Laws for bigger crimes will never be enacted

Laws for bigger crimes will never be enacted

Olav AlbuquerqueUpdated: Wednesday, May 29, 2019, 03:57 AM IST
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The judiciary steps in when the legislature fails to enact laws to protect the people – while really protecting themselves from the people. For neither our MLAs nor MPs or ministers will enact a law to punish those who incite mobs to kill unfortunate minorities when they risk losing power by going to jail.

This is exactly what happened when Congress MP Sajjan Kumar was sentenced to life in jail for inciting mobs to kill Sikhs after Indira Gandhi’s assassination by her Sikh bodyguards in 1984. The judges, S. Muralidhar and Vinod Goel, lamented there is no law to convict those who instigated mobs during the 1984 riots in Delhi, the 1993 riots in Mumbai, or the 2002 Gujarat riots. Those who were killed were always the minorities, Sikhs in 1984 and the Muslims in 1993 at Mumbai and 2002 in Gujarat.

The Indian Penal Code only has weak sections like 302 (murder), 307 (attempt to murder), 323 (causing voluntary hurt) 147 (rioting), 148 (rioting armed with deadly weapons) and 149 (unlawful assembly but no section specifically dealing with inciting mobs to massacre ethnic or religious groups during communal violence.

Similarly, section 223 (a) of the Criminal Procedure Code permits the trial of two or more persons for a crime as the “same transaction” but there is no specific provision to punish inciting mobs to murder ethnic groups which violates the right to life enjoyed even by aliens like the Africans who were attacked in Delhi.

The Delhi high court listed a “familiar pattern” of genocide like the mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha, in 2008, in Muzaffarnagar in UP in 2013, to name a few. Common to these mass crimes were the targeting of minorities by the ruling political party assisted by the police. These criminals evaded prosecution and punishment,” the court said.

Sajjan Kumar was 74 when he was convicted and may not live to serve his sentence. But like former BJP minister Maya Kodnani was acquitted this year for allegedly massacring 97 Muslims in Narodia Patiya in 2002, after Amit Shah swore in court she was seen in the legislative assembly, so too Sajjan Kumar may get a lighter sentence in appeal—given that he is 74 years old.

Kodnani was given shock treatment for mental depression. Never mind the families of those whom she was accused of killing in the 2002 pogrom. BJP chief Amit Shah deposed in her favour so the testimony of 11 witnesses who swore they saw her distributing swords could not be believed. The fact that she was not named in the initial FIR went in her favour. Never mind that the Gujarat police under Narendra Modi may have refused to record her name.

Sajjan has been found guilty of inciting mobs to murder five Sikhs and the torching of a gurdwara in southwest Delhi on November 1 and 2, 1984. He was convicted of criminal conspiracy and abetment of murder, promoting enmity between different groups on grounds of religion and committing acts prejudicial to communal harmony and national integrity.

So there you have it—power ensures those who wield it will support their own as Amit Shah ensured Maya Kodnani was acquitted. From zero to Nero is the story of the BJP when it first came to power in Karnataka in 2008 to losing the polls in Chhattisgarh, Madhya Pradesh and Rajasthan this month. After it won 282 seats, leading the NDA to a tally of 336 seats in the 543-seat Lok Sabha, it was in power in 10 states of India, most of whom were affected by lynchings of Muslims.

The data website IndiaSpend found that from 2010 to 2017, 28 people were killed in 63 such incidents. An overwhelming 97% of these attacks took place after Prime Minister Narendra Modi’s government came to power in May 2014. About 86% of those killed were Muslims. In 21% of the cases, the police filed cases against the victims/survivors. Whether it is communal violence against the minorities, or cow-related lynchings which rose sharply in 2017, with 20 attacks in the first six months and a 75% increase over 2016, minorities like Sikhs, Muslims and Christians will continue to be targeted.

Under the banner of the National Campaign Against Mob Lynching (NCAML), a campaign for a law against mob lynching was started. Known as ‘Masuka’, short for Manav Suraksha Kanoon (law to protect humans), bills such as The Communal Violence (Prevention, Control and Rehabilitation of Victims), Bill, 2005, provided for the setting up of special courts to try those accused of inciting communal violence .

The bill provided for double the punishment laid down in laws such as the IPC and also provided for the trial to be conducted outside the state if the executive felt justice would not be done within the state. This itself is absurd because when ministers like Narendra Modi are accused of inciting violence, they will never admit that justice will not be done within their own states.
Tragically, the law against communal violence was thwarted on the ground that the federal nature of the Constitution was violated. Later, the UPA government did not pass The Prevention of Communal and Targetted Violence (Access to Justice and Reparations) Bill while the judiciary kept crying for a law to prevent communal violence.

But even after over 2000 lives have been lost in the last decade to lynching alone, such laws to try special crimes committed by special persons-in-power will never be enacted. And the judiciary will keep crying like former CJI Tirath Singh Thakur cried like a baby before Narendra Modi on April 25, 2016.

—Olav Albuquerque holds a PhD in Media Law. He is a journalist-cum-lawyer of the Bombay High Court.

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