Session #7: Sunday, 11 January, 12.15 - 14.00 (CSLG)
Panel coordinator(s): Anita Abraham, Lawyer, Delhi (aa2060@yahoo.com)
Chair/discussant: Vrinda Grover, Director, MARG (vrindagrover@gmail.com)
Panel description
Panelists, paper titles, and abstracts
More than six years after the Gujarat carnage, victims of the violence are still fighting to obtain justice for the crimes committed against them. The events of February and March 2002 which lead to the killings of more than 2000 persons from the Muslim community was planned and orchestrated by the Sangh Parivar and the BJP government of the State of Gujarat. Further, at least one hundred thousand people were displaced in the violence that was spread across the entire State of Gujarat. Complicity of State functionaries through their workings in the police departments, media and through their political offices both through action and inaction succeeded in wiping out hundreds of Muslims and their families and leaving ‘rightless’ thousands of other persons belonging to the Muslim community. The consequence of the events of mass violence in Gujarat has been mass displacement, lack of livelihood, lack of access to the State police and the lack of judicial redress, amongst others. In this background, I would like to propose a panel to address the question of whether the judicial mechanisms and laws that are presently available in India have proven to be adequate to bring justice for the crimes of murder, assault, arson, and persecution, that were perpetrated against individuals and against the community.
The displayed insufficiencies of the criminal justice system in the State of Gujarat in the context of the carnage, has been deliberate and further contributes to isolating the Muslim community from the meta structure of the Indian nation state. The right of the Muslim community victimized in Gujarat to judicial redress has been undermined by the saffron biases of the lower judiciary and the High Court of Gujarat. The Supreme Court of India in the meantime at the behest of several rights groups has made some important interventions bringing under scrutiny several events of the Gujarat carnage and the crimes committed against individual victims have been acknowledged by the Apex Court and trials been ordered to be conducted outside the State of Gujarat. The Inquiry Commissions have also been important in the struggle of the victims to be heard and for the documentation of the events of 2002 in Gujarat.
In this regard, some of the questions that will be addressed by the panelists are as follows:
(1) Inquiry commissions (while looking more specifically at the Nanavati commission), its necessity, legality and impact.
(2) Placing the incidents that took place in Gujarat in the context of Genocide/Crimes against Humanity and suggestions towards incorporating international laws against genocide, etc. into laws in India.
(3) Addressing the question of compromise/settlement imposed on the victims of the carnage.
(4) Sexual violence used in an orchestrated manner in the post-Godhra carnage and the lack of and therefore necessity of special laws to address these issues.
(5) The interventions of the Supreme Court albeit at the behest of rights groups and its impact so far.
1984 Delhi, 1992-93 Mumbai, 2002 Gujarat, dates that have come to signify a deliberate and systematic violent targeting of sections of Indian citizenry with explicit and/or implicit support of the State. Post the mass crimes the narrative from all these jurisdictions is one of impunity and injustice. But beyond the lament and wails of injustice it is important to discern and identify the reasons why law and judiciary fail to deliver justice to the victims of communal carnage. Analysis of the court battles for justice by survivors and victims points to the gaps and lacunae in the substantive and procedural criminal law regime. Prevention and punishment for communal pogrom and genocide requires incorporation of jurisprudential principles that assign culpability to and secure accountability from those occupying positions of authority, power and responsibility in the State. The horrors of the violence that echo in the testimonies of the survivors must be reflected in the definition of crimes that are formulated. For victims and survivors to access justice the legal apparatus needs to provide an enabling framework. This paper discusses some of the key conceptual and jurisprudential changes that must be introduced if this continuum of impunity is to be interrupted.
The responsibilities of Indian activists, cannot be just to the undoubtedly horrific mass crimes committed within Gujarat 2002 or Punjab in the 80s but must encompass a vision which has a global reach. One of the significant factors marking the contemporary global context is the war on terror initiated by the USA and the far reaching threat that the mechanisms through which the war on terror has been waged pose to the incipient frameworks of global justice. In particular, this paper will focus attention on two significant developments which signpost the possible shape of things to come. Firstly, the challenge posed by the Military Commissions Act (the legal regime governing Guantanamo Bay), passed by the USA will be studied to see in what way it represents a turning away from the norm of justice and a move towards setting in place the norm of vengeance. The second key international development which has passed a significant challenge to the idea of global justice has been the trial of Saddam Hussein. After examining the two statutes referred to above, the paper will then examine the ICC statute and make the case that if law is to be connected to justice and if justice is to be seen to be global, then a relevant international framework is provided by the Rome Statute. It will be argued that the Rome Statute both in term of its global justice concerns i.e., the conceptualization of crimes against humanity and genocide and in terms of the procedurally fair system which it sets in place to try offenders, represents a significant evolution of the norm of global justice. It will be argued that in these lawless times, the Rome Statute will be an important standard on the basis of which we can strive to hold accountable the operations of power which by the day is becoming more and more absolute.
Access to justice in the aftermath of the Gujarat riots of 2002 remains an elusive notion for the victims of the Gujarat carnage. A cursory examination of the cases filed in four districts of Gujarat show the manner in which the State’s legal machinery has subverted even first principles of Indian criminal jurisprudence rendering the victims of the carnage unable to obtain legal redressal for crimes of murder committed against persons belonging to the Muslim community. In an entire village, alleged perpetrators of crimes of murder took recourse to measures referred to as ‘compromise’ or ‘samadhan” wherein attempts are made to coerce the victims of the riots into changing their testimonies in Court by inducement of fear. Some courts in Gujarat accept these measures as legitimate means to ‘settle’ murder trials and have openly and explicitly made demands on the Muslim complainants to effectuate a samadhan and thereby ensure acquittals of the accused persons. In my paper, I would like to focus on this phenomenon of the samadhan that has operated as a means to ensure the protection of accused persons belonging to the Hindu community, in the backdrop of a communally tainted judiciary.
There was a time when the Commissions under the Commissions of Inquiries Act were considered to be powerful tools in the hands of the Government and the legislatures to uncover the truth for themselves. The statutory ears and eyes of the State! Today however, the same law has convoluted and made into a screen to evade or obscure the inconvenient truths.
The Nanavati Commission, constituted in March, 2002, was initially given six months to submit its report but even after six years it has not come out with its report ! It has already taken half the period of Ramayana for the Commission to inquire as to how the Rambhaktas met their tragic death on 27th February, 2002 near Godhra! The real tragedy is that the second part of the reference which required the Commission to inquire into the conduct of the Chief Minister, other ministers, leaders of political organizations, the role of the police officials etc will never be looked into. We will go into the details of the work done by the commission to find out what actually it has revealed.
The 26th July, 2008 blast has once again brought to fore the paramount question as to security and safety of the people of the country. Whether it is a bomb blast or a riot, hundreds of innocent people die; in case of the complicity on the part of the state, the deaths are hardly inquired into as the state’s only objective is to hide the truth. Do we need more laws and legal machineries to prevent such events? May be for genocidal acts, we do not have adequate law but even crimes like fake encounters go unpunished. In fact, the commission of inquiries Act really needs to be amended to prohibit its misuse rather than its utility. We need statutes to aid the impartial investigation rather than statutes to prevaricate the truth!
While there been intense focus on the accountability of individual accused in the Gujarat program, there has been little or no legal focus of state accountability or the accountability of non sate groups for the mass killings that took place in 2a002. This seems to be built into the nature of the criminal justice system, which has not till date adopted responsibility for mass crimes supported or tolerated by the State. Doctrine of command responsibility developed in genocidal situations has not been adopted in national laws. The law of sovereign immunity prevents the effective prosecution of political leaders at the center of power. Collective cabinet responsibility also prevents the unmasking of individual responsibility for crimes against humanity. The political motive behind atrocities that are based on the communal identity of the victims is not recognised in the law of crime in India. A situation in which the same political party hold power at the Center and the State , makes the use of such federal instruments of accountability as are available (article 355) unusable. The result has been that the Chief Minister of Gujarat has been politically and legally unaccountable for the program of 2002, for his acts of omission and commission. An attempt to hold the chief Minster as the head of the executive in the state accountable has been made in a suit filed by the Dowood family, Of British origin, the family lost relatives in mindless killings based on their communal origin during the 2002 program in Gujarat while on a visit to Gujarat. The widows of the lot relatives have filed a suit or compensation is a district court in Gujarat. The suit seeks to hold the Chief Minister Narendra Modi liable for acts of omission and commission and holds him personally responsible to pay compensation. The suit seeks to hold him responsible on the doctrine command responsibility and invokes the convention on genocide, to which India is a party. The presentation will attempt to unfold the logic of this legal initiative and locate it in the context of the program and the other legal initiatives taken in relation to the killing.