The Sajjan Kumar verdict promises to form the basis for an evolving Indian law of accountability in cases of mass violence

Indian Express, January 4, 2019

A judgment, a foundation
The Sajjan Kumar verdict promises to form the basis for an evolving Indian law of accountability in cases of mass violence.

Written by Balakrishnan Rajagopal

The verdict of the Delhi High Court in the Sajjan Kumar case has been welcomed by most commentators. What has not been sufficiently appreciated is that one of the main lessons we must take from the verdict is that the need is stronger than ever for a root-and-branch police reform.

Indeed, some parts of the “administration of justice” are so rotten now, or are caught up in impossible imbroglios like the CBI, that strong political leadership is needed for a bold and visionary approach to reform. Although the problem is well known, no leading political party or mass movement has managed to focus attention on police reform. As the Delhi High Court points out, there were multiple failures in the administration of justice after the 1984 violence, starting with the repeated failure to file FIRs, abetment of the crimes committed by the mobs and failure to prosecute or gather material evidence.

As highlighted by the Court, there is also the key issue of the lack of a credible witness protection programme in India, which hampers the willingness of witnesses to come forward or to maintain consistency. Many cases arising from the Gujarat violence of 2002 have had serious trouble maintaining a credible and consistent witness line up due to fear, intimidation, and retaliation, most notoriously in the Best Bakery case where 37 of the 73 key witnesses including Zahira Sheikh, her mother and her brothers retracted their statements before the judges.

One of the most important innovations of the Sajjan Kumar verdict is the reliance on the crime of criminal conspiracy under Section 120B of the IPC to convict Sajjan Kumar, and also expand the conviction of the other accused. To my knowledge, this the first time that an appellate court in India has relied on the charge of criminal conspiracy to convict individuals for mass crimes.

While the Naroda Patiya judgment of the Special Court in 2009, which convicted Maya Kodnani among others, also relied on criminal conspiracy, the Delhi High Court has firmly entrenched the use of criminal conspiracy as an independent crime against those who are accused of mass crimes. The significance of the Delhi High Court ruling on this matter goes beyond this single case and sows the seeds of an Indian law on mass crimes, which is more aligned with an Anglo-Saxon approach.

Under international criminal law, the question of whether criminal conspiracy can be treated separately as a crime — as distinct from genocide, crimes against humanity or war crimes — has led to some divisions, especially between civil law and common law countries. These divisions led in the end to the removal of a separate conspiracy provision in the Rome Charter of the International Criminal Court, for example. However, the Delhi High Court’s use of criminal conspiracy is certainly an innovative approach on a solid legal footing, sharing much in common with other common law countries.

The Delhi High Court’s verdict is also notable for its open call for a new law on “Crime against humanity”, and does much to point out the recent developments under international law including ongoing work at the International Law Commission. While this call is a highly welcome one, it must be noted that nothing prevents Indian courts and prosecutors from levelling charges against those who commit mass crimes under ordinary criminal law including the IPC, using charges of criminal conspiracy and abetment, as the court does in the Sajjan Kumar verdict. India has been a party since 1968 to the convention on the non-applicability of statutory limitations to war crimes and crimes against humanity, while India extends universal jurisdiction (over crimes committed by anyone anywhere globally) over war crimes under the Geneva Conventions Act of 1960.

Taking the cue from the Delhi High Court ruling and these legal commitments, India’s Law Commission, legal advocates, social movements and lawmakers should make appropriate changes to the IPC, incorporating the criminalisation of mass crimes including genocide, crime against humanity and the legal principle of non-applicability of statutory limitations under the 1968 Convention.

It is rare that a single case can accomplish so much: The Sajjan Kumar verdict promises to be a locus classicus in an evolving Indian law of accountability. But even this victory cannot blind us to the fact that most of the guilty, including the ones at the top, remain free. If we take the Gujarat riots in 2002, while six out of the nine cases relating to that violence have resulted in convictions, it is hard to escape the conclusion that the most guilty have escaped punishment thus far. But the Sajjan Kumar verdict gives us hope that, as Martin Luther King said, while the arc of the moral universe is long, it bends towards justice.


The writer is associate professor of law and development at the department of urban studies and planning at the Massachusetts Institute of Technology, Cambridge.