A duty great and grave | Opinion News, The Indian Express

A duty great and grave | Opinion News, The Indian Express

Written by UPENDRA BAXI |Updated: December 24, 2018 12:05:23 am

The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi.

A duty great and grave

International law binds Indian state to prevent, punish acts of genocide. As does Article 21 of the Constitution

Former Congress leader Sajjan Kumar was sentenced a lifetime prison term by the Delhi High Court in relation with the 1984 anti-Sikh riots case. (Express photo by Praveen Khanna)

What distinguishes the learned judgment delivered by Justices S Muralidhar and Vinod Goel is not just the meticulous finding of criminality and award of punishment in the Sajjan Kumar case but the urging that “Neither ‘crimes against humanity’ nor ‘genocide’ is part of our domestic law of crime. This loophole needs to be addressed urgently.” The urgency is underscored by the observation that “2,733 Sikhs and nearly 3,350 all over the country were brutally murdered” and this “was neither the first instance of a mass crime nor, tragically, the last”.

The court refers to the “mass killings in Punjab, Delhi and elsewhere during the country’s Partition”, 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.” All these “mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies” and the “criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment”.

These remarks are likely to be misconstrued by organised and individual political actors as judicial overreach. But they are non-adversarial in nature and scope and reflect the popular and judicial anguish at mass atrocities. The court’s suggestion for an end to impunity is meant to promote constitutional good governance. I not deal with the merits of the verdict here, but rather, with the international legal position regarding genocide.