The Sajjan Kumar judgment should be a learning moment. It tells us that mass crimes like 1984 are not spontaneous, nor are they committed in the spur of the moment, in a rush of passions blinding people and turning them into mobs. There is a mind, individual or collective, that plans, organises and gets the crime executed. This planner is sure of a ring of eternal impunity and assures the same impunity to those who perpetrate the crime.
This aspect of the judgment is being ignored. While the moment of justice is lauded, the lament of the court is not being heard. The judgment rued the fact that India does not have laws to deal with “crimes against humanity” and “genocide”. Even before this judgment, the Delhi High Court, while convicting 89 persons for the killing and mayhem in Trilokpuri, had used the term genocide for the 1984 killings.
Hailing the judgment, Union Finance Minister Arun Jaitley described 1984 as “the worst kind of genocide”. When he calls it the worst, he must have in mind genocides less worse, though he does not talk about them. The court, however, is uninhibited. The judgment reads: “The riots in early November 1984 — in which in Delhi alone 2,733 Sikhs and nearly 3,350 all over the country were brutally murdered [official figures], was neither the first instance of a mass crime nor, tragically, the last […] there has been a familiar pattern of mass killings in Mumbai in 1993, in Gujarat in 2002, in Kandhamal, Odisha in 2008, in Muzaffarnagar in UP in 2013 to name a few. Common to these mass crimes were the targeting of minorities and the attacks spearheaded by the dominant political actors being facilitated by the law enforcement agencies.” Nellie, Bhagalpur etc. can be added to this list.
The court has used the term, genocide, carefully, unlike the minister— there cannot be any hierarchies while comparing genocides. According to the UN convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group: Killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and, forcibly transferring children of the group to another group.
It is neither the method used in killing nor the number which makes a crime a genocide, but the intent. When the law holds a person who himself has not committed murders or lootings responsible for what others did, it underlines a simple fact that scholars of genocide like Daniel Jonah Goldhagen have repeatedly asserted — genocidal violence is not spontaneous, there is no inevitability about it and that it is a matter of choice. The choice is made by three kinds of people at three levels: The political leaders who plan and organise, the actors who participate in the violence, and those who watch and not come forward to stop it.
Interviews with the participants in genocides reveal they feel they were led into it, their thinking got clouded, yet they accept that they knew what they were doing. In that moment, they felt immortal. But it comes out that though the violence is made to look spontaneous, it is a well-planned and organised act. There is always a mind behind it which works to make it possible. The political class makes this choice because it feels the action helps to consolidate power. For example, in Gujarat, the BJP turned the burning of passengers in a train into an issue and claimed that Muslims did it— without an iota of proof. Other parties did not make this choice. It is not that they did not want the Hindu votes. So, it was a voluntary choice.
Goldhagen says it is an eliminationalist ideology that persuades a set of people to look at another set of people as irritants, pollutants, parasites or dangerous virus. It waits for an opportune moment or even creates one to turn this deepened prejudice into violence. For a genocide to happen, a long and sustained campaign to foster hatred against a set of people is necessary, and others are made to believe they have nothing in common with the targeted lot, who are but a sleeping threat, waiting for an opportunity to kill or enslave.
Scholars still debate if anti-semitism was inherent to the Germans, which made them willing executioners of the Jews. There are examples to show they were not merely obeying orders, as Hannah Arendt said. Even when there were no orders to kill the Jews, the Germans in charge killed them. It can be argued that the anti-semitic ideology stoked long-held prejudices and made murder inconsequential, since the Jews had already been deemed non-human. Genocidal education had made anti-semitism look like an innate character of the German.
When Adorno searched for ways to make Auschwitz impossible in the future, he focussed on education. There is education that the state sponsors, but there is also an informal and more effective education of prejudice and hatred carried out through various channels. Anti-Muslim hatred gained roots in India through this route. India has allowed, tolerated and even supported such education at various times. Europe paid a heavy price before realising that anti-semitism cannot be allowed in any form. It is not about Jewish honour; anti-semitism is offensive to humanity itself.
In India, the political class takes offence if you utter the word genocide while talking about 1984, Nellie, Bhagalpur, Mumbai, Gujarat or Muzaffarnagar. We think these cannot be compared with Auschwitz. But as Jairus Banaji points out, it is worse than genocide. There is a seriality in the violence in India. This is because eliminationalist ideology has been allowed to be professed and practised in India. The president of BJP can call certain people termites and call for their expulsion; Bangladeshi, Rohingya have become code words for Muslims.
The Sajjan Kumar judgment breaks the cycle of impunity. But if it remains an exception, India will continue to see more 1984s.