It will come as cold comfort to the victims of the November 1984 massacre of Sikhs in Delhi, Kanpur, and other cities that “official sanction” to prosecute Sajjan Kumar in one of the last pending cases against him has finally been given. A Congress strongman in Delhi, Mr. Kumar has been prosecuted before and let off by the courts because of the weakness of the case mounted by the Delhi Police. From the word go, the police subverted all cases stemming from the 1984 killings with the same degree of commitment to the rule of law that it displayed during the three days murderous mobs were given a free hand to wreak ‘vengeance’ on innocent Sikhs for the dastardly assassination of Prime Minister Indira Gandhi by her Sikh bodyguards. Dozens of murders spread across a vast area were listed in omnibus First Information Reports and details mixed up and confused in such a way that their use in subsequent investigations and prosecutions was next to impossible. Mr. Kumar evaded indictment for years with the help of the political establishment and a surprisingly benevolent judiciary. When he was eventually indicted, he presented as star defence witnesses the very police officers who authored one of those FIRs. This, coupled with the fact that numerous prosecution witnesses “mysteriously” turned hostile, led to his acquittal in the most serious of charges. That matter is now on appeal.

Will the ‘Rathore effect’ — the widespread public revulsion at the ease with which influential persons get away with heinous criminal acts — force the authorities to mount a proper effort to bring a key player of November 1984 to justice this time around? Or will his forthcoming trial for lesser offences like inciting communal hatred get caught up in labyrinthine procedures? Mass killings of the type and scale of November 1984 or Gujarat 2002 take place partly because an effective immunity from proper investigation and prosecution attach to them. Indian law and judicial process treat these incidents as ‘ordinary’ rather than genocidal crimes, which require special rules and procedures for prosecution. Crucially, Indian law does not assign command responsibility to those at the top of the administrative pyramid who have both the knowledge of the mass killings taking place and the ability to stop them but do nothing to intervene. This is the yardstick for culpability in modern international humanitarian law. The incorporation of this principle in India will surely have a salutary deterrent effect. Sadly, the proposed Communal Violence Bill lacks this essential element and is so riddled with other infirmities that it will be next to useless in protecting innocent citizens from targeted mass violence.

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