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)
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)
❖ SIGNIFICANCES OF ROME STATUTE- A GOSPEL’S TRUTH-
Since the inception of the Rome statute, India has not appreciated the powerful impact of the statue on the Indian legal system. The principles enshrined in the statue are to a large extent a gospel truth. The statute provides that the most serious crimes in the world should not go unpunished in any circumstances. Such legislation is needed because, in every decade, the cases of mass murders, genocide, crimes against humanity arises, and justice is not delivered because of various types of impunity offered by the national govt. to the perpetrators. Not only that there are instances of various other sorts of amnesty provided to them.†††† The UN-brokered peace agreement for Haiti is a classic example of amnesty provided to end the Cedras regime.‡‡‡‡ The domestic implementation of the principles of the Rome Statute provides an opportunity for the states to strengthen their criminal justice systems so that they can prosecute the ICC crimes themselves. Enactment of a legal framework implies a deterrent effect for the miscreants. The statue helps in the realization of the victims’ rights by ensuring fair trials in case of international crimes.
The independence of the Judiciary is extremely important for the delivery of justice, and the adoption of the principles of the Rome statue would help in ensuring communication between the national judicial organs and the ICC. It would protect the judiciary from any inference or hindrance caused by the executive or legislature, and also promote equal application of the law and the separation of powers.
❖ PENOLOGICAL PERSPECTIVE -
Penology is concerned with the punishment and treatment of offenders.§§§§ Punishment for a crime is basically reformation or rehabilitation of the people. In the 19th and 20th century, the punishment was essentially in form of revenge. The underlying concept was that the person must suffer an equal amount of pain he has inflicted on others.***** However, with advent of time and development of logic and reason, the legal system also evolved. The focus shifted from crime to criminals. The
††††Prosecutor v. Mucic et al. (“Celebici”), Case No. IT-96-21-T, Judgment Trial Chamber, ¶226 (I.C.T.Y. November 16, 1998) ‡‡‡‡Marcos Mendiburu and Sarah meek, Managing Arms in Peace Processes: Haiti (United Nations Publication 1996) §§§§ N.V. Paranjape, Criminology, Penology and Victimology (17th edn, Central law publications 2018) 21 ***** Kent A. Wilson, ‘Vengeance and Mercy: Implications of Psychoanalytic Theory for the Retributive Theory of Punishment’ (1981) 60(2) Neb. L. Rev 276 Page | 4 severity of punishment was not solely based on brutality of the crime. Instead, Mental element was shown great importance while punishing a criminal. Minors, lunatics, intoxicated persons were given less punishment for the same crime than the ones who committed it in full senses and knowledge. The reason for this was that all the actions of a person are guided by his mind and thoughts. So, a guilty action can be prevented only when we stop the formation or reformation of the guilty mind. The possible way to do the same is through deterrence or rehabilitation of the ones who have already committed an offence.
Every crime is not committed with the same mindset or motive, they differ in terms of intention or motive. Punishing two different crimes similarly would render the entire purpose of punishment futile. Genocide is a crime entirely different from murder, assault or grievous hurt. The key difference is that genocide stems from hatred against an ethnic or religious group which is absent in murder, assault or grievous hurt.††††† So, the approach towards punishing genocide should also be different. Because if he is punished for murder, the convict is only being accountable for killing of a man. The feeling of hatred against an ethnic or religious group would go unnoticed, uncured. That sense of hatred would prevail even after the man has served the sentence because the same was not addressed while sentencing him. The hatred continues, which means that the root cause of the problem also remains.
❖ DIFFICULT TO ESTABLISH THE GUILT -
The perpetrators of the mass murder manage to dodge the punishment for decades solely because of the loopholes in the penal law of the country. Even if conviction happens, the perpetrators are charged for less serious offences such as theft, supply of arms, communal incitement or other such penal offences.
It is imperative to realize that genocide or crimes against humanity are neither a case of simple murder or criminal conspiracy as it is generally understood. The most significant aspect of the crime of genocide or crime against humanity is the “intention “which distinguishes it from a case of murder or inflicting bodily harm. In case of genocide or crimes against humanity, one targets
†††††The Hindu, 'Lynching, not murder: On Tabrez Ansari killing' (The Hindu Editorial, 12 September 2019)
In such cases, the prosecution finds it difficult to establish the guilt of the perpetrators under the existing national legislation because either there are no eyewitnesses at all or the eyewitnesses turn hostile due to the death threats or political pressure. Such instances can be observed in the Sajjan Kumar case§§§§§ where the lynching and mass murder took place in daylight yet only 3 eyewitnesses chose to continue with their stand. Most of the eyewitnesses chose to become hostile eventually. This was one of the prime reasons for the delayed conviction of the accused. Had there been any provision criminalizing the acts of crimes against humanity or genocide, it would have been sufficient to establish the guilt is ‘Dollus Speciallis’ or specific intent to attack a particular group is proved.******
Moreover, it is difficult to establish the presence of such a leader like Sajjan Singh at the crime scene because they operate from a distant place. But to establish the guilt of crimes against humanity or genocide it is sufficient to the show that the leader or perpetrator was present at few crime scenes and there is evidence of planning, incitement, abetment against them.
❖ PLIGHT OF VICTIMS-
Justice is said to be done only when the victim’s sufferings are acknowledged. If the victim knows that the crime is hidden and would continue to remain buried then the sense of reconciliation cannot be reasonably expected from them. Therefore, recognition of crimes of genocide or crimes against humanity is imperative to serve justice. The denial of genocide or crimes against humanity makes it more likely to reoccur. Denial harms the victims and the survivors.†††††† Since the conviction occurs in very few cases and the accused are often charged for riots or other underlying offences, the victims are not sufficiently repatriated or rehabilitated.
‡‡‡‡‡ Clifton D' Rozario, Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill, 2005 Some Reflections. (Alternative law Forum) §§§§§ 2018 SCC OnLine Del 12930 ****** Krstić (IT-98-33) †††††† Wolhuter, Lorraine, Neil Olley, and David Denham. Victimology: Victimization and victims’ rights (Routledge 2008) Page | 6
CONCLUSION - It is unfortunate that the victims of riots of the 1984 or other victims of such riots like in the case of Gujarat riots or the lynching of Muslims have to wait for so long to get justice. Humanity is ashamed of the brutal act of the perpetrators. Although it would be impractical to give retrospective effect to the proposed genocide legislation. But the least the government can do is to assuage the feeling of victims by making separate legislation to criminalize the offences like genocide and crimes against humanity.
Furthermore, the genocide convention necessitates the formation of a separate tribunal essential to try cases specifically in matters of genocide the same should be established by the government as it would exclude any possibility of interference by the accused or the interested party who is in power. The concerned citizens tribunal in Gujarat (a human rights advocacy group) emphasized the need for establishment of a Standing National Crimes Tribunal to try such cases. The tribunal shall dispose such cases within fixed time and shall have the power to compensate and rehabilitate victims and the aggrieved families. Such a tribunal must have independent investigating agency so as the avoid the manipulation of the local authorities are at the hands of the powerful ones. ‡‡‡‡‡‡
The denial on part of the government to give justice to the victims leaves them helpless and this leads to the cycle of revenge and killings. Mere compensation is not justice for the victims who have suffered the loss of their loved ones. They need reparation, restorative justice. The government cannot punish the horrendous act of genocide under the veil of murder, conspiracy or other such penal offences. Because such acts not only affect the victims and its family but shocks the conscience of humanity at large. The ignorance of such offences not only encourages such criminal acts but also puts the security, peace and life of each individual living in India in jeopardy.
‡‡‡‡‡‡ Guru, Ankita, ‘Need for Law on Genocide in India: In the Light of India’s Obligation to the Genocide Convention1948’ 2(1) (2015) RGNUL Student Law Review 84,102 Page | 7