1984 In The Life Of A Nation
By Indira Jaising
01 November, 2004
Indian ExpressTwenty 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
