An Unflatering Comparison...
An Unflattering Comparison
As the 6th anniversary of the Gujarat carnage, progrom, violence (in search of a neutral word approaches), the criminal justice system in India does not stand even superficial scrutiny well. First, the positive – there has been some convictions, thanks to the interventions of the Supreme Court, the National Human Rights Commission, and yeoman work done by Nyayagrah, Harsh Mander’s organisation in Gujarat that courageously impleads itself into cases on behalf of victims to act in locus for a recklessly colluding, or just negligent, state. However, no leader of any political party, extremist organisation, criminal organisation have been tried. No investigation or charges have been brought as to who financed the people wielding the trishul, lathi or sword. No police officer has been charged, let alone sentenced, even with ample evidence of collusion with perpetrators of violence, and often, perpetration of the violence, itself. Where the Railways inquiry led by Justice Banerjee sought to shed some light on events recognised by all sides as the provocation, whether real or imagined, of the carnage, that followed, the subsequent Justice Nanavati –Shah Commission Report challenges it. What is more, even before publishing its analysis of the voluminous evidence received by it, the Report exonerates the state of any misfeasance. Put, simply, the Indian state (executive, legislature, judiciary) has simply failed to protect the most basic right guaranteed by the Constitution – the Right to Life, and then failed to investigate and punish those who were responsible for it.
These events are not even explainable when one compares it to events not in countries with advanced criminal justice system, and the lack of primal ethnic or tribal differences, but Kenya, a country that is merely a decade into democracy, and where last year’s general elections results led to open tribal warfare that was only put to rest through a power sharing agreement between the competing political parties brokered by the African Union. Riots, ethnic cleansing, police firing, neighbourhoods being set aflame – the country saw it all. After the power-sharing agreement was put into effect, the government, again in a procedure that we should be familiar with, and as Commonwealth countries, comes to us from British practice, put into place a judicial commission, chaired by Justice Phillip Waki, to inquire into the poll violence. However, unlike the plethora of commissions that have been ineffective in challenging those in, and those close to power, in our country, J. Waki was not content merely to pass recommendations, to be filed in parliamentary records, and then slip back into judicial obscurity.
His report used Kenya’s accession to the International Criminal Court (ICC) through ratification of the Rome Statute as a weapon, and the legal concept of complementarity as a tool, to force and blackmail the country’s political leaders into more effectual action. Complementarity, beyond being a tongue twister, if you will forgive the digression into legal concept, is the ICC philosophy, which should have been termed subsidiary, of ceding jurisdiction to domestic jurisdictions where there is credible investigations and / or prosecutions. (To be sure, the Rome Statute is troublesome for many reasons, but the concession of sovereignity is not one of them) The Waki Commission report stipulated that a sealed list of people deserving prosecution would be handed over the ICC by March unless the Kenyan Government convened a special tribunal, with international involvement, to try the ringleaders, said to include powerful politicians and businessmen. On 21 January 2009, it was reported that Kenyan Parliament was convening two months earlier to consider a bill for this very purpose.
We too often look to the West or China for comparison and validation, and assuage the obvious economic differences and apathy on the part of state institutions on the comforting thought that as a developing democracies, our exigencies necessitate compromise and a gap between our promise and reality. However, there is no excuse, as the Waki Commission is now demonstrating, for the all too real culture of impunity that has developed around political violence, for riots in Gujarat or Bombay are nothing less. Whether political partisans support those who order, instigate, or abet political violence should not be a factor in putting together a mechanism whereby they can be tried, under the existing substantive laws in India, for their criminal culpability.
As the 6th anniversary of the Gujarat carnage, progrom, violence (in search of a neutral word approaches), the criminal justice system in India does not stand even superficial scrutiny well. First, the positive – there has been some convictions, thanks to the interventions of the Supreme Court, the National Human Rights Commission, and yeoman work done by Nyayagrah, Harsh Mander’s organisation in Gujarat that courageously impleads itself into cases on behalf of victims to act in locus for a recklessly colluding, or just negligent, state. However, no leader of any political party, extremist organisation, criminal organisation have been tried. No investigation or charges have been brought as to who financed the people wielding the trishul, lathi or sword. No police officer has been charged, let alone sentenced, even with ample evidence of collusion with perpetrators of violence, and often, perpetration of the violence, itself. Where the Railways inquiry led by Justice Banerjee sought to shed some light on events recognised by all sides as the provocation, whether real or imagined, of the carnage, that followed, the subsequent Justice Nanavati –Shah Commission Report challenges it. What is more, even before publishing its analysis of the voluminous evidence received by it, the Report exonerates the state of any misfeasance. Put, simply, the Indian state (executive, legislature, judiciary) has simply failed to protect the most basic right guaranteed by the Constitution – the Right to Life, and then failed to investigate and punish those who were responsible for it.
These events are not even explainable when one compares it to events not in countries with advanced criminal justice system, and the lack of primal ethnic or tribal differences, but Kenya, a country that is merely a decade into democracy, and where last year’s general elections results led to open tribal warfare that was only put to rest through a power sharing agreement between the competing political parties brokered by the African Union. Riots, ethnic cleansing, police firing, neighbourhoods being set aflame – the country saw it all. After the power-sharing agreement was put into effect, the government, again in a procedure that we should be familiar with, and as Commonwealth countries, comes to us from British practice, put into place a judicial commission, chaired by Justice Phillip Waki, to inquire into the poll violence. However, unlike the plethora of commissions that have been ineffective in challenging those in, and those close to power, in our country, J. Waki was not content merely to pass recommendations, to be filed in parliamentary records, and then slip back into judicial obscurity.
His report used Kenya’s accession to the International Criminal Court (ICC) through ratification of the Rome Statute as a weapon, and the legal concept of complementarity as a tool, to force and blackmail the country’s political leaders into more effectual action. Complementarity, beyond being a tongue twister, if you will forgive the digression into legal concept, is the ICC philosophy, which should have been termed subsidiary, of ceding jurisdiction to domestic jurisdictions where there is credible investigations and / or prosecutions. (To be sure, the Rome Statute is troublesome for many reasons, but the concession of sovereignity is not one of them) The Waki Commission report stipulated that a sealed list of people deserving prosecution would be handed over the ICC by March unless the Kenyan Government convened a special tribunal, with international involvement, to try the ringleaders, said to include powerful politicians and businessmen. On 21 January 2009, it was reported that Kenyan Parliament was convening two months earlier to consider a bill for this very purpose.
We too often look to the West or China for comparison and validation, and assuage the obvious economic differences and apathy on the part of state institutions on the comforting thought that as a developing democracies, our exigencies necessitate compromise and a gap between our promise and reality. However, there is no excuse, as the Waki Commission is now demonstrating, for the all too real culture of impunity that has developed around political violence, for riots in Gujarat or Bombay are nothing less. Whether political partisans support those who order, instigate, or abet political violence should not be a factor in putting together a mechanism whereby they can be tried, under the existing substantive laws in India, for their criminal culpability.
posted by The Argumentative Punjabi at 4:34 PM
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