Each year, on the ninth day of December, the United Nations observes the UN Day of Commemoration and Dignity of the Victims and Crimes of Genocide. The day is also remembered as anniversary of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention). As usual, the Day came and passed by quietly with a few perfunctory functions.
The word “genocide” was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognised and codified as an international crime.
Codification as a “crime”
Genocide was first recognised as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 149 States (as of January 2018). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a peremptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.
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, such as:
Killing members of the group; Causing serious bodily or mental harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
Has India breached the Genocide Convention?
Though India ratified the convention in 1959, there is no legislation on the subject. India’s union minister of state for home affairs, Kiren Rijiju justified India’s lethargy in Rajya Sabha (March 2, 2016) on grounds that the 1948 Convention, by virtue of India’s accession, is an integral part of the Common Law of India. He further claimed that both substantive and procedural criminal law provides an appropriate legislative framework to deal with acts like genocide in India.
The fact however remains that there is no provision in the Indian Penal Code to criminalise killing or causing serious bodily or mental harm to individuals of a particular national, ethnic, racial or religious group, with the intent to destroy such a community in whole or in part. In other words, mass murder by specifically targeting individuals of a particular group (RSS, VHP, etc) manifested on lynching, setting ablaze individuals and humiliating them in myriad ways is not recognised as crime beyond murder simplicities.
Sans appropriate legislation, India cannot prevent and punish the crime of genocide (Articles I and IV) and try perpetrators through ‘competent tribunals’ (Article VI).
The lack of an objective criterion to conclusively establish the commission of mass murders that constitute genocide precludes a judicial authority in India trying cases which amount to the crime, thereby breaching the country’s obligations under Article VI. By the same logic, no law enforcement agency is competent to investigate offences which may amount to genocide given the non-existence of such an offence in the Indian legal landscape.
Very often the hooligans commit mass murder of minorities in collusion and connivance with police. But, section 197 of the Code of Criminal Procedure, 1973 grants immunity to offender officials “in the discharge of their duty”. The section 197 shielded the guilty public servants involved in mass murder of people whether Kashmiris, Sikhs or other minorities.
In the absence of such a legislative framework, it is hard not to conclude that India is in breach of its legal obligations. If the Ontario assembly resolution at least triggers a broader debate on India’s commitment under international law to the Genocide Convention – and to the need for justice – some good would have come out of it.
History of the “mass murder” riots in India
There were anti-Muslim riots in 1707 after the death of Moghul emperor Aurangzeb. In Benares (1809), bloody anti-Muslim riots were due to a mosque allegedly having been built by Aurangzeb atop a temple (quasi-Babri-Masjid issue). In 1714, anti-Muslim riots on issues of cow slaughter took place. Rumours about attack on Hindu religious processions, passing through Muslim-majority area, or other flimsy excuses triggered anti-Muslim riots in Kashmir (1719), Delhi (1729), and Bombay (1786). Riots also took place at different places in Uttar Pradesh (Koil 1820, Moradabad 1833, Shahjahanpur 1837, and Alahabad 1837-52).
The riots in the 1990s were due to Advani’s Rath Yatra (chariot procession), resulting in death of over 200 people mostly Muslim. In January 1993, over 3000 Muslim were killed in Bombay by Shiv Sena (lord Shiva’s army) in collusion with the police.
The major riots in modern times include the 1969 Gujarat riots, 1984 Bhiwandi riots (May 1984) 278, 1984 anti-Sikh riots (October 31, 1984 to November 3, 1984) 3,350-17,000,
1985 Gujarat riots, 275, 1986 Jammu and Kashmir Riots (February–March 1986) including 1986 Anantnag Riots, 1989 Kashmir violence, the 1989 Bhagalpur riots, 1992 (December 1992 to January 1993, Mumbai riots 900 people died, Godhra train burning, 2002, Gujarat riots, 2013 Muzaffarnagar riots and 2020 Delhi riots. In 2013, Muzaffarnagar (Uttar Pradesh) Hindu-Muslim riots (August to September) over 62 persons were killed including at least 42. It left more than 50,000 Muslims displaced.
Memories of the Babri masjid demolition
On 6 December 1992 the VHP and the BJP organised a rally at the site involving 150,000 volunteers, known as kar sevaks. The rally turned violent, and the crowd overwhelmed security forces and tore down the mosque. Advani and other BJP leaders were exonerated by the courts. –
Issues Triggering Riots.
Cow slaughter (actually, if not politicized, it is a non-issue). Hindus’ ancestors were carnivorous. Yet, several Muslims including Tabriz Ansari were either lynched alive or set ablaze on this non-issue. It is eerie that India’s Dua Corporation is itself the biggest exporter of beef, sometimes surpassed by Brazil.
Hindu extremists desire to enforce a uniform civil code ostensible under Articles 44 and 48 of the Indian Constitution, but actually in violation of Articles 14 (no religious discrimination), 16 (equal opportunities for minorities), 26 to 28 (minorities freedom to manage their own religious affairs), 30 (maintaining minorities educational institutions), 345, 347, 350, 350-A (rights of linguistic minorities). Loud music and Bhajan singing before mosques.Non-traditional routes of processions. Reservation of jobs, and seats in educational institutions. Elopement of Hindu girls with Muslim boys. Characterisation of one by the other community as Malichh and Kafir. Routes of Religious processions. Conversions from one religion to another. Singing or playing Vande Matram aloud before mosques. The de facto status of Urdu especially in Uttar Pradesh. Muslim Personal Law and Uniform Civil Code. Suspicions about Muslims loyalty to India.
India eminently qualifies to be an offender of “genocide”. The government abets mass murder of the terrified minorities in riots. The Muslim even join the Muslim Munch, a wing of the Rashtriya Swayem Sevaksangh to evade persecution.
For their survival, they should emulate Christian minority to withstand persecution. Today, Christians live all across particularly in South India and the southern shore, the Konkan Coast, and Northeast India. Through sheer hard work, Indian Christians developed niches in all walks of Indian national life. They include former and current chief ministers, governors and chief election commissioners. To ruling Bharatya Janata party’s chagrin, Christians are the second most educated religious group in India after Jains. Christian women outnumber men among the various religious communities.