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Sabrang
Sabrang

Et tu NHRC?

Ashok Agrwaal 01 Jun 2005
Will justice through acceptance of liability and adequate reparation be given to families of over 2,000 young Sikh men who were made to ‘disappear’ in the name of fighting insurgency and then cremated en masse by the Punjab government?

Background

The Punjab disappearances case, which has become known by the misconceived soubriquet of the ‘Punjab mass cremations case’, began when Jaswant Singh Khalra, a rights activist from Amritsar, uncovered cremation ground records showing that the Punjab police had cremated thousands of bodies as "unidentified/unclaimed". Many of the entries in the cremation ground registers carried the identity particulars of the cremated persons, in full or in part. A Press Note dated January 16, 1995, which accompanied the release of this information, drew a link between the cremations and reports that thousands of persons had been subjected to enforced disappearance by the police in the name of fighting the insurgency in Punjab.

The Punjab and Haryana high court dismissed the petition seeking an inquiry into the allegations made in the Press Note, calling it vague and unsubstantiated. The Committee for Information and Initiative on Punjab (CIIP) filed another petition, directly before the Supreme Court, under Article 32 of the Constitution. Initially, the Supreme Court too was reluctant to issue notice of the petition to the respondents. They were forced to change their minds when the CIIP filed four affidavits by the families of the disappeared persons. In his affidavit Baldev Singh described how he traced his son to the Durgiana Mandir cremation ground in Amritsar. He had earlier been abducted from a cinema house by the Punjab police. Baldev Singh identified his son’s half-charred body, pulling it out of the pyre that the police had just lit.

In the meanwhile, on September 6, 1995, the Punjab police abducted Jaswant Singh Khalra from his house in Amritsar, in broad daylight. A telegram by HS Tohra, president of the Shiromani Gurdwara Prabandhak Committee (SGPC), to Justice Kuldip Singh of the Supreme Court, complaining of Khalra’s abduction by the police, was treated by the court as a writ of habeas corpus. Not satisfied by the responses of the police, on November 15, 1995 the court ordered the CBI to investigate Khalra’s disappearance as well as the allegations in the Press Note of January 16, 1995.

In July 1996 the CBI reported to the court that it had identified nine police officers working under Ajit Singh Sandhu, SSP, Tarn Taran, as responsible for Khalra’s abduction. The court ordered an "interim" compensation of Rs. 10 lakh to Jaswant Singh Khalra’s heirs and directed the CBI to prosecute the indicted officers.

In December 1996 the CBI filed a report of its year-long investigation into the allegations made in the Press Note of January 1995. The Supreme Court termed the findings as revealing "flagrant violation of human rights on a mass scale". Thereafter, on December 12, 1996 the court referred the entire matter to the National Human Rights Commission (NHRC) for adjudication in accordance with law. While doing so the court enjoined the NHRC to decide upon all the issues that may be raised by the parties before it and, directed that the compensation awarded by the Commission in this case would be binding and payable.

Before the NHRC, the Governments of India and Punjab started by contesting the jurisdiction of the NHRC to entertain the reference made to it by the Supreme Court. They invoked Section 36 (2) of the Protection of Human Rights Act 1993 (PHRA) to assert that the Commission could not go into complaints that were more than a year old. This plea was negatived by the NHRC in its order of August 1997, in which it accepted the CIIP’s stand that in this case the NHRC was a sui generis designate of the Supreme Court under Article 32 of the Constitution and, consequently, not fettered by the limitations of the PHRA. Piqued, the Union Government challenged the Commission’s order before the Supreme Court, claiming that it amounted to inviting the filing of "thousands of false claims merely for pecuniary benefits". In September 1998 the Supreme Court dismissed the challenge, upholding the stand of the CIIP and the NHRC.

Ironically, instead of invigorating the NHRC, the clarification by the Supreme Court derailed it. In January 1999, the Commission held that it would restrict its inquiry to the three cremation grounds (Durgiana Mandir, Amritsar and the municipal cremation grounds in the towns of Patti and Tarn Taran) investigated by the CBI on the orders of the Supreme Court. Khalra’s Press Release of January 1995 had referred to the records uncovered by him from these three cremation grounds as illustrative of the modus operandi of the Punjab police for disposal of bodies but it was nobody’s case that the illegalities were restricted to the cremations or that the police cremated bodies of those caused to disappear by them at these three grounds only. In fact, by then the CIIP had managed to obtain partial records from six more cremation grounds in other districts of Punjab. The pattern revealed was identical to that revealed by the records from the three cremation grounds investigated by Khalra and the CBI. On the other hand, the NHRC’s order was in clear violation of the mandate of Article 14 of the Constitution, which requires that all persons be treated equally and entitles them to "equal protection" of the law. Article 14 has been called the lynchpin of India’s constitutional democracy and its "brooding omnipresence" is intrinsic to every test of the constitutional validity of State action.

Having taken a wholly unjustifiable stand, the NHRC’s view of the case spiralled towards a tunnel focus, culminating in July 2000 in an order that amounted to holding that grant of compensation of Rs. 1 lakh to the families of 18 persons would substantially conclude the Commission’s obligations in the case. The Commission’s order in this regard was based upon an offer by the Punjab government, which stated that the payment of compensation would be made without admission of guilt or liability.

The families of the disappeared in Punjab refused to forsake their grievances and their quest for justice in lieu of a handout from the Punjab government. All of them swore affidavits insisting that they would only accept compensation as part of a package of justice that they expected the Supreme Court and the NHRC to fashion. Many of these families were so poor that the pitiful Rs. 1 lakh that was offered to them must have seemed like the proverbial treasure of Kubera, the god of wealth. Yet they refused to accede to the State’s demand that the money could be paid only on condition that there was no finding of liability or guilt against it or its police officers.

Adverse publicity, plus an application by the CIIP pointing out the error, forced the NHRC to retract its stand in February 2001. Its order dated February 4, 2001 acknowledged its obligation to stand by its earlier order of January 1999, in which it had said that it would investigate all the cases arising out of the 2097 cremations carried out by the Punjab police at the three cremation grounds of Amritsar, Patti and Tarn Taran that had been investigated by the CBI.

The current phase

On November 11, 2004 the NHRC passed an order granting a token sum of Rs. 2.5 lakh to 109 families whose kin were admittedly in police custody when they were killed. Though the money must be seen as a welcome relief for many of the families from the unending misery of abject poverty and need, it fell far short of even minimal standards of justice and accountability.

In many respects the November 11, 2004 order is in the same vein as the Commission’s order of July 2000, which endorsed the Punjab government’s offer of compensation without admission of liability. In passing its award, the Commission conveniently sidestepped the need to investigate into the facts of the case and affix responsibility, by resorting to the principle of strict liability. In the case of Nilabati Behara vs. State of Orissa, the Supreme Court held that once it is established that the deceased was in the custody of the police when he/ she met their death, the police are liable to be held responsible for their death, irrespective of the cause.1  The court also held that the State is liable to compensate for the failure to protect the life of the deceased.

The principle of absolute liability is based upon the rule of ‘strict liability’ developed by the English courts in the 19th century as a tort law remedy to monetarily compensate anyone who had suffered a loss on account of something done (or omitted to be done) by another, even where the other did not have any intention to cause such loss or harm. A "modified" version of the rule, married to the ‘deep pockets’ doctrine – another tort law concept that has come into its own in litigation-happy USA – has for some time now, been touted as the panacea for the depredations visited upon its denizens by a lawless State.

The Indian Supreme Court has asserted that the development of the principle of absolute liability was actuated by the increasing incidence of custodial crime; impelling it to prod the State to take steps to curb its lawless minions by making it liable to "pay" for the wrong done by them. Another reason for the creation of this principle is the virtual impossibility of bringing home the guilt to the perpetrators of such crimes; since they are carried out in conditions of secrecy or in conditions where all the possible witnesses to the crime are police officers, who tend to protect their guilty brethren rather than act in aid of the law.

Stated thus, the principle is not without its controversial aspects. It amounts to saying that nothing can be done about the predatory State and its dishonest agents except to ex post facto monetarily compensate the victim or his family. Indubitably, in a world where money solves most problems, and in a country as abjectly poor as ours, compensation is a welcome alleviation of life’s tribulations. However, a balm to lacerated souls it is not. Where does rule of law stand in such circumstance? The proposition amounts to saying that – let us retain the illusion of law and justice in a situation that has already been irretrievably lost to the jungle.

In the present case, the CIIP has repeatedly pointed out to the Commission that even for a determination on the basis of the principle of strict liability it is necessary to investigate the facts of the case. This is consistent with earlier decisions of the Supreme Court, including in the Nilabati Behara case. In all cases of custodial death that have been decided by that court, the award of compensation has been preceded by an inquiry into the facts of the case. This is the first time that a case (a set of cases) of custodial death is sought to be decided without such an inquiry.

An interesting aspect of this controversy is the fact that in each of the 109 cases where the NHRC has awarded compensation, the Punjab police have explained on affidavit that they were not responsible for the death. Their general case is that the deceased was killed in the crossfire of an encounter with the militants. In many cases, it is specifically stated that the deceased was killed by the militants’ bullets.

For the NHRC to ignore this averment on oath by the police is remarkable. It implies that the averment is not believed. For the Punjab police to accept this position without a murmur is even more remarkable. Usually they are disinclined to accept their liability (or guilt) even when there is a volume of concrete evidence against them.

If one were to take this whole thing at face value, one might be persuaded that the NHRC’s order of November 11, 2004 is a significant advance upon the existing rule of ‘strict liability’ from the standpoint of human rights jurisprudence as well as from the standpoint of the State’s willingness to accept its liability in cases of custodial death. However, the truth is somewhat removed from this happy state.

The November 11, 2004 order was preceded by submissions on behalf of the Punjab government. These are an important aid for understanding the nature of that order. They also illustrate the struggle that lies ahead. The Punjab government argued that:

Ø The existing right to life jurisprudence in the country could not be cited as precedent in the present case. Between 1984 and 1994 a war was fought between the police and the separatist, militant forces and the police performed the function of guarding/protecting the sovereignty and integrity of the country. In other words, in a situation of war the legality (or illegality) of their actions cannot be adjudged on the criteria established to guide the law and order/crime prevention functions of the police.

Ø This view had been endorsed by the Supreme Court in its judgement in the Kartar Singh case,2  which challenged the constitutional validity of TADA. While upholding the validity of the Act, in paragraph 29 of its judgement the court summed up the statements and pronouncements by various sections of the Indian establishment, including legislators, ministers and government counsel, in support of the Act.

Ø To reinforce the metaphor of war, they cited numbers: of police/paramilitary personnel (and their family members) who lost their lives in this ‘war’. The Commission was informed that 1784 police and paramilitary personnel, 300 members of their families and, 11,694 civilians were killed by the militants between 1984 and 1994. It was clarified that being "combatants", the persons cremated by the police, whose cases were under the scrutiny of the Commission, were not included in the above numbers.

Ø An analogy was sought to be drawn between American operations in Iraq and the Indian response in Punjab. It was submitted that the Indian State and its security forces had behaved in a far more humane fashion in Punjab as compared to the way the American forces were behaving in Iraq. It is pertinent to add that the Commission thought it fit to emphatically endorse this contention.

Ø It was argued that whether the rest of the nation remembered it or not, the State (Punjab and the Union) could not become such an ingrate as to abandon those who had rendered signal service to preserve it. The threat of a possible rebellion in the future by the "soldiers" of the nation, in case of such a betrayal, was conveyed.

Ø Apprehensions were expressed that compensation awarded by the Commission on the basis of a ‘finding’ against the police would irreparably prejudice the police personnel involved by denying them the right to a fair trial in any criminal prosecution against them.

Needless to say, it bodes very ill for the country that such an argument should be advanced by a constitutional authority such as the state government in Article 32 proceedings. It would be even worse if such arguments were, even implicitly, accepted by the NHRC, which is a sui generis designate of the Supreme Court in this case.

The road ahead

The oral pronouncements by the Commission on the last date of hearing on May 5, 2005 are consistent with an unhappy portent. The Commission indicated that it was poised to conclude the Punjab disappearances case on the next date of hearing on July 5, 2005. It stated that they did not see any need to go into the facts of any of the cases, even those in which the Punjab police had denied custody prior to the death. (In almost all such cases the claim of the police is that the person died in an encounter.) It said that the legality of the "cremation" would be determined by testing it against the provisions in the Punjab Police Rules regarding the manner in which the police is expected to deal with "unidentified/unclaimed" dead bodies.

These pronouncements are in line with the view underlying the Commission’s order of November 11, 2004. This obviates the need to investigate the facts of each case and will, probably, enable it to award a token sum of compensation money in quite a few cases. An analysis of the post-death facts, as stated by the Punjab police and the CBI in all the cases where the identification of the person cremated has been completed, will reveal discrepancies/illegalities in a large number of cases, even with respect to the limited, procedural aspect of things.

The Commission was not very clear about how it would deal with the "unidentified" cases. With respect to these cases it seems to be inclined to take advantage of the schism that has occurred within the group working on disappearances in Punjab. The net result of this schism is that the CCDP (Coordination Committee on Disappearances in Punjab; set up in December 1998 as an apex group to oversee the fight for justice on behalf of the victims and to document cases of disappearance; the CIIP is a member of the CCDP, as it was originally constituted) has made an independent appearance before the NHRC, as representing about 1,700 families who have filed claims before the Commission pursuant to its public notice, published in July 2004, inviting such claims. For all these years, from the inception till July 2004, the case before the NHRC was being pursued by the CIIP, which is the petitioner in one of the two petitions that were referred to the NHRC by the Supreme Court’s order dated December 12, 1996.

Since a bulk of the cremations continue to remain "unidentified", the task of identification is crucial to any reasonable conclusion of the case. The CIIP had offered to scrutinise the claims that the Commission has received, and attempt to identify as many as possible of the as yet unidentified cremations by matching the facts stated in the claims to the list of unidentified cases. It is pertinent to state that till date the CIIP has identified 175 of the unidentified cremations by such a process, using data on disappearances collected independently of the NHRC proceedings. However, the CCDP has refused to furnish a copy of the claims filed by it before the Commission. Further, though these claims are a public record, the Commission has refused to give the CIIP a copy of these claims unless the CCDP agrees. To the best of our knowledge, neither the CDDP nor the Commission is engaged in the task of identification.

The December 12, 1996 order of the Supreme Court referring the matter to the NHRC, divided the inquiry into the case into two parts. The CBI was entrusted the responsibility of investigation into issues of criminal culpability arising from its report, leaving "the remaining issues involved in this case … for the determination of the Commission". Clearly, the Supreme Court did not see the adjudication by the NHRC as a mere grant of compensation under the principle of absolute liability. Had that been its intention, the court could have closed the litigation there and then by making an award of compensation under the very same principle, to the families of each of the 2,097 persons whose cases had been investigated by the CBI. In such event, the NHRC would, at best, have been left the limited task of supervising the identification of those who remained unidentified or those who were only partially identified by the CBI after its year-long investigation; so as to enable the payment of the compensation already awarded by the Supreme Court. It would be a travesty of colossal proportions if the NHRC were to now interpret its mandate in these terms.

The Commission’s order of November 11, 2004 might yet have passed muster had it been a conjunct of successful prosecutions launched by the CBI in the hundreds of cases in which there exists hard evidence of culpability against police officials; from the constable to the erstwhile DGP of the state of Punjab. However, the CBI’s record in the case itself verges on the culpable. The quality of its initial investigation into the case was pathetic; so much so that the Commission was moved to note in one of its orders in the case that the record of investigations in the case by the CBI was not even good enough to assist it in the task of identification of the over 1,500 bodies that remained unidentified. The CBI’s performance with respect to cases registered and charge sheets filed is worse. It has filed only about 30 charge sheets before the designated court in Patiala over the last eight years. As per the information last provided by the CBI, the trial in all but two cases was still pending. Both the cases where the trial was complete had resulted in an acquittal of the accused police officials.

Scores of persons, members of the families of the disappeared persons, have narrated to the CIIP that the CBI officers who were investigating their complaint against the Punjab police openly hobnobbed with the accused officials and even pressured them to "compromise" their complaint. In one case the family reported that the accused officer of the Punjab police had sneered at them for refusing to accept his offer of money for withdrawing their complaint. He told them that he would pay the money that he had offered them to the CBI officer investigating their complaint. Some time later the family learnt that the CBI had filed a "closure" report in their case.

Viewed in this context the state government’s plea to the Commission to avoid all implication of liability in its proceedings and orders granting compensation is obviously part of a strategy to draw the curtain upon the ongoing litigation without allowing the issues that the case raises to be adjudicated upon. In the same context, the NHRC’s order of November 11, 2004 and its declaration of future intent on May 5, 2005 acquires the colour of de facto acquiescence hidden under a cascade of legal jargon, which permits the courts to hold a State to be liable without holding it to its liability except for a few pieces of eight.

The Punjab disappearances case is unique in the annals of human rights jurisprudence in India, not only because of the numbers involved. For the first time in a case alleging custodial killings on a systematic and mass scale the State is confronted with a situation where there are hard facts to challenge its denials. It is not possible for the state of Punjab to claim that it was not involved in their death and subsequent illegal cremation, labelling persons whose identities were well known to the police as unidentified/unclaimed. In such circumstances, all justifications are clearly secondary and must be deemed to be afterthoughts. Besides, though the NHRC has for the time being refused to consider the cases of those who were similarly killed and cremated in other cremation grounds, in the face of documentary proof furnished by the CIIP it cannot be denied that such killings and cremations did take place throughout Punjab. It has been the consistent stand of the CIIP that the Supreme Court’s order of December 12, 1996 mandates the NHRC to investigate all cases of enforced disappearance (and subsequent illegal cremation) in Punjab. The CIIP has also consistently demanded that any adjudication in the matter must be based on facts so as to reveal the full ramifications of the impunity that enabled the State to systematically deprive so many people of their right to life over a period of more than one decade without the rest of the country coming to know of it.

The highest form of justice is that which exists between the State and its subjects. Whether a court dispenses any other form of justice or not, if it does not dispense this justice and is not able to maintain this equilibrium in justice, it is not a court of justice. The Punjab disappearances case is a unique opportunity for the nation’s judiciary to begin the process of restoring the imbalances that vitiate justice. n

Footnotes 

1 AIR 1993 SC 1960

 2 Kartar Singh vs. Punjab, 1994 (3) SCC 569 (623)

Archived from Communalism Combat, June 2005 Year 11    No.108, Human Rights

Et tu NHRC?

Will justice through acceptance of liability and adequate reparation be given to families of over 2,000 young Sikh men who were made to ‘disappear’ in the name of fighting insurgency and then cremated en masse by the Punjab government?

Background

The Punjab disappearances case, which has become known by the misconceived soubriquet of the ‘Punjab mass cremations case’, began when Jaswant Singh Khalra, a rights activist from Amritsar, uncovered cremation ground records showing that the Punjab police had cremated thousands of bodies as "unidentified/unclaimed". Many of the entries in the cremation ground registers carried the identity particulars of the cremated persons, in full or in part. A Press Note dated January 16, 1995, which accompanied the release of this information, drew a link between the cremations and reports that thousands of persons had been subjected to enforced disappearance by the police in the name of fighting the insurgency in Punjab.

The Punjab and Haryana high court dismissed the petition seeking an inquiry into the allegations made in the Press Note, calling it vague and unsubstantiated. The Committee for Information and Initiative on Punjab (CIIP) filed another petition, directly before the Supreme Court, under Article 32 of the Constitution. Initially, the Supreme Court too was reluctant to issue notice of the petition to the respondents. They were forced to change their minds when the CIIP filed four affidavits by the families of the disappeared persons. In his affidavit Baldev Singh described how he traced his son to the Durgiana Mandir cremation ground in Amritsar. He had earlier been abducted from a cinema house by the Punjab police. Baldev Singh identified his son’s half-charred body, pulling it out of the pyre that the police had just lit.

In the meanwhile, on September 6, 1995, the Punjab police abducted Jaswant Singh Khalra from his house in Amritsar, in broad daylight. A telegram by HS Tohra, president of the Shiromani Gurdwara Prabandhak Committee (SGPC), to Justice Kuldip Singh of the Supreme Court, complaining of Khalra’s abduction by the police, was treated by the court as a writ of habeas corpus. Not satisfied by the responses of the police, on November 15, 1995 the court ordered the CBI to investigate Khalra’s disappearance as well as the allegations in the Press Note of January 16, 1995.

In July 1996 the CBI reported to the court that it had identified nine police officers working under Ajit Singh Sandhu, SSP, Tarn Taran, as responsible for Khalra’s abduction. The court ordered an "interim" compensation of Rs. 10 lakh to Jaswant Singh Khalra’s heirs and directed the CBI to prosecute the indicted officers.

In December 1996 the CBI filed a report of its year-long investigation into the allegations made in the Press Note of January 1995. The Supreme Court termed the findings as revealing "flagrant violation of human rights on a mass scale". Thereafter, on December 12, 1996 the court referred the entire matter to the National Human Rights Commission (NHRC) for adjudication in accordance with law. While doing so the court enjoined the NHRC to decide upon all the issues that may be raised by the parties before it and, directed that the compensation awarded by the Commission in this case would be binding and payable.

Before the NHRC, the Governments of India and Punjab started by contesting the jurisdiction of the NHRC to entertain the reference made to it by the Supreme Court. They invoked Section 36 (2) of the Protection of Human Rights Act 1993 (PHRA) to assert that the Commission could not go into complaints that were more than a year old. This plea was negatived by the NHRC in its order of August 1997, in which it accepted the CIIP’s stand that in this case the NHRC was a sui generis designate of the Supreme Court under Article 32 of the Constitution and, consequently, not fettered by the limitations of the PHRA. Piqued, the Union Government challenged the Commission’s order before the Supreme Court, claiming that it amounted to inviting the filing of "thousands of false claims merely for pecuniary benefits". In September 1998 the Supreme Court dismissed the challenge, upholding the stand of the CIIP and the NHRC.

Ironically, instead of invigorating the NHRC, the clarification by the Supreme Court derailed it. In January 1999, the Commission held that it would restrict its inquiry to the three cremation grounds (Durgiana Mandir, Amritsar and the municipal cremation grounds in the towns of Patti and Tarn Taran) investigated by the CBI on the orders of the Supreme Court. Khalra’s Press Release of January 1995 had referred to the records uncovered by him from these three cremation grounds as illustrative of the modus operandi of the Punjab police for disposal of bodies but it was nobody’s case that the illegalities were restricted to the cremations or that the police cremated bodies of those caused to disappear by them at these three grounds only. In fact, by then the CIIP had managed to obtain partial records from six more cremation grounds in other districts of Punjab. The pattern revealed was identical to that revealed by the records from the three cremation grounds investigated by Khalra and the CBI. On the other hand, the NHRC’s order was in clear violation of the mandate of Article 14 of the Constitution, which requires that all persons be treated equally and entitles them to "equal protection" of the law. Article 14 has been called the lynchpin of India’s constitutional democracy and its "brooding omnipresence" is intrinsic to every test of the constitutional validity of State action.

Having taken a wholly unjustifiable stand, the NHRC’s view of the case spiralled towards a tunnel focus, culminating in July 2000 in an order that amounted to holding that grant of compensation of Rs. 1 lakh to the families of 18 persons would substantially conclude the Commission’s obligations in the case. The Commission’s order in this regard was based upon an offer by the Punjab government, which stated that the payment of compensation would be made without admission of guilt or liability.

The families of the disappeared in Punjab refused to forsake their grievances and their quest for justice in lieu of a handout from the Punjab government. All of them swore affidavits insisting that they would only accept compensation as part of a package of justice that they expected the Supreme Court and the NHRC to fashion. Many of these families were so poor that the pitiful Rs. 1 lakh that was offered to them must have seemed like the proverbial treasure of Kubera, the god of wealth. Yet they refused to accede to the State’s demand that the money could be paid only on condition that there was no finding of liability or guilt against it or its police officers.

Adverse publicity, plus an application by the CIIP pointing out the error, forced the NHRC to retract its stand in February 2001. Its order dated February 4, 2001 acknowledged its obligation to stand by its earlier order of January 1999, in which it had said that it would investigate all the cases arising out of the 2097 cremations carried out by the Punjab police at the three cremation grounds of Amritsar, Patti and Tarn Taran that had been investigated by the CBI.

The current phase

On November 11, 2004 the NHRC passed an order granting a token sum of Rs. 2.5 lakh to 109 families whose kin were admittedly in police custody when they were killed. Though the money must be seen as a welcome relief for many of the families from the unending misery of abject poverty and need, it fell far short of even minimal standards of justice and accountability.

In many respects the November 11, 2004 order is in the same vein as the Commission’s order of July 2000, which endorsed the Punjab government’s offer of compensation without admission of liability. In passing its award, the Commission conveniently sidestepped the need to investigate into the facts of the case and affix responsibility, by resorting to the principle of strict liability. In the case of Nilabati Behara vs. State of Orissa, the Supreme Court held that once it is established that the deceased was in the custody of the police when he/ she met their death, the police are liable to be held responsible for their death, irrespective of the cause.1  The court also held that the State is liable to compensate for the failure to protect the life of the deceased.

The principle of absolute liability is based upon the rule of ‘strict liability’ developed by the English courts in the 19th century as a tort law remedy to monetarily compensate anyone who had suffered a loss on account of something done (or omitted to be done) by another, even where the other did not have any intention to cause such loss or harm. A "modified" version of the rule, married to the ‘deep pockets’ doctrine – another tort law concept that has come into its own in litigation-happy USA – has for some time now, been touted as the panacea for the depredations visited upon its denizens by a lawless State.

The Indian Supreme Court has asserted that the development of the principle of absolute liability was actuated by the increasing incidence of custodial crime; impelling it to prod the State to take steps to curb its lawless minions by making it liable to "pay" for the wrong done by them. Another reason for the creation of this principle is the virtual impossibility of bringing home the guilt to the perpetrators of such crimes; since they are carried out in conditions of secrecy or in conditions where all the possible witnesses to the crime are police officers, who tend to protect their guilty brethren rather than act in aid of the law.

Stated thus, the principle is not without its controversial aspects. It amounts to saying that nothing can be done about the predatory State and its dishonest agents except to ex post facto monetarily compensate the victim or his family. Indubitably, in a world where money solves most problems, and in a country as abjectly poor as ours, compensation is a welcome alleviation of life’s tribulations. However, a balm to lacerated souls it is not. Where does rule of law stand in such circumstance? The proposition amounts to saying that – let us retain the illusion of law and justice in a situation that has already been irretrievably lost to the jungle.

In the present case, the CIIP has repeatedly pointed out to the Commission that even for a determination on the basis of the principle of strict liability it is necessary to investigate the facts of the case. This is consistent with earlier decisions of the Supreme Court, including in the Nilabati Behara case. In all cases of custodial death that have been decided by that court, the award of compensation has been preceded by an inquiry into the facts of the case. This is the first time that a case (a set of cases) of custodial death is sought to be decided without such an inquiry.

An interesting aspect of this controversy is the fact that in each of the 109 cases where the NHRC has awarded compensation, the Punjab police have explained on affidavit that they were not responsible for the death. Their general case is that the deceased was killed in the crossfire of an encounter with the militants. In many cases, it is specifically stated that the deceased was killed by the militants’ bullets.

For the NHRC to ignore this averment on oath by the police is remarkable. It implies that the averment is not believed. For the Punjab police to accept this position without a murmur is even more remarkable. Usually they are disinclined to accept their liability (or guilt) even when there is a volume of concrete evidence against them.

If one were to take this whole thing at face value, one might be persuaded that the NHRC’s order of November 11, 2004 is a significant advance upon the existing rule of ‘strict liability’ from the standpoint of human rights jurisprudence as well as from the standpoint of the State’s willingness to accept its liability in cases of custodial death. However, the truth is somewhat removed from this happy state.

The November 11, 2004 order was preceded by submissions on behalf of the Punjab government. These are an important aid for understanding the nature of that order. They also illustrate the struggle that lies ahead. The Punjab government argued that:

Ø The existing right to life jurisprudence in the country could not be cited as precedent in the present case. Between 1984 and 1994 a war was fought between the police and the separatist, militant forces and the police performed the function of guarding/protecting the sovereignty and integrity of the country. In other words, in a situation of war the legality (or illegality) of their actions cannot be adjudged on the criteria established to guide the law and order/crime prevention functions of the police.

Ø This view had been endorsed by the Supreme Court in its judgement in the Kartar Singh case,2  which challenged the constitutional validity of TADA. While upholding the validity of the Act, in paragraph 29 of its judgement the court summed up the statements and pronouncements by various sections of the Indian establishment, including legislators, ministers and government counsel, in support of the Act.

Ø To reinforce the metaphor of war, they cited numbers: of police/paramilitary personnel (and their family members) who lost their lives in this ‘war’. The Commission was informed that 1784 police and paramilitary personnel, 300 members of their families and, 11,694 civilians were killed by the militants between 1984 and 1994. It was clarified that being "combatants", the persons cremated by the police, whose cases were under the scrutiny of the Commission, were not included in the above numbers.

Ø An analogy was sought to be drawn between American operations in Iraq and the Indian response in Punjab. It was submitted that the Indian State and its security forces had behaved in a far more humane fashion in Punjab as compared to the way the American forces were behaving in Iraq. It is pertinent to add that the Commission thought it fit to emphatically endorse this contention.

Ø It was argued that whether the rest of the nation remembered it or not, the State (Punjab and the Union) could not become such an ingrate as to abandon those who had rendered signal service to preserve it. The threat of a possible rebellion in the future by the "soldiers" of the nation, in case of such a betrayal, was conveyed.

Ø Apprehensions were expressed that compensation awarded by the Commission on the basis of a ‘finding’ against the police would irreparably prejudice the police personnel involved by denying them the right to a fair trial in any criminal prosecution against them.

Needless to say, it bodes very ill for the country that such an argument should be advanced by a constitutional authority such as the state government in Article 32 proceedings. It would be even worse if such arguments were, even implicitly, accepted by the NHRC, which is a sui generis designate of the Supreme Court in this case.

The road ahead

The oral pronouncements by the Commission on the last date of hearing on May 5, 2005 are consistent with an unhappy portent. The Commission indicated that it was poised to conclude the Punjab disappearances case on the next date of hearing on July 5, 2005. It stated that they did not see any need to go into the facts of any of the cases, even those in which the Punjab police had denied custody prior to the death. (In almost all such cases the claim of the police is that the person died in an encounter.) It said that the legality of the "cremation" would be determined by testing it against the provisions in the Punjab Police Rules regarding the manner in which the police is expected to deal with "unidentified/unclaimed" dead bodies.

These pronouncements are in line with the view underlying the Commission’s order of November 11, 2004. This obviates the need to investigate the facts of each case and will, probably, enable it to award a token sum of compensation money in quite a few cases. An analysis of the post-death facts, as stated by the Punjab police and the CBI in all the cases where the identification of the person cremated has been completed, will reveal discrepancies/illegalities in a large number of cases, even with respect to the limited, procedural aspect of things.

The Commission was not very clear about how it would deal with the "unidentified" cases. With respect to these cases it seems to be inclined to take advantage of the schism that has occurred within the group working on disappearances in Punjab. The net result of this schism is that the CCDP (Coordination Committee on Disappearances in Punjab; set up in December 1998 as an apex group to oversee the fight for justice on behalf of the victims and to document cases of disappearance; the CIIP is a member of the CCDP, as it was originally constituted) has made an independent appearance before the NHRC, as representing about 1,700 families who have filed claims before the Commission pursuant to its public notice, published in July 2004, inviting such claims. For all these years, from the inception till July 2004, the case before the NHRC was being pursued by the CIIP, which is the petitioner in one of the two petitions that were referred to the NHRC by the Supreme Court’s order dated December 12, 1996.

Since a bulk of the cremations continue to remain "unidentified", the task of identification is crucial to any reasonable conclusion of the case. The CIIP had offered to scrutinise the claims that the Commission has received, and attempt to identify as many as possible of the as yet unidentified cremations by matching the facts stated in the claims to the list of unidentified cases. It is pertinent to state that till date the CIIP has identified 175 of the unidentified cremations by such a process, using data on disappearances collected independently of the NHRC proceedings. However, the CCDP has refused to furnish a copy of the claims filed by it before the Commission. Further, though these claims are a public record, the Commission has refused to give the CIIP a copy of these claims unless the CCDP agrees. To the best of our knowledge, neither the CDDP nor the Commission is engaged in the task of identification.

The December 12, 1996 order of the Supreme Court referring the matter to the NHRC, divided the inquiry into the case into two parts. The CBI was entrusted the responsibility of investigation into issues of criminal culpability arising from its report, leaving "the remaining issues involved in this case … for the determination of the Commission". Clearly, the Supreme Court did not see the adjudication by the NHRC as a mere grant of compensation under the principle of absolute liability. Had that been its intention, the court could have closed the litigation there and then by making an award of compensation under the very same principle, to the families of each of the 2,097 persons whose cases had been investigated by the CBI. In such event, the NHRC would, at best, have been left the limited task of supervising the identification of those who remained unidentified or those who were only partially identified by the CBI after its year-long investigation; so as to enable the payment of the compensation already awarded by the Supreme Court. It would be a travesty of colossal proportions if the NHRC were to now interpret its mandate in these terms.

The Commission’s order of November 11, 2004 might yet have passed muster had it been a conjunct of successful prosecutions launched by the CBI in the hundreds of cases in which there exists hard evidence of culpability against police officials; from the constable to the erstwhile DGP of the state of Punjab. However, the CBI’s record in the case itself verges on the culpable. The quality of its initial investigation into the case was pathetic; so much so that the Commission was moved to note in one of its orders in the case that the record of investigations in the case by the CBI was not even good enough to assist it in the task of identification of the over 1,500 bodies that remained unidentified. The CBI’s performance with respect to cases registered and charge sheets filed is worse. It has filed only about 30 charge sheets before the designated court in Patiala over the last eight years. As per the information last provided by the CBI, the trial in all but two cases was still pending. Both the cases where the trial was complete had resulted in an acquittal of the accused police officials.

Scores of persons, members of the families of the disappeared persons, have narrated to the CIIP that the CBI officers who were investigating their complaint against the Punjab police openly hobnobbed with the accused officials and even pressured them to "compromise" their complaint. In one case the family reported that the accused officer of the Punjab police had sneered at them for refusing to accept his offer of money for withdrawing their complaint. He told them that he would pay the money that he had offered them to the CBI officer investigating their complaint. Some time later the family learnt that the CBI had filed a "closure" report in their case.

Viewed in this context the state government’s plea to the Commission to avoid all implication of liability in its proceedings and orders granting compensation is obviously part of a strategy to draw the curtain upon the ongoing litigation without allowing the issues that the case raises to be adjudicated upon. In the same context, the NHRC’s order of November 11, 2004 and its declaration of future intent on May 5, 2005 acquires the colour of de facto acquiescence hidden under a cascade of legal jargon, which permits the courts to hold a State to be liable without holding it to its liability except for a few pieces of eight.

The Punjab disappearances case is unique in the annals of human rights jurisprudence in India, not only because of the numbers involved. For the first time in a case alleging custodial killings on a systematic and mass scale the State is confronted with a situation where there are hard facts to challenge its denials. It is not possible for the state of Punjab to claim that it was not involved in their death and subsequent illegal cremation, labelling persons whose identities were well known to the police as unidentified/unclaimed. In such circumstances, all justifications are clearly secondary and must be deemed to be afterthoughts. Besides, though the NHRC has for the time being refused to consider the cases of those who were similarly killed and cremated in other cremation grounds, in the face of documentary proof furnished by the CIIP it cannot be denied that such killings and cremations did take place throughout Punjab. It has been the consistent stand of the CIIP that the Supreme Court’s order of December 12, 1996 mandates the NHRC to investigate all cases of enforced disappearance (and subsequent illegal cremation) in Punjab. The CIIP has also consistently demanded that any adjudication in the matter must be based on facts so as to reveal the full ramifications of the impunity that enabled the State to systematically deprive so many people of their right to life over a period of more than one decade without the rest of the country coming to know of it.

The highest form of justice is that which exists between the State and its subjects. Whether a court dispenses any other form of justice or not, if it does not dispense this justice and is not able to maintain this equilibrium in justice, it is not a court of justice. The Punjab disappearances case is a unique opportunity for the nation’s judiciary to begin the process of restoring the imbalances that vitiate justice. n

Footnotes 

1 AIR 1993 SC 1960

 2 Kartar Singh vs. Punjab, 1994 (3) SCC 569 (623)

Archived from Communalism Combat, June 2005 Year 11    No.108, Human Rights

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