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SIT for Reinvestigating 1984 Anti-Sikh Riots Therapeutic Approach to Criminal Justice?

Vol - L No. 11, March 14, 2015 | Bharat H Desai and Balraj K Sidhu

Published in Economic and Political Weekly Web Exclusives

Source URL: http://www.epw.in/web-exclusives/sit-reinvestigating-1984-anti-sikh-riots.html

Providing effective justice for victims of the 1984 anti-Sikh riots has

remained the biggest challenge for India’s democratic credentials and

working of the criminal justice system. There has to be a “better way” to

deliver post-conflict justice which is victim-centered rather than

retributive.This could be in the form of Truth and Justice Commission,

which can help the victims to reintegrate into society through the truth-

telling process, record historical facts and pave the way for social

reconciliation and enduring peace in future.

Bharat H Desai (casct@hotmail.com) is Chairman of Centre for International Legal Studies,

Jawaharlal Nehru University, New Delhi and of Centre for Advanced Study on Courts & Tribunals,

Amritsar. Balraj K Sidhu (casct@hotmail.com) is the Executive Director of Centre for Advanced

Study on Courts & Tribunals, Amritsar.

The recent report of the Justice G P Mathur Committee for reinvestigating

the 1984 anti-Sikh riot cases through a Special Investigation Team (SIT) has

come as a breather for those who have suffered the worst both during and

after that dark chapter in modern India’s history. It has rekindled the hope for

the valiant victims to come to terms with their painful past and raised

expectations for justice after three decades. It remains to be seen if, how,

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when and who will help them to overcome the agonising memories of

brutality, pain and struggle for survival.

The wait has been excruciating especially since most brutal anti-Sikh

pogrom took place in the national capital where India’s highest temple of

justice, the Supreme Court, is located. It remains a moot question as to how

and why this worst and systematic violation of human rights of a section of

populace was not judicially addressed even as it got entangled in the web of

commissions of inquiry and remained at the mercy of political parties in

power.

The reinvestigation could be exhuming the gory past wherein many of the

victims, witnesses and perpetrators have since died. Other survivors might

have chosen to move on with changing times and thought the best way to be

at peace is to bury the past. With the passage of time, many would seek to

forgive the perpetrators; still none can forget what happened in front of them

as well as gross neglect and penury in which they were left in its aftermath.

The passage of time just cannot on its own allow the deep wounds to heal

easily. So what purpose would the proposed probe by the SIT serve to

address the needs of the victims? Will it enable them to get free from

shackles of unspoken pain, enforced silence and debilitating fear? Will

addressing the past wrongs contribute to transformation of the society that

faces collective shame? What form of justice is called for after agonizing wait

of three decades? The real impact of opening up of such painful chapters of

the past is neither easy nor predictable.

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Grappling with the Past

It is a natural human instinct to seek justice for the wrongs inflicted. But what

could be an adequate remedial justice process to redress the unimaginable

and organised atrocities that were directed at a community that so valiantly

fought for independence, forms a substantial part of defence forces and

whose distinct presence can be felt in every nook and corner of India? The

belated enhancement in compensation of five lakh rupees per kin to victims’

families can by no stretch of imagination repair the deep psychological hurt

suffered. It is a well-intentioned gesture that offers too little and too late! Can

demands of justice be met by prosecuting and punishing the perpetrators of

the 1984 pogrom?

In a robust democratic society, courts and tribunals do create a symbolic

space within which competing versions of crimes, perpetrators and victims

are produced and contested. Their role is intimately related to an idea of

justice, responsibility and guilt as ordained by the legal system and the value

system that a society cherishes. Though these institutions are only

concerned with legal guilt or innocence of the accused, yet some specific

trials become an occasion to produce invaluable history about incidents,

forms of human vengeance and placing under scanner the role of various

actors such as investigative agencies, prosecutors, presiding judges,

political parties, scholars and the media.

The famous trial of the Nazi war criminal Adolf Eichmann, who headed

Gestapo’s Department for Jewish Affairs, has been etched in public memory

and drew global attention when the history of holocaust was recounted within

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the confines of a court of law. “It is not an individual that is in the dock at this

historic trial, and not the Nazi regime alone, but Anti-Semitism through

history”, said David Ben-Gurion, the first Prime Minister of Israel,

melodramatically (Arendt 2006). It resonated with the needs of a society that

wanted to place all the events and crimes on record so that they should never

be forgotten.

Where such widespread abuses are committed by the state machinery, it

does leave behind an indelible imprint on psyche of the people at large. The

damage goes far beyond the immediate pain of loss that deeply remains

entrenched in distrust towards the government, law enforcement bodies

(police and the armed forces) and the judiciary. In the wake of long and

tortuous road to justice, the record shows that 10 government-appointed

commissions and committees of inquiry have investigated the 1984 anti-Sikh

riots. Various trial courts in Delhi and High Court itself seem to have handed

down some 450 convictions in different cases. The sheer number tells us an

encouraging story that some efforts have taken place to dispense justice to

the victims.

Yet these facts pose an intriguing question as to why the victims still feel their

demands for justice have not been met fairly? This perceived sense of

“justice gap” is very much endemic to the victims of organised violence and

conflicts, stemming from hatred or politically beneficial violence against a

specific community or a section of population due to their religion, ethnicity,

race or colour. There appears to be a widespread feeling of injustice resulting

from the fact that it is the small fry that gets punished and the big fish goes

scot free. In turn, it often leaves the wounds unhealed and raises serious

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question about efficacy of the criminal justice delivery system for the affected

sections of the society.

Complementary Approach to Criminal Justice

Many times institutions and legal norms for dispensing justice collide with the

everyday lives of population affected by the conflict. In this context, there has

been persistent search for appropriate institutional designs that could deal

with mass atrocities as well as foster post-conflict justice. The concept of

post-conflict justice or transitional justice is becoming inherently associated

with a “better way” of delivering criminal justice. These mechanisms are

closely based upon the needs of the victims – and will help in their

reintegration into society through the truth-telling process, recording

historical facts and paving way for social reconciliation and enduring peace

in future. Thus these mechanisms could add therapeutic dimension to quest

for justice by giving back the lost dignity and self-respect to the victims.

In this sense it is necessary to think about post-conflict justice involving multi-

layered accountability structure where judicial and non-judicial forms of

justice can work side by side. The inherent limitations and constraints of

criminal justice need to be complemented with other alternative justice

delivery mechanisms (Hayner 2010).

Gandhi's philosophy of satyagraha provides one such alternative. It

comprises words satya (truth) and graha (grasping). They literally mean the

firm grasp or "holding on to truth." Gandhi appreciated that violence and

power are inherent in systems of criminal justice. These ideals have formed

the bedrock on which theories of post-conflict justice are essentially

based. They have been successfully used in countries that had or are

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confronting questions of justice and accountability in a wide range of political

contexts, following the end of military regime or repressive government or in

the aftermath of a civil war such as in Nepal or Sri Lanka.

For instance, in the case of South African Truth and Reconciliation

Commission, large-scale amnesties were granted for crimes committed

during the apartheid regime with a condition that the petitioner has to come

out with full and truthful testimony. The process could not bring to surface

the major perpetrators. Still, it became a major tool to not allow the already

ruptured society to sink into anarchy and abyss of retributive justice. How

best to grapple with mass violence and post-conflict wounds remains the

biggest challenge for sociologists, psychologists and lawyers?

Long Road to Justice

The quest for justice for the victims of 1984 riots has been long and tortuous

one. The four-day violence that rocked the national capital and some other

states took more than 3,000 lives and left indelible wounds on the psyche of

the Sikh community. As a sequel, it led to Punjab suffering from a cycle of

violence in large scale acts of terrorism, societal rupture and no-holds barred

lethal counterinsurgency.

Punjab kept burning for almost a decade fuelled by tales of injustice and

brutality on both the sides. It was another agonising phase that Punjab went

through after horrors of Partition. In the crossfire of violence between militant

groups and the state machinery, scores of victims underwent forced

disappearance, extrajudicial execution, torture, rape, arbitrary detention and

illegal cremation. These victims and their families lived in pervasive fear,

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trauma and often faced denials. They have not been counted in, and their

sufferings have been overshadowed by horrors of the 1984 riots.

Ironically, promises for justice for victims of 1984 anti-Sikh riots have

appeared in the manifestoes of leading political parties from time to time to

earn political mileage. Does surgically cutting out one aspect out of the whole

lead to root causes of the malignancy and prevent its return? Providing

effective justice even after 30 years for victims of the 1984 engineered riots

has remained the biggest challenge for India’s democratic credentials and

working of the criminal justice system. None has seriously tried to address

the enormous complexity of the simmering problem. Measures should be

taken to not only make the criminal justice system work but also heal the

wounds in an integrated and comprehensive manner to uproot the evil that

thrives on hatred, revenge and vote bank politics. Deep wounds of scores of

victims, based on perceived lack of accountability and justice, has become

an affront to their sufferings. It has led to a misguided way of ensuring justice

in an arbitrary way that in turn perpetuated the gory cycle of violence.

Need for Truth and Justice Commission

It is in this context that there is a need for an investigation that could delve

deeper into the origin, causes and consequences of the entire conflict. It

could be in the form of Truth and Justice Commission (TJC) having a broad

mandate to look into pattern of abuses committed within a timeframe. It

would be a statutory body that could perform non-judicial functions through

concrete recommendations. Primarily, it could become a vehicle for truth-

telling, as well as for establishing and voicing the victim’s stories that would

otherwise remain untold. It could lay a precedent that such brutality and

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hatred is never ever again repeated against any community or groups who

have different identity, belief systems or a way of life. It validates the process

through an official acknowledgement that these acts did occur; providing

concrete steps for reform and change; ensuring a measure of accountability;

and assist bringing about a process of healing, reconciliation and peace

within the society that has so far sought to paper over the deep chasm.

The concerted process, in some specific cases, could also make

recommendations for criminal trials as well as reparations and full

rehabilitation for the victims and their families. The aim, mandate and what

can be achieved by such a commission would be context-dependent. The

victims of the three decade old conflict have been struggling to get justice at

different levels in vain. At present, the only avenue open for them remain the

courts of law. The long passage of time, fading memories of the victims, pain

and suffering they had to endure cannot be mitigated by the meagre

sentences handed down to a small number of perpetrators who finally could

come under long arms of the law. For most of the victims, the judgment they

fought so hard to obtain cannot deliver justice except what is permissible

only by technicality of law.

It is high time to think in terms of victim-centered rather than retributive

justice. It makes a compelling case, especially in the Indian context where

one segment of society (on religious/caste lines) becomes venomous and

bloodthirsty, producing deep distrust and fissures in the society. Many of

these gory events have a long lineage and are a reflection of the

degeneration of a society in transition. The violence is just tip of the iceberg

and shows aberrations resulting there from.

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No Peace Without Justice

The debate on how to deal with the past is a pressing issue in many of the

societies in transition across the globe. To deal with the wounds of the past,

irrespective of periodicity, has been the biggest challenge. In our

neighbourhood, Bangladesh is struggling with mass killings and brutalities

committed during 1971 liberation war. The International Crimes Tribunal has

been handing down sentences to local perpetrators of violence who were

collaborators of the genocide resorted to by the Pakistani army. Though all

the Pakistani soldiers were allowed to go without any trial, the Bangladesh

society still feels the need to punish its own nationals who committed

unspeakable crimes. The criminal justice process has not been free from

upheavals and has caused violent reactions organised by the groups whose

leaders have been handed down death sentences or life imprisonments.

Thus different societies have resorted to wide range of options including ad-

hoc criminal tribunals, truth and reconciliation commission, commissions of

inquiry, lustration, purging and reparations. There is no one-size-fits-all

solution that could be applied universally. The victims of the 1984 riots,

including those who suffered in its aftermath, stand at the crossroads of

history waiting for illusive justice that not only needs to be effectively done

but also seen to have been done. The TJC could improve chances of access

to justice, providing a basis for more durable peace and reconciliation. It

could be used as a complementary process to the primary method of trial

based institutionalised criminal justice mechanism.

Hence it is high time to empower the victims through judicial and non-judicial

processes. It will catapult them from marginalised victims to active

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participants in the painful task of reconstruction, reconciliation and eventual

peace. Justice for all victims, prosecution for all perpetrators, and deterrence

for the future need to form the basis of a comprehensive process to emerge

as a society that is tolerant and just, at peace with itself and seeks to wipe

tears from every victim’s eye for perceived grievances, violence and hurt to

their pride and honour. We need to emerge as a better society that values

every single human life and delivers effective justice rather than pushing

things under the carpet. Unless we squarely address the wounds of a section

in time, society as a whole will always remain haunted by ghosts of the past.

References

Arendt, Hannah (2006): Eichmann in Jerusalem: A Report on the

Banality of Evil, Penguin Classics.

Hayner, Priscilla B (2010): Unspeakable Truths: Transitional Justice and

the Challenge of Truth Commissions, (Routledge: New York). 2nd

edition