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“… Genocide… Has been Duly Proved and Established”: says Delhi High Court Judgement on 1984 Sikh Genocide Related Case

December 4, 2018 | By

Chandigarh: In another setback to Indian state’s denial tactics to deny the fact of 1984 Sikh genocide, a judgement of the Delhi High Court, delivered recently, clearly uses the term ‘genocide‘ while referring to the events related to 1984 Sikh genocide.

It is notable that even though the Indian state is a signatory to UN Convention on Prevention and Punishment for the Crime of Genocide 1948 it has not enacted any law to recognise the crime of genocide as such under its domestic law.

In its judgement delivered on November 28, 2018 in SHAMBIR & ORS v. STATE case, the Delhi High Court observed “The large scale rioting, mob violence, arson, plunder, genocide and looting has been duly proved and established”.

It may be recalled here that the State Assembly of Delhi had passed a unanimous motion in 2015 in which the events of November 1984 genocidal violence against the Sikhs were condemned as “genocide”.

Despite it, the Indian state is continue to pursue its policy of denial to deny the fact of 1984 Sikh Genocide.

The Delhi High Court judge Justice Gauba in his 79 page judgement said that the protracted process for securing justice and closure was a “sordid experiment in the name of criminal process”, and wondered aloud if the judicial process is equipped enough to deal with crimes of such magnitude, and termed the final determination of guilt a mere academic exercise.

A report in NewsClick.In has identified certain vital aspects related to the case, police and prosecution complicity, genocide and rule of evidence from the said judgment of the Delhi High Court. A portion of the news report by NewsClick.In is reproduced below (in verbatim) for the information of the readers of the Sikh Siyasat News (SSN):

Police, Prosecution Complicity

The 120 witnesses who went to the police reported looting, arson and killing of people by setting them ablaze. However, the police did not register charges of murder, registering offences only under sections 147, 148, 149, 436, 429, 304 (Culpable homicide) and 323 of the Indian Penal Code.

The SHO (Station House Officer) of Kalyanpuri police station, under whose jurisdiction Trilokpuri falls, even filed two chargesheets for the same incident, and this was deprecated by the high court- stating that the very filing of two initial chargesheets in December 1985 “shows the questionable quality of legal assistance availed by the State”.

Although, the chargesheets made out a case for murder under Section 302 of the IPC, they were so weak and unconvincing that the court dropped the charge. The high court noted that “there is no clarity in the trial court proceedings as to why the charges for murder or attempt to murder were not taken on board.”

Out of the total of 120, eventually the prosecution examined only eleven witnesses and thus, a large part of the evidence was kept out, the high court regrettably noted in the judgement.

Moreover, many of the accused failed to appear, and it was an uphill task to secure the attendance of those obdurate persons, especially with the police displaying its laxity and the prosecution not being forceful enough, thus dragging on the trial for many years.

Genocide and Rules of Evidence

There has been a consistent and forceful debate about whether to use the term “genocide” for the 1984 pogrom, as has been said about what happened in Gujarat in 2002, and it is a contested domain, a fractured and rugged terrain. However, in paragraph 101 of his ruling, Justice Gauba unhesitatingly used the term genocide to describe the spate of violence and killings, and said that in adjudicating such a case, the “ordinary rules of appreciation of evidence cannot serve the cause of justice, especially in view of the extraordinary circumstances that prevailed,” relying on the Supreme Court’s 2011 decision in the case of Prithipal Singh v State of Punjab.

Therefore, even with the scant and patchy evidence on record, he had to convict the accused, because of the overwhelming political powers they used to cover up their crimes.

Suggestions for Legislators:

At paragraph 122, Justice Gauba noted – “the case at hand may be treated as a paradigm which ought not to be followed in cases of such nature.” The response of the law has been tardy, ineffective and highly unsatisfactory, he noted, and mooted the idea that the task of collecting and preserving evidence could be entrusted to human rights commissions because of the statutory and non-partisan status that they enjoy, so that they are free from being influenced by vested interests bent upon defeating the rule of law.

“The general criminal law is provenly ill-equipped to deal with the challenge of such crimes of mammoth proportion, particularly when they are invariably perceived to be engineered by those holding control over certain central powers”, Justice Gauba stated in his judgement, and gave some suggestions for the Parliament, based on his experience in the present case.

They are:

– Suitable amendments be brought to the Commissions of Inquiry Act, 1952, and the Protection of Human Rights Act, 1993, to entrust the responsibility of taking note of the cognisable offences committed in communal riots and their investigation through SITs (Special Investigation Team) and Special Public Prosecutor(s).

– Such Commissions would have their own investigative machinery to probe in an effective manner. Such Commissions might avail the assistance of Legal Service Authority and the judicial magistracy to make the effort more comprehensive and effective.

– This neutral agency would ensure that no charge-sheet is brought to the criminal court for taking of cognisance, or trial, unless it has been properly vetted dispassionately by those well-trained in criminal law such that it is free from any defect, inadvertent or otherwise.

– Special Courts dedicated to the subject of communal riots be established with suitable amendments to the general criminal law procedure as indeed the rules of evidence.

– Press reports, supported by photographic material or video footages put in public domain, be considered as evidence in trials of criminal cases arising out of communal riots.

– An exception be carved out to permit the absence of accused from the court hearings to tackle one of the major causes for delay in the judicial process. Such rule of procedure in cases of trial in communal cases involving a large number of accused would have a salutary effect.

Justice Gauba ended his ruling with this dire warning about the case being forgotten:

“The manner of prosecution of the case at hand would undoubtedly go-down in judicial history of this country as an example of criminal law process that must never be emulated. From this perspective, and in the expectation that those at the helm draw lessons from here, one hopes that this case is never forgotten.”

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