The genocide of Sikhs in 1984 was followed by a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal in 2008, in Muzaffarnagar in 2013, to name a few. A common feature of these crimes was the targeting of communities and being spearheaded by dominant political actors being facilitated by the law enforcement agencies. Since these criminals enjoyed political patronage at the highest levels, punishing the guilty has proved elusive even after decades. There is no law in India now against genocide or crimes against humanity. There is no law under which “dominant political actors being facilitated by the law enforcement agencies” can be brought to trial and punished.

A particular case involving the killing of five Sikhs in Raj Nagar Part I area in Palam Colony in South West Delhi in 1984 illustrates this point. Six criminals including Sajjan Kumar, a member of Parliament belonging to the ruling party, were brought to trial in 2010, twenty six years after the crime was committed, following massive protests and demonstrations. Three years later the trial court acquitted Sajjan Kumar of all offences. After some more years of courage and perseverance by family members of the victims and human rights organisations, Sajjan Kumar’s acquittal was reversed by the Delhi High Court. The efforts to mete out punishment to other murderers also followed a similarly long and rough trail for the families of victims.

The judges who reversed the acquittal of Sajjan Kumar, Justice S. Muralidhar and Justice Vinod Goel, pointed out that these crimes were in fact “crimes against humanity”.

It is well known that majority of incidents of communal violence in our country are organised by definite political parties with the full backing of the state machinery from the highest to the lowest levels. When the police and administration are actively participating in communal violence, the victims have nowhere to go for protection. There is no law that recognises state organised communal violence as a crime, and punishes the principal organisers of the violence on the basis of command responsibility. In all such cases the victims had not only to cope up with their losses but also muster courage to file cases against influential criminals who have the full backing of the ruling establishment and the state machinery.

When enquiry commissions came up with solid evidence the government of the day had to accept that the incidents did take place but at the same time they denied the complicity of those having command responsibility in these incidents. A few criminals have been prosecuted and a few officers at the lower levels have been transferred in such incidents but the principle of command responsibility, that those in highest positions of authority should be held accountable, has been ignored.

The judgement in the above case concluded that ‘cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere.’

Lok Raj Sangathan has repeatedly pointed to the need for a law to protect people from communal and sectarian violence. Justice Hosbet Suresh, former President of Lok Raj Sangathan, along with Justice Sawant and Teesta Setelvad had even prepared a draft bill to address the issue. It was called Prevention of Communal and Targeted Violence (Access to Justice and Reparations) Bill, 2011. The draft bill fixed command responsibility in case of communal massacres.

In November 2012, a Seminar on “Towards an Effective Law to Prevent Communal and Sectarian Violence” was organised by the Lok Raj Sangathan along with many other organisations. Eminent jurists and activists participated in the seminar and made valuable contributions. At this seminar, Justice Suresh stressed on the need for a special law to deal with state organised communal and sectarian violence based on the International UN Convention on Genocide, which was signed by India in 1959. He highlighted important principles of this Convention, such as no immunity for crimes of genocide, punishment to the guilty even if there was no law at the time of the crime, no statutes of limitation, no limitation of time, no prior sanction to prosecute, and no need for a complaint from the victim to investigate the crime. The draft bill was submitted to the Manmohan Singh government, which did not bother to take it up for approval in the Parliament.

The Central Government has recently tabled revisions and amendments to the IPC, CrPC and the Evidence Act with the stated aim of making these laws simpler and removing colonial vestiges. But it has left out crimes against humanity, including state organised communal and sectarian violence, from the purview of these laws. At the same time, it has retained special laws such as UAPA which penalise victims and activists for raising their voice against such crimes.

Justice has been denied repeatedly to victims of state-organised communal violence and other crimes against humanity. The present political system does not offer any mechanism for the people to hold those in charge accountable when such monstrous crimes take place. The powers that be have placed themselves above the people and above law.

India needs a law that upholds command responsibility for state organised communal violence. Governments and people’s representatives must be made accountable to the people. There is need for the creation of mechanisms by which people can ensure that those guilty of crimes against humanity are punished and such acts are prevented from happening again and again.

Image caption: A rally demanding punishment for the guilty of 1984 at Jantar Mantar

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