As readers are aware, the National Human Rights Commission (NHRC)
has taken the stand that its mandate in the Punjab disappearances case was
confined to the scrutiny of the legality (or otherwise) of the cremation of
bodies by the Punjab police as unidentified/unclaimed. On September 9, 2005 the
Committee for Information and Initiative on Punjab (CIIP) filed an application
before the NHRC challenging this stand and asking the NHRC to clarify its
position with respect to three vital questions of law that arose in the case.
The application also sought a stay of proceedings in the case till this
application was decided. Despite having made its intentions clear, the NHRC had
refrained from declaring them in writing. Thus, the application served the dual
purpose of confronting the commission and forcing it to place the oral stand it
had been taking on case records.
The application drew attention to the roots of the current
proceedings: namely, the press note dated January 16, 1995 issued by Jaswant
Singh Khalra and his colleagues and the writ petition filed by the CIIP before
the Supreme Court on the basis of the cremation ground records uncovered by
Khalra & co. Both drew an explicit connection between the enforced
disappearances reported in Amritsar and other parts of Punjab and the cremations
by the Punjab police. Since the December 12, 1996 order of the Supreme Court had
specifically referred "the whole matter" to the NHRC and asked it to adjudicate
upon all the issues that may be raised by the parties before it, there was no
scope for ambiguity on this count. Any adjudication by the NHRC must include a
scrutiny on the manner in which the cremated persons met their death.
The application also questioned the manner in which the NHRC had
applied the rule of strict liability to the case while granting compensation to
the families of 109 persons in November 2004. Quoting from the decision of the
Supreme Court in the DK Basu case, delivered by Justice Anand when he was a
judge of the Supreme Court, it was pointed out that in the context of human
rights law, ‘strict liability’ was used as a rule of evidence, to meet the
challenge posed by an ever-increasing incidence of custodial crime where it is
generally "difficult to secure evidence", notwithstanding an earnest
investigation.1 It was submitted that it was premature to apply this doctrine
in a case where evidence of the crime was available and where no investigation
has been carried out to date.
It was pointed out that on the contrary, in the present case
there was ample evidence before the NHRC – in the shape of evidence submitted by
the CIIP based on its investigations and the direct testimony of the families
that had filed claims pursuant to the pubic notice issued by the NHRC on July
19, 2004 – to belie the assumption that there was not enough evidence of the
crimes committed by the police in this case. It was also pointed out that the
analysis of 582 affidavits filed by the Punjab police with respect to the death
and cremations of persons "identified" by the CBI, comprising list ‘A’ submitted
by it, also made it clear that there was ample evidence of the illegalities
committed by the police in the course of eliminating the persons who were
ultimately cremated by them.
Hearing on this application commenced on October 18, 2005 and
was concluded on October 24. The commission was hostile to the application from
the inception and took the position that all the issues raised in the
application had been raised earlier, and decided against the CIIP.
Indira Jaising, who argued the case on behalf of the CIIP,
developed her arguments around the following points:
Ø Rules of cremations cannot take precedence over the
fundamental rights of life and liberty.
Ø That a declaration that the fundamental human rights of the
deceased persons and their families had been violated was a crucial component of
any proceeding under Article 32 of the Constitution.
Ø Such a declaration could not be issued without adjudicating
the facts of each case.
Ø Thus, even assuming that the commission was correct in holding
that the sole task before it was the grant of compensation, it could not do so
by applying a rule, such as the doctrine of "strict liability", without
establishing a factual basis for the application of that rule.
Ø Besides the orders passed by the Supreme Court in this case,
the NHRC’s own orders dated August 4, 1997, January 13, 1999 and March 24, 1999
were crystal clear that compensation would follow "after the factual foundations
are laid establishing liability".
Ø Therefore, the NHRC’s order of November 11, 2004 awarding Rs
2,50,000 to 109 cases of "admitted custody" by way of compensation, without
clarification on the principles of reparation or the facts of violations
suffered by these persons, was whimsical and arbitrary.
Ø Even assuming that the NHRC was justified in applying "strict
liability" for granting compensation to 109 cases of "admitted custody", these
cases were only a small fraction of the 2097 cases which the commission was
committed to adjudicate upon. In all the remaining cases, which formed the
overwhelming bulk, the Punjab police denied custody while the families of the
deceased asserted that they were killed in police custody. There was no way for
the commission to resolve this dispute with respect to custody in the remaining
cases unless it established a mechanism to adjudicate on the facts of each case
by giving the victim families an opportunity to lead their evidence, countering
An important event occurred immediately after the hearing on
October 18. In May-June 2005, a team of doctors, psychologists and psychiatrists
from Physicians for Human Rights (PHR) and the Bellevue Hospital-New York
University School of Medicine Programme for Survivors of Torture (Bellevue) had
carried out an intensive study of 130 families whose relatives had been killed
and cremated by the Punjab police. These families had been randomly selected by
PHR-Bellevue from the cases that were before the NHRC in the ongoing proceedings
in the Punjab disappearances case.
The PHR-Bellevue study was based on structured interviews and
diagnostic evaluations of these randomly selected survivor family members. In
each case, their assessment included:
Ø A detailed account of abuse suffered by the deceased and his
or her family members.
Ø The psychological impact of the reported abuses on the family
Ø The impact of the abuses on the physical health of the family
Ø The impact arising out of the loss of the deceased, injuries
and disabilities sustained by the surviving family members and/or the loss
suffered on account of destruction of property by the police/security forces.
Ø The attitude of those interviewed on the issue of reparations
by the state for the injury/loss suffered by them.
The report of the study provides an insight into the enormity of
the human rights violations committed upon the hapless citizenry of Punjab by
the police and other security forces in the name of combating insurgency. It
establishes that the survivors continue to suffer severe trauma, psychological
and physical, more than ten years after the event. In fact, the report makes it
clear that the lives of an overwhelming majority of the survivors, which
includes a large number of children, have been irreparably shattered by the
events leading to the killing of their relative by the police. Despite this, in
many cases the intimidation and harassment continued for several years after
that killing. A copy of the report can be had at http://www.ensaaf.org.
The CIIP brought this report to the attention of the NHRC at the
earliest possible through an application dated October 24, 2005.
The hearing on October 24, 2005 was primarily for the purpose of
hearing the state of Punjab’s arguments with respect to the CIIP’s application
dated September 9, 2005. The solicitor general of India, Goolam Vahanvati argued
on its behalf. Not surprisingly, the state of Punjab had nothing of substance to
say in opposition to the CIIP’s application. Their entire argument was
constructed around the cue provided to them by the NHRC itself, which had made
it plain from the first that it considered all the issues being raised in the
CIIP’s application "closed" by virtue of previous orders with respect to them.
Consequently, the solicitor general took the commission through a carefully
controlled tour of the various orders of the Supreme Court and the NHRC,
purportedly showing that the issues raised had indeed been "closed". Being a
senior advocate of considerable skill his comments, interspersed at appropriate
points of this "tour", essayed to create an aura of validity around the stand
that the NHRC had chosen to take with respect to these issues.
Needless to say, it took the CIIP but a moment to demolish this
aura. In brief submissions in rebuttal of the Punjab government’s arguments,
Indira Jaising pointed out passages from the very orders that had been read out
by the solicitor general that made it clear that the NHRC had always considered
itself committed to investigating the factual foundations of the allegation i.e.
that the cremations by the police were merely the culmination of a series of
illegalities that resulted in the death of these persons at the hands of the
The NHRC has reserved its order on the CIIP’s application.