Et tu NHRC?

Written by Ashok Agrwaal | Published on: June 1, 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