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On Monday, 17 December, the Delhi High Court reversed Congress leader Sajjan Kumar’s acquittal by a trial court in 2013 for his involvement in crimes committed in Raj Nagar, Delhi Cantonment, during the 1984 anti-Sikh riots.
They dismissed the appeals filed by the other five accused in this case, who had appealed their conviction by the trial court – and also convicted them under additional sections of the Indian Penal Code (IPC).
The judgment is a landmark one, and not only because it is the first conviction against one of the high-profile Congress leaders the Nanavati Commission had recommended prosecuting. It also clearly sets out how Sajjan Kumar was protected from being brought to justice because of the connivance of the police, and, in a significant move, recommended the inclusion of ‘crimes against humanity’ and ‘genocide’ in our legal system to deal with cases like this.
Here’s how the judgment went about setting right a historic wrong and ensured justice, in which a crucial role was played by the indomitable eyewitness Jagdish Kaur.
Kumar was the Congress MP for the Raj Nagar area at the time of the mass killings. According to the charge sheet filed against him, he entered into a conspiracy with the other five accused (and several other persons who were deceased by the time the trial took place) on or about 31 October 1984, after the assassination of Indira Gandhi.
As a result of this conspiracy, the other accused (including his nephews, also involved with the Congress) led and instigated mobs to attack Sikhs, their homes and a gurudwara in Raj Nagar, Palam Colony, in the Delhi Cantonment area on 1 and 2 November 1984.
Sajjan Kumar made two appearances in the area during this time:
The mob had made multiple attacks on the gurudwara on 1 November 1984 itself, succeeding in setting fire to it after the police took away the kirpans and weapons of the Sikhs who had tried to defend it. They had also killed the president of the gurudwara, Nirmal Singh, though this case didn’t deal with his killing.
The prosecution relied on a number of witnesses, including relatives of the deceased, neighbours who had tried to help, and investigating officers who helped reveal how the original investigations into the incidents had been a sham.
There were three witnesses whose testimony proved crucial to the case, and court made special mention of the reliability of their accounts, and their bravery.
Jagdish Kaur (PW-1)
Jagsher Singh (PW-6)
Nirpreet Kaur (PW-10)
The trial court had acquitted Sajjan Kumar on the basis that none of the original complaints about the incidents in question named him. The trial court accepted Kumar’s argument that his name first came up in Jagdish Kaur’s statements to the Nanavati Commission in the early 2000’s, and was therefore false. Jagsher’s testimony was assailed on the grounds that he hadn’t made any statements till the trial, and that Nirpreet Kaur also only named Kumar in a statement to the police in 2008.
The judges went so far as to say that “This was an extraordinary case where it was going to be impossible to proceed against A-1 [Sajjan Kumar] in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them.”
Most damningly, Justices Muralidhar and Goel also said that it seems like her original statement to the Ranganath Misra Commission in 1985 – in which she named Kumar – has been lost in “crude, erroneous and perhaps motivated translation.” One of the key grounds on which Kumar had assailed Kaur’s testimony was that she hadn’t named him in her statement to the first commission of inquiry that looked into the 1984 riots, but she claimed she had in fact done so, pointing out numerous discrepancies in the English translation of her statement to the commission.
The testimony of Jagdish Kaur was upheld as being truthful and consistent even under serious cross-examination and after such a long passage of time, with the High Court noting that even the trial court had said so with reference to her statements about the other accused; the grounds for doubting her testimony about Kumar were found to be weak. Similarly, the testimonies of both Jagsher Singh and Nirpreet Kaur were found to be reliable and consistent, and the court noted that they had no reason to falsely implicate Kumar.
The High Court held that the the trial court was “clearly in error” to only disbelieve what the witnesses said about Kumar while finding them reliable enough to convict the others. It was not “acceptable,” according to the judges, to disbelieve the “witnesses who have remained consistent and spoken clearly” about Kumar’s role.
Towards the end of the judgment, the judges also raised an extremely pertinent point – how cases like this are extraordinary, and that they need a different approach from the courts.
The mass killings of Sikhs in 1984 (2,733 in Delhi and 3,350 all over the country) were, according to Justices Muralidhar and Goel, “engineered by political actors with the assistance of the law enforcement agencies.” The judges opined that this meant the 1984 mass killings could be described as ‘crimes against humanity’.
‘Crimes against humanity’ generally fall within the scope of international law at present, and India does not have a separate category of criminal offences to deal with this.
Interestingly, the judges here listed a number of mass killings in India which they consider similar to 1984’s attacks on the Sikh community: Mumbai in 1993, Gujarat in 2002, Kandhamal, Odisha in 2008 and Muzaffarnagar in 2013. The common thread running through all of these is the targeting of minorities, the involvement of dominant political actors, and facilitation by law enforcement agencies.
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