Here are some highlights from the past year:

In October 2007, Ensaaf and Human Rights Watch released a joint report, video testimonials, and photo essay. The report, Protecting the Killers, A Policy of Impunity in Punjab, India, examines the challenges faced by victims and their relatives in pursuing legal avenues for accountability for the human rights abuses perpetrated by security forces. The report describes the near total failure of India’s judicial and state institutions to provide justice for victims’ families.

April 2008 marked the four year anniversary of Ensaaf. Some highlights in legal advocacy over the past 4 years include providing litigation support in the Punjab mass cremations case and the cases regarding the murder of human rights defender Jaswant Singh Khalra (the criminal case against six police officers and the High Court case filed against former police chief KPS Gill). All of this and more was reported in the latest newsletter by Ensaaf.

On November 21, 2007, Ensaaf met with the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) in Geneva, Switzerland, to present general allegations (pdf) against India for its role in perpetrating enforced disappearances in Punjab. The allegations, as well as 32 individual cases jointly submitted by Ensaaf, REDRESS, and the Center for Human Rights and Global Justice, are currently under consideration by the Working Group and were transmitted to the government of India in April.

In its December newsletter, Ensaaf reported how a killer of activist Jaswant Singh Khalra has been scheming his way out of jail, despite receiving a life sentence. As of December, Jaspal Singh had been released from jail 36 times, and had also received 7 weeks of parole. Read more about the convictions of the police officers in the Khalra murder case.

In February 2007, Ensaaf and Human Rights watch published an op-ed in The Asian Age reported that in February 2007, discussing the cost of ignoring human rights violations as Punjabi citizens went to the polls to elect a new government.

Injustice cost votes in Punjab polls

By Jasmine Marwaha and Meenakshi Ganguly

Published in The Asian Age (Feb. 27, 2007)

Mumbai: As Punjab went to the polls to elect a new state government this month, political pundits attributed the lack of a clear Congress victory in exit polls to frustration with the rising consumer prices under the UPA Central administration.

The newly-elected Punjab government, however, may not realise that the cost of ignoring human rights violations in Punjab is also increasing exponentially. The problem of widespread impunity for “disappearances” is being put to the test with the handling of the Punjab mass cremations case. This case will determine the Indian state’s willingness to uphold the rule of law in the face of internal security challenges. The consequences of this case will be felt throughout the country for years to come.

The legal battle is the bitter fruit of the violent Sikh secessionist movement and the brutal counter-insurgency efforts that followed, most infamously symbolised by the Army’s attack on the Sikh “Golden Temple” in Amritsar in 1984, which militants were using as a base. Hundreds of civilian pilgrims died when Prime Minister Indira Gandhi sent in tanks. After Gandhi’s Sikh bodyguards exacted revenge by assassinating her, the government unleashed a pogrom against Sikhs in Delhi and other cities, with thousands massacred. None of the organisers or senior officials involved has been held criminally responsible.

For the next ten years, Indian security forces engaged in a murderous counter-insurgency operation perpetrating torture, enforced “disappearances” and extrajudicial executions of tens of thousands of Sikhs in false encounters. A small percentage of victims have received compensation. Only a handful of victims have received justice.

The family of Udham Singh is among those still waiting. Singh, 62, was abducted by the Punjab police in front of his family on July 1, 1992, taken to an interrogation centre with his son, and a few days later killed and cremated by the police. After a 10-year legal battle for justice, his family has been granted a paltry Rs 250,000 (US $5,663) without any admission of wrongdoing by the government.

A public interest lawsuit on “disappearances” and secret cremations in Punjab, filed in 1995, has yet to be resolved. The Indian National Human Rights Commission (NHRC), cited often by the government as the symbol of its commitment to the protection of human rights, granted compensation in 1,245 cases—but only on the grounds that the Punjab police did not follow the rules for cremating a body. Sadly, it has refused to investigate how those individuals were killed in the first place, hear the testimony of any survivor, or hold a single official liable. And it has only agreed to look at cases of people who were cremated in Amritsar district—one of the then 13 districts in Punjab.

After its decade-long inquiry, the NHRC has established yet another one-man commission in Amritsar to identify and compensate a last group of 814 secret cremation victims. The commission, due to hold its fourth hearing on March 3, is not empowered to investigate the killings or hold those responsible to account.

Mohinder Singh, a member of the Association of Families of the Disappeared in Punjab, says that cash compensation is not enough. Over the past decade, he has collected evidence of his son’s abduction and secret cremation by Punjab Police in 1995. He has repeatedly appealed to politicians, police and the courts to prosecute his son’s killers. Even as he appears before this latest Punjab commission, he has little hope for justice. “Why doesn’t the judiciary take any action against the police?” he asks.

The answer to his question exposes the duplicity of a system that equates compensation with justice and accountability. It is a strategy that covers up gross human rights violations and makes a mockery of the rule of law. The NHRC’s final decree of compensation aims to silence the victims and put the matter to rest with as little disruption as possible to the status quo.

The problem for the Indian government, as with governments all over the world that fail to address past crimes, is that there are many people like Mohinder Singh who will not accept a cash payoff in return for silence. They want justice.

Mohinder Singh and others are ready to take their cases to the Indian Supreme Court. While it will be under great pressure from the state not to recognise these claims, it is crucial that the Supreme Court—one of the most respected in the world—acts to establish the principle of accountability, which is as fundamental to protecting human rights as it is to protecting the economy.

Together, the newly elected government in Punjab and the Supreme Court can change a government’s system focused on silencing victims and avoiding embarrassment into one that is accountable to all its citizens.

Jasmine Marwaha is Programme Associate at Ensaaf. Meenakshi Ganguly is South Asia researcher for Human Rights Watch.

On October 9th, 2006, the Indian National Human Rights Commission (NHRC) effectively ended its consideration of the Punjab mass cremations case, arbitrarily compensating 1,245 victim families and establishing another commission of inquiry. Among its many failings in the case, the NHRC refused to investigate a single cremation, thus making any compensation arbitrary and inadequate. Moreover, the NHRC failed to hold any officials accountable for the victims’ deaths.

Ensaaf’s summary report, India Burning the Rule of Law (pdf), describes the history and legal proceedings in the Punjab mass cremations case. The ultimate resolution of the case will serve as precedent for victims of mass state crimes throughout India and will give content to the rights to life and redress. Ensaaf is working in partnership with the Committee for Information and Initiative on Punjab, an original petitioner in the case, to challenge the NHRC’s ten-year denial of justice and create precedent based on international human rights and Indian law.

Of the 2000-plus illegal cremations in Punjab acknowledged by the National Human Rights Commission (NHRC) in the Punjab mass cremations case, 814 bodies have yet to be identified. The NHRC appointed a Commissioner, retired High Court Judge K.S. Bhalla, for receiving evidence and conducting an inquiry to identify the remaining bodies, if possible, within eight months. In its October 9, 2006 order, the NHRC stated the Commission must complete the identification in association with petitioner Committee for Information and Initiative on Punjab (CIIP) and any other parties who wished to provide relevant evidence.

The first two official hearings of the Bhalla Commission occurred on December 15, 2006 and January 2, 2007. The Bhalla Commission and NHRC also held ex parte meetings, excluding the petitioner CIIP. Further, as a result of the secret meetings, the NHRC issued an order on October 30, 2006, that restricted the mandate of the Bhalla Commission to consideration of only those claims submitted in response to two notices issued in 1999, which resulted in 88 claims, and in 2004, which resulted in 1,769 claims. Both the NHRC and Bhalla Commission have refused to give CIIP copies of the 1,769 claims, even though the CIIP helped collect those claims.

Lack of Impartiality

The NHRC held an ex parte meeting on October 13th with Justice Bhalla and the Punjab Police, where it limited the Bhalla Commission’s mandate to consideration of the claims submitted in 1999 and 2004, as stated in paragraph 16 of the October 30th order. The Bhalla Commission’s lack of transparency continued at the January 2nd hearing, where Justice Bhalla left the courtroom to hold private discussions with representatives of the Punjab Police, before returning to start the hearing.

Arbitrary and Ineffective Approach to Identifying Cremations

The October 30th NHRC order further reduced the Bhalla Commission’s ability to identify the remaining bodies by issuing notice to the prior claimants through newspapers on one day. Although the Bhalla Commission possessed the addresses of the 1,857 families who had submitted claims to the NHRC in 1999 and 2004, it failed to notify the families by mail. The inefficacy of the newspapers is demonstrated by the fact that merely 219 individuals responded to the notice, of which only 70 were found admissible by the Bhalla Commission. Moreover, as these 1,857 claims were already on file with the NHRC, these claims should have been automatically reviewed by the Bhalla Commission.

Cases that were previously identified have now been labeled unidentified, further demonstrating the defects in both the NHRC’s and Bhalla Commission’s abilities to systematically identify the victims. Out of the 88 claims that were filed in response to the NHRC’s first public notice in 1999, the Punjab Police had agreed to award compensation to 18 families with no admission of liability or guilt. All 18 families rejected the compensation in 2000. Because these families responded to the NHRC’s first public notice and qualified for compensation, they should be included in the list of identified cremations. However, some of their cases correlate with the cases in the unidentified list, based on date of cremation, place of cremation, and police station.

The limitation placed on the Bhalla Commission, to only reviewing those claims submitted in response to the prior NHRC notices, prevents families from identifying new cases in the unidentified cremations list. Even if a family knows that their next of kin was cremated in Amritsar and may be among the remaining 814 unidentified bodies, they are precluded from submitting a claim because they did not respond to the 1999 and 2004 notices. This excludes the case of Darshan Kaur, for example, whose son Hardeep Singh was abducted, killed, and cremated by the Punjab police in Amritsar district in 1991.

Key issues highlight the need for Bhalla to adopt a rigorous methodology to establish the identities of victims, and act independently of the Punjab Police to resolve the identities. First, the NHRC’s own list of 1,245 identified cremations contains at least 115 decedents abducted from outside of Amritsar, but cremated in Amritsar. The Bhalla Commission, however, has refused to look at cases from outside of Amritsar district. Second, in response to the NHRC’s first public notice in 1999, the Punjab Police disputed 44 claims of cremations that may be among the unidentified bodies. These cases must be investigated independently of the Punjab Police.

CIIP’s Arguments

At the first hearing, CIIP argued for the need of a rigorous methodology to resolve the unidentified cremations, especially in light of the admission of the Punjab government that it forged over 300 cremations in order to conceal the identity of police collaborators. It would be necessary to ensure that the true identity of the cremation victim was established in order to prevent the families of individuals who had not been cremated from receiving compensation and ensure that the true victim’s family, who was cremated in lieu of the collaborator, received compensation. CIIP further stressed the need to explore additional sources of information from throughout Punjab, such as First Information Reports, post mortem reports, habeas corpus petitions, and news reports on abductions, disappearances and encounters in order to identify the remaining bodies. The NHRC had itself catalogued that many of the 1,245 identified cremations came from outside of Amritsar district.

At the second hearing on January 2nd, the CIIP again proposed through written submission and oral argument that the Commission adopt a methodology based on receiving claims from throughout Punjab, and police, hospital, and court records.

The Commission’s proceedings have also been covered by the Hindustan Times, among other publications. On December 31, 2006, Ram Narayan Kumar published an op-ed in the Tribune.

The National Human Rights Commission (NHRC) has ordered the Punjab Government to pay Rs 2.5 lakh in compensation to each of the the families of forty-five people killed under police custody from 1984 to 1994.

On May 15, counsel for the Punjab Government appeared before the NHRC and stated that forty-five people had been identified as falling within its November 2004 order.

In its first order (dated November 11, 2004), the commission had granted a compensation of Rs 2.5 lakh each to the next of kin of 109 persons who had admittedly died in police custody. The commission found Punjab accountable and responsible for the infringement of the right to life of the persons.

On March 8, the NHRC granted compensation to thirty-eight people; so far, twenty families of the deceased have been paid. The NHRC has so far awarded compensation to 194 people in the Punjab mass cremations case.

National Human Rights Commission (NHRC) Chairman AS Anand has announced that the Punjab government has identified 570 more victims of illegal cremation in the Punjab Mass Cremations case. The total number of identified people illegally cremated by the Punjab police is now 1,273.

824 bodies remain unidentified out of a total list of 2,097 victims. These victims draw from the original list submitted by the Central Bureau of Investigation, comprising police abductions leading to illegal cremations in three crematoria in Amrtisar district. Amritsar is one of 17 districts in Punjab.

In December 1996, the Supreme Court referred the matter of police abductions leading to disappearances and secret cremations in Punjab to the Commission, observing that the Central Bureau of Investigation’s (CBI) report disclosed “flagrant violations of human rights on a mass scale”. Read more about the Punjab mass cremations case proceeding before the Commission.

The National Human Rights Commission (NHRC) has ordered the Punjab government to pay Rs 2.5 lakh in compensation to each of 38 people whose relatives died in custody and were illegally creamted by the police. This NHRC order increases the toal number of people awarded compensation to 148; at least 2,097 people in Amritsar district alone were killed and illegally cremated by the police.

As with the November 2004 award, the NHRC announced this award with no admission of liability or inquiry into the facts, even though these cases have established police custody resulting in illegal cremations. By preventing a complete determination of wrongdoing and liability, and by failing to provide compensation based on a full understanding of the different abuses suffered by survivors, this order undermines the rule of law and protection of human rights by eliminating an inquiry into the range of abuses and the systems that allowed such abuses to occur.

A recent article in Outlook India highlights police impunity for grave human rights abuses. Former Director-General of Punjab Police KPS Gill has argued that the threat of terrorism justified extreme police measures; the article, however, points out that police policies that rewarded killings resulted in corruption and abuse.

In just Amritsar district of Punjab, 2097 civilians were killed by the Punjab police and secretly cremated. This was done ostensibly to wipe out terrorism. But many of those cremated and listed as disappeared were found after investigation to have had no links to terrorism. So was it done for personal vendetta, or for extorting money, as claimed by many relatives of the victims?

Even after these cases of illegal cremation were documented and the Supreme Court ordered the NHRC to adjudicate the mass crimes, impunity for the police continues.

The NHRC limited its investigation of illegal cremations to only Amritsar district, ignoring the 16 remaining districts in the state. NHRC received 3,500 claims of illegal cremation in Amritsar.

Action taken by NHRC was pitifully inadequate. Instead of investigating these secret cremations as murders the Commission focused on the narrow issue of whether the victims’ bodies were cremated according to police rules! In almost nine years NHRC did not hear testimony in a single case, nor held a single security official or agency responsible for human rights violations.

On November 1, Brad Adams, Executive Director of Human Rights Watch’s Asia Division, issued a letter to the National Human Rights Commission regarding its upcoming decision on the Punjab mass secret cremations case.

The letter urges the NHRC to order a full accounting of the systematic abuses that occurred in Punjab, determine liability after detailed investigations into the violations, and provide compensation for surviving family members based on a detailed understanding of the scope of violations suffered by each individual

In almost nine years, the Commission has not heard testimony in a single case, or held a single security official or agency responsible for human rights violations. Further, at hearings in recent months, the Commission has indicated its intention to dispense with investigations into the violations altogether, and only determine whether the cremations occurred according to police procedure. This is an odd decision for a human rights body.

Another puzzling fact is that the NHRC has investigated and resolved other cases of human rights violations in the past nine years that the mass cremations case has been proceeding.

The letter also urges the NHRC to clarify that the November 2004 order of compensation is interim. This order announced a 2.5 lakh compensation award to each of 109 families in whose cases police admitted custody of next of kin, without determining individual responsibility, providing other reparatory measures, or inquiring into the facts as directed by the Supreme Court. The NHRC has a responsibility under international human rights law to make an individual determination.
 
The letter also mentions the report by Physicians for Human Rights (PHR) and the Bellevue/NYU Program for Survivors of Torture (Bellevue) as demonstrating that the deprivation of life occurred as part of a pattern of human rights violations that included intentional abuse among family members of the “disappeared.” 

This report should compel the Commission to investigate the deprivation of the right to life of the victim, and the physical and psychological trauma inflicted upon surviving family members…In its upcoming order, we urge the Commission to admit and fully weigh all evidence available, including the PHR/Bellevue report.
 
To demonstrate its intention to fulfill the mandate of the Supreme Court, the Commission must act to redress the violations of the rights to life and liberty suffered by thousands of families in Punjab. Its failure to do so is contributing to impunity, sending the message that perpetrators of mass crimes are more powerful than the Supreme Court and National Human Rights Commission.

In May and June 2005, ENSAAF organized the Physicians for Human Rights and the Bellevue/NYU School of Medicine Program for Survivors of Torture to conduct a study of 127 families who survived the disappearance of a family member in Amritsar, Punjab. These cases draw from those pending before the National Human Rights Commission in the Punjab mass cremations matter. On October 24, 2005, PHR/Bellevue submitted their final report to the National Human Rights Commission.

The PHR/Bellevue assessment reveals a “pattern of intentional abuse by law enforcement officials among multiple family members,” demonstrating that the Commission needs to investigate and adjudicate the fundamental rights violations committed by Indian security forces, beyond the illegal cremation of the family member:

As a result of the death and illegal cremation of a close family member, most of the individuals interviewed demonstrated severe psychological disorders including depression and posttraumatic stress disorder, with nearly half of those interviewed continuing to describe these symptoms more than ten years after the traumas occurred….Many participants described permanent impairments and long-term disability related to the physical abuse inflicted by the authorities during the time period surrounding the death and cremation of their relative.

CIIP vs. State of Punjab has proceeded before the Commission for nearly nine years. The Commission, however, has not heard the testimony of a single survivor in the Punjab mass cremations matter; nor has it found a single security official or agency liable for the thousands of disappearances and extrajudicial executions leading to illegal cremations in Punjab. The Commission continues to flout international and domestic law by refusing to investigate the secret cremations, ignoring fundamental rights violations such as the unlawful deprivation of life and torture of family members. The PHR/Bellevue report should compel the Commission to investigate the physical and psychological trauma suffered by victim families, in addition to the murder and illegal cremation of their relative.

Read an article on the Oct. 18 hearing here.

The National Human Rights Commission (NHRC) has held two hearings on the Punjab illegal cremations matter since its December 2004 hearing. The two hearings were held on May 5 and July 5. (Read the full article in the June Dispatch.)

During the May hearing, Justice Anand, Chairperson of the Commission, indicated that the July 5 hearing would conclude the case, despite the Commission’s failure to address thousands of claims of illegal cremations. The petitioners, The Committee for Information and Initiative in Punjab (CIIP), pointed to many unresolved issues that remain. These include: adjudicating the claims filed before the Commission after its public notice published in 2004; fully identifying over 1500 people on the partially identified and unidentified lists; investigating all claims to determine liability; and determining final compensation based on the full spectrum of rights violations suffered by the deceased victims and their surviving family members.

Further, Justice Anand stated that he saw no need to investigate each claim, even though the Punjab police and the petitioners have given drastically conflicting accounts on the fate and status of the victims.

The Commission did not conclude the case at the July 5 hearing, but it did repeat its intent to limit its investigation to the legality of the cremations, ignoring the question of whether the police had wrongfully killed those cremated.

The Commission is trying to reduce the case to determining whether the cremation itself was conducted according to police rules, ignoring the foundational question of whether security forces violated the individual’s right to life.

In the eight years that the case has been before the Commission, the Commission has not heard the testimony of a single survivor. It has not found a single security officer responsible for the thousands of disappearances and extrajudicial execution leading to the illegal cremations. Instead, the Commission has repeatedly narrowed its scope, thus failing to fulfil its original mandate.

For example, despite having solicited claims from the public last year, the Commission has not adjudicated a single claim. The Commission has also twice tried to offer a small fraction of the survivors an arbitrary award of compensation, without any relation to their loss or harms suffered, or any admission of liability or wrongdoing for violations of the rights to life and liberty.

Despite its record of ineffectivenss, the Commission has the full power to remedy the human rights violations of the illegal cremations matter, as it is acting in this case with all of the Supreme Court’s remedial powers. Moreover, this case has the potential to have a precedential effect on other cases of human rights violations in India.

Also featured in the June dispatch is the study organized by ENSAAF.

In late May and early June, ENSAAF organized a study by six health professionals from Physicians for Human Rights (PHR) and the Bellevue/NYU Program for Surviviors of Torture (Bellevue). The study assessed the physical and psychological impact of human rights violations on families of victims of disappearances in Punjab. Over ten days, the team interviewed 130 families in Amritsar who are part of the Punjab illegal cremations case  brfore the NHRC.

ENSAAF solicited the study by PHR and Bellevue in 2004, and consulted with the research team in the US for one year prior to the study by providing guidance and background on the research feasability and leagal proceedings. ENSAAF also hired three fieldworkers in Punjab to organize the logistics of the study. These workers visited each of the families randomly selected from the sample, explained the purpose of the study to them, and solicited their participation.

PHR and Bellevue’s report is expected to be completed by the end of the summer, and will be submitted to the NHRC.