ISSN (Online) - 2349-8846

SIT for Reinvestigating 1984 Anti-Sikh Riots

Therapeutic Approach to Criminal Justice?
BALRAJ K SIDHU, BHARAT H DESAI

Vol. 50, Issue No. 11, 14 Mar, 2015

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.

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.

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,
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
ISSN (Online) - 2349-8846

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 agonising wait of
three decades? The real impact of opening up of such painful chapters of the past is neither
easy nor predictable.

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 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
ISSN (Online) - 2349-8846

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 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 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

ISSN (Online) - 2349-8846

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, 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 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
ISSN (Online) - 2349-8846

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.

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 participants in the painful task of
reconstruction, reconciliation and eventual peace. Justice for all victims, prosecution for all
ISSN (Online) - 2349-8846

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