Can Killing of Hindu Pandits in J&K be Termed as Genocide

The meaning of the word “genocide” is “genos” (race) – a Greek word and Latin word “cidi” – killing. In recent times of human history, mass killing of the Zews by the Nazis during Second World War can be surely termed as genocide.

In 1943, it was Raphael Lemkin, a lawyer of Polonised-Jewish descent who was particularly moved by the atrocities against the Armenians in Turkey, and he was the first person to define such systematic and planned exterminations within legal frames. He had coined the word “genocide,” using the Greek word “genos” which stands for “family”, “tribe” or “race” and the Latin “cide” standing for “killing”. As the term “genocide” was coined, the portmanteau word “armenocide” also emerged to depict the Armenian genocide.

In 1915, (much before the term “genocide” was coined) the Ottomans started out actions to oust and massacre Armenians living on the territory of their empire. It is estimated that during that period, there were about 2 million Armenians living in the country. In a matter of few years only, accounts suggest that their number dropped to some 5,00,000. Nowadays, the majority of historians agree that this was genocide, a mean of orchestrated and systematic campaign to exterminate an entire ethnic group of people. On the other hand, the Turkish Government does not acknowledge the wrongdoings as a genocide.

The Ottomans were Muslims; the Armenians were Christians.

History further says that Armenians, “tended to be better educated and wealthier than their Turkish neighbours, who in turn tended to resent their success. (Same was the case of Hindu Pandits, who in comparison, were better educated and wealthier).

After the Second World War, to prevent repetition of such inhuman act General Assembly started to formulate a convention. On 9-12-1948, General Assembly passed a resolution, as part of international law, the Convention on the Prevention and Punishment of the Crime of Genocide1. Thus, genocide means indiscriminate killings of a national, ethical, racial or religious group. Article II of the Convention provides in details, which acts and omission are to be termed as genocide:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group; and

(e) forcibly transferring children of the group to another group.

If we go through the Convention (Genocide), we find that the contracting parties are obliged to criminalise genocide and punish their perpetrators by the legal systems of the contracting State parties. And provision of judicial cooperation among the State parties are there in the Convention.

This Convention punishes perpetrators of genocide even if they hold a constitutional post or public official. (Article IV)

Even after enactment of the Genocide Convention, there seems to be some gap in the statutory language. This Convention does not cover linguistic or cultural dissemination. In the modern world such types of dissemination are occurring. As for example the massacres of Bengalis in East Pakistan were nothing but large-scale genocide. So is the case of Rohingya Muslims.

In 1990, Panun Kashmir Movement (PKM) and All India Kashmiri Samaj (AIKS) filed a petition before the National Human Rights Commission, asking mass killing of Hindus in Kashmir to be declared as genocide.

The National Human Rights Commission making a strict interpretation of the Protection of Human Rights Act, 19932 held that, human rights mean the rights relating to life, liberty, equality, and dignity of the individual guaranteed by the Constitution or embodied in the international covenants and enforceable by courts in India.

Thus, international covenants mean the International Covenant on Civil and Political Rights3  and the International Covenant on Economic, Social and Cultural Rights adopted by the General Assembly of UN on the 19-12-1966 and 16-12-1966 and such other covenant or convention adopted by the General Assembly of the UN as Central Government by notification specify.

As per detailed response of Union of India, since genocide is not mentioned in Sections 2(d) and 2(f)5 of the said Act, Genocide Convention is not applicable in this context in India.

The Commission also held that, though India is signatory of this Convention, but to implement the Convention necessary legislation (under Article 253 of the Indian Constitution6) has not been enacted and also does not mention as per Article III of the Genocide Convention where some acts are prohibited. (Article III ― genocide, conspiracy to commit genocide, direct and public incitement to commit genocide, attempt to commit genocide, complicity in genocide.)

The PKM filed a rejoinder and maintained that genocide is international crime and has become part of customary law as jus cogens. Thus, even in absence of express statutory legislation as per the Constitution, this offence is punishable.

We can add that, Judiciary under Article 517 can bring in international legal principles in national law. It is the rule of statutory interpretation that national law shall be interpreted in consonance with international law. In Vellore Citizens’ Welfare Forum v. Union of India8, the foreign concept of sustainable development (Stockholm Convention9) has been incorporated by Indian judiciary in the national system.

Conclusion

There are mainly two types of interpretation literal and liberal. Liberal interpretation is made in human rights legislations, constitutional laws. It can be also termed as purposive one. Strict or literal interpretation is made in penal laws. Thus, it can be concluded that National Human Rights Commission has erred in applying its recommendary power to alieavate the position of Hindus in the valley of J&K. The targeted killing of Hindus in huge number in the Jammu and Kashmir valley is nothing but genocide. They are now scattered over the whole country and facing huge socio-economic challenges. One can say that, they shall be never able to return their roots.


Assistant Professor, Symbiosis Law School, Pune, e-mail: bibhabasumisra@gmail.com.

†† Assistant Professor, Symbiosis law school; Pune

1 <http://www.scconline.com/DocumentLink/31885VjH>.

2 <http://www.scconline.com/DocumentLink/2K2MTxa4>.

3 <http://www.scconline.com/DocumentLink/79ZxK20m>.

5 <http://www.scconline.com/DocumentLink/m79saF87>.

6 <http://www.scconline.com/DocumentLink/61pY4yl7>.

7 <http://www.scconline.com/DocumentLink/0k1WtWgV>.

8 (1996) 5 SCC 647.

9 <http://www.scconline.com/DocumentLink/4kxm4GM3>.

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