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K.G. Kannabiran

Oil on canvas by BHUPEN KHAKHAR


We have here a state-sponsored, state-directed and state-supported violence where more than a thousand were killed. The perpetrators have destroyed evidence of the numbers and identities of persons killed. The ruling party at the Centre and the state are the same. The carnage in Gujarat deserves a Nuremberg style trial. It has all the elements of genocide. This is not the first time such a genocide has been committed in India. The massacre of Sikhs in the wake of Indira Gandhi’s assassination in 1984 by the leaders of the Congress Party was by no means a riot. The killing of Sikh students in Bidar, Karnataka, in September 1987, was also not a riot. Both were instances of deliberately targeting a particular religious group. After Hitler’s Final Solution, there is a name for this. After the Second World War, on December 9, 1948 to be precise, an International Covenant was brought into existence to ‘Prevent and Punish the Crime of Genocide.’ It has in all 19 articles. Article II and III are important. Recalling the decimation of Jews in Hitler’s Germany, Article II defines the crime of genocide thus:

" …Genocide means any of the following acts committed with the intent to destroy, in whole or in part a national, ethnical, racial, or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to the members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of one group to another group.

The Covenant has also enumerated the offences that are punishable and they are

(a) Genocide;

(b) Conspiracy to commit genocide;

(c) Direct and public incitement to commit genocide;

(d) Attempt to commit genocide;

(e) Complicity in genocide."

At present, there is no law in India specifically dealing with genocide. No law on genocide can have retrospective operation. But I do believe that the international Covenant on Genocide has become part of customary law as it does not conflict with any other existing law. Such an interpretation may help the National Human Rights Commission to conduct a detailed investigation into the crimes and submit a comprehensive report to the government and the nation.

The facts narrated in its Summary Report on Gujarat add up to a prima facie accusation of genocide. The Commission has an immediate obligation to the people and a mandatory obligation to posterity to inquire into the Gujarat violence and record its findings so that no political party and no government in future can resort to such brutal practices. As part of this obligation, the National Human Rights Commission must prepare a Model Statute on genocide, including provisions for effectively taking preventive measures to protect religious, ethnic and linguistic minorities from being attacked. This, in my view, is mandatory because under the International Criminal Code, genocide and crimes against humanity are declared as offences. As Hannah Arendt said, "Genocide is an attack on human diversity as such, that is upon characteristics of the human status without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning."

Genocide apart, there is also the question of the right of minorities. After the collapse of the socialist states in central and eastern Europe in 1989, violent ethnic conflicts erupted involving minorities in Europe. By 1993, the war in the former Yugoslavia — Croatia, Bosnia and Serbia, along with Vojvodena and Kosovo — had taken a toll of several thousand lives and displaced two million people. The violence spread to the Caucasus and Moldavia and threatened to engulf the former Soviet Union. It was during this period that the Declaration of Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities was adopted by the UN General Assembly by a Resolution dated December 12, 1992. The principles for the protection of minorities are expansively spelled out in this resolution, much of which are also guaranteed in our Constitution. Genocide is the forfeiture of minority rights.


The members of the Constituent Assembly knew only too well that India was a conflict-ridden pluralist society. So they provided for secularism as a value. Secularism was the major implicit premise of the Constitution until the 42nd Amendment, when it was explicitly made one of the national objectives. Secularism as a concept came into existence in the days of early capitalism as a response to the misery inflicted on the poor by unregulated working conditions. In fact, the dictionary defines secularism as a doctrine which states that morality should concern itself solely with the well-being of humankind in the world as it exists, to the exclusion of all considerations drawn from a belief in God or in a future state. This concept of secularism was later eclipsed by the emergence of socialist thought. In this broad sense, secularism includes in its ambit the objectives set out in the Preamble of our Constitution, in the Articles pertaining to abolition of untouchability, bonded and child labour and almost all of the Directive Principles in the Constitution. The Supreme Court, too, defined secularism in this broad sense in the S.R. Bommai case, which came up in the backdrop of the Ayodhya controversy. Now that ethnic claims and conflicts abound all over the world, there is a necessity for the international community to bring forth an International Covenant on Secularism in Plural Societies within States. The argument that ‘secularism is a western concept and therefore is a problem’ appears to be wholly misconceived; so also our definition that it means that ‘all religions are equal.’

What should one do about the crimes committed in the course of executing this plan of Hindutva by Narendra Modi and others? Our courts are not geared to deal with such large-scale social violence. Courts and the present legal system have reduced the entire judicial process into a game in which the real protagonists are not the victims, the accused or the plaintiffs, but the lawyers who play for high stakes. In fact, the stakeholders in the institution of justice are the successful ‘professionals.’ The institution is successfully subverted from its institutional purpose and is converted into a private enterprise. In Gujarat, the situation is far worse. Even the first information reports, the basic document required to register a crime, are flawed because the police department of the state is an associate in this crime. Under such circumstances, how can one ensure a fair and independent investigation? Is it possible for the NHRC to get together a Special Investigation Team under the Protection of Human Rights Act, to investigate and file a charge sheet on the cases in Gujarat?

The Muslims of Gujarat do not need compassion and pity. They need justice in all its facets as mentioned in the Preamble of the Constitution. It is their right. They don’t need charity or doles. What they need is political justice and to achieve this, prosecuting the criminals is imperative. That alone will ensure their dignity and restore their faith in the system; that alone can assure them that their individual and collective rights as a minority are protected. A formal compliance with the law or a routine engagement in the courts will not bring justice alive. One of the Articles in the Constitution states that justice — political, social and economic — shall inform all the institutions of the State. Our campaign for a secular democracy should commence from this Article.

p. 1 p. 2 p. 3

K.G. Kannabiran is an eminent human rights lawyer. President of the People’s Union for Civil Liberties, he was part of the Concerned Citizens’ Tribunal investigating
the recent sectarian violence in Gujarat. He lives in Hyderabad