1984 In The
Life Of A Nation
By Indira Jaising
01 November, 2004
Indian Express
Twenty
years in the life of a nation is not too long a time. Today is the 20th
anniversary (if one can call it that) of the massacre of Sikhs in Delhi
following the death of the Indira Gandhi. December 3-4 will be the 20th
anniversary of what is described as the Bhopal Gas Leak Disaster. In
between we have had the genocide in Gujarat in February-March '02.
Is there perhaps
a pattern emerging from these events which should alert the nation to
its failure in preventing and then dealing with the wanton killing of
innocents? Twenty years after the Sikh
killings, justice has not been done. There have been no convictions
of the politicians who led crowds to kill Sikhs for no other reason
than that they were Sikhs. The question arises, are we perhaps using
obsolete legal concepts to deal with mass killings which have the backing
of the state? A charge of murder alone does not seem to adequately describe
the crime. Was '84 a crime without a name and
hence a crime without a remedy? To charge people with murder and nothing
more fails to point the finger to the real accused. It does not address
the issue of constitutional responsibility for preventing
such killings. Although what happened in '84 was not described as "genocide",
that is what it was. Our legal system failed to answer the question:
what is the constitutional and personal responsibility
of the head of state for mass killings?
In December '84,
a gas leak in the UCC facility killed more than 2,000 people living
in the vicinity instantly and left thousands seriously injured. Those
victims, too, are still awaiting justice. The liability of UCC was never
determined. Instead, the apex court recorded a settlement to which the
victims were not a party, accepting US$470 million as compensation on
their behalf. The question, who was responsible for this disaster, was
it UCC, the government who failed to monitor safety standards, the directors
of the Indian subsidiary who were managing the facility, or was it all
of them - was never answered. The Supreme Court's role was reduced to
that of a bargainer mediating between the highest offer and demand.
As a result, the legal system offered no solutions, whether civil or
criminal.
With the killings
of the Muslims in Gujarat in '02, it became clear that they were genocidal
in nature. Many of us, who responded on behalf of Gujarat victims, were
equally active in the '84 Delhi massacres. Having been through that
experience, we realised that unless the question of state complicity
was addressed, justice would remain a distant dream. Soon it became
apparent that this was not just an act of failure but part of a design.
It seemed that through periodic communal violence, the state had gained
experience not only in organising violence but also organising the denial
of access to justice. It is now clear that the cover-up plan was in
place before the violence was unleashed. Failure to investigate the
crimes, refusal to name leaders in FIRs, appointing public prosecutors
who were VHP members, ensuring witnesses turn hostile, were only some
of the methods used to ensure acquittals. While this happened, the judiciary
remained a mute spectator until the NHRC moved the apex court with the
active assistance of members of civil society.
The final verdict
on Gujarat is not out, but human rights activists have learned certain
lessons. One of them was the immense importance of holding the perpetrators
of the violence legally liable. In a
manner of speaking, it is the entire legal system that is on trial.
It is the failure to hold the killers of '84 liable, the failure to
hold the UCC liable, that led to the belief that criminals enjoy immunity
from the legal process. It is easier to convict for a single murder,
than it is to convict for 2,000 mass murders. The significance of describing
the Gujarat killings as genocide is that they enable us to hold the
CM personally liable for the killings that took place on the theory
of command responsibility. The position of a CM or PM is one of command
and neither can claim that they were not responsible for the acts of
their subordinates. Apart from holding those who committed the acts
of killing liable, we also have to hold liable people in positions of
power, who not only failed to prevent the killings but encouraged it
by hate speech, justified it as an understandable response. All chargesheets
in the Gujarat cases began with the assertion that the killings took
place as a "reaction" to the burning for the Sabarmati train
in Godhra. The police have already decided, even before any trial, that
the killings were not
planned but were a "spontaneous reaction" to the Sabarmati
Express burning.
In the district
court in Himmatnagar, a suit has been filed by two widows who lost their
husbands against the CM, the State of Gujarat and the accused in the
criminal trial which have has been commenced against those accused of
murdering their husbands. This suit squarely raises the issue of the
personal responsibility of the CM for his complicity in the genocide
that took place in March '02 and invokes the theory of command responsibility.
India is a party to the Convention on the Prevention and Punishment
of the Crime of Genocide. The chief merit of invoking the Convention
is that it destroys the theory of state immunity. It also enables us
to hold people personally liable for their actions without hiding behind
the juristic personality of the state. What will happen to the suit
is
anybody's guess, but the fact that it has been filed means that the
CM has a case to answer. The suit has come 20 years too late. Had such
legal action been taken against the PM in power in '84, perhaps the
legal system would have been tested and accountability for human rights
violations established. What Gujarat has done is to help us understand
'84 better. Equally, '84 helped us to understand what was required to
be done in the post-Gujarat killings.
I am amazed when
people say, "What's new about Gujarat?" The difference is
that in Gujarat, those at the helm of power have been challenged by
human rights activists. The very act of challenge hold
promise for the future. But there are similarities too. In the final
analysis, the legal system is the steel frame of accountability. That
steel frame crumbled in '84 in Delhi. It crumbled again in the face
of the UCC killings. By '04, it was literally non-existent. It was these
failures of the legal system and more specifically of our judiciary,
that made Gujarat happen.
Surprisingly, in
situations of mass killings and disappearances it has proved easier
to get justice in societies which have been governed by military regimes
- take the case of Argentina - than in a democracy like India. This
leads me to conclude that the illusion of justice that we in live with
is more dangerous than the absence of it. Or is illusion perhaps a necessary
component of our democracy that sustains our politicians in power?
The writer is a senior Supreme Court advocate