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Need for Criminalization of the Crime of Genocide Under National Legislation

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Need for Criminalization of the Crime of Genocide Under National Legislation Indian Journal of Legal Research & Advancements Volume 1Issue 1, October 2020 A MURDER OR MASS MURDER: THE COMMUNAL FRENZY OF 1984 RIOTS: The need for criminalization of the crime of genocide under national legislation RIYA SINHA* INTRODUCTION Quite rightly put by William E Gladstone that “Justice can be delayed, not denied.” - William E Gladstone. The bereaved family members of the victims of the 1984 riot finally lived the moment they have been fighting for several decades. Judgment in the case of State through CBI v. Sajjan Kumar & Ors.† was welcome news throughout the country which convicted the congress leader who was charged for conspiracy and murder of many Sikhs in the 1984 riots. The penal law in the country lacks the provision to punish the crimes against humanity or genocide. The existing penal framework has loopholes that favor such criminals in dodging the charges for a very long time. Numerous difficulties are faced by the victims’ family while prosecuting the criminals of heinous crime like that in Sajjan Kumar case or other such cases of mob lynching. the reason for the same can be attributed to the political patronage enjoyed by the criminals and aids provided by different law enforcement agencies. The accused in the 1984 riots have successfully managed to escape punishment for two decades. The question arises as to what is the flaw in the legal system which delays the administration justice. Unfortunately, the Indian municipal legal system fails to appreciate the importance of legal principles of international criminal law that provides for the prosecution of offences such as crimes against humanity, genocide, war crimes, Act of aggression. Penetration of these principles will smoothen the process of seeking justice in matters involving a grave violation of municipal as well as international law. This article highlights the difficulties faced in prosecuting the cases of lynching in absence of any specific law in place to address the issue. Furthermore, arguments are presented to support the claim *The author is B. A. LL.B.(Hons.) student at National University of Study and Research in Law, Ranchi † 2018 SCC OnLine Del 12930. that India should enact a separate law to criminalize and penalize the horrendous acts of genocide, crimes against humanity. THE 1984 RIOTS- HISTORICAL BACKGROUND The Nanavati commission termed the 1984 riot as the Sikh genocide.‡ In order to differentiate the offence of Murder with that of genocide & crimes against humanity, one should look into the background of the case and understand the intention behind such lynching. The chain of events that lead to the horrendous riots in 1984 is crucial to demarcate the intentions of the perpetrators of the offence. In the year 1984, India lost one of its most dynamic and influential leaders. The then serving prime minister of India, Mrs. Gandhi’s popularity was such that many had blind faith in her. She was seen as the mother of the nation by many of her followers. In her serving period, she had changed the picture of the Indian constitution to a large extend and not only that her fearless moves often attracted positive as well as negative reaction worldwide§. An example is the operation Blue Star. The purpose of the operation was to arrest the Bhinderwals who were a group of rebels demanding an independent country status for Punjab. They found a safe recluse in the golden temple which is a preeminent pilgrimage of Sikhism and since its inception, no army personals have entered the premises of the temple. Taking advantage of this fact the Bhinderwale’s hide in it for weeks before Mrs. Gandhi allowed the army to enter the temple premise and arrest them.** This created a wide uproar amidst the Sikh community residing in every part of the country. For them, it was an attack on their religion, faith, and dignity. Religious violence in India is not an unheard practice but not very often the victim is the prime minister of the country itself. To avenge the Sikh community, bodyguards of Mrs. Gandhi, Beant Singh and Satwant Singh assassinated her ‡GT Nanavati, 'Justice Nanavati Commission of Inquiry (1984 Anti-Sikh Riots)' (Ministry of Home Affairs, Government of India, 9 January 2005) <https://www.mha.gov.in/sites/default/files/Nanavati-I_eng_0.pdf> accessed 25 September 2020 § RVR Chandrasekhara Rao, ‘Mrs. Indira Gandhi and India's Constitutional Structures: An Era of Erosion’ (1987) 22 J. Asian Afr. Stud. 156,175 ** Karan Madan, 'Anti-Sikh riots: What happened in 1984 and after? ' (Gulf News, 21 November) <https://gulfnews.com/world/asia/india/anti-sikh-riots-what-happened-in-1984-and-after-1.60501721> accessed 25 September 2020 Page | 1 on 31st October, 1984. Although it is not known whether this act gave any peace to the Sikhs of our country but what can be said with utmost certainty is that the Sikh community was seen with hatred and disgust by the majority of the supporters of Mrs. Gandhi and congress loyalists.†† Unfortunately, this hatred resulted in massive destruction and lynching of many Sikh men, women and children. Several houses and Gurudwaras were burnt and many women were raped.‡‡ The most devastating effect was seen in the cities of Punjab and Delhi. A glance at the statements made by the survivors of the riots itself depicts the motive to wipe off the entire Sikh community living in the country. A reference to some of the statements by the family members of the victims of the 1984 riot brings out the agonizing tale of cruelty. “accused attacked the Gurudwara whilst armed with sariyas, rods, subbal, jellies, etc. and raising slogans such as “Indira Gandhi amar rahe” and “In sardaron ko maro, inhone hamari maa ko mara hai.”- long live Indira Gandhi, kill these Sikhs, they killed our mother. “Sikh sala ek nahin bachna chahiye, jo Hindu bhai unko sharan deta hai, uska ghar bhi jala do aur unko bhi maro.”- No Sikh man should be spared alive, if a Hindu helps a Sikh then kill them also and burn their houses. “In Sikhon ko maro; in gaddaron ko maro; Hindustan mein ek sikh bhi jinda nahi bachna chahiyen.”§§- Kill these Sikh men. Not a single Sikh should be left alive in India. The above statements made by the accused are evident of the fact that they were against an entire community irrespective of whether the person killed is innocent or guilty or shared the same view as that of the assassinators of Mrs. Gandhi. Therefore, this is not a case of murder, riot, or grievous hurt. Instead, the act stems from a deeper sense of hatred towards a particular religion and would qualify as genocide. However, in absence of any legislation penalizing such offence, the prosecution could only press the charges of offences against body or property. †† Kundu, Apurba, ‘The Indian armed forces' Sikh and non-Sikh officers' opinions of Operation Blue Star’ 67 (1994) Pacific Affairs 46,69 ‡‡ Id. §§ State through CBI v. Sajjan Kumar & Ors., 2018 SCC OnLine Del 12930 Page | 2 WHY DO WE NEED TO CRIMINALIZE CRIME OF GENOCIDE AND CRIMES AGAINST HUMANITY UNDER NATIONAL LEGISLATION? It was wisely put by G.H. Stanson***, that the Indian society is itself marred by several religious, cultural as well as ethnic differentiations. This cultural and ethnic diversity has led to various cases of mass murder which would qualify as crimes against humanity and genocide. India is full of diverse cultures, ethnicity, which is why incidents of lynching on the pretext of religious belief and communal rivalry occurs in every part of the country. However, the blatant ignorance of the government is uncanny. India follows a ‘dualistic’ system in the matter of implementation of international law whereby any treaty to which it is a signatory does not become part of national laws by itself. Instead the parliament has to enact enabling legislation under Article 253 of the Constitution, which obliges Parliament to make any law “for implementing any treaty, agreement or convention”. Furthermore, Article 51 of the Indian constitution, requires India to endeavor to “foster respect for international law and treaty obligations”.††† Despite such obligations imposed by the Indian constitution, the government has failed to respect the genocide convention which was signed and ratified by India in 1948 and 1958 respectively. According to Article 5 of the convention, government must criminalize genocide and enact appropriate laws to punish the perpetrators of such crime.‡‡‡ The Gujarat Riots (2002) §§§, decade old Kandhamal violence and Muzzafarnagar riots (2013) enlarged the debate around administrative immunities to the insufficient policy of mass crime penal laws.**** Even now the cases of mob lynching and communal violence are taking a toll. The prime reason for the continuous occurrence of such an act is because these acts go unpunished in most cases, or the accused is punished for less severe crimes. The core of the issue is not addressed hence the criminals are not deterred or discouraged from committing such act over and over again. Some *** Dr. G.H. Stanton, ' India 2020: Those Who Own The Past Own The Future' (Genocide Watch, 8 January 2020) <https://www.genocidewatch.com/single-post/2020/01/07/India-2020-Those-Who-Own-The-Past-Own-The- Future> accessed 25 September 2020 ††† State of West Bengal v. Kesoram Industries Ltd, (AIR 2005 SC 1646) ‡‡‡Aftab Alam, 'India must enact a domestic law on Genocide' (Countercurrentsorg, 24 January 2019) <https://countercurrents.org/2019/01/india-must-enact-a-domestic-law-on-genocide/> accessed 25 September 2020 §§§ Sanjoy Majumder, 'Narendra Modi 'allowed' Gujarat 2002 anti-Muslim riots' (BBC News, 22 April 2011) <https://www.bbc.com/news/world-south-asia-13170914> accessed 25 September 2020 **** Narender Kumar, Politics and Religion in India (1st edn, Routledge India 2019) Page | 3 of the arguments are presented below which highlight the flaw and lacuna in the existing penal law and the need for penetration of international principles in domestic law.
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