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Above: Vehicles burnt during the Gujarat riots/Photo: Pramod Pushkarna

Sajjan Kumar’s conviction shows the need for this law in India which has often been rocked by pogroms. But is there political will to do so when it could lead to prosecution of public servants?

 

~By Colonel R Hariharan

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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