Abstract
Mass crimes for the purposes of this book ‘means and includes any one or a combination of the following: multiple crimes, crimes in mass numbers, crimes over a prolonged period, crimes in a number of places simultaneously and/or crimes committed in a systematic and consistent patterns’ (Fn. 1, p. 21). Nine authors in 13 chapters in the book explore the relevance of international standards in mass crime and how justice eludes in most cases for the victims as well as the accused and suspects and how often the accused become victims of state power without accountability. Each chapter of the book is well researched. The book is an important addition to woefully scarce research in the field of criminology and criminal justice administration. Each chapter of the book contains reference to important international standards contained in relevant UN Convention, Rules, Protocols, Declarations, etc. It is a good resource book for all those interested in the field of crime, criminology, international law, human rights, sociology, victimology and related subjects.
Upendra Baxi’s Foreword sets the context of the essays when he states that this book ‘helps us understand, in the specific Indian social and constitutional contexts, the fact that such violence is a conjoint production of forces in State and civil society’ (p. vii). He further points out, ‘In the specific Indian conjuncture, this volume illustrates how language of immunity become grammar for impunity, cancelling the achievement of Indian Independence….’ Various chapters contained in the book fully justify this claim.
Vahida Nainar in her introductory remarks refers to the requirement of prior sanction for prosecuting State officials as the basis of impunity in the Indian laws. The administrative control of the government over the investigating agencies makes it harder for them to initiate action against those in position of power. ‘The complicity of State officials in mass violence, coupled with the State’s involvement in the appointment of public prosecutors who often lack institutional autonomy and prosecutorial discretion in the discharge of their responsibilities necessarily make the criminal trial—biased’ (p. 2). The book makes a case for new and effective laws to deal with issues of torture, enforced disappearance, genocide and crimes against humanity.
The first essay by Saumya Uma highlights the inhuman and degrading treatment, physical and mental torture, sexual and gender-based violence committed by police officials on people in their quest to capture Veerappan in complete violation of Universal Declaration of Human Rights, International Covenant on Civil and Political Rights 1 and International Covenant on Social, Economic and Cultural Rights, the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the UN Convention for Elimination of Discrimination Against Women. While many of these actions amounted to offences under the Indian Penal Code, the IPC is inadequate as it does not ‘reflect the widespread or systematic nature of the crimes committed’ (p. 32). The chapter discusses the doctrine of command responsibility as established by the International Criminal Tribunal for the Former Yugoslavia. It may be noted, however, that it was not accepted by Justice Verma Committee appointed to examine Criminal Laws in the aftermath of December Rape case in Delhi in 2013 and it has not found a place in the subsequent amendments made by the Criminal Law Amendment Act 2013.
Her second essay seeks law reform in the area of sexual and gender-based crimes during communal violence, violence in the context of militarisation, caste-based violence, violence in the context of development and dispossession and violence in anti-Naxal operations. She has included analyses of the Communal Violence Bill, the Criminal Law Amendment Bills of 2010 and 2012, as well as the Revised Scheme for Relief and Rehabilitation of Victims of Rape. Vahida Nainar too is critical of the narrow definition of rape, as it existed then, as
rapes committed as a part of widespread and systematic attacks are not limited to penile penetration and extend to other forms of sexual offences such as insertion of objects, which under the IPC cannot be charged as rape … (and could) only charged as outrage of modesty which completely mis-characterises and undermines the nature of the sexual offence. (pp. 394, 395)
With the passing of the Criminal Law Amendment Act 2013, the definition of rape has been expanded as suggested in this chapter and now includes penovaginal intercourse, anal and oral penetration by mouth, other body parts and objects.
In her third essay, Saumya Uma has focused on integration of victim’s rights of protection, participation and reparation in the Indian legal framework along with the right of the accused to a fair trial. This is an area where little is done in terms of Sections 357 and 357A of the Code of Criminal Procedure but vast remains undone.
Maya Nair argues for raising the standards of accountability in severe offences against Dalit as crime against humanity of ‘persecution’ as defined in the Rome Statute of the International Criminal Court. She takes the controversial and long-debated position of comparing caste with race by examining persecution of Afro-Americans in the United States.
Siddartha Narrain presents a well-researched chapter on persecution of Sexual Minorities and various developments that have taken place in the international laws. He highlights the compromise that was needed while defining ‘gender’ in the Rome Statute despite recognition of sexual orientation and the consequent persecution as a ground for asylum for long. The chapter contains plethora of information about various initiatives and progress made at the international level regarding issues of sexual orientation and gender identity.
V. Seshaiah Shastri has explained in simple language the various aspects relating to disappearances as dealt with under the Convention for the Protection of All Persons from Enforced Disappearances as the issues remains neglected in India despite the victims’ constant fear for their lives and suffering of the family due to ignorance about the whereabouts of their loved ones.
Vikram Jeet Batra makes a convincing case for abolition of death penalty in India by referring to the Rome Statute of International Court of Justice which has rejected capital punishment and the sentence of whole life imprisonment without possibility of release even for those found guilty of the gravest and most heinous of offences. However, since the writing of this book, the Criminal Law Amendment Act 2013 has introduced the whole life imprisonment hitherto unknown to the Indian Penal Code. 2
In contrast is the essay on ‘Genocide’ by Priya Pillai who argues for international standards to be introduced within the municipal laws ‘to serve as a deterrent to any future genocidaires’ (p. 377). Similar appeal for incorporation of international laws and standards is found in the second essay by Vahida Nainar on Crimes against Humanity in India. Nainar has analysed the selected situations of Salwa Judum, Nandigram and Gujarat to prove that these were instances from India of crimes against humanity and persecution as defined in the Rome Statute of International Criminal Court and not of mass crimes, mass atrocities, communal violence, sectarian violence or targeted violence (pp. 393 ff). U. C. Jhain in his essay on ICC and the Indian Military Justice System categorically points out that ‘the punishments authorised under the Indian military system justice system are more severe than those under the prevailing civil–criminal justice system or the Rome Statute.’ It is unclear whether these writers are arguing for incorporation of the international definitions of crimes against humanity like genocide, persecution, etc., in the municipal laws along with the prohibition of death penalty and life imprisonment without the possibility of release as contained in the Rome Statute or for merely the definitions while wanting to retain the more severe punishments provided by the municipal laws for less severe offences like murder.
Arvind Narain gives a captivating account of how war on terror has become war of terror across the globe in America’s quest for justice in the wake of the attack on the twin towers in New York in September 2011. In his own words, ‘The essay explores the absence of a link between law and justice and highlights a link between law and vengeance.’ Shruti Bedi in her essay on International Terrorism bemoans the absence of internationally accepted definition of terrorism and its exclusion from the jurisdiction of the International Criminal Court (pp. 429 ff).Vahida Nainar also makes a case for expanding the conceptual definition of torture to include torture by private actors and analyses in details the provisions and conversations around Prevention of Torture Bill 2010 in comparison to UN Convention against Torture. She points out the contrasting provisions of IPC in relation to public servants in the offences of culpable homicide and rape.
Culpable homicide … is not considered murder if the offender being a public servant exceeds his powers and causes death by an act he believes to be lawful and necessary to discharge his duty. Rape on the contrary, when committed in custody, is considered an aggravating circumstance carrying a (sic) heavier punishments ranging from imprisonment of seven years to life imprisonment. (p. 337)
While the point is well made, it may be noted that the minimum imprisonment for custodial rape is 10 years, and not seven years.
In short, the book contains many thought-provoking and well-researched essays seeking better recognition of mass crimes for their severity by well documenting the international developments and documents on the subject pointing out why State and State actors should not be allowed to enjoy immunity and impunity against sever atrocities and crimes committed against ordinary persons.