NEED FOR LAW ON GENOCIDE IN INDIA: IN
THE LIGHT OF INDIA’S OBLIGATION TO THE
GENOCIDE CONVENTION, 1948
- Ankita Guru
“We too will find ourselves unable to look our own children in the eye, for the shame
of what we did and didn’t do. For the shame of what we allowed to happen.”
The killing of Sikhs in 1984 after the death of the then Prime Minister Indira
Gandhi, solely based on their religious identity has long been disputed as to whether
would amount to a genocide of the Sikhs or not.
The Babri Masjid and Godhra
Riots of 1992 and 2002 have been subdued as a law and order situation. Within
the secular trough of the largest democracy there exists, a not so tolerant history among
the religious and racial communities. In absence of a law on genocide such grave
offences against humanity have been hushed in India time and again. India has failed
to fulfill its obligation to enact a national law on genocide to prevent and protect its
citizens, religious minorities and vulnerable groups against the crimes of genocide.
What has been more shocking is the acts have gone unpunished due to lack of
evidences demanded by the national law, as it treats acts of genocide as mere
individual acts, punishable under various sections of the Indian Penal Code. Today,
we continue to live in a polarized country, where the bomb of holocaust is to explode
time and again and the rest of the humanity except the offenders shall be put to
shame again and again.
Student, B.B.A LL.B (International Honors), School of Law, KIIT University,
Arundhati Roy, The Algebra of Infinite Justice, (2002).
United States based advocacy group Sikhs for Justice have filed a petition before
the United Nations Human Rights Commission in Geneva to launch investigation
in the 1984 killings of Sikhs which should be considered as genocide and not
rioting. The petition says it was a systematic killing of Sikhs with complicity and
participation of government. See Internationalising the 1984 riots, The Hindu, available
riots/article5415029.ece, last seen on 15/4/2015.
1. UNDERSTANDING GENOCIDE AND OBLIGATION OF STATES TO
What is Genocide?
The world had never seen as ugly a face of mankind as in the wake of
the Second World War, when the Nazi’s committed holocaust of the
Jews on the orders of Adolf Hitler.
Winston Churchill remarked that
the world was being faced with a crime without a name.
In 1944 the
term ‘genocide’ was coined by Raphael Lemkin for the ‘acts of barbarity’
committed against the Jews.
The need for punishing these perpetrators
of the gravest crimes against mankind led to the creation of the
Nuremberg Tribunal. The Tribunal did not define the crime of genocide
but made killings and persecution of civilians based on religious, racial
and political identities punishable.
The term of ‘genocide’ was included
in the indictment but not as a legal term.
This led to the UN General
Assembly Resolution 96(I) in 1946 to adopt the Convention on the
Prevention and Punishment of Genocide. The resolution affirmed that
the crime of genocide is of international concern. The preamble to the
convention adopted on 9th December, 1948 states that genocide is a
crime under International law and should be condemned by the civilized
world. It has wreaked havoc on humanity and has led to great losses and
therefore international cooperation is sought to liberate mankind from
such an ‘odious scourge’.
The Article II of the Genocide Convention defines the crime of
Dr. Steve Paulsson, A View of the Holocaust, available at:
http://www.bbc.co.uk/history/worldwars/genocide/holocaust_overview_01.shtml, last seen on
Leo Kuper, Genocide, Its Political Use in Twentieth Century, (1981).
Introductory note on Convention on the Prevention and Punishment of the Crime of Genocide,
Audiovisual Library of International Law, available at
http://legal.un.org/avl/ha/cppcg/cppcg.html, last seen on 15/4/2015.
Origin of the term “Genocide”, Holocaust, available at
http://www.ushmm.org/confront-genocide/defining-genocide, last seen on
See supra note 6.
Article II: In the present Convention, 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:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
The following acts are made punishable under the convention as
prescribed under Article III.
Article III: The following acts shall be punishable:
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
This definition of genocide is also found in the charter of International
Criminal Tribunal for Yugoslavia (ICTY) and International Criminal
Tribunal for Rwanda (ICTR) under Article 4 and Article 2 respectively.
The ICC Statute also defines the crime of genocide under Article 6 of
the Roman Charter, 2002.
The essential element of the crime of genocide is the specific intent or
‘dollus speciallis’ to destroy a targeted group in whole or in part. The
specific intent is to bring the destruction of this target group through a
systematic planned attack. The acts that constitute genocide like killing,
murder, extermination are done with an underlying intention to bring
about the destruction of the group.
A person might have an intention to
kill, murder, exterminate but unless such underlying intention is present
to direct all these acts of offences towards commission of genocide, the
G. H. Stanton, The Eight Stages of Genocide: Stanton has formulated eight stages of
genocide in order to infer the specific intent behind a genocide. These eights stages
in an increasing order are: Classification, Symbolisation, Dehumanisation,
Organisation, Polarisation, Preparation, Extermination and Denial: available at:
http://www.genocidewatch.org/genocide/8stagesofgenocide.htmlw, last seen on
specific intent cannot be proved. The ICTY in Jelisic Case
noted that it
is the mens rea which gives genocide its specialty and distinguishes it
from ordinary crime and other crimes against international humanitarian
law. The ICTR also in the case of Akayesu
defines specific intent as
constitutive element of the crime of genocide, which demands that the
perpetrator clearly seeks to achieve through its acts the offence charged
off. Since, it is difficult to prove this specific intention to commit
genocide in absence of confessions the intention is inferred from the
The Convention punishes killing of the members of a group directly or
actions leading to such deaths. Deliberate deprivation of means to
sustain life and resources needed for survival which ultimately brings
destruction of the group like restriction on food, shelter, clean water,
widespread torture, rapes also amount to genocide. Prevention of births
in the group by forced sterilization, castration etc. also amount to
genocide as this leads to extinction of the particular group over a span
of time. Therefore, commission of any of these acts under Article II
with intention to destroy a national, religious, racial and ethnical group
in whole or any part amounts to genocide.
The destruction of the
group can be aimed at whole or in a particular geographical area or
territory; region of a country and a municipality can also be
characterized as genocide.
Obligation under the Convention on the States
The Convention under Article V places an obligation on the parties to
the convention to enact national legislation on genocide in accordance
to their respective constitution to give effect to the provisions of the
Convention and to effectively punish and attach penalty under domestic
jurisdiction on persons guilty of genocide or the associated acts under
Article II and III respectively.
What Is Genocide?, Genocide Watch, available at
http://www.genocidewatch.org/genocide/whatisit.html , last seen on 15/4/2015.
ICTY in Krstic case, IT-98-33-T, 2001.
Article 5 of the Genocide Convention enshrines that “The Contracting Parties
undertake to enact, in accordance with their respective Constitutions, the necessary legislation to
give effect to the provisions of the present Convention and, in particular, to provide effective
penalties for persons guilty of genocide or any of the other acts enumerated in Article 3”.
Article VI provides that the persons charged with genocide shall be tried
by a competent tribunal of the State in whose territory the acts were
committed and in cases where two contracting parties are involved by
such international penal tribunal to whose jurisdiction both the parties
The domestic prosecution of perpetrators of genocide has become the
subject of International interest and not merely matters of national
significance. Failures to enact national legislations on genocide have
international impact. In April 1999, the Rwandan Mayor Fulgence
Niyonteze could not be held liable for genocide when he was tried in
Swiss courts as Switzerland did not recognise ‘genocide’ as a separate
offence and had no national laws or legislations punishing the acts of
Many states like United States have a domestic legislation or law for
genocide. Under Chapter 50 A of the US Code Section 1091 defines the
offence of genocide. It states that whoever, whether in time of peace or
in time of war and with the specific intent to destroy, in whole or in
substantial part, a national, ethnic, racial, or religious group as such kills
members of that group; causes serious bodily injury to members of that
group; causes the permanent impairment of the mental faculties of
members of the group through drugs, torture, or similar
techniques; subjects the group to conditions of life that are intended to
cause the physical destruction of the group in whole or in part; imposes
measures intended to prevent births within the group; or transfers by
force children of the group to another group; or attempts to do so, shall
be punished in case of death by death or life imprisonment and in other
cases, to an imprisonment of not more than twenty years and with a fine
or only with a fine of not more than $1,000,000. The law also attaches
penalty for direct and public incitement of genocide. The provision is
applicable on persons committing genocide within the United States or
on the nationals of the United States committing such offences
elsewhere. Countries like Australia, Switzerland, and Bangladesh also
Article 6 of the Genocide Convention enshrines that “Persons charged with genocide or
any of the other acts enumerated in Article 3 shall be tried by a competent tribunal of the State in
the territory of which the act was committed, or by such international penal tribunal as may have
jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction”.
Implementing the Genocide Convention in Domestic Law, Prevent Genocide International
(Human rights advocacy group working for prevention of genocide), available at
http://preventgenocide.org/law/domestic/index.htm#asia-pacific, last seen on
have special Act implementing the ratified Convention of Genocide in
their domestic laws.
India ratified the Genocide Convention on August 27th, 1959. The
International Court of Justice (ICJ) in its Advisory Opinion on the
Reservations to the Genocide Convention Case
, 1951 has ruled that
the “principles underlying the Convention are principles which are
recognized by the civilized nations as binding on the states, even
without any treaty or conventional obligations”. The crimes like
genocide, crimes against humanity and war crimes have become part of
the general international law. The ICJ in the Barcelona Traction Case
1970 stated that “By their very nature, the outlawing of genocide,
aggression, slavery and racial discrimination are concerns of all states”.
All states have a legal interest in their protection and their prevention is
therefore obligation against the entire world i.e. erga omnes.
Prof. V. S.
Mani in his article on Needed, a Law on Genocide
states that India is bound
by the general principles of International law and by its obligation as
under the Genocide Convention to enact a national legislation on
genocide. He draws four reasons as to why it has become absolutely
important to enact a domestic law on genocide drawing a parallel
analogy as to the reason for enacting laws on terrorism. He states that
India as a member of the United Nations had a legal obligation to enact
a specific law on terrorism, in accordance with the resolutions of the
U.N. Security Council adopted in 2001. Second, terrorism as a special
category of crime required a special law to deal with. Third, only a
special enactment could have a deterrent effect on terrorism. Fourth,
such a law was necessary to protect the territorial integrity and moral
fabric of the country. For the same reasons a law to protect and prevent
genocide should be immediately enacted in India. Firstly, as India is a
party to the Genocide Convention and is bound by the obligation to
prevent and punish genocide. Secondly, as per the obligations under the
Convention India has a duty to enact necessary legislation to give effect
to the provisions of the Convention and to provide for penalties to the
1951 I.C.J. 15.
Belgium v. Spain, 1970 I.C.J. 3.
Prof. V.S Mani, Needed, a law on genocide, The Hindu, (10/04/2002), available at
http://www.thehindu.com/2002/04/10/stories/2002041000251000.htm, last seen
persons guilty of genocide. Thirdly, it has a duty to punish the
perpetrators of genocide by creation of competent tribunals.
Inspite of ratifying the Convention in 1959 India has till date not
enacted any law on genocide. It has failed to fulfill its obligation under
Article 51(c) of the Indian Constitution which “fosters respect for
international law and treaty obligations”. The non-self-executing treaties
are to be made part of the domestic law by enacting laws by the national
legislatures to meet the treaty obligation which India has failed to meet
in respect of the Genocide Convention.
This failure implies that there can be no prosecution in domestic courts
of India of any person accused of committing genocide, as Indian law
does not recognizes genocide as an offence. Therefore, persons accused
of perpetrating genocide in India or Indian citizen committing genocide
abroad cannot be tried by the national courts under the Convention.
India not being a signatory to International Criminal Court also protects
such perpetrators of genocide residing within its territory from the
jurisdiction of the ICC. Therefore, the only remedy which could be
obtained is by filing a case in some other country which recognizes
universal jurisdiction over crimes of genocide. Like cases regarding 1984
and 2002 communal riots being filed in USA to be recognized as crime
2. NEED FOR GENOCIDE LAWS IN INDIA
In absence of specific legislation to punish genocide and acts of
genocide lot of atrocities has been committed in India. There are eight
stages of genocide identified by G.H Stanton to understand and prevent
genocides. The first and second stages are that of Classification and
Symbolization. The Indian Society itself is marred by various religious,
cultural and ethnical differentiations. The most highlighted of all are the
religious and ethnical differences. Our societies and life styles are easily
identifiable by our religion which has strong bearing on our social lives.
Hindus, Muslims, Christians and Sikhs are distinctly classified religious
US refuses to declare 1984 riots in India as genocide, PTI, available at
genocide-349116, last seen 15/4/2015.
groups in India and time and again there have been reported communal
clashes between these groups.
The Genocide Watch in its report on India states that India is a diverse
country with polarization based upon religious, regional, caste and
Dehumanization which is third stage of
genocide is prevalent among religious groups in India for political
reasons. Hate speeches by leaders of RSS, VHP, Majlis-e-Ittehadul
Muslimeen etc. has been a common phenomenon in India further
pushing us towards a polarized society with hatred brewing among
Further, attack on sacred centers of one religious
community by the others is seen as polarizing India into two distinct
religious groups of Hindus and Muslims. Like the 1992 demolition of
Babri Masjid to proclaim the birth place of Lord Rama by Hindus and
the celebration of the kar sevaks after the demolition, fired communal
riots in Bombay in 1992-93 between Muslims and Hindus.
India has a list of communal violence like that of the 2002 Hindu
Muslim riots in Gujarat, the 2012 killings of Assamese Muslims, Killing
of Christians in Odisha and the ethnic cleansing of the Kashmiri Pandits
from the valley.
Due to these existing differences, the Genocide Watch
classifies India in the fifth category of Genocide Polarisation.
Communal riots between Hindus and Muslims at time of partition in 1947, the
killing of Sikhs in 1984, 2002 killings of Muslims in Gujarat.: available at
http://www.genocidewatch.org/india.html, last seen on 15/04/2015.
Latest of such speeches came from Pravin Togadia inciting Hindu mobs to
forcefully take over Muslim land as these cases shall go unpunished and also to use
various force against them if necessary. Pravin Togadia under fire for hate-speech, RSS
says he didn’t say that, The Indian Express (21/04/2014), available at
muslims-pravin-togadia/, last seen 15/4/2015.
ii) MIM MP Akbaruddin Owaisi, in his speech spoke about supremacy of the minority
Muslims over the Hindus, The Times of India, (29/12/2012), available at
hate ,speech/articleshow/17803821.cms, last seen 15/4/2015.
Chapter II, Sri Krishna Commission Report on Demolition of Babri Masjid.
G. H. Stanton, Genocide Watch: India, Those Who Own the Past Own the Future.
3. CASE STUDY ON THE 1984 KILLING OF THE SIKHS: A GENOCIDE
3.1 Nanavati Commission and determination of events in the 1984
The Nanavati Commission Report, 2005
conducting investigation in
the 1984 riots, in the wake of assassination of the then Prime Minister
Indira Gandhi states that a large number of Sikhs were killed in these
riots. The official record states that 2773 Sikhs were killed in Delhi
between 31.10.1984 and 7.11.1984. The report suggests that in the riots
that broke out after the death of Indira Gandhi the Sikhs were targeted,
as she was assassinated by her Sikh body guards. During this period
various gurudwaras in Delhi were attacked and Sikhs were killed on roads
and by dragging out of their homes. The Nanavati Commission Report
finds mention therein of the leaders of Congress like Kamal Nath,
Jagdish Tytler and Sajjan Kumar against whom some witnesses had
deposed. But such witnesses turned hostile later on and no cases were
filed in the courts in most cases and some were disposed due to lack of
evidences. The report suggests that the 1984 killing of the Sikhs was not
an isolated communal riot but culmination of events taking place in
Punjab since the 1981. The killing of Hindu’s by Sikh separatists had
triggered a revenge killing of the Sikh’s to teach them a lesson.
Though the initial outbreak of violence could be termed as
spontaneous reaction of the people on killing of Indira Gandhi by two
Sikh bodyguards but the events in the following days as inferred from
the statement of the witnesses and evidences examined by the
commission, shows it to be a planned attack on the Sikh and their
settlements. Persons who carry out attacks and violence were
contacted to carry out such attacks and the gradual supply of arms or
weapons and substances like kerosene to the mob in the following
days show an organized plan to eliminate Sikhs from their areas of
settlement in Delhi.
Meetings were held, plans were laid down and
instructions were given to identify Sikh shops and houses and to loot
them. The killings had a common pattern in which the male Sikhs were
I_eng.pdf, last seen on 15/4/2015.
Overall Consideration, Nanavati Commission Report (2005), available at:
I_eng.pdf, last seen on 15/4/2015.
taken out of the house, beaten and burnt alive. A tyre was placed
around the head and burnt with kerosene, petrol or a white
inflammable powder. There appeared to be a systematic pattern in
these killings with the mob shouting anti-Sikh slogans. The evidences
collected by the Commission showed involvement of local Congress
leaders. Though the commission could not find enough evidences to
prove the involvement of any big leaders and therefore could not
suggest any action against them. Commission recommended the
Government to take actions against Jagdish Tytler and Sajjan Kumar
two Congress leaders against whom it found incriminating evidences
of organizing the mob to kill Sikhs.
3.2 Not Riots but planned ‘Sikh Genocide’
The facts stated above point out that there was classification and
symbolization of the Sikhs, as the violence was directed towards one
particular religious group. The Sikhs could be easily identified because of
their appearance and dressing, with a beard and a turban. There was
dehumanization and polarization caused by anti-Sikh sentiments and
revenge killings for what happened in Punjab. The killings were directed
at Sikhs in particular and they were executed in a systematic pattern
which shows planning and organization of the mob. Their houses and
shops were identified and gurudwaras were attacked. The mass killings
were not done as a spontaneous reaction of a mob or unlawful assembly
but in execution of a common plan to eliminate the Sikhs systematically.
This shows that it was not a case of rioting under Section 146 of the
Indian Penal Code which merely says about use of violence by an
unlawful assembly. But, an episode of genocide happened wherein the
systematic elimination of Sikhs were carried out with an intention to
destroy them in particular. There was Organisation, Planning and
Preparation wherein the Sikhs were identified and targeted along with
Extermination which amounts to the eights stages of Genocide as
The extermination of the Sikhs carried out in such a
way as to mutilate their bodies by burning, are manifestation of an
intention of directing violence against the Sikhs. So, as to destroy them
See supra note 26.
G. H. Stanton, The Eight Stages of Genocide: Stanton has formulated eight stages of
genocide in order to infer the specific intent behind genocide. These eights stages
in an increasing order are: Classification, Symbolisation, Dehumanisation,
Organisation, Polarisation, Preparation, Extermination and Denial. Available at:
http://www.genocidewatch.org/genocide/8stagesofgenocide.html, last seen on
and reflects an extreme sense of hatred and revenge against this religious
The commission found congress leader like Sajjan Kumar and Jagdish
Tytler involved in such violence as well as complacency and complicity
of various police force officers who did not act and allowed such mob
rioting to escalate. However, due to lack of evidences against Jagdish
Tytler the C.B.I gave him a clean chit in 2009 due to insufficiency of
evidences. However, recently the Delhi High Court has ordered CBI to
reinvestigate and open a case against him as there appears to be
evidence which has not been examined. Witnesses who had filed
affidavit before the Nanavati Commission and have testified against
Tytler were asked by the court to be examined by the CBI.
Kumar was acquitted in one of the cases filed against him while the rest
three are still pending. In one of such cases he faces charges of murder,
rioting and promoting hatred among communities which lead to the
killing of six Sikhs.
It has been 30 years since the Sikh Genocide but
the perpetrators have not been brought to justice yet. Various Non-
Governmental Organisations have been working for the victims towards
securing justice and to punish those responsible for instigating and
organizing such mass killings of the Sikhs.
Delhi court reopens 1984 riots case against Tytler, The Hindustan Times (10/04/2013),
available at http://www.hindustantimes.com/india-news/newdelhi/delhi-court-
reopens-1984-riots-case-against-tytler/article1-1040274.aspx, last seen on
1984 Anti-Sikh Riots Case: SC rejects Sajjan Kumar's plea, asks him to face murder trial, ,
The Times of India (3/12/2013), available at
Amnesty International’s: Chaurasi Ki Na insaafi, Sikhs for Justice and other
campaigns urge Government to bring to Justice the real perpetrators behind 1984
killings. The Sikhs for Justice and other interested human rights group have filed a
petition before the UNHCR to initiate investigation in the 1984 killings of the Sikhs
and to recognize it as genocide while the Indian government fails to bring to justice
the perpetrators. Amnesty Campaign is available at
http://www.amnesty.org.in/action/detail/demand-justice-for-1984, last seen on
4. NEED FOR RECOGNIZING ACTS OF ‘GENOCIDE’ AND ENACTING
A DOMESTIC LAW
4.1 Effects of Denial of Recognition of Acts of Genocide
Lack of a law on genocide makes it more difficult for the victims to get
justice. These violence inflicted on a group is not seen as a larger picture
to bring their destruction in whole or in part but as mere individual
offences like murder under section 302 coupled with Criminal
Conspiracy, Unlawful Assembly and Rioting if carried out by a mob of
people. Lack of recognition of genocide as a crime makes it difficult to
book the perpetrators for their acts of barbarity as they are booked for
individual crimes like murder, rioting etc. which is often disposed of due
to lack of evidences. As the actus reus of these crimes are not carried out
by the actual perpetrators of the genocide but by low level rioters or
local goons and due to lack of evidences it becomes difficult to show
complicity of the high level perpetrators of genocide in each of the FIR
registered cases. At most these high level perpetrators are charged only
with inciting violence. Therefore, there is a need to introduce a national
legislation on genocide and to establish a national tribunal in the wake of
such genocidal killings in India. So that, persons who perform the actus
reus of the genocide as well as the high level perpetrators on whose plans
such genocides take place are charged with crime of genocide in
furtherance of intention to cause destruction of a religious, racial,
national or ethnical group and not with mere individual offences under
the penal code. In absence of a domestic law on genocide, the
punishment and charges leveled are those which are commonly used for
other crimes which take place every day and as such, the barbarity of
crimes like genocide evade punishment.
of genocide has huge consequences. Denial harms the
victims and their survivors.
The non-recognition of Armenian
Genocide by the Turkish government is described as double killing by
the survivors. Recognition of the crime of genocide is a healing closure
to an open wound. Denial leads to crippling of victims into hardened
revenge seekers without any chance of reconciliation.
G. H. Stanton, The Eight Stages of Genocide. See supra note 33.
G. H. Stanton, The Cost of Denial, available at
http://www.genocidewatch.org/aboutus/thecostofdenial.html, last seen on
harms the perpetrators and their successors.
G.H Stanton states that
“studies by genocide scholars prove that the single best predictor of
future genocide is denial of a past genocide coupled with impunity for
its perpetrators. ‘Genocide Deniers’ are three times more likely to
commit genocide again than other governments.”
Therefore, the cycle
of killing and revenge between groups shall go on. Denial does not
serves the purpose with which India ratified the Genocide Convention,
i.e. “never again”; it shall continue to be “again and again” till denied.
The insufficiency of the Government to recognise such killings as
genocide leaves the victims with no justice against the fate that befalls
them. With no reparation of the victims, no restorative justice the cycle
of revenge and killings continue. Mere compensation is not justice for
4.2 Domestic Law needed for Successful Prosecution of
The author establishes herein below certain reasons as to why there is a
need for a specific law on genocide and why it is insufficient to deal with
such acts of genocide as one of the existing underlying offences under
the Indian Penal Code, 1860.
Murder under Section 300 of the Indian Penal Code, requires for a
successful conviction that death is to be caused by an act of the
perpetrator with such intent or knowledge so as to cause such bodily
injury which would likely cause death; or is imminently dangerous or is
sufficient in ordinary course to cause death. Depending on the
knowledge and likelihood component there is a fine distinction between
culpable homicide and murder. Genocide on the other hand is not mere
murder or mass murder.
Under the Indian Penal Code if death is caused by the acts of the
offender, then he shall be convicted of murder, culpable homicide or
attempt to murder. Whereas, genocide on the other hand, as recognized
by G.H Stanton and mentioned hereinbefore, is a culmination of seven
stages followed by denial. Each of these stages can bring culpability and
the ‘specific intent’ to eliminate or cause damage to a particular social
group is punishable as compared to ‘mere intention or knowledge’ that
causes death in ordinary crimes .A perpetrator of Genocide under
Article III of the 1948 Convention can be held liable for actual
commission of acts amounting to genocide or for certain categories of
acts, which are committed in preparation of the main offence of
genocide. Such acts are conspiracy and incitement to commit genocide,
attempt to commit genocide, and complicity in genocide. These
conducts are cumulatively termed as ‘inchoate offences’. These acts or
conducts are deemed criminal without the actual crime being committed
and for which the perpetrator may be prosecuted for the crime of
genocide. What is necessary is therefore, the intent to destroy a
protected group in whole or in part.
Herein, lies the difference
between ordinary crimes and acts of genocide.
The author further analyses certain reasons as to why individual cases
filed by victims or their families and FIR’s registered in each case of
murder or death caused in a genocide makes it difficult to prosecute and
convict perpetrators of genocidal acts under the Indian Penal Code:
a) Lack of forthcoming eyewitnesses in each case makes it difficult to
establish the actual high level perpetrators on whose command and
complicity, the acts of murder and culpable homicide are caused by
the low level perpetrators.
It also becomes difficult to establish the presence of such persons in
an unlawful assembly or as the conspirators aiding and abetting each
individual incident of crime that takes place during the entire
duration of the genocide.
Allegations and witnesses for example deposed before the
commissions investigating the 1984 riots to have seen certain
congress leaders at scene of crime, but it is impossible to establish
their presence in each of the registered cases and hence, conviction
becomes difficult. Whereas, if the offence of genocide existed, once
the ‘specific intent’ or ‘dollus speciallis’ to attack a particular group
would have been proved, involvement of such leaders/ individuals
proven even in limited number of crime scenes and evidence of
planning, organization, incitement and abetment against them
existed pertaining to incidents during the duration of genocide, it
would lead to conviction for genocide. Thus, leading to punishment
for all unlawful acts and deaths are caused during the genocide and
not on case to case basis. This means ‘justice’ in each case of
Available at https://thesentinelproject.org/2013/05/08/uncovering-the-
components-and-elements-of-genocidal-acts/, last seen on 11/6/15.
victimization and suffering wreaked on the victims and not only for
a few victims.
b) Certain high level perpetrators who are not seen at the scene of
crime may evade responsibility as there would be lack of direct
evidences against them.
c) Without a link being established between each of such acts which
culminate in genocide it becomes difficult to book all the
perpetrators who are part of the genocidal pogroms in part or more.
And often they are charged of trifling individual offences of
mischief, supplying arms, communal incitement etc.
d) It is difficult to establish Civil Command Superiority as each of these
offences are charged under different offences under the Indian
Penal Code, 1860. The aider and abettor in pursuance of whose
incitement the killings take place might differ from case to case
basis. Therefore, tracing back to establish culpability to the hidden
perpetrators becomes difficult.
e) Since, conviction results in a very few cases and those are treated
like ordinary murders, the repatriation and compensation is none or
very few in such cases. Most of the victims are treated as victims of
riots and are hardly repatriated rehabilitated and reintegrated.
f) Investigation by local government agencies is opposed to the idea of
independent tribunals to be established for investigating acts of
genocide under the 1948 Convention
which raise serious doubts
on impartiality of the investigative agencies which are directly
controlled by the state. The idea of establishment of such tribunals is
also to provide speedy and adequate elements of justice. The classic
example of denied justice is the 1984 Sikh riots in which the victims
still await justice. The Bangladesh Tribunal to try perpetrators of
1971 war crimes, established in 2009 show that the importance of an
independent tribunal is never lost or that it cannot be avoided in
cases of genocide.
g) No recognition of a wrong done to the whole community trivializes
the sufferings and trifles the severity of act committed against them.
Following the 1984 Sikh Riots in individual cases where death had not
been caused by act of perpetrators they were booked on trifling charges
of Mischief (Section 427) punishable with only two years imprisonment;
Mischief caused by fire or explosives (Section 436) punishable with
imprisonment up to ten years; Promoting enmity between
communities(Section 153A) and Statements inciting public mischief by
Art. 6, the Genocide Convention, 1948.
inciting class or community to commit offence against each other
(Section 505) both punishable with imprisonment up to three years; and
rioting (Section 147) punishable with imprisonment up to two years.
But the crime of Genocide carries the same amount of punishment for
genocide whether there is conspiracy, incitement, attempt or actual
commission of genocide. Hence, the gravity of all acts whether
underlying offence in the scheme of genocide is adequately punished.
The Krstic Case observed the importance of maintaining the stringent
requirements to qualify an act as an act of genocide. But once these
requirements of ‘specific intention’ are satisfied, the law must not shy
away from referring to the crime committed by its proper name. The
main purpose behind the United Nations General Assembly passing the
Resolution 96(1) in 1946 was to recognize Lemkin’s theory regarding
genocide that genocide is an independent crime different from crimes
against peace or war crimes and that both public and private individual
could be punished and held accountable for their acts.
And part of
India’s obligation to the 1948 Convention, denial to recognise acts of
genocide like the 1984 Sikh riots is failure to protect under the same.
4.3 Delivering Justice: Not Retribution but Truth and
Reconciliation Needed (Special Tribunals)
In cases of genocide, retribution is never the actual justice. Beyond
prosecution for underlying offences and compensation to riot victims
the present Indian legal system offers nothing more to the victims.
Whereas, human rights Advocate Vrinda Grover in her opinion on the
Communal Violence Bill, 2005 argues that in cases of communal
violence there can only be “reparation which under international law
connotes the obligation of the State and the entitlement of the victim,
which is indicative of the reluctance of the State to discharge its
responsibility.” Reparations are effort to repair and restore to victims
the damages suffered by them as a result of failure of the State’s
machinery in protecting them.
Genocides based on religion are
Chapter II : The Genocide Convention: The Travaux Préparatoires.
Clifton D' Rozario, Communal Violence (Prevention, Control and Rehabilitation of Victims)
Bill, 2005 Some Reflections, Alternative law Forum. That includes quotes from Vrinda
Grover on the Bill available at
different from communal violence or riots they are not one day episodes
or outbreak of sudden violence these are not mere law and order
situations but socio-political problems inherent in the fabric of the
To tackle such crimes and to bring justice to the victim
reparation followed by restitution is necessary. Compensation not only
for physical damages but also for emotional, psychological harms on
victims have to be assessed. The rehabilitation of the victims should
include medical, psychological and legal services to remedy the wrongs
committed to the victims and alleviate their condition of life.
important of all remedy and the purpose of penal tribunals is to conduct
the trial in cases of genocide and war crimes to bring the perpetrator and
the victims of such crimes face to face, thus acknowledging
Also to extend an apology to the satisfaction of the
victims by the perpetrators and the State for the wrong done to them
and building confidence among communities by promising of non-
occurrence of such crimes.
Retributive justice or mere penalization in
such cases will not end the killings of one religious community by the
others and the hatred between them. By refusing to recognise such
incidents as genocide, we are also refusing to acknowledge the
horrendous wrongs suffered by the targeted group. There is no
forgiveness sought and none forgiven and the feelings of hatred and
revenge continue to be engrained in the society.
As India continues to be a polarized society based on the socio-
economic-religious factors, it is highly important that it fulfills its
obligation to the Genocide Convention. A national law on genocide is
the need of the hour to recognise the wrongs committed on one
community by the other and for proper reparations there is a need for
the establishment of specialized tribunals to try these cases.
Independence of such tribunals is to be guaranteed from the state’s
interference. Concerned Citizens Tribunal Gujarat, a human rights
advocacy group after the communal riots in 2002 has suggested that
HY6Mw&sig2=aSSNuwSp052H9touULCtEg, last seen on 15/4/2015.
Summary of the high-level panel discussion dedicated to the sixty-fifth anniversary
of the Convention on the Prevention and Punishment of the Crime of Genocide,
Report of the United Nations High Commissioner for Human Rights
immediately a law should be passed on “mass violence and genocide”,
and vouched for the establishment of a Standing National Crimes
Tribunal to deal with cases of genocides, mass violence, pogroms, riots
etc. The Tribunal should be independent of the judicial mechanism for
speeder disposal of complaints and should have independent
investigating agency. It shall dispose such cases within fixed time and
shall have the power to compensate and rehabilitate victims and their
dependents. They also suggest reforms in the Police Act, 1861 giving
more autonomy to police to handle such situations and prevent
occurrence of genocide by freeing them from unnecessary political
India should fulfill its obligation to the Genocide Convention
by taking steps towards prevention of genocide and spreading awareness
about the same among its citizens rather than ignoring the existence of
such a crime. In 2005, the United Nations General Assembly adopted
the Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human
Rights law and Serious Violations of International Humanitarian Law
and has suggested therein, the basic framework of remedies that the
State should ensure is made available to the victims of grave human
rights breaches like crimes of genocide. These remedies include
reparation, restitution, compensation, rehabilitation and satisfaction.
Satisfaction includes an official declaration or a judicial decision
restoring the dignity, the reputation and the rights of the victim and of
persons closely connected with the victim and a public apology
acknowledging the facts and acceptance of responsibility by the State
and the perpetrators.
Crimes of Genocide need to be first recognized and then dealt under the
legal system separately. The usual remedy under the legal system that of
retribution serves no purpose in such cases. Criminal prosecutions in
cases of genocide do not guarantee non-recurrence of such acts. Lasting
peace is not a guarantee thereafter. Reconciliation and establishment of
Truth and Reconciliation Commissions are seen as important remedies
which the domestic legal system in India evades from. Reconciliation
requires saying the truth and acceptance of a past. “The kind of
reconciliation that lets bygones be bygones is not true reconciliation. It
Asian Human Rights Commission, available at
http://www.hrsolidarity.net/mainfile.php/2002vol12no05/2238/, last seen on
UN General Assembly Resolution 60/147 (16/12/2005).
is reconciliation at gunpoint and should not be confused with the real
Tina Rosenberg, a journalist observes that only when the
victims’ sufferings have been acknowledged, then there is a chance of
reconciliation. If the victim knows that the crimes would remain buried,
there can hardly be any peace established.
Therefore, there is a need to
recognise the ‘acts of genocide’ as a specific crime and not as other
underlying offences. Remedy and justice needs to follow an alternate
model in such cases. A Truth and Reconciliation Commission has often
been suggested as the justice delivery institution in such cases of
violence. Lalita Ramdas, penning her thoughts on the 1984 riots
observes that there is a need for legislation on genocide which embodies
the doctrine of command superiority and administration liability. She
argues that a Truth and Reconciliation Commission is an alternate
model to deliver justice; as the implementing authority i.e. the
government can itself be one of the perpetrators often.
exists a need to create such justice delivery systems independent of
influence of the perpetrators and which serves justice in cases of
‘genocide’ different from the procedure followed for ordinary crimes.
Since, there can be no retrospective effect of the genocide legislation.
The least that can be done to assuage the feelings of the victims is to
establish such commission or independent tribunals to accept and
reconcile with what has happened. Though, the criminality of the
offence of genocide cannot be achieved, the retributive justice might
fail. But, the reconciliation and truth which are both elements of justice
can lead to ground level assessing of situations and human resource
development that sees the idea of ‘us’ together rather than fragmented
communities. The establishment of a SIT by the Delhi Government is a
step welcome towards investigating into 1984 incidents. But India fails
Reconciliation after Violent Conflict-A Handbook: International Institute for Democracy
and Electoral Assistance, available at
Conflict-A-Handbook-Full-English-PDF.pdf, last seen on 11/6/2015.
Lalita Ramdas, Thoughts on 1984: A Fragile Democracy, Economic and Political Weekly
4108, 4111 (Sep. 17-23, 2005).
to recognise the incidents as genocide which foreign governments like
the Californian Senate have done.
India continues to evade its responsibility of recognizing the horrendous
acts of genocide that were committed against its victims in 1984 riots
and unless a law on genocide is passed which recognizes such horrors of
the crimes of genocide, justice shall remain elusive to all future victims
of a new 1984, 2002 and more in future without any deterrence.
California Senate condemns 1984 anti-Sikh riot as 'genocide', The Economic Times, (May
1, 2015), available at http://articles.economictimes.indiatimes.com/2015-05-
01/news/61723683_1_law-enforcement-sikhs-resolution, last seen on 11/6/2015.