FOR IMMEDIATE RELEASE
AHRC-STM-017-2011
January 27, 2011
A Statement by the Asian Human Rights Commission
INDIA: US can help Indians in seeking justice
A ‘default order’ issued by a District Court in the United States against Union Minister Mr. Kamal Nath has once again brought the question of sovereign and diplomatic immunity into domestic and international debates. The case at hand concerns the legal proceedings initiated against Nath at the New York Federal District Court by the plaintiff, an NGO named Sikhs for Justice. The plaintiff alleges that that Nath, among others, is a person suspected of having been involved in the infamous Anti-Sikh riots of 1984.
The Government of India has sought clarification from the United States government as to whether court proceedings in the US would be maintainable against Nath, invoking the principles of sovereign and diplomatic immunity. At the time when the case was filed (a claim under the Alien Torts Act, 1789), Nath was the Union Minister for Transport and Highways and currently holding the portfolio of the Union Minister of Urban Development. However, the original cause-of-action in the case is of 1984, when Nath was just a political leader and not holding an official post that offers any form of immunity.
The criminal acts Nath is alleged to have committed were done before he held an office that he now claims would provide him security under the principles of sovereign and diplomatic immunity. Therefore, the question of Nath’s immunity being a serving minister in India’s Union Cabinet is an issue concerning the jurisdiction of the court, which is for the court to decide. An executive order by the United States government will not oust the jurisdiction of the court, nor would the Government of India do any good to the greater cause of justice and humanity by shielding Nath.
One of the crimes alleged against Nath is that he led a riot that resulted in mass murder, rape and loss of property of the Sikh community. It was seen as an act of vengeance perpetuated against the Sikhs, immediately after the assassination of the then Prime Minister of India, Mrs. Indira Gandhi by her security guards. The riot and the gruesome events that followed targeting the Sikh community, if not genocide as claimed by a section of Sikhs, is of such nature that it is covered by the principle of universal jurisdiction. It also implies that the accused in crimes against humanity like Nath and other suspects who are accused of their active and passive involvement in the 1984 riots, or persons like Mr. Narendra Modi, the present Chief Minister of Gujarat who actively participated in orchestrating the 2002 Gujarat program against Muslims cannot save their skin forever and elude justice until the end of the time.
The question of sovereign immunity has to be assessed on the basis of customary international law where a coherent framework has been reasonably established for adjudicating complex and politically sensitive questions of immunity that address the competing goals of promoting international discourse, respecting the sovereign equality of states and ensuring accountability for serious crimes. The very notion of sovereign immunity, a concept closely associated with the respect of state sovereignty, is construed by developed jurisdictions as a safeguard against litigations that could affect a nation’s ability to conduct crucial diplomatic functions while at the same time respecting a state’s role in bringing to justice persons, irrespective of their official status, who violate fundamental principles of international law and basic human dignity.
Nath is neither the head of a state, during or after the commission of the crime alleged against him, nor part of any permanent diplomatic mission helps in fastening the jurisdiction of the Federal District Court in New York to proceed against him. Neither are the allegations against Nath, the communal carnage against Sikhs in 1984, a legitimate state function. This prevents the Government of India and the United States Government from taking refuge in sovereign immunity in Nath’s case, as it is equally the responsibility of both governments to investigate, prosecute and punish crimes against humanity. In addition, in Nath’s case the governments of India and the US cannot take up the argument of functional necessity, a principle in international law that justifies diplomatic immunity on the ground that the person claiming immunity cannot represent his state unless afforded with such immunity. At the very minimum, a US court proceeding against Nath is no reason to hinder bilateral affairs between India and the US, though the process could result in opening the floodgates of criminal proceedings against other similar politicians who continue to enjoy impunity against prosecution for their criminal acts in India like Mr. Narendra Modi of Gujarat or Mr. Sajjan Kumar.
Nath, like some other politicians in India is not a stranger to controversy. Given the expanse of his business empire, Nath is more of a businessman than a politician. Informed sources within the government allege that political work for Nath is to only augment the growth of his business empire. His name has appeared repeatedly in financial scams alleging misuse of his political clout and the offices of the Minister of Environment and Forests (1991-95), Textiles (1995-96), Commerce and Industry (2004-09), Road Transport and Highways (2009-10) and currently Urban Development, all of which Nath worked for as a Minister, has been dragged into these scams. The rice export scam and the Supreme Court’s order directing Nath to pay a fine in 2002 for causing environmental damage by constructing a luxury resort violating the rules in an ecologically sensitive area are just two among them. Despite the scams, Nath continues to enjoy a prominent position in the Congress Party, which he served as its General Secretary from 2001-04.
The demonstrated failure of the Government of India to conduct a proper investigation against Nath and other leaders of the Congress Party or of the police officers serving in the Delhi State Police, who participated in the riots by much more than their passive silence, accused of their involvement in the 1984 Anti-Sikh riot is thus no surprise. Even today no one knows the exact number of lives lost in the riots and the extent of property damaged or the present condition of the victims who were raped and tortured by the criminals, like some of the politicians who led gangs of hardened criminals including those set free from prisons, paid money and equipped with weapons to ‘man’ the riot. From November 1984 starting with the Ved Marwah Commission of Inquiry to February 2005 ending with the Justice G. T. Nanavati Commission of Inquiry, 10 separate bodies, appointed by the government, have inquired into the riot.
None of these inquiries resulted in any credible action against the culprits. During this period, Congress Party did not always lead the Union Government. However, those who criticise the Congress Party for its active involvement in the riot through the acts and organisation of some its prominent leaders, like the Bharatiya Janata Party (BJP), did nothing to bring justice to the victims.
Despite conflicting claims as to the exact number of lives lost, it is estimated that not less than 4000 persons were killed in the riot and about 30,000 persons had to flee from the city out of fear for their lives, merely because they were from a particular community. The 1984 Anti-Sikh riot is of the same gravity like any other subsequent riots that India unfortunately experienced. In shielding the real criminals behind these riots, of which most of them come from the highest seats of political power in the country, India has shown no remorse or shame.
The 1984 riot not only happened in the world’s largest democracy like many others that India still bear the burden of healing, but it happened in that democracy’s capital city, Delhi.
India will not lose any further honour, from what it has left, should one who is suspected of having involved in one such gruesome incident, by participating in it as one of its chief organisers, is called upon to answer questions concerning the incident in an alien court by some of the victims, a process of minimum humanity that the country has denied to its citizens so far. In that the United States Government will serve the interest of justice of 1.2 billion people should it facilitate the process, at the very minimum, by not standing in between the truth and those who seek for it.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
