By Aniket Panchal and Diya Vaishnav
Introduction
“It is forbidden to kill; therefore, all murderers are punished unless they kill in large numbers and to the sound of trumpets.” This distinct quote by a French Writer Voltaire exposes a jarring truth in the realm of the domestic legislation of India. The substantive law of India doesn’t enumerate any specific provision for the crime of crimes, Genocide. This lacuna in the criminal justice system is hardly in congruence with the need for the law to be a deterrent and only intensifies the brazen assurance of the violent individuals and groups that they will be left untouched. In the past, it was gravely wrong when the people responsible were not held liable and the victims of carnage were left with no recourse. India is not only paving the way for this ruthless inhuman activity to persist on its land, but also violating its international obligations. Thus, it is imperative that we shed light on this unfilled space before any more bloodshed ensues, yet again
Sovereignty v. Impunity
Neither ‘crimes against humanity’ (CAH) nor ‘genocide’ has been made part of India’s domestic criminal law, a lacuna that needs urgent attention. This was the lament of Justice S. Muralidhar while pronouncing the verdict in State v. Sajjan Kumar. The case was about the mass killing of Sikhs during the anti-Sikh riots of 1984 in Delhi and throughout the country. The Court observed that these kinds of mass crimes “engineered by political actors with the assistance of the law enforcement agencies” fit into the category of the CAH. Further, India remains to ratify and be a party to the Rome Statute, which means that it is under no obligation at present, to enact a domestic legislation dealing with CAH and Genocide. Thus, the country is turning a blind eye to the mass killings taking place in its territory and attempts to shield the perpetrators; reflecting poorly on the country’s status as a democracy.
India’s reluctance towards becoming a signatory to the Rome Statute can be possibly attributed to a dearth of concrete distinction that can be made between international and internal armed conflicts.The definition of CAH extends itself to include its applicability to Internal conflicts within a country as well, placing them in a position of being forced to acquiesce the obligations of other non-ratified International Treaties through the Rome Statute. Thus, India refuses to accept the definition of CAH as established in the Statute since the internal conflicts occurring in places like Kashmir have been trembling waters, and the same could fall under the scope of the CAH, mandating the interference of the ICC. This prospective interference has been cited as an issue concerning the “Sovereignty” of the nation by India with respect to its refusal to ratify the Statute. However, the claim seems preposterous as the country does not have an effective legal framework to deal with crimes of such gravity, i.e. CAH and Genocide. The rising number of atrocities committed against indigenous groups and the numerous mass killings portray quite a ghastly picture of the inaction of the nation against the dreadful crimes committed in its territory. The 1984 Sikh Riots, the 2002 Gujarat Massacre and the continuing movements of pogrom in Kashmir have been nothing less of the highest order of the crimes.
While the Indian Penal Code has provisions punishing the crimes of murder (S. 302), rioting (S. 147) and promoting enmity between different groups (S. 153A), there is a marked absence of a tangible law which makes an individual liable for the crimes of mass killing and such grim pogroms. This wilful abdication of state responsibility has been the cause behind the Kashmiri and Orissa Carnages. It’s a grave lapse on part of the recurring Indian Governments, which have, till date, not enacted a specific law concerning these horrific massacres. Though India ratified the Convention on the Prevention and Punishment of the Crime of Genocide in 1959, there is no legislation on the subject, yet. The lapse was justified in 2016 by the then union minister of state for home affairs, Kiren Rijiju, in the Rajya Sabha, on the grounds that the convention was an integral part of the common law of India, by virtue of its accession. Further, it was stated that both the substantive and procedural criminal law in India, provide an effective legislative framework to deal with acts like Genocide in the country. However, there is no such provision in the IPC that criminalises the killing of individuals of a particular ethnic, racial, national or religious group or sect, with the intent “to destroy such a group in whole or in part”. Thus, the specific targeting of a particular community with the intent to destroy the same-which is the essence of the harrowing crime of genocide- is not realised as a crime beyond murder simpliciter in India
India’s International Obligations and Attempts
The non-enactment of a domestic legislation for Genocide has numerous international repercussions. India is a party to Convention on the Prevention and Punishment of the Crime of Genocide of 1948 that condemns and declares genocide as an international crime. The signing and ratifying of this convention in 1959 portrayed the bona-fide intentions of the country; however, the lack of actual execution and the resistance to signing the additional Geneva protocols (1977) highlights the shift in the ideology. Further, a cursory reading of the convention text points towards three obligations and India has failed to cater to all of them. Firstly, Article 1 requires the state to confirm that genocide is a crime regardless of the time when it was committed. Secondly, Article 5 of the Genocide Convention states that a party state will have to enact a legislation in accordance with the convention and provide efficacious penalties to the persons having found liable of such offences; India currently fails at both the counts. Thirdly, Article 6 prompts the state for the establishment of the tribunal for effective disposal of these cases. Evidently, the obligations under article 1 and article 6 can only be eventuated if the obligation under article 5 is materialised. India needs to keep in mind that an obligation is not discretionary.
Discounting the obligations of India under the present convention, there are still a few principles that are binding on states regardless of their consent, which they are not permitted to ignore. These principles are deemed to be statements of the “compelling law” and are otherwise designated as peremptory norms or Jus Cogens. Article 53 of The VCLT defines Jus Cogens as a norm “accepted and recognized by the international community of states as a whole from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” The same has been reasserted in the case of Democratic Republic of the Congo v. Rwanda. Thus, India has an inviolable obligation towards preventing Genocide.
Nonetheless, India has not always shunned the idea of having a piece of legislation addressing such crimes. Though the efforts made in the near past were not significant, they are noteworthy. In 2005, The Communal Violence (Prevention, Control and Rehabilitation of Victims) Bill was introduced in the Rajya Sabha which sought to curb the menace of religious violence. When the bill was brought before a Parliamentary Standing Committee, it was returned with suggestions emphasizing the inclusion of Genocide. It stated that “Genocide, a crime against humanity, may be included in the scope of the Bill”. Evidently, it didn’t see the light of the day.
Recently, an organisation has emerged with a bill (Panun Kashmir’s Genocide and Atrocities Prevention Bill -2020) that addresses similar offences on Kashmiri Hindus, which includes Genocide as a main component. Though it cannot be said that it is an attempt of the government, people are very confident that it will be tabled in the parliament soon and will eventually be enacted unlike the bill of 2005. Further, this bill seeks to reverse the Hindu genocide in Kashmir and thus its scope is limited; however, the framework uses various agencies of law as a grid to recognize, investigate and fight crisis of such nature. In consequence, it has been hailed for its concrete, comprehensive, and clear legal framework making it a perfect model for a broader law. Borrowing words from the British historian E.P. Thompson,“Indiais perhaps the most important country for the future of the world” and therefore she must transform these endeavours into achievements.
Conclusion
Recently, India was elected as a non-permanent member of the UN Security Council with a thumping majority. This confidence that has been reposed in India by the comity of 184 nations will only be justifiable when these crimes become justiciable under the Indian Courts. India must swear allegiance to this alliance which will also materialise its bid for the position of a permanent member of the UNSC. The gap in the domestic legislation coupled with the objection to join the ICC offers a king-sized impunity to the perpetrators. As stated earlier, India cites its sovereignty for not acceding to the Rome Statute, but ICC only prosecutes offenders if the government of the state is unwilling and unable to prosecute; thus acting as a safety net to ensure that the perpetrators don’t get leeway if they are successfully able to abscond from the hold of the domestic law. Even worse, India cannot afford to let the world think that it is, by default, unable and unwilling to prosecute criminals of the aforementioned crimes.
[ Aniket Panchal is a second-year undergraduate student reading law at Gujarat National Law University. His academic interests lie in the intersections of the law with gender, policy, and human rights.
Diya Vaishnav, a sophomore law student at Gujarat National Law University, is keenly interested in Constitutional Law and Human Rights. She finds a deep interest in understanding the relationship between the law and society.]