Delhi High Court says lack of a law against “genocide” in India remains a loophole that needs to be addressed urgently.
New Delhi: The Delhi High Court Monday sentenced former Congress MP Sajjan Kumar to life imprisonment, 34 years after an anti-Sikh massacre tore through the heart of Delhi, claiming over 2,700 lives.
However, the court did not restrain itself only to the 1984 anti-Sikh riots. Using them as an example, it highlighted a “familiar pattern” of “mass killings” in “Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha, in 2008, in Muzaffarnagar in UP in 2013, to name a few”.
The court said a law against “genocide” and “crime against humanity” in India’s domestic system remains a loophole that needs to be addressed expeditiously.
“There has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in U.P. in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies (sic),” read the court’s judgment.
“The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system.
“As these appeals themselves demonstrate, decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.”
In its 207-page judgment, the court minced no words in overturning Kumar’s acquittal by a trial court in 2013. Referring repeatedly to his “power and influence as a politician”, the court pulled up the Misra Commission for giving the Congress a clean-chit, and the Delhi Police for its “abject failure” to prevent the “crimes against humanity” in 1984.
Here are a few excerpts from the judgment (note that Kumar is referred to as A-1):
Power and influence
“The court would like to begin in this context with the ground realities where, on account of the power and influence wielded by A-1, there was reluctance on the part of the police to proceed against him. These circumstances have been adverted to earlier. It must also be recalled, as observed in Prithipal Singh (supra), ‘extraordinary situations demand extraordinary remedies’.
“With regard to A-1 himself, the extraordinary power that he wielded as a politician and as an MP was noted by this Court in its order in Sajjan Kumar v. State 43 (1991) DLT 88 where it confirmed the anticipatory bail granted to him in FIR No.250/1984 registered at PS Punjabi Bagh which pertained to an incident that took place in Sultanpuri, Delhi.
“It is another matter that this Court, while confirming the bail order, held that the apprehensions of the CBI that A-1 could cause hindrance to the investigation were ‘totally misplaced’. According to the learned Single Judge, on the date of the alleged incident, he was an MP and had ‘a following’; he had ‘a standing in the society and commands respect, love, and affection of the people of his constituency’, and further that his social background is such that ‘there is neither any possibility nor has he betrayed the trust placed in him by the Court in avoiding to join the investigation or interfered in the due administration of justice’.
“All these expectations were obviously belied because the investigation never went anywhere and nothing of consequence happened in that case. It was only much later, when the Justice Nanavati Commission was constituted, that a recommendation was made for registration of cases against A-1.”
Also read: 4 commissions, 9 committees & 2 SITs – the long road to justice for 1984 Sikh killings
What Sajjan Kumar has been convicted of
“In the judgment that follows this Court has partly allowed CBI’s appeal and reversed the acquittal of Sajjan Kumar. This Court has convicted him for the offences of criminal conspiracy and abetment in the commission of the crimes of murder, promoting enmity between different groups on grounds of religion and doing acts prejudicial to maintenance of communal harmony, defiling and destruction of the Gurudwara by burning.”
“Further while affirming the conviction and sentences awarded by the trial court to the other five accused, this Court has additionally convicted and sentenced them for the offence of criminal conspiracy to commit the aforementioned crimes.”
“This Court is of the view that the mass killings of Sikhs in Delhi and elsewhere in November 1984 were in fact “crimes against humanity”. They will continue to shock the collective conscience of society for a long time to come. While it is undeniable that it has taken over three decades to bring the accused in this case to justice, and that our criminal justice system stands severely tested in that process, it is essential, in a democracy governed by the rule of law to be able to call out those responsible for such mass crimes. It is important to assure those countless victims waiting patiently that despite the challenges, truth will prevail and justice will be done.”
‘Fearless, truthful witness’
“On 1st November 1984, while she was present in her house she saw thousands of the people of the area armed with lathis, dandas, iron rods and knives, looting the houses of Sardars and setting them on fire. This mob was being led by A-1 who was instigating them, saying that all Sikh males be burnt to death and their property be looted. Under that instigation, her husband was dragged out and attacked with a sharp-edged weapon and burnt to death after being doused in kerosene oil.
“It is necessary to revert to PW-1 (Jagdish Kaur)’s statement before the Justice Nanavati Commission where, in para 4, she says that A-1 was “leading the mob” and, in para 7, she states that she could identify “the leader of the mob Mr. Sajjan Kumar, MP”. Then, we have her deposition in Court on 1st July 2010 where she stated how, at around 9 am on 2nd November 1984, A-1 was coming out of a meeting and was declaring ‘Sikh sala ek nahi bachna chahiyen, jo Hindu bhai unko sharan de uska ghar bhi jala do aur unko bhi maro’.
“Therefore, even when grilled under the pressure of cross-examination, this witness has stood firm and has clearly spoken to what, according to her, was the truth surrounding the tragic events in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi.”
Misra Commission’s clean chit
“This Court went on to note that despite acknowledging that rioting in a proper sense had started in a very big way in several parts of Delhi on 31st October 1984 with the murders of Sikhs commencing on 1st November 1984, the Justice Ranganath Misra Commission gave the Congress Party a clean chit by observing: ‘The massive scale on which the operation had started so soon after the fact of death was circulated is clearly indicative of the fact that it was the spontaneous reaction of the people at large. The short span of time that intervened would not have permitted scope for any organising to be done. The gloom that had spread and affected the Congressmen in particular would not have permitted any such organisation to be handled. The reaction appears to have come as flutter and sparked everywhere in a similar pattern’.
“It is further noted by this Court that the Justice Ranganath Misra Commission had observed that ‘no responsible person and authority of Congress (I) hatched any conspiracy or organised large-scale rioting, looting, killing, etc. in various parts of Delhi. In fact, the anti-social elements had taken the lead’. It was observed that the Commission had come to the conclusion that despite wide spread publicity to the cause, many persons had not come forward to depose as to the actual happenings between 1st and 7th November 1984 and, therefore, it recommended that a new committee be appointed ‘to go through the individual cases of omission or non-registration of cases by the local police’.”
Also read: Anti-Sikh riots of 1984 were three days of furlough given to criminals by police, Congress
Conclusions
“There was abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted hereinabove.
“What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a ‘free for all’ situation which persisted. The aftershocks of those atrocities are still being felt.
“This was an extraordinary case where it was going to be impossible to proceed against A-1 in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed.
“The acquittal of A-1 by the trial Court is set aside. He is convicted of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295, and 153A (1) (a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs punishable under Section 153A (1) (a) and (b) IPC.”