|August 25, 2004|
By Siddharth Varadarajan
NEW DELHI, AUG. 24. The Common Minimum Programme of the Manmohan Singh Government promises the enactment of a "comprehensive law on communal violence" but a group of eminent jurists, retired police officials and human rights activists is leaving nothing to chance.
Concerned about the legal vacuum which allows mass killings like Gujarat to take place, the group on Tuesday released a draft model law — The Prevention of Genocide and Crimes against Humanity Act 2004 — which, if enacted in its current form, will fix criminal responsibility on Ministers and officials for incidents of mass violence against a group of citizens in which they fail to exercise control.
One of the pathbreaking aspects of the draft is that it tries to enshrine for the first time in domestic law the principles of vicarious criminal and administrative liability as well as the doctrine of command responsibility — both settled concepts in international humanitarian law.
If India had enacted such legislation — as it was supposed to do soon after it became party to the Genocide Convention in 1959 — it is possible that the Gujarat Chief Minister would have thought twice about allowing the "Newton's Law" to operate freely in his State following the Godhra incident. Or that Inspector K.K. Maisurwala would have insisted on sending an SOS wireless message to the police control room when a murderous crowd started attacking the Muslim residents of Naroda-Patiya. For in all such cases, the failure to "take all necessary and reasonable measures within his or her power to prevent or repress the commission of genocide or crimes against humanity" would have rendered the individuals concerned liable for prosecution.
Among those who helped draft the proposed law are Justices Hosbet Suresh and P.B. Sawant and activists Teesta Setalvad and Iqbal Ansari. Ms. Setalvad says the aim is to circulate the draft as widely as possible and to invite comments so that the Centre can move quickly on the legislative front.
Definition of genocide
The draft's definition of genocide is the same as that of the 1948 Genocide Convention, with for one difference: it adds the attempt to subject a group to "sustained economic or social boycott" to existing elements of the crime such as killing members of a group or causing them bodily or mental harm. Thus, the attempts by the Sangh Parivar in Gujarat to enforce an economic boycott of Muslims in the State would be covered by the definition. Crimes against humanity include murder, forcible eviction or enforced migration — such as what the Kashmiri Pandits have been subjected to — torture and the enforced disappearance of persons.
The draft envisages the establishment of a National Authority for the prevention of genocide, consisting of the Prime Minister, the Leader of the Opposition, the chairperson of the National Human Rights Commission and two serving DGPs. Acting on the basis of information from official or civilian sources, or even suo motu, the authority would have the responsibility of setting up a special court in consultation with the local High Court and tasking the CBI with the criminal investigation. The court, in turn, will appoint a special prosecutor.
Despite the CMP's promise on a comprehensive law against mass violence, no responsible Minister or senior UPA leader has sought to elaborate on what exactly the Centre has in mind. Legally, however, India is under an obligation to pass a robust domestic law on genocide which provides for not only effective penalties but also the establishment of trials by a "competent tribunal." Prof. V.S. Mani, who has argued the need for such a law in the past, says that such a law would be fully in keeping with the spirit of Articles 51 and 253 of the Constitution, which mandate Parliament to make laws for implementing any treaty, agreement or convention signed by the country.
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