Gujarat Chief Minister Narendra Modi may be celebrating what he believes is the 'clean chit' given to him by the Supreme Court in its September 12 order on Gujarat riot cases. But he forgets that besides personal culpability under criminal law, there is also what is called 'constitutional culpability' for elected government heads.
Under current Indian criminal law he has, so far, escaped punishment for his alleged acts of commission and omission during the riots of 2002. The same, however, are enough to establish the chief minister's guilt for collective crimes and constitutional wrongs, both under the Indian Constitution and international criminal law.
The failure to convict and punish Modi for his crimes against humanity is illustrative of the failure of our investigating agencies and legal system. However, by no stretch of imagination, does this failure prove his innocence.
The traditional principles of criminal liability under Indian law, if creatively and purposively interpreted, may find Modi guilty of the offense of abetment and conspiracy to commit mass crimes. As this has not happened, complicity on the part of the state can be legitimately inferred. However, in view of the atmosphere of majoritarian communalism that prevails in the state, it maybe be too much to expect from the same state's lower courts to hold Modi guilty of mass crimes.
The fact is that crimes against humanity, including genocide pose a new challenge to the law, both national and international. New definitions of criminal liability that can deal with such crimes have to be developed.
International law had to struggle for long to find laws and means to deal with crimes against humanity committed by governments . But slowly principles of international criminal law were developed, finally leading to establishment of the International Criminal Court in July 2002.
The objective of this court is to bring to justice individuals, including leading officials and heads of state, considered responsible for serious crimes against humanity. It was hoped that the court would finally put an end to the impunity so often enjoyed by those in positions of power.
Unlike traditional international law and the International Court of Justice which deal with states, the International Criminal Court deals directly with cases of individual responsibility.
Heads of state and high officials do not directly commit crimes or are present at the sites of crime. Hence a new concept developed for such crimes and their masterminds is known as "joint criminal enterprise" or "command crimes".
Under this concept, those who are in command of the situation and either instigate lower officials or people to commit crimes; or people who could have controlled the situation but have failed to do so are also guilty and punishable. Unfortunately, India is still not a party to this treaty.
There is an urgent need for such a law in India that recognises "command liability". The P
