India has not defined genocide by law, though it ratified UN convention five decades ago

By Siddharth Awadhoot[1]

The term ‘Genocide’ was used for the first time in 1944 by Raphael Lemkin in a time when there was an uncertainty about defining or determining international principals to identify it, in the Global regime has come a long way in terms of formulating legal provisions and principals or international acceptance, yet it remains an alien concept in India. Even though India actively participated in the formulation and also ratified the 1948 Genocide Convention on August 27th 1959[2], it has not enacted any specific law that deals with genocide. With a long history of violence between various groups in India which can even traced back to the Battle of Kalinga[3] or even the 30-40 famines during the 200 year British rule in Bengal can also be termed as genocide[4], it is required that there should be a law specifically dealing with Genocide. Yet there remains a neglect pertaining to this, the Indian government strongly believes that it has enacted sufficient penal laws already to deal with situations that are genocidal in nature. Even the International Court of Justice emphasized the principle of prohibition of genocide as part of general international law.

This Article examines the current legal and policy situation in India vis-à-vis the 1948 convention drawing various instances which could have been termed as Genocide, had there been a separate law for it. The research methodology adopted in this Article is doctrinal in nature and the data collected and interpreted in secondary in nature. The hypothesis in this article involves the question as to whether India really has enacted sufficient laws as its obligation under the 1948 Genocide Convention. The Author has attempted to derive an answer by interpreting relevant data, laws and certain post 1948 genocidal instances of violence in India, in line with the obligations under the convention.

Genocide and the 1948 Convention

The term Genocide did not exit till 1944, until it was first used by Raphael Lemkin referring to violent crimes committed against groups with an inherent intention of destroying the group. United Nations approved the Convention on the Prevention and Punishment of the Crime of Genocide establishing ‘Genocide’ as an international crime and nations which ratify this convention undertake to prevent and punish people or groups alleged of committing this crime in 1948.

Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.[5]

In Barcelona case, the International Criminal Court said:

“By their very nature, the outlawing of genocide, aggression, slavery and racial discrimination are the concerns of all states. In view of the importance of the rights involved, all states can be held to have a legal interest in their protection, they are obligations erga omnes (against whole world)”[6]

Under this Convention, even the acts related to genocide like attempt; conspiracy; direct or indirect public incitement to commit Genocide are punishable[7]. This Convention provides no immunity to ‘Public Officials’ or ‘Constitutionally responsible rulers’ along with private individuals.[8]

The Genocide Convention imposes,

(a) Obligation to recognize Genocide as an International crime, undertaken to prevent and punish[9]

(b) Obligation to enact necessary legislation to provide effective penalties for those guilty under Genocide[10]  and,

(c) Obligation to try accused persons through a competent tribunal[11], to all the signatory state parties.

India and its Obligation under the 1948 Genocide Convention

Genocide has not been defined by any law in India, even though India ratified the Convention more than 5 decades ago. India has a Constitutional Obligation under Article 51 to foster respect for international law and treaty obligations[12] and therefore Article 253 makes it mandatory for Parliament to enact any law pertaining to implement any treaty, agreement or convention[13]. The reasonable step is indeed to enact legislation at the earliest after ratification of any treaty so as to avoid the time gap between ratification and implementation in the domestic structure of the state. India has however taken no such steps pertaining to Genocide under its International and Constitutional obligation even though India has so may legislative structures to choose from.

On 2nd March 2016, Shri Avinash Pandey, a Rajya Sabha MP from Maharashra raised a question to Minister of Home Affairs about plans of the Government in enacting Laws in conformity with UN Convention on Genocide and Racial Discrimination, stating either details of the laws or reasons of not enacting thereof, the answer pertaining to Genocide by Home Minister for State Mr. Kiren Rijiju was as under,

“By acceding to the Convention on the Prevention and Punishment of the Crime of Genocide in 1959, India has recognized genocide as an international crime. The principles embodied in the Convention are part of general International law and therefore already part of common law of India. The provisions of Indian Penal Code including the procedural law (Criminal Procedure Code) provide effective penalties for persons guilty of crime of genocide and take cognizance of the acts which may be otherwise taken to be in the nature of genocide”[14]

On the contrary, provisions of Cr. P C like Section 197 lay down the necessity of sanctions from both state and central government before prosecuting a public servant for acts committed by him during his discharge of duty. Being colonial laws, IPC and Cr. P C don’t have provisions pertaining to offences by the state. Moreover, both of these laws are not fit to deal with crimes committed by large gatherings of people or mass crimes. Mass crimes are committed or intended to be committed against large masses of people identified on ethnic, religious, social, linguistic, cultural, geographical etc. grounds. It often but not necessarily stretches across large geographical areas, and may include crimes against humanity, genocide, war crimes etc.[15]

Post 1959, after India ratified the Genocide convention, three major instances out of the many can qualify as Genocide,

  • 1984 Anti-Sikh Riots
  • 1989 Bhagalpur Riots
  • 2002 Gujarat Riots

1984 Anti Sikh Riots: It was a series of planned killings directed against Sikhs in India in response to assassination of Indira Gandhi by her Sikh Bodyguards. Official reports state to about 3000 deaths across India, 2100 in Delhi alone[16], while independent sources estimate more than 5000 deaths across India, 3000 alone in Delhi.[17] The involvement of Government officials was even admitted by CBI in a report. 10 Committees have been set up so far for investigations, more than 400 have been convicted till 2015[18] but the trials are still on and Special Investigation Team plans to reopen 186 more cases as of 2016.[19]

1989 Bhagalpur Riots: It was tussle between Hindu and Muslim religious groups in Bihar during the ‘Ramshala’ procession of VHP under its Ram Mandir Agenda.[20] Official figures put the death toll to 1000 in which 900 were Muslims[21]. Approximately 50,000 people were displaced due to this violence.[22] Actions were recommended against 125 IAS officers by the NN Singh Committee report[23].

2002 Godhra Riots: On 27th February 2002, Sabarmati Express was burnt at Godhra Station which caused deaths of 58 Hindu karsevaks returning from Ayodhya. It was followed by months of outbreaks of Communal violence in various parts of Gujarat. Over 2000 people died and more than 150,000 people were displaced due to this violence[24], majority of them belonging to the Muslim Community[25].  The cases are still going on.

Conclusion

All the three incidents of mass crime and violence as described can amount to genocide as they fulfill the ingredients given in the definition as given by the 1948 Convention and it can clearly be seen that in absence of any relevant laws specifically for the prosecution of people committing genocide, the investigations under IPC and Cr. P. C. are not giving due justice to the victims. Even after decades the justice delivery mechanism has failed in its duty and the cases are still getting investigated and recommendations are being made by the committees. India has definitely failed to perform its obligations under Article 51 and 253 and international obligations under the 1948 Convention. The incidents of mass crimes are not bring investigated properly due to poor and insignificant laws related to mass crimes. Genocide has not even been defined even after acknowledging it as an International Crime. There is an urgent need to enact relevant laws for Genocide instead of relying on old colonial laws like IPC and Cr. P C as they are failing. Even the recommendations by the committees to prosecute government officers does not ensure sanctions from both the government which are time taking already. India must realize its obligations under the 1948 Convention and enact relevant provisions involving bodies like NITI Ayog, Law Commission, Ministry of Eternal Affairs, which hasn’t happened yet since 1956, doing way with the myth that the current laws are sufficient and capable in dealing with Genocide in India.

[1] 12BAL001, Xth Sem, Institute of Law, Nirma University
[2] UN Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[3] Genocides In India From Past to Present
[4] Genocide: An Indian Prespective
[5] Article 2, Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[6] Barcelona Traction Case 1970
[7] Article 3, Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[8] Article 4, Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[9] Article 1, Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[10]Article 5, Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[11] Article , Convention on the Prevention and Punishment of the Crime of Genocide, 1948
[12] Article 51 (c), Constitution of India, 1950
[13] Article 253, Constitution of India, 1950
[14] Rajya Sabha, Unstarred Question No. 718, On 2nd March 2016.
[15]Krishna Kumari Areti, Incidents of Genocide in India (See: http://works.bepress.com/krishnaareti/1/)
[16]http://www.mha.nic.in /hindi/sites/upload_files/mhahindi/files/pdf/Nanavati-I_eng.pdf
[17]“Delhi to reopen inquiry in to massacre of Sikhs in 1984 riots”. Telegraph.co.uk
[18]442 people convicted for 1984 anti-sikh riots in Delhi: Govt, Indian Express, December 23, 2015 (See: http://indianexpress.com/article/india/india-news-india/442-people-convicted-for-1984-anti-sikh-riots-in-delhi-govt/)
[19]1984 anti-sikh riots: SIT likely to reopen 186 cases, Indian Express, June 25, 2016 (See: http://indianexpress.com/article/india/india-news-india/1984-riots-sit-likely-to-reopen-186-cases-2874418/)
[20] The forgotten riots of Bhagalpur, Aljazeera. 31st December 2014 (See: http://www.aljazeera.com/indepth/inpictures/2014/12/forgotten-riots-bhagalpur-2014123095759426187.html)
[21] SNM Abdi (1989-11-26). “When Darkness Fell”. Illustrated Weekly of India. 110 (40-53): 34.
[22] “Chronology of communal violence in India”. Hindustan Times. 2011-11-09
[23] The forgotten riot: How Bhagalpur 1989 left a memory trace in Bihar politics, The Scroll, 12 Aug 2015 (See https://scroll.in/article/747650/the-forgotten-riot-how-bhagalpur-1989-left-a-memory-trace-in-bihar-politics)
[24] Jaffrelot, Christophe (July 2003). “Communal Riots in Gujarat: The State at Risk?”. Heidelberg Papers in South Asian and Comparative Politics.
[25] Hakeem, Farrukh B.; Maria R. Haberfeld; Arvind Verma (2012). Policing Muslim Communities: Comparative and International Context. Springer. p. 81. ISBN 978-1-4614-3551-8.

References

  1. UN Convention on the Prevention and Punishment of the Crime of Genocide, 1948
  2. Genocides In India From Past to Present
  3. Genocide: An Indian Prespective
  4. Barcelona Traction Case 1970
  5. Article 51 (c), Constitution of India, 1950
  6. Rajya Sabha, Unstarred Question No. 718, On 2nd March 2016.
  7. Krishna Kumari Areti, Incidents of Genocide in India (See: http://works.bepress.com/krishnaareti/1/)
  8. http://www.mha.nic.in /hindi/sites/upload_files/mhahindi/files/pdf/Nanavati-I_eng.pdf
  9. “Delhi to reopen inquiry in to massacre of Sikhs in 1984 riots”. Telegraph.co.uk
  10. 442 people convicted for 1984 anti-sikh riots in Delhi: Govt, Indian Express, December 23, 2015 (See: http://indianexpress.com/article/india/india-news-india/442-people-convicted-for-1984-anti-sikh-riots-in-delhi-govt/)
  11. 1984 anti-sikh riots: SIT likely to reopen 186 cases, Indian Express, June 25, 2016 (See: http://indianexpress.com/article/india/india-news-india/1984-riots-sit-likely-to-reopen-186-cases-2874418/)
  12. The forgotten riots of Bhagalpur, Aljazeera. 31st December 2014 (See: http://www.aljazeera.com/indepth/inpictures/2014/12/forgotten-riots-bhagalpur-2014123095759426187.html)
  13. SNM Abdi (1989-11-26). “When Darkness Fell”. Illustrated Weekly of India. 110 (40-53): 34.
  14. “Chronology of communal violence in India”. Hindustan Times. 2011-11-09
  15. The forgotten riot: How Bhagalpur 1989 left a memory trace in Bihar politics, The Scroll, 12 Aug 2015 (See https://scroll.in/article/747650/the-forgotten-riot-how-bhagalpur-1989-left-a-memory-trace-in-bihar-politics)
  16. Jaffrelot, Christophe (July 2003). “Communal Riots in Gujarat: The State at Risk?”. Heidelberg Papers in South Asian and Comparative Politics.
  17. Hakeem, Farrukh B.; Maria R. Haberfeld; Arvind Verma (2012). Policing Muslim Communities: Comparative and International Context. Springer. p. 81. ISBN 978-1-4614-3551-8.
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