A new case for state compensation

The Sajjan Kumar verdict by the Delhi High Court presents a new case for proper state compensation for Sajjan Kumar victims.

While most law experts have been busy deciphering the Delhi High Court’s judgement in Sajjan Kumar’s case for its implications in the cases to come against Jagdish Tytler and possibly Kamal Nath, not much has been said about how to best compensate the victims who stand vindicated after this judgement. Sajjan Kumar verdict offers a custom made case for state compensation to 1984 Anti-Sikh Riots victims for its failure to protect its citizens.

Also read: 1984 Anti-Sikh Riots: Justice at Last – Sajjan Kumat to die in jail

This judgement, in my view lays a very firm and strong foundation for a multi-crore compensation claims against the state on behalf of the victims. It records in clear and specific terms state’s failure in its duty of care to its citizens. A very strong case for compensation, the quantum of which will be duly determined by the Courts and not by politicians’ whims, is made out.  That compensation is a matter of right of those wronged and must not to be presented as ‘favour’ and handout by their local, camera-ready politicians. To support my argument, I summarise the following conclusions the two judges made in the judgement:

(i)            There was an abject failure by the police to investigate the violence which broke out in the aftermath of the assassination of the then Prime Minister Smt. Indira Gandhi is apparent from the several circumstances highlighted in the court.

(ii)           There was an utter failure to register separate FIRs with respect to the five deaths that form the subject matter of the present appeals. The failure to record any incident whatsoever in the DDR and the lack of mention of victim’s statement therein, amongst other circumstances, established the apathy of the Delhi Police and their active connivance in the brutal murders being perpetrated. 

(iii)         What happened in the aftermath of the assassination of the then Prime Minister was carnage of unbelievable proportions in which over 2,700 Sikhs were murdered in Delhi alone. The law and order machinery clearly broke down and it was literally a “free for all” situation which persisted. The aftershocks of those atrocities are still being felt.

(iv)          This was an extraordinary case where it was going to be impossible to proceed against Sajjan Kumar in the normal scheme of things because there appeared to be ongoing large-scale efforts to suppress the cases against him by not even recording or registering them. Even if they were registered they were not investigated properly and even the investigations which saw any progress were not carried to the logical end of a charge sheet actually being filed. 

(v)           The argument that the CBI deliberately suppressed the fact of the pendency of the closure report in case of a particular FIR. Even if the said FIR was not closed as “untraced”, the fact remains that there was no progress whatsoever made for years, in the said FIR.  

(vi)          Main victim as prosecution witness comes across as a fearless and truthful witness. Her evidence deserves acceptance.

(vii)         The failure to examine some important witnesses by the Riot Cell of the Delhi Police and also the non-examination of some others establishes that the Riot Cell did not carry out any genuine investigation. 

The attackers planned to ‘kill all Sikh males’:

Admonishing the Trial Court, the judges said, “The trial Court completely omitted to address the charge of conspiracy despite detailed arguments submitted by the CBI in that regard. There was a two-pronged strategy adopted by the attackers. First was to liquidate all Sikh males and the other was to destroy their residential houses leaving the women and children utterly destitute. The attack on the Raj Nagar Gurudwara was clearly a part of the communal agenda of the perpetrators.

Thus reversing the acquittal of Sajjan Kumar by the trial Court the High Court convicted him of the offence of criminal conspiracy punishable under Section 120B read with Sections 302, 436, 295, and 153A (1) (a) and (b) IPC; for the offence punishable under Section 109 IPC of abetting the commission of the aforementioned offences; and for the offence of delivering provocative speeches instigating violence against Sikhs punishable under Section 153A (1) (a) and (b) IPC. (Para 307)

Sentenced to die in jail:

The court sentenced Sajjan Kumar as under:

(i) For the offence of criminal conspiracy punishable under Section 120B read with

(a) Section 302 IPC, to imprisonment for life, i.e. the remainder of his natural life;

(b) Section 436 IPC, to RI for 10 years and fine of Rs. 1 lakh and in default of payment of fine to undergo simple imprisonment (SI) for 1 year;

(c) Section 153A (1) (a) and (b) IPC, to RI for three years; and

(d) Section 295 IPC, to RI for two years.

(ii) For the offence punishable under Section 109 read with Sections 302, 436, 153A, and 295 IPC to identical sentences as in (i) (a) to (d) above.

(iii) For the offence punishable under Section 153A (1) (a) and (b) IPC, to RI for three years.

All sentences shall run concurrently.

Such was the urgency recognized by the High Court, that it cancelled Sajjan Kumar’s bail and surety bonds furnished by him and ordered him to not leave NCT of Delhi.

The court went further to describe the mass killings of Sikhs between 1st and 4th November 1984 in Delhi and the rest of the country, engineered by political actors with the assistance of the law enforcement agencies, as “mass crimes or crimes against humanity”.  The court said, “Common to the instances of mass crimes are the targeting of minorities and the attacks spearheaded by the dominant political actors facilitated by the law enforcement agencies.”

Such was the passion felt by the judges that their observations got intertwined with stating of facts when they continued their paragraph by adding:

“The criminals responsible for the mass crimes have enjoyed political patronage and managed to evade prosecution and punishment. Bringing such criminals to justice poses a serious challenge to our legal system. Decades pass by before they can be made answerable. This calls for strengthening the legal system. Neither “crimes against humanity” nor “genocide” is part of our domestic law of crime. This loophole needs to be addressed urgently. 

Although it demands more work from Advocate Phoolka and his team, in my view, the case for a multi-crore compensation for victims in this case, is already made out. The aggravated behaviour of the perpetrators and the complete dereliction of duty of care by the state have been specifically recorded in the judgement. Any monies paid earlier if any, pale into insignificance given the horrendous ordeal they have had to endure. Perhaps Kejriwal, who was very quick to welcome the verdict, should lead by making an exemplary offer to compensate the victims. As they say, he should ‘put the money where his mouth is’.             -DM

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