocide as “any of the following acts with intent to
destroy, in whole or in part, a national, ethnic, racial or religious group, as
such: (a) Killing members of the group; (b) Causing serious bodily or mental
harm to members of the group: (c) Deliberately inflicting on the group
conditions of life calculated to bring about its physical destruction in whole
or part; (d) Imposing measures intended to prevent births within the group;
(and) (e) Forcibly transferring children of the group”.
Article III renders punishable not only acts of genocide but
other acts related to it like conspiracy to commit genocide, direct and public
incitement to commit genocide, attempt to commit genocide and complicity in
genocide.
Though the Narendra Modi government showed alacrity in reopening
the 1984 anti-Sikh riots case of Sajjan Kumar, it still does not seem to be in
a hurry to recognise the need for enacting laws in conformity with the UN
convention on genocide. In fact, in the Rajya Sabha on March 2, 2016, a
question was raised about the government’s plans in enacting laws in conformity
with the UN convention on genocide and racial discrimination and, if not,
reasons for not enacting them. Answering the questions, Kiren Rijiju, minister
of state for home, said:
“By acceding to the Convention on the Prevention and Punishment
of the Crime of Genocide in 1959, India has recognised genocide as an
international crime. The principles embodied in the Co-Convention are part of
general international law and therefore already part of common law of India.
The provisions of the Indian Penal Code including the procedural law (Criminal
Procedure Code) provide effective penalties for persons guilty of the crime of
genocide and take cognisance of the acts which may be otherwise taken to be in
the nature of genocide.”
The catch in the
minister’s contention that the provisions of the IPC, including the procedural
criminal law, “provide effective penalties for persons guilty of crime of
genocide” is flawed because genocide is not defined in the IPC. This probably
shows the government’s reluctance to enact separate laws to handle genocide and
crimes related to it because Article IV of the UN Convention says “persons
committing genocide or any other acts enumerated in Article III shall be
punished, whether they are constitutionally responsible rulers, public
officials or private individuals”. In other words, a separate law for genocide
would mean sacrificing the protection given to public servants from prosecution
under Section 197 of the Code of Criminal Procedure, 1973, which had been used
to prevent and delay prosecution of guilty public servants.
But Article 51(c) of the Constitution enjoins the State to
“foster respect for international law and treaty obligations”. Article 253
mandates the Parliament “to make any law for implementing any treaty, agreement
or convention”. So both the government and Parliament have an obligation to
enact separate laws for genocide and related acts as required by the UN
Convention.
HL Mencken, editor of The Baltimore Sun, described democracy as
the art and science of running a circus from the monkey cage. As the world’s
largest democracy, we seem to be a living example of it.
Bangladesh was able to overcome both domestic and international
roadblocks to prosecute those involved in the mother of all genocides in the
run-up to its independence? Why can’t we?
—The writer is a military intelligence specialist on South
Asia, associated with the Chennai Centre for China Studies and the
International Law and Strategic Analysis Institute
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