This article is written by Kartik Bohra, from Symbiosis Law School, Hyderabad. In this article, the inadequacy of Indian laws to address the issue of mass crimes along with the role of international law has been discussed.
Table of Contents
Introduction
India has witnessed several mass crimes after its independence in 1947 because of the number of factors which primarily includes political and social factors. Mass crimes are not uncommon in India, and minority communities are subjected to torture, atrocities, mob lynching, and other forms of heinous crimes based on religion and social issues. It has been widely seen that these mass crimes are often targeting religious minorities in attacks, and increase hate crimes in India. Various activists and enforcement agencies have raised concern or dissatisfaction over the lack of a proper legal framework to punish the perpetrators of mass crimes in India. These are crimes against humanity and infringes persons basic human rights in a democratic country.
The Indian government also did not pay heed towards the increasing number of mass crimes in society, where it is the duty of the state to protect fundamental rights enshrined under the constitution of India. In 2018, the Delhi Court in the case of CBI v. Sajjan Kumar and Ors. (2018) observed that Indian has not recognized any law to punish mass crimes against humanity while adjudicating upon the matter of ‘political riots’ against Sikhs in 1984. Criminal law has failed to contain provisions to punish the perpetrators of crime due to the lack of provisions and evidence against them. Therefore, there is a need for an hour to formulate a legal framework to prevent mass crimes in India. The article deals with mass crimes in India and the inadequacy of Indian laws to address them with the role of international law.
Mass crimes
The word ‘mass crimes’ is given by German interdisciplinary research on the Nazi murders in the 1960s and often called it ‘Massenverbrechen’. They propounded this term for the extreme violence of Nazism against humanity and civilians. This term is used in legal language and various historians and criminologists recognized this word for common crimes with mass character. Mass crimes can be defined as genocide, crimes against humanity and war crimes.
Mass crimes can be interpreted as killings of a large number of people on a mass scale which is ordered and organised by governmental or semi-governmental organizations. Mass crimes include serious acts which are against the basic principles of international human rights and humanitarian law. These crimes affect the core of human dignity and therefore, it is the duty of the state to protect the victims and uphold their human rights.
Mass crimes in India and the role of international laws
Mass crimes are considered as a deliberate attack on civilians dignity and integrity. It is the legal responsibility and accountability of the state to fulfil an international obligation to punish the perpetrators of crime through a strict legislative framework. The prosecution and investigation of mass crimes are necessary for a society which is dealing with the legacy of conflict. Universal prosecution promotes the rule of law in a democratic society and reinforces the unacceptability of mass crimes in a society. These crimes often target minority communities and vulnerable groups which includes religious communities and can also be committed in order to promote religion or belief.
However, the alleged preparators of these crimes remain unpunished due to lack of political will or institutional capacity to address these complicated and sensitive crimes. Universal laws and jurisdiction allow the states to punish and prosecute the criminals in order to uphold the principles of the international community and order. Various countries have started formulating domestic laws on mass atrocities or crimes in accordance with international laws. Therefore, the incorporation of domestic laws is essential to prevent such crimes in society and ensure accountability. It is noted that domestic states must incorporate an international legal framework on mass atrocities and crimes which protects religious groups. International laws provide legal assistance to states in order to formulate legislation providing retroactive prosecutions for creating disorder and genocide in a society. The states should ensure that the preparators of the crime must be prosecuted and provide effective safeguards for fairness and due process.
Though India has signatory to Geneva Conventions 1960, which provides protection against genocide and crimes against humanity, failed to make a strict legal framework against mass crimes and atrocities., Article I of the Convention on the Prevention and Punishment of the Crime of Genocide, 1948 provides that “genocide, whether committed in time of peace or in time of war, is a crime under international law, which the contracting parties undertake to prevent and to punish.” Furthermore, Article V of the Convention also makes it compulsory for the signatory countries to enact a necessary legal framework in order to make conformity with the provisions of the convention. The convention put an obligation on India to prevent mass killings amounting to genocide. The International Court of Justice (ICJ) in the case of Bosnia and Herzegovina v. Serbia and Montenegro, while reviewing the application of the Genocide Convention, ruled that the international responsibility and liability of the state will be incurred if an organ of the state or a person whose acts are legally attributable to the state, commits any act of genocide and mass killings which is proscribed by Article III of the Convention. States cannot absolve themselves from the liability where state authorities explicitly or tacitly misuse their power in order to encourage mass killings and other genocidal acts. Article 9 of the International Convention on Civil and Political Rights (ICCPR) also protects both liberty and security of person.
Therefore, the state is liable to protect the rights and lives of its citizens. There is a need for enacting effective legislation on mass crimes or crimes against humanity in India to maintain and uphold international law obligations and is committed to securing human rights. The International Law Commission has put the Convention on Crimes against Humanity in 2019 which provides India to regulate and improvise its stand against mass crimes.
Inadequacy of Indian laws to address mass crimes
Mass crimes or atrocities are regarded as deliberate and large scale attacks on human dignity. When these crimes occur in a country, the state is under an obligation to maintain conformity with international law and prosecute perpetrators of the crime. It is necessary to hold them accountable through criminal prosecutions. The Indian laws do not provide prosecution for crimes against humanity and the crime of genocide. The collective, as well as the particular nature of these crimes, are not mentioned in any domestic law provisions. The Indian Penal Code, 1860 provides punishment for the offences such as murder, rape, assault, etc. but failed to contain any provisions regarding the crimes against humanity and mass crimes. These crimes generally go unpunished due to lack of legal provisions under IPC, CrPC and Indian Evidence Act and due to flaws in the Indian legal system. It is impossible to punish preparators of mass crimes due to lack of proper witnesses, investigation, and requirement of prior sanctions from the state government to prosecute public authorities who are directly or indirectly involved in such heinous crimes.
There is a need for enacting strict legal provisions to make the state liable and accountable for mass crimes in India. It is believed that Indian criminal jurisprudence has failed to provide any legal provision to deal with the issue of mass crimes. Section 146 of Indian Penal Code, 1860 deals with the aspect of rioting by an unlawful assembly. There are several provisions under criminal law which effectively address crimes such as murder, rape, sexual assault etc but failed to address crimes against humanity and planned targetted killing which is different from rioting. As a result, the preparators of the crime go unpunished and not brought to book. The state should be responsible and accountable for the offence of mass crimes but Section 197 of CrPC provides immunity to state officials and judges. Sometimes, police refuse to register FIR or file omnibus FIRs and make no effort taken to collect corroborate evidence in such cases.
The Indian Penal Code and Indian Evidence Act lacks flexibility in the prosecution of the preparators of crime and relevancy of evidence in mass crimes. These statutes lack provisions regarding the punishment of the accused which led to injustice and political unrest in the country. There have been a lot of cases registered for the delay in the investigation of such crimes which leads to non-accountability of preparators of crime due to involvement of political influence and dominance. Therefore, we can say that Indian criminal jurisprudence has inadequate legal provisions to punish and prosecute the preparators of mass crimes and miserably failed to address this issue in conformation with the international laws. It is necessary for the state to safeguard persons basic human rights and constitutional rights against such crimes. The need for setting up a separate victim and witness protection units in the trial of mass crimes have been acknowledged in the setting up of international tribunals to deal with them.
Need for a legal framework
Mass crimes are violence against humanity which took place on a large scale comprising gross human rights violations. This generally committed due to communal reasons and was, in fact, the very planned strategy by right-wing political parties. It is wrong to termed mass crimes as rioting because it is something related to targeting a particular community. The Indian legal framework does not provide punishment and cover mass crimes except for some enactments such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which was formulated to curb offences against an entire caste of people. These offences have been committed due to the influence of the political and social group, political ideology and based on religious or ethnic identity by groups of people belonging to one community against another community.
Moreover, there are no laws under criminal jurisprudence that criminalize mass crimes and gross human rights violations committed at the will of the State against its citizenry. Various Conventions such as the Geneva Conventions, the Genocide Conventions, and Ad-hoc tribunals framed and enacted several laws in legal jurisprudence for the prosecution of perpetrators of crime. India has witnessed several politically and socially influenced mass crimes which also involved religious factors since its independence in 1947. There are various cases that happened in India which involve mass crimes such as Gujarat Riots (2002), Kandhamal violence and Muzaffarnagar riots (2013) which enlarged the insufficiency of Indian criminal jurisprudence to deal with the aspect of mass crimes. The reason why India needs a strict law against such crimes is that the present provisions under the criminal laws are insufficient to deal with these heinous crimes and to count patronage of government in certain crimes.
According to the National Crime Records Bureau (NCRB) data, India witnessed 66,378 cases of rioting or offences promoting enmity between different groups. It is observed that most of the cases of mass crimes happen due to religious violence and political unrest. According to the interior ministry report, there were 644 cases registered for religious violence in the country 2014, 751 in 2015 and 703 in 2016. These cases are rapidly increasing in the country due to the lack of strict policy and regulations against these offences.
In the case of Harendra Sarkar v. State of Assam (2008), the Supreme Court observed that the provisions of the Indian Evidence Act and procedural law are applied in the same way in all the circumstances and there should be no distinction between communal riots case and ordinary case. The civil liberties of the accused need to be protected and evidence law should not be applied in a flexible way.
As a result, this would lead to injustice to the victims of the crime as there is a lot of difficulty in ascertaining the true facts and circumstances in incidents of mass crimes. Also, it is wrong to conclude that circumstances under mass crimes are the same when compared to ordinary cases. The facts and circumstances of the commission of mass crimes are vastly different from a crime committed in times of normalcy. Article 21 of the Indian Constitution provides the right to life and personal liberty to all the citizens of the country. Therefore, crimes against humanity directly infringe article 21 of the Constitution. Article 51(c) provides for legal obligation upon the state to foster respect for international law and treaties. Thus, there is a need for a legal framework in India to protect the constitutional as well as the legal rights of the victims and to maintain conformity with the international laws and Conventions.
Judicial pronouncements
The Delhi High Court in the case of State Through CBI v. Sajjan Kumar and Ors. (2018) while adjudicating upon the matter of political riots against Sikhs observed that India has not yet recognized mass crimes such as Genocide and crimes against humanity in its legal jurisprudence. The court further observed that the criminals involved in such heinous acts go unpunished and managed to evade prosecution due to political influence. Therefore, bringing the perpetrators of crime under the domain of legal justice poses a serious challenge to our legal system. This calls for strengthening the legal system. It is noted that there no specific domestic law in India which effectively deals with crimes against humanity and genocide.
The aforementioned judgement of Delhi High Court observed the different aspects of mass crimes from the cases of the People’s Republic of Bangladesh v. Abdul Quader and Anthony Sawoniuk. In these cases, the Court observed that the adoption of a legal framework against these crimes led to better administration of justice and remedy to victims. The Court has digressed into the above brief discussion on “crimes against humanity” since cases like the present are to be viewed in the larger context of mass crimes that require a different approach and much can be learnt from similar experiences elsewhere.
In Zahira Habibulla H. Shaikh v. State of Gujarat (2006), the Supreme Court has been ordered for a retrial due to the presence of extraordinary circumstances in the case and declared the entire trial as a farce. The court observed that there is a need for the executive, legislature and judiciary to make a proper legal framework in all cases which occur in a context of mass violence or crimes taking place in exceptional circumstances and other than normal circumstances.
In the case of National Human Rights Commission v. State of Gujarat & Ors (2009)., the Supreme Court held and issued the detailed guidelines in cases of mass crimes which has to be followed during the investigation to ensure a free and fair investigation and trial. In other words, until the intervention of the Supreme Court, the investigation and trial of many cases were a mere farce.
Conclusion
The criminal justice system in India has failed miserably in dealing with mass crimes because of the inadequacy of penal laws and lack of adequate procedures to hold public officials accountable for their complicity in mass crimes. The inadequacy of Indian laws to address mass crimes largely affects the vulnerable and marginalized sections of Indian society. It is absolutely necessary to enact a law which criminalises specific acts and omissions of persons including the officials of the state for conspiring, instigating and adding in mass crimes.
The impunity enjoyed by the preparators of mass crimes has raised serious questions about state accountability in a democratic country. India is the world’s largest democracy, has miserably failed to curb offences against humanity and refuses to ratify International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. India has failed to fulfil its international commitments and declarations, as it is a legal obligation on the state to enact laws against crimes which are enlisted as crimes under these treaties and declarations. There is an urgent need to enact a new law to deal with the issue of mass crimes in India and can only be effective if international customary and criminal law are taken into consideration. Therefore, there is a need for India to enact legal provisions and procedures to comply with the international standards and are in consonance with the spirit of the Constitution of India.
References
- https://www.jurist.org/commentary/2019/01/india-needs-legislation-to-combat-religious-violence/
- http://www.ielrc.org/content/a0402.pdf
- https://www.sabrangindia.in/article/india-where-mass-murderers-go-unpunished
- https://www.jnu.ac.in/sites/default/files/u63/15-Mass%20%28Anita%29.pdf
- https://www.jstor.org/stable/pdf/43953676.pdf?refreqid=excelsior%3A3c202496ec68f18609da4f81532135d6&seq=1
- https://www.uscirf.gov/sites/default/files/Legislation%20Factsheet%20-%20Atrocity%20Crimes.pdf
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