Introduction
While India has been a state party to the Genocide Convention of 1948 for over seven decades, the offences prohibited under this landmark treaty have found no mention in India’s domestic criminal statutes.[1] Questions over their incorporation have been raised in Parliament on multiple occasions across different governments, and their timing is telling. These instances include in 1994, which coincides with the Rwandan genocide, in 2002,[2] after the pogrom of Muslims in Gujarat,[3] and most recently in 2022,[4] after the public incitement to genocide against Muslims by priests in Haridwar. In the face of all these shocking atrocities that should have profoundly inspired a promise of “never again”,[5] the answer given by each minister has, unfortunately, been the same: the Indian Penal Code (“IPC”) suffices to address any such offence. For the reasons to be highlighted, this article refutes the foregoing position.
Home Minister Shri Amit Shah has recently proposed a new bill to completely replace the IPC, the Bharatiya Nyaya Sanhita (“BNS”), along with two parallel bills on matters of criminal procedure and evidence.[6] The larger motivation behind this initiative is to do away with colonial legacies in criminal justice administration.[7] One welcome tangible change is the criminalization of what mainstream media refers to as “mob lynching”: distressing and increasing group actions of extrajudicial killing, largely affecting Muslims in the last decade.[8] Despite this change, I argue that by omitting to incorporate genocide and affiliated offences through the BNS, India would risk continuing its violations of its obligations under the Genocide Convention. Highlighting the present political climate in India, I contend that civil society must seize this opportunity to bring traction to this gap. Before this, I reflect on why international criminal law should be taken seriously in the first place, in response to the aforementioned insistence on disassociating India from ‘Western’ or ‘colonial’ law.
Problematizing the Post-Colonial
The symbolism conveyed through legal language carries significance. This is clear from the choice of titling the three bills in Hindi rather than English, and preferring the Hindi synonym for Indian, i.e., ‘Bharatiya’. This titular change is, evidently, meant to cement the perception that this legislative exercise marks a departure from laws drafted by India’s British colonisers before independence (there is also a concerning language politics arising from prioritising Hindi in a multilingual country).[9] The present analysis of the bills, however, reveals that not much has changed in their contents.[10] In fact, colonial-era draconian offences such as sedition have seemingly simply been repackaged,[11] while other reflections of colonial morality through offences like obscenity remain intact.[12] With such context, it becomes clear that it is not just the nomenclature or origin of a law, but its actual text, purpose, scope, and social context that should decide whether it is ‘colonial’ and worth abandonment.
It is from this perspective that we should consider introducing international criminal law to this discourse. Third-world approaches to international law, or TWAIL, is a growing network and stream of scholarship that has confronted and exposed the colonial emergence and legacies of international law, including in the particular field of international criminal law.[13] Despite their suspicion of these colonial ‘original sins’ and continuities, TWAILers would largely not support the complete abandonment of international law in the name of ‘decolonisation’.[14] The task would be to remain cautious, but intent on gearing the vocabularies and tools offered by international law towards supporting the emancipation of the marginalised peoples and communities of the ‘Global South’.[15] In fact, India and other Global South countries and peoples have made important contributions to the development of international criminal law, including the Genocide Convention.[16] In other words, it is possible that emancipation can be supported through at least some laws that are supposedly Western or colonial in origin, contrary to the suggestion of three bills.
To argue otherwise would risk giving legitimacy to similarly reasoned claims that human rights and, similarly, the liberal ‘fundamental rights’ part of India’s Constitution,[17] should be abandoned for their supposedly Western origin. Indeed, following the proposal of the three bills, there have been serious arguments by some for replacing the Constitution itself entirely with a new one, given that some of its parts draw inspiration from past colonial-era frameworks.[18] While thoughtful academic debate on such themes could perhaps be generative, we must remain mindful of the implications of this position in light of India’s present political climate, where violence and animosity against demographics like Muslims have grown to such extents that experts consistently warn of impending genocide.[19] In debating the relevance of rights or international criminal law, we would be pronouncing on the fate of millions.
The ultimate objectives of modern criminal justice administration are to strengthen the voice and agency of victims and survivors, ensure punishment for criminals, and provide deterrence.[20] Having said that, let us recall that the main intention behind these bills is to do away with colonial attitudes. In that case, if truly intent on leaving behind imaginations of colonialism and its violent histories, the Parliament must also do away with any impunity for what is often regarded as the highest of crimes: genocide.[21]
Why the Genocide Convention Matters
India is generally considered a ‘dualist’ state, where the implementation of international law requires domestic legislation giving effect to its international legal commitments.[22] It is already discussed in length by many, including myself, how India’s omission to domestically incorporate, punish, and therefore take efforts towards preventing offences linked with the international crime of genocide violates its international obligations.[23] The crux of these arguments draws from Article V of the Genocide Convention,[24] which demands that all state parties pursue domestic laws giving effect to it.
Section 101(b) of the BNS bill,[25] while not using the term ‘mob lynching’, essentially criminalises acts of “murder” by “five or more persons acting in concert” on the basis of grounds analogous to caste, race, and “personal belief”, among others. Curiously, the ground of “religion” is not explicitly provided, even though lynchings in India in the last decade have been largely focused on that basis. Turning to the scope of the offence itself, the focus of this provision is on particular acts of murder against individuals who are part of these groups. This coverage of acts against members of a group should be contrasted with murdering the group itself, or an offence inciting such murder, that is, genocide. It is also important to note that murder (killing), is not the only method through which genocide can occur. Article II of the Convention clarifies this by referencing other similar acts, like the imposition of birth prevention measures on the group.[26] In turn, Article III further criminalises conspiracy for such crimes, their incitement, or attempts thereof.[27]
To reiterate, none of these offences are codified in the BNS. This is regrettable because any atrocity that would otherwise fall within the ambit of these crimes can only then be prosecuted in India by reference to lesser crimes like causing “enmity” between groups or committing murder in “concert”, i.e., mob lynching. Perhaps any genocide that materialises in the future, or its conspiracy or attempt thereof, could be prosecuted by being conceived of as a set of multiple acts of mob lynching of individuals transpiring together. However, the principle of fair labelling demands space for recognising and capturing the fullest harm suffered by victims and the gravity of the guilt of an accused.[28] Conceiving of these crimes only as acts against individuals would deny victims and survivors their agency in asserting the atrocity planned, attempted, or carried out against them in their capacity as a group.[29] To acknowledge the moral dignity of groups as such, like Muslims in India, was the very reason the Jewish jurist Raphael Lemkin coined the word ‘genocide’ during the Holocaust.[30]
In present-day India, these concerns are far from being a mere academic exercise. Only in August, the Punjab and Haryana High Court expressed concerns over potential ‘ethnic cleansing’ against Muslims in the Nuh district, another core crime that often precedes or accompanies genocide.[31] Uttarakhand was recently described as India’s “hate speech capital”, given the breadth of public speech hostility towards the presence and existence of Muslims, arguably amounting to the incitement of genocide in some instances.[32] Meanwhile, popular Meitei singer Tapta was booked in Manipur for his recent music calling for the killings of the Kuki tribe, as violence in the region continues.[33] This disconcertingly reminds one of the infamous trial of Hutu performer Simon Bikindi for the music he composed to encourage the killings of the Tutsis in Rwanda.[34] Consequently, there is a glaring urgency to bring the need for incorporating the Genocide Convention in India to public attention.
Concluding Reflections
At a time when many cases of hate speech (inclusive of incitement to genocide) against minorities are not being tracked in the first place,[35] when garlands are being tied on some accused of inciting genocide,[36] and when the replacement of our Constitution seemingly enters mainstream debate, engaging in legal discourse itself can begin to feel like a hopeless endeavour. This is particularly so for the field of international law, especially international criminal law, since it was evidently not given much weight by legislators well before the development of this culture of impunity. Continuing this disinterest, as we speak, India internationally resists the creation of a treaty concerning “crimes against humanity”, another serious international crime, arguing without nuance that doing so would advance Western biases in law-making.[37]
Despite these trends, vocabularies like “genocide”, “ethnic cleansing”, and so forth, carry immense power in shaping and empowering public discourse on these atrocities.[38] This is why activists insist on referring to them with political or moral connotations rather than legal bases while drawing attention to important injustices.[39] Yet the unique legitimacy that comes from the terms chosen in the findings of impartial courts is well documented in India.[40] Indeed, most recent matters of great public concern, whether or not for good reason, have been present in the courtrooms in some form.[41] To thus find even the possibility of highlighting the true gravity of such crimes in courtrooms, now or in the future, is worth perseverance today.
The time that remains before the BNS and its sister bills transform into legislation offers a promising opportunity to mainstream these vocabularies in common discourse, potentially creating space for helping address the suffering of marginalised groups threatened with existential violence. As Gautam Bhatia writes with reference to contemporary constitutional law scholarship, investing in international law too is a “leap of faith” by “betting upon a future that might never come to pass”.[42] It is, after all, among the best bets we have.
(Abhijeet Shrivastava is an LLM candidate at the University of Cambridge and a B.A. LLB (Hons.) graduate from the Jindal Global Law School.)
[1] Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949), 78 U.N.T.S. 277 (“Genocide Convention”); Abhijeet Shrivastava, How India’s Legislation Risks Impunity for Genocidal Speech, Völkerrechtsblog (July 22, 2022), https://voelkerrechtsblog.org/how-indias-legislation-risks-impunity-for-genocidal-speech/.
[2] Government of India: Lok Sabha, Unstarred Question No: 644 answered on 28.02.1994, Digital Sansad, https://eparlib.nic.in/bitstream/123456789/2380687/1/10_IX_28-02-1994_p76_p76_u644.pdf.
[3] Government of India: Lok Sabha, Unstarred Question No: 427 answered on 17.07.2002, Digital Sansad, https://eparlib.nic.in/bitstream/123456789/431567/1/46083.pdf. [4] Government of India: Rajya Sabha, Unstarred Question No: 871 answered on 09.02.2022, Home Ministry, https://www.mha.gov.in/MHA1/Par2017/pdfs/par2022-pdfs/RS09022022/871.pdf.
[5] OHCHR, Genocide: “Never again” has become “time and again”, United Nations (Sept. 18, 2018), https://www.ohchr.org/en/stories/2018/09/genocide-never-again-has-become-time-and-again.
[6] The Bharatiya Nyaya Sanhita, 2023: Bill No. 121 of 2023, Live Law (Aug. 11, 2023), https://www.livelaw.in/pdf_upload/the-bharatiya-nyaya-sanhita-2023-485731.pdf.
[7] Express Web Desk, Repeal of sedition, capital punishment for mob lynching: Amit Shah speaks about big revamp of Indian criminal laws in LS, Indian Express (Aug. 11, 2023), https://indianexpress.com/article/india/amit-shah-sedition-repeal-mob-lynching-capital-punishment-ipc-highlights-8887555/.
[8] Raghavi Vishwanath, Hate Crimes Against Minorities in India: Locating the Value of an International Criminal Law Discourse, 19 Jour of Int. Crim. J 611 (2021).
[9] As an instance of such preferences becoming issues of political debate, see T. Ramakrishnan, Explained: Hindi imposition and its discontents, The Hindu (Oct. 17, 2022), https://www.thehindu.com/news/national/explained-hindi-imposition-and-its-discontents/article66023522.ece.
[10] Amrit Dhillon, India to revise colonial era-penal code and toughen laws protecting women, The Guardian (Aug. 14, 2023), https://www.theguardian.com/world/2023/aug/14/india-laws-protecting-women-review-penal-code; Team, Annotated Comparison of Bharatiya Nyaya Sanhita Bill, 2023 and Indian Penal Code, 1860, Project 39A Blog (Aug. 14, 2023), https://p39ablog.com/2023/08/annotated-comparison-of-bharatiya-nyaya-sanhita-bill-2023-and-indian-penal-code-1860/.
[11] Srasvati Dasgupta, Modi Govt Unveils Controversial New Criminal Bills: 'Sedition' Law to Change But in Name Only, The Wire (Aug. 11, 2023), https://thewire.in/government/sedition-law-repealed-three-new-bills-tabled-in-parliament-to-replace-criminal-laws.
[12] Saral Minocha, No Matter What Amit Shah Says, the New Criminal Law Bills Are Not Anti-colonial, The Quint (Aug. 14, 2023), https://www.thequint.com/opinion/no-matter-what-amit-shah-says-the-new-criminal-law-bills-are-not-anti-colonial.
[13] Luis Eslava, TWAIL Coordinates, Critical Legal Thinking (Apr. 2, 2019), https://criticallegalthinking.com/2019/04/02/twail-coordinates/; Santosh Anand, Foreclosed Temporalities: Imperialism and International Criminal Law, Critical Legal Thinking (Nov. 18, 2022), https://criticallegalthinking.com/2022/11/18/foreclosed-temporalities-imperialism-and-international-criminal-law/.
[14] See generally Antony Anghie, Rethinking International Law: A TWAIL Retrospective, 34:1 Eur. Jour. of Int. L. 7, 9 (2023); Karin Mickelson, Hope in a TWAIL Register, 1 TWAIL:R 14, 25 (2020).
[15] Id; B.S. Chimni, Third World Approaches to International Law: A Manifesto, 8 Int. Comm. L. Rev. 3 (2006); Aashish Yadav, Citizenship Stripping Through The NRC and Assam’s Foreigners Tribunals, JFIEL (Sept. 26, 2022), https://jindalforinteconlaws.in/2022/09/26/citizenship-stripping-through-the-nrc-and-assams-foreigners-tribunals-an-interview-with-aashish-yadav/.
[16] See generally James T. Gathii, The Promise of International Law: A Third World View, 36 AM. U Int. L. Rev. 377 (2021); Vishwanath, supra note 8, at 622; Steven L. B. Jensen, How the Global South shaped the international human rights system, Universal Rights (Mar. 16, 2016), https://www.universal-rights.org/how-the-global-south-shaped-the-international-human-rights-system/.
[17] The Wire Staff, Western Standards on Human Rights Can't Be Blindly Applied to India: Amit Shah, The Wire (Oct. 13, 2019), https://thewire.in/politics/western-standards-on-human-rights-cant-be-blindly-applied-to-india-amit-shah.
[18] Bibek Debroy, There’s a case for ‘we the people’ to embrace a new Constitution, LiveMint (Aug. 14, 2023), https://www.livemint.com/opinion/online-views/theres-a-case-for-we-the-people-to-embrace-a-new-constitution-11692021963182.html; see also Rohin Bhatt, India’s Constitution continues to be more alive than the politics of those who call for its replacement, The Leaflet (Aug. 19, 2023), https://theleaflet.in/indias-constitution-continues-to-be-more-alive-that-the-politics-of-those-who-call-for-its-replacement/.
[19] Moiz Tundawala & Salmoli Choudhuri, Does Today’s India Need ‘Decolonisation’ Speak?, The Wire (Aug. 15, 2023), https://thewire.in/politics/does-todays-india-need-decolonisation-speak; Areeka Khan, Country Report: India, Genocide Watch (Apr. 15, 2023), https://www.genocidewatch.com/single-post/country-report-india;Cecilia Jacob & Mujeeb Kanth, ‘Kill Two Million of Them’: Institutionalised Hate Speech, Impunity and 21st Century Atrocities in India, 15 Glob. Resp. To Prot. 209 (2023).
[20] See generally Itamar Mann, Hangman’s Perspective: Three Genres of Critique following Eichmann in The Oxford Handbook of International Criminal Law (Heller et al. eds., OUP), 652 (2020).
[21] As an instance of the historical closeness between colonialism and genocide, see Rachel Anderson, Redressing Colonial Genocide under International Law: The Hereros' Cause of Action against Germany, 93 Calif. L. Rev. 1155 (2005).
[22] Prabhash Ranjan, The Supreme Court of India and International Law: A Topsy Turvy Journey from Dualism to Monism, 43:3 Liver. L. Rev. 571 (2022); Aparna Chandra, India and international law: formal dualism, functional monism, 57 Indian J. Int Law (2017).
[23] Priya Pillai, Preventing genocide, The Hindu (Jan. 19, 2022), https://www.thehindu.com/opinion/op-ed/preventing-genocide/article38288753.ece; Abraham Joseph, India is in Breach of Its Obligations to the Genocide Convention, The Wire (May 2, 2017), https://thewire.in/law/genocide-ontario-1984; Shrivastava, supra note 1.
[24] Id.
[25] The Bharatiya Nyaya Sanhita, 2023: Bill No. 121 of 2023, Live Law (Aug. 11, 2023), https://www.livelaw.in/pdf_upload/the-bharatiya-nyaya-sanhita-2023-485731.pdf.
[26] Genocide Convention, art. II(d).
[27] Genocide Convention, art. III(b).
[28] David Nersessian, Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity, 43 Stan. Jour. Int. L., 221 (2011); Glanville Williams, Convictions and Fair Labelling, 42 Camb. L.J. 85, 86 (1983).
[29] Id.
[30] Douglas Irvin-Erickson, Raphael Lemkin and the Concept of Genocide 112 (2017).
[31] Anwesha Mitra, ‘Ethnic cleansing’ by state? Punjab and Haryana HC questions Nuh demolitions, LiveMint (Aug. 8, 2023), https://www.livemint.com/news/india/ethnic-cleansing-by-state-punjab-and-haryana-hc-questions-nuh-demolitions-11691491070649.html.
[32] Alishan Jafri, Cross Marks on Doors, Cries of Extermination: How Uttarakhand Became Our Hate Speech Capital, The Wire (June 12, 2023), https://thewire.in/communalism/uttarakhand-hate-speech-jihad-anti-muslim.
[33] Saptarashi Basak, Manipur: FIR Against Tapta for Genocide Song; Says 'Focusing on New Composition', The Quint (July 16, 2023), https://www.thequint.com/news/india/fir-filed-against-tapta-genocidal-song-he-says-focusing-on-new-composition.
[34] Robert H. Snyder, “Disillusioned Words Like Bullets Bark”: Incitement to Genocide, Music, and the Trial of Simon Bikindi, 35 GA. K. Int. & Comp. L. 645 (2007).
[35] Pranshu Verma, Tracking rising religious hatred in India, from half a world away, The Washington Post (Jan. 16, 2023), https://www.washingtonpost.com/technology/2023/01/16/hindu-hate-crimes-raqib-hameed-naik/; Vishwanath, supra note 8.
[36] The Wire Staff, Jayant Sinha Legally Assisted ‘Innocent’ Lynching Convicts, But Regrets Garlanding Them, The Wire (July 28, 2018), https://thewire.in/rights/jayant-sinha-ramgarh-lynching-convicts.
[37] Shantanu Singh, India’s position in Sixth Committee debates on a Crimes Against Humanity treaty, Trade, Investment and International Law in India (June 24, 2023), https://triilindia.blogspot.com/2023/06/indias-position-in-sixth-committee.html.
[38] Mann, supra note 20.
[39] As an example, see TBS Report, India Covid crisis “crime against humanity”: Arundhati Roy, The Business Standard (Apr. 30, 2021), https://www.tbsnews.net/world/india-covid-crisis-crime-against-humanity-arundhati-roy-239506.
[40] For instance, see Gautam Bhatia, “Civilization has been brutal”: Navtej Johar, Section 377, and the Supreme Court’s Moment of Atonement, Indian Constitutional Law & Philosophy (Sept. 8, 2018), https://indconlawphil.wordpress.com/2018/09/06/civilization-has-been-brutal-navtej-johar-section-377-and-the-supreme-courts-moment-of-atonement/.
[41] This becomes evident from a simple perusal of its ongoing important cases, see Team, Cases, Supreme Court Observer, https://www.scobserver.in/cases/.
[42] Gautam Bhatia, ICLP Turns 9: The Leap of Faith, Indian Constitutional Law & Policy (Aug. 1, 2022), https://indconlawphil.wordpress.com/2022/08/01/iclp-turns-9-the-leap-of-faith/.
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