The term ‘Genocide’ was used for the primary time in 1944 by Raphael Lemkin in a very time when there was uncertainty about defining or determining international principles to spot it, within the Global regime has come a protracted way in terms of formulating legal provisions and principals or international acceptance, yet it remains an alien concept in India. Although India actively participated in the formulation and also ratified the 1948 Genocide Convention on August 27th, 1959, it's not enacted any specific law that deals with genocide.
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With an extended history of violence between various groups in India which might even be traced back to the Battle of Kalinga or maybe the 30-40 famines during the 200-year British decree Bengal may be termed as genocide, it's required that there should be a law specifically coping with Genocide. Yet there remains a neglect per this, the Indian government strongly believes that it's enacted sufficient penal laws already to cope with situations that are genocidal in nature. Even the International Court of Justice emphasized the principle of prohibition of genocide as a part of the general law of nations.
This Article examines this legal and policy situation in India vis-à-vis the 1948 convention drawing various instances which could are termed as Genocide, had there been a separate law for it. The research methodology adopted during this Article is doctrinal in nature and also the data collected and interpreted in secondary in nature. The hypothesis during this article involves the question on whether India really has enacted sufficient laws as its obligation under the 1948 Genocide Convention. The Author has attempted to derive a solution by interpreting relevant data, laws and certain post 1948 genocidal instances of violence in India, in line with the obligations under the convention.
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The term Genocide failed to exit till 1944, until it absolutely was first utilized by Raphael Lemkin bearing on violent crimes committed against groups with an inherent intention of destroying the group. UN approved the Convention on the Prevention and Punishment of the Crime of Genocide establishing ‘Genocide’ as a global crime and nations which ratify this convention undertake to stop and punish people or groups alleged of committing this crime in 1948.
What is Genocide?
Genocide means any of the subsequent acts committed with intent to destroy, in whole or part, a national, ethnical, racial, or religious group, such as:
In the Barcelona case, the International tribunal said:
“By their very nature, the outlawing of genocide, aggression, slavery and discrimination are the concerns of all states. visible of the importance of the rights involved, all states will be held to possess a legal interest in their protection, they're obligations erga omnes (against whole world)”
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About 1948 Convention
Under this Convention, even the acts associated with genocide like attempt; conspiracy; direct or indirect public incitement to commit Genocide are punishable. This Convention provides no immunity to ‘Public Officials’ or ‘Constitutionally responsible rulers’ together with private individuals.
The Genocide Convention imposes,
India and its Obligation under the 1948 Genocide Convention
Genocide has not been defined by any law in India, while India ratified the Convention over 5 decades ago. India includes a Constitutional Obligation under Article 51 to foster respect for law and treaty obligations and so Article 253 makes it mandatory for Parliament to enact any law per implement any treaty, agreement or convention. The reasonable step is indeed to enact legislation at the earliest after the ratification of any treaty so on avoid the time gap between ratification and implementation within the domestic structure of the state. India has however taken no such steps regarding Genocide under its International and Constitutional obligation while India has so many legislative structures to decide on from.
On 2nd March 2016, Shri Avinash Pandey, a Rajya Sabha MP from Maharashtra raised a matter to the Minister of Home Affairs about plans of the govt in enacting Laws in conformity with the UN Convention on Genocide and favoritism. Mr. Kiren Rijiju, Home Minister for State, stated the following solution to Genocide.
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“By acceding to the Convention on the Prevention and Punishment of the Crime of Genocide in 1959, India has recognized genocide as a global crime. The principles embodied within the Convention are a part of the general law of nations and so already part of the common law of India. The provisions of Indian legal code including the procedural law (Criminal Procedure Code) provide effective penalties for persons guilty of the crime of genocide and take cognizance of the acts which can be otherwise taken to be within the nature of genocide”
On the contrary, provisions of Cr. P C like Section 197 lay down the need for sanctions from both state and central government before prosecuting an employee for acts committed by him during his discharge of duty. Being colonial laws, IPC and Cr. P C doesn’t have provisions regarding offenses by the state. Moreover, both of those laws don't seem to be appropriate accommodate crimes committed by large gatherings of individuals or mass crimes. Mass crimes are committed or intended to be committed against large masses of individuals identified on ethnic, religious, social, linguistic, cultural, geographical, etc. grounds. It often but not necessarily stretches across large geographical areas, and will include crimes against humanity, genocide, war crimes etc.
Post 1959, after India ratified the Genocide Convention, three major instances out of the numerous can qualify as Genocide,
1984 Anti Sikh Riots
It had been a series of planned killings directed against Sikhs in India in response to the assassination of solon by her Sikh Bodyguards. Official reports state to about 3000 deaths across India, 2100 in Delhi alone, while independent sources estimate over 5000 deaths across India, 3000 alone in Delhi. The involvement of presidency officials was even admitted by CBI during a report. 10 Committees are founded thus far for investigations, over 400 are convicted till 2015 but the trials are still on and Special Investigation Team plans to reopen 186 more cases as of 2016.
1989 Bhagalpur Riots
It absolutely was a tussle between Hindu and Muslim religious groups in Bihar during the ‘Rama Navami’ procession of VHP under its Ram Mandir Agenda. Official figures put the cost to 1000 during which 900 were Muslims. Approximately 50,000 people have been displaced thanks to this violence. Actions were recommended against 125 IAS officers by the NN Singh Committee report.
2002 Godhra Riots
On 27th February 2002, Sabarmati Express was burnt at Godhra Station which caused the deaths of 58 Hindu karsevaks strolling back from Ayodhya. It had been followed by months of outbreaks of Communal violence in various parts of Gujarat. Over 2000 people died and over 150,000 people have been displaced thanks to this violence, the majority of them belonging to the Muslim Community. The cases are still happening.
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All the three incidents of mass crime and violence as described can amount to genocide as they fulfill the ingredients given within the definition as given by the 1948 Convention and it can clearly be seen that in absence of any relevant laws specifically for the prosecution of individuals committing genocide, the investigations under IPC and Cr. P. C. doesn't seem to be giving due justice to the victims. Even after decades, the justice delivery mechanism has failed in its duty and also the cases are still getting investigated and suggestions are being made by the committees. India has definitely did not perform its obligations under Article 51 and 253 and international obligations under the 1948 Convention. The incidents of mass crimes don't seem to be bring investigated properly because of poor and insignificant laws associated with mass crimes. Genocide has not even been defined even after acknowledging it as a world Crime. there's an urgent have to enact relevant laws for Genocide rather than hoping on old colonial laws like IPC and Cr. P C as they're failing. Even the recommendations by the committees to prosecute government officers don't ensure sanctions from both the govt which are time taking already. India must realize its obligations under the 1948 Convention and enact relevant provisions involving bodies like NITI Ayog, Law Commission, Ministry of External Affairs, which hasn’t happened yet since 1956, doing away with the parable that these laws are sufficient and capable in managing Genocide in India.