India has a dark past of mass killings, most of which is upon a religious or a minority community. 58 years on after India ratified the Genocide convention, domestic laws still fail to recognise mass crimes against humanity and Genocide. Recently in the famous Anti-Sikh Riots Case, Hon’ble Delhi High Court while convicting politician Sajjan Kumar for inciting the 1984 Riots, reiterated this lacuna in Indian Criminal law which is proving dangerous as criminals continue to evade prosecution and enjoy political patronage. Notably, common to these mass crimes were the targeting of minorities and the attacks spearheaded by dominant political actors being facilitated by law enforcement agencies.
India is a diverse country with citizens representing many religions because of which, the nation tends to struggle with polarization based on caste and religion. Several instances like the, 1992 Babri Masjid destruction which led to riots between Muslims and Hindus, the 2002 Gujarat Riots, Kandhamal Anti-Christian Riots in 2008 followed by most recently, Muzaffarnagar Riots in 2013, prove that people belonging to an identifiable group are attacked with the sole motive of destroying the very existence of such groups. Statistical data mentions more than 1500 incidents of communal violence have taken place between 2015 to 2017.
It is important to note that, the attacks are planned, organized and preparation is done to identify specific groups who are dehumanized, thereby beginning systematic extermination. For example, in 1984, male Sikhs were identified and their houses were destroyed in a manner leaving their women and children in a destitute state. Similarly, the 2002 Gujarat Riots was specific revenge against the minority Muslim community who had initially burnt a train carrying Hindus. It is, therefore, a complete stage-wise process, planned and executed. Definition of Genocide, however, has been widened where courts have included systematic rape by men of a community upon another under the broad purview of Genocide. In Prosecutor v. Jean-Paul Akayesu, the International Criminal Tribunal for Rwanda in a historical ruling held that systematic ‘Rape’ committed by the members of one community on the members of the rival community with a view of inflicting fear in their minds amounts to an act of Genocide. So, it is not limited to killings, the very concept of inflicting fear upon a community or a targeted group is acknowledged across various crimes in the international platform.
Indian Penal Code, 1860 only defines Murder, Riot, Unlawful Assembly and does not specifically criminalise the killing of individuals of a particular ethnic, racial or religious group with the intention of destroying such group – the very essence of Genocide. Murder is a simpler crime consisting of intent and knowledge of consequences of an act, compared to Genocide which is harsher and has specific intent “dolus specialis” to destroy a group, nothing else. Over the years, it has been noted that political influence sparks this sense of hatred and incite attacks against a specific community. These leaders then escape the plot by not being physically present and control the entire attack from the outset. Further, they are easily acquitted because of no direct evidence. As of now, efforts have been made to report such incidents to other countries exercising universal jurisdiction over genocide, since India is neither a signatory to the International Criminal Court nor having a domestic law to conduct a trial for this human tragedy.
India’s failure to make a domestic law preventing Genocide is in breach of its obligation under Article 5 of the Genocide Convention, 1948. It is also completely against Article 51(C) of the Constitution of India which aims at fostering respect for International treaties and obligation. Moreover, the Parliament of India has definite powers to make any law implementing the International agreement, treaty or convention, failure of which shows a lack of intent to save human rights. Countries like Bangladesh, the United States have already enacted domestic legislation recognising Genocide, hence there is no dearth of a legal model for India to adopt from. It is high time that state’s obligation to protect citizen rights erga omnes is kept in mind and the whole myth of Indian criminal law being efficient to deal with genocide be done away with by introducing legislation protecting the people of India from any such future occurrences.
Abhishek Iyer is a 2nd Year BA LLB (Hons) student at Gujarat National Law University, Gandhinagar.