Why These Double Standards ?
The recent judgement of the Hon’ble Delhi High Court, convicting the Delhi Congress strong man, Sajjan Kumar, in the 1984 Sikh killings, post-Mrs Indira Gandhi assassination, lays bare the judicial double standards applied in similar situation to our (Kashmiri Pandit) killings in Kashmir in 1989-90.
A PIL had been filed in the Hon’ble Supreme Court of India by Shri Vikas Padora on 18th May 2017, seeking probe and prosecution of various persons, including the separatist leaders, Yasin Malik and Farooq Ahmad Dar, alias Bitta Karate, for offences, including murder of Kashmir Pandits in Kashmir during the early days of the armed uprising in 1989-90.
The PIL specifically referred to 215 cases out of 700 cases of murder and rape, for which FIR’s had been lodged.
The two-judge bench, consisting of the Chief Justice of India, Shri J S Khehar and Justice D Y Chandrachud, dismissed the petition stating that almost 27 years had passed and it will be difficult to gather evidence in cases of murder, arson and looting, which had led to the mass exodus of Kashmiri Pandits from Kashmir. The learned Justices said, “It is heart wrenching ….. but you sat over it for 27 years. Now tell us from where the evidence will come?”
Vikas Padora argued that Kashmiri Pandits were forced to leave the bodies of the murdered kith and kin in the valley, as they left in panic and could not just investigate and gather evidence. He also submitted that delay did take place, but neither State govt. nor the Central govt., nor judiciary took adequate notice of the mayhem and did not do the needful.
The verdict had come as a bolt from the blue to the beleaguered community living in exile for the past 29 years without any hope of getting justice from a skewed justice system.
The relevant question that everyone asked, “Can delivery of Justice be held hostage to the long passage of time?” Does not the established law uphold the fundamental truth that “Crime never dies?”
The Delhi High Court, reversing the earlier judgements, rightfully sentenced one of the pogrom leaders, Sajjan Kumar, to life imprisonment for what it called as crime against humanity, which needed closure despite the lapse of 34 years. It is true that justice was delayed to the 2,700 Sikh families that have borne the burden of pain, loss and humiliation for so long. Nevertheless, Sajjan Kumar’s conviction is both a vindication as also a reconciliation.
The judgement in the instant case is completely the reverse of how the denial of justice to Kashmiri Pandits was justified by the apex court. It had said that due to huge time lapse between the commission of crime and the filing of the case, it would be impossible to get the desired evidence to start the prosecution. However, the Delhi HC listed precedents to justify why delayed justice is necessary to prove that there is no getting away and restore faith in democracy as the ultimate arbiter of right and wrong even if the law and order system is itself held hostage by the perpetrators. The court also cited the Supreme Court of Bangladesh which took an appeal against the acquittal of the accused of mass killings of Bangladesh citizens in 1971. The trial began in 2009, 38 years after the incident, and concluded in 2013. A Nazi criminal was convicted after 56 years. As the court articulated,“ no amount of time can be too long to satisfy the needs for truth and some measure of accountability, nor can some arbitrary time limit be set. The argument that some wounds are too old to be exposed has little moral integrity……..the wounds are still there for all to see.”
In Israel, the courts brought to justice (and continue to do so) many of those who were involved in the massacre of six million Jews prior to and during the World War II. The degree of difficulty involved in collecting evidence in this case was far greater than in our case. Most Jewish massacres had taken place in Germany, Poland, Austria and other European countries, which had been evacuated by the Jews. A large number of the accused had vanished in thin air in the confusion that followed the defeat of Axis Powers. Yet, the State of Israel went after those who had carried out these massacres and brought them to justice after diligently gathering evidence across continents, over years. In Spain, the county enacted a law to investigate the crimes committed during Spanish Civil War, 80 years ago.
It is astonishing that in our country the Apex Court should question the ability of our system to gather evidence of events which have taken place 27 years ago.
It can safely be said that the Delhi High Court verdict is, in a manner of speaking, an indictment of the ruling in our case. This ruling must become the foundation on which our legal team must work, henceforth, to undo the injustice meted out to us.
It may be mentioned that All India Kashmiri Samaj had filed a petition in the Supreme Court of India in 2006, through one of the country’s leading lawyers, Shri Arun Jaitely. The killings of our people, which was nothing short of a genocide of our community, was one of the issues flagged therein. It is now hoped the Delhi High Court judgement will open the way for healing of our own wounds. It is never too late.